Local 18, Int'l Union of Operating Engineers

National Labor Relations Board - Board Decisions

Nov 4, 1963

144 N.L.R.B. 1365 (N.L.R.B. 1963)

LOCAL 18, INT'L UNION OF OPERATING ENGINEERS 1365
force or require Edgar H. Hughes Company, Inc., to assign the work
of concrete rubbing to cement masons rather than to laborers.
DETERMINATION OF DISPUTE
Upon the basis of the foregoing findings and the entire record in
this proceeding, the Board makes the following determination of
dispute pursuant to Section 10 (k) of the Act :
1. Employees engaged as laborers, currently represented by Local
795, International Hod Carriers' Building and Common Laborers'
Union of America, AFL-CIO, are entitled to perform the work of
concrete rubbing for Edgar H. Hughes Company, Inc., on bridges
and approaches in connection with Interstate Highway No. 65 in
Clark County, Indiana.
2. Cement Masons Local 694, Operative Plasterers' and Cement
Masons' International Association of the United States and Canada,
AFL-CIO, and its agent, Ray E. Edwards, are not entitled by means
proscribed by Section 8(b) (4) (i) and (ii) (D), to force or require
Edgar H. Hughes Company, Inc., to assign the aforementioned work
of concrete rubbing to employees engaged as cement masons, who
are currently represented by Cement Masons Local 694, Operative
Plasterers' and Cement Masons' International Association of the
United States and Canada, AFL-CIO.
3. Within 10 days from the date of this Decision and Determina-
tion of Dispute, Cement Masons Local 694, Operative Plasterers' and
Cement Masons' International Association of the United States and
Canada, AFL-CIO, and its agent, Ray E. Edwards, shall notify the
Regional Director for the Ninth Region in writing, whether or not
they will refrain from forcing or requiring Edgar H. Hughes Com-
pany, Inc., by means proscribed by Section 8(b) (4) (i) and (ii) (D),
to assign the work in dispute to cement masons rather than laborers.
Local Union No. 18 , International Union of Operating Engineers,
AFL-CIO , and its Agent, George E. Miller [Ohio Pipe Line
Construction Company ] and Richard A. Long
Local Union No. 18, International Union of Operating Engineers,
AFL-CIO , and its Agent , George E. Miller [Ohio Pipe Line
Construction Company ] and Curtis Pipes and Vernon Mann.
Cases Nos. 9-CB-1062, 9-6'B-1075-1, and 9-CB-1075-2. Novem-
ber 4, 1963
DECISION AND ORDER
On June 6, 1963, Trial Examiner Eugene E. Dixon issued his Inter-
mediate Report in the above-entitled proceeding, finding that the
144 NLRB No. 127.
1366 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondents had engaged in and were engaging in certain unfair labor
practices and recommending that they cease and desist therefrom and
take certain affirmative action, as set forth in the attached Interme-
diate Report. He also found that the Respondents had not engaged
in certain other alleged unfair labor practices and recommended dis-
missal of the complaint as to such allegations. Thereafter, the General
Counsel and the Respondents filed exceptions to the Intermediate
Report and supporting briefs.
Pursuant to the provisions of Section 3(b) of the Act , the Board
has delegated its powers in connection with these cases to a three-
member panel [Chairman McCulloch and Members Leedom and
Brown].
The Board has reviewed the rulings made by the Trial Examiner at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Interme-
diate Report, the exceptions and briefs, and the entire record in these
cases, and hereby adopts the findings, conclusions , and recommenda-
tions of the Trial Examiner insofar as they are consistent with this
Decision and Order.
We agree with 'the Trial Examiner that the Respondents did not
violate the Act with respect to Pipes and Mann. We disagree, how-
ever, with his finding that the respondents violated the Act as to
Long.
The relevant facts in regard to Long are that the Ohio Pipe Line
Construction Company, engaged in the building and construction in-
dustry as a pipeline contractor, is a party to a national collective-
bargaining agreement with the International Union of Operating
Engineers , AFL-CIO , covering pipeline construction in several
States, including Ohio, and is also a party to a collective-bargaining
agreement with Respondent Local Union No. 18, International Union
of Operating Engineers, AFL-CIO, herein referred to as Local 18,
covering the State of Ohio. The national agreement, inter alia, pro-
vides that in any area of operations where a local union has established
a nondiscriminatory exclusive referral system the Employer agrees
to utilize such referral system of hiring employees ; the agreement with
Local 18 provides, in part, for a nondiscriminatory referral system to
be operated by Local 18. Under the terms of the latter agreement
the Employer must, in the first instance, request Local 18 for all
employees needed, with the exception of certain regular key employ-
ees, and applicants for employment are required to register at the
Local 18 office or hiring hall where each applicant must complete a
registration card listing the type of job he is seeking. Registration
cards of applicants are chronologically filed and maintained by Local
18. The cards of registrants who obtain regular employment for 12
consecutive days, who do not reregister by mail, in person, by 'tele-
LOCAL 18, INT'L UNION OF OPERATING ENGINEERS 1367
phone, or by telegram within 30 days, or who do not notify Local 18
within 24 hours after becoming employed, are removed by Local 18
from the active referral list.
Long, a union member, registered on December 18, 1961, stating that
he was a mechanic and welder, and was then working for an equip-
ment dealer in Dayton. Long testified 'at the hearing that he re-
registered every month and that on August 11, 1962, when he paid
his dues, he spoke to Young, the union representative then in charge
of registrations, requesting that he be reregistered, and was told that
such notation would be made on his card. Long further testified that
when he returned on August 13 to recheck whether he had been re-
registered, Young assured him that he had. However, the registration
card introduced in evidence shows no reregistration on August 11.
Rather, the most recent registration appeared as having been made on
June 19. On August 20, the Employer notified Local 18 that three
mechanics were needed for pipeline construction between Todhunter
Station and Newark, Ohio. Between August 27 and September 4,
Respondent Miller referred for these jobs three applicants who had
registered as mechanics between August 19 and August 30. Upon
learning that he had not been referred, Long spoke to Miller at 'the
union office on August 31. Miller said that Long was not referred
because his card had been pulled from the active list and suggested
that Long file a new registration, which Long did. Thereafter, Long
was referred to other jobs which he did not accept.
Based on the foregoing evidence, the Trial Examiner concluded
that, as a matter of law, Long must be considered as having reregis-
tered with the Respondent. Accordingly, he found that the subse-
quent failure to refer Long for employment constituted "unfair or
irrelevant or invidious treatment" of an employee by his bargaining
agent arising out of the Union's referral practices which amounted to
a denial of a legal right and a violation of Section 8(b) (1) (A) and
(2) of the Act.' With this conclusion we cannot agree.
It is apparent that if the failure to reregister Long was not in
itself discriminatorily motivated nor prompted by "unfair or irrelev-
ant or invidious" reasons, the failure to refer Long because he was
not then on a referral list could not be so considered. Here there is
no evidence that the Respondent denied reregistration to Long be-
cause of considerations of union activities or membership, and indeed
the Trial Examiner found none. Nor is there any finding that Long
was denied reregistration for reasons which can be considered as
"unfair or irrelevant or invidious." At best, the evidence adduced
by the General Counsel shows that the Respondent's agent, Young,
believed that Long's request to be reregistered had been taken care of.
The Trial Examiner himself could not determine whether the failure
1 See Miranda Fuel Company , Inc., 140 NLRB 181.
1368 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was deliberate or "Freudian," that is, if we correctly understand the
Trial Examiner's allusion, that it was prompted by an unconscious
desire not to reregister Long. In the present case Long admitted
that when he first requested Young to register him, Young responded
"I sure will," but that Young was preoccupied at the time. On
further inquiry 2 days later as to whether Young had reregistered
him, Young replied "[I] sure did." Such conduct cannot be taken as
an arrogation by Union Representative Young unto himself of an
authority not granted by the contract and indeed "against the con-
tract" so as to justify the inference drawn by the Trial Examiner.2
Mere forgetfulness or inadvertent error is not the type of conduct
that the principles of Miranda were intended to reach. And there is
no convincing evidence that the Respondent's agents removed Long's
card from the referral files for any reason other than an honest belief
that Long had in fact failed to reregister. Indeed, it is clear that
the Respondent did not oppose Long's use of its hiring hall. Thus,
after the incident in question, Long registered again in accordance
with the Respondent's instructions and was thereafter referred to as
number of jobs, which, it appears, he declined to accept. Clearly,
in such circumstances, there is no basis for finding that the Respond-
ent violated Section 8(b) (1) (A) and (2) of the Act.3 Accordingly,
we shall dismiss the complaint.
[The Board dismissed the complaint.]
CHAIRMAN MCCULLOCH, concurring:
I agree with the result. Unlike my colleagues, however, I rely
basically on the reasons set out in the dissenting opinion in Miranda
Fuel Company, Inc., supra, in finding that the Respondent did not
violate Section 8 (b) (1) (A) and (2) in failing to refer Long to a job.
2 Miranda Fuel Company, Inc , supra.
3 Member Brown agrees with this conclusion for the additional reason that the matter
involved herein was precisely one which should have been handled through the contractual
grievance and arbitration procedures Under the agreement , any matter dealing with the
Union's alleged breach of a contractual duty to refer should have been submitted as a
grievance to a board of review and arbitration . This Long failed to do.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
This proceeding, brought under Section 10(b) of the National Labor Relations
Act as amended ( 61 Stat . 136), herein called the Act, was heard before Trial
Examiner Eugene E. Dixon at Dayton , Ohio, on February 26, and March 14 and 15,
1963, pursuant to due notice with all parties represented by counsel . The complaint
in Cases Nos . 9-CB-1075-1 and 9-CB-1075-2, was issued on December 7, 1962,
based upon charges served on November 7 and 20, 1962. The complaint in Case
No. 9-CB-1062 was issued on November 23, 1962, based upon charges served on
September 20, 1962. The complaints , issued by the Regional Director for the
Ninth Region on behalf of the General Counsel of the National Labor Relations
Board (herein called the General Counsel and the Board ) alleged that Respondents
had engaged in unfair labor practices proscribed by Section 8 (b) (1) (A ) and (2) of
LOCAL 18, INT'L UNION OF OPERATING ENGINEERS 1369
the Act. On December 19, 1962, the Regional Director issued an order consolidat-
ing the two complaints for hearing.
The substance of the charges against Respondents was that they failed to refer the
Charging Party Long for employment but referred instead applicants with less
seniority on the referral list; that they caused the discharge of the Charging Parties
Pipes and Mann because they had not been "referred or cleared" by Respondents
and because of "personal malice and personal dislike toward" them.
In its duly filed answers Respondents denied the commission of any unfair labor
practices.
Upon the entire record and from my observation of the witnesses, I make the
following:
FINDINGS OF FACT
1. THE EMPLOYER'S BUSINESS
Ohio Pipe Line Construction Company is an Ohio corporation with its principal
office and place of business in Newark, Ohio, where it is engaged in the building and
construction industry as a pipeline contractor. During the 12 months preceding the
hearing, which is a representative period, the Employer had a direct inflow of
goods and materials, in interstate commerce, valued in excess of $50,000 which were
shipped to it directly from points outside the State of Ohio. I find that at all times
material herein the Ohio Pipe Line Construction Company has been an employer as
defined in Section 2(2) of the Act and has been engaged in commerce and in opera-
tions affecting commerce as defined in Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATIONS
International Union of Operating Engineers , AFL-CIO and its local Union No.
18 are labor organizations within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
The Respondent Union is a statewide local composed of several districts of which
District 4 covers the Dayton, Ohio, area. George Miller is the head business repre-
sentative for that district. He is aided in his duties by another district representa-
tive, David Young. Both apparently share in the administration of the district's
functions. The employer in this case, Ohio Pipe Line Construction Company (here-
inafter referred to as the Employer or the Company), operates under a local
collective-bargaining agreement with Respondent Union. The Company also, as a
member of the Pipe Line Contractors Association, operates under a national agree-
ment entered into between the Association and the International Union. As would
be expected the national agreement is concerned solely with pipeline construction
whereas the local agreement is more usually concerned with road construction and
building construction.' The national agreement in part provides as follows:
Agreement made by and between the PIPE LINE CONTRACTORS ASSO-
CIATION, its contractor members and such other Main Line Pipeline Con-
tractors who execute an acceptance of the terms and provisions of this agree-
ment, hereinafter referred to as the "Employer" and the INTERNATIONAL
UNION OF OPERATING ENGINEERS hereinafter referred to as the
"Union... .. .
(D) Employer and representatives of the International Union and the local
union or local unions involved shall hold a pre-job conference so that the start
and continuation of the work may progress without interruption, and Union's
representatives at such conferences shall be authorized by Union to represent
Union for the entire area covered by the job. It shall be the purpose of the
pre-job conference to agree upon such matters as the length of the work week,
the number of men to be employed, the applicable wage rates in accordance
with the contract, and any other matters not including any interpretation of the
clauses of this agreement, it being agreed that any interpretation of the agree-
ment should be made between the principal parties hereto, so that proper appli-
cation thereof may be made on the jobs.
* * * * * * *
(F) It is recognized that because of the special nature of pipeline construc-
tion work, it is necessary that Employer have available experienced and qualified
3 At all times material, the Company was engaged in the construction of a pipeline from
Todhunter to Newark, Ohio.
1370 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees and that both parties shall cooperate to the end that all of the
employees hired hereunder shall be capable of performing pipeline construction
work in an experienced manner.
(G) Employer shall have the right to employ and bring into the job men
who are regular employees in the Employer's work, and shall have the right
to keep such men in his employ on all work throughout the territory covered
by this agreement.
(H) The words "Regular Employees" shall mean those who are regularly
and customarily employed by Employer whenever he has work or who have been
employed by him sometime during the past 9 months, and who, because of their
special knowledge and experience in pipeline construction work, are considered
"key men." It is anticipated that the number of "regular employees" shall not be
more than a majority of the total number required, but there shall be no
limitation or classifications of such "Regular Employees" with the understand-
ing that these classifications will be distributed as evenly as possible.
The local agreement provides for a referral system to be operated by the Union.
As for the pertinent details of the operation of the referral system, the following
provisions appear in the agreement:
Article III.-Referral System
The Union shall maintain registers of all applicants for referral. Applicants
shall not be permitted to register at more than one office of the Union at any
one time. All applicants will be registered in order of application. Registra-
tions and reregistration will be accepted during customary business hours.
Applicants shall be classified in priority groups in accordance with the following
criterion ... .
C. Employer shall have the right to reject any applicant referred for employ-
ment and shall immediately notify the Union of such rejection. Any applicant
rejected shall be restored to his place on the list for his group.
D. When an applicant is actually employed, he shall notify the Union's office
at which he is registered within twenty-four (24) hours. Failure to do so is
an imposition upon those registered and not employed, and, therefore, such
applicant will be barred from reregistering unless and until he has made appli-
cation to the Board of Review and Arbitration, provided for in Paragraph 21
of this Agreement, and shows good cause for his failure to give such notice.
E. When an applicant becomes regularly employed for a period of not less
than twelve (12) working days, his name shall be moved from the register.
Such applicant must reregister when he is again available for employment. If
an applicant is employed for less than twelve (12) working days, he shall be
restored to his previous position on the register when such employment termi-
nates.
F. Applicants must notify the Union office in which they are registered by
telephone or letter or telegram, or in person, of their continued availability for
employment, within thirty (30) days after the date of last registration or
reregistration, in order to maintain their places on the registers.
* * * * * * *
I. Employers may hire through this referral policy by name, former employ-
ees who have been employed within the State of Ohio, . . . during the past
twelve (12) months and who registered and available for work, notwithstand-
ing their place on the register.
J. In the event that the referral list is exhausted and the Union is unable to
refer applicants who have not been rejected by an Employer within twenty-four
(24) hours after receiving the Employer's request (Saturdays, Sundays, and
holidays excepted), the Employer shall be free to hire in the open market
until the Union notifies the Employer that it has registrants available for
employment who have not been rejected by the Employer.
K. When an Employer states requirements for special skills or abilities in
his request for employee applicants. the Union shall refer the first applicant
on the register possessing such skills or abilities, regardless of the place or
classification of such applicant on the register.
Employers shall give first opportunity to persons registered for employment,
as provided herein, by calling or notifying the Union at any of its offices in
the territory where the work is to be performed.
The referral system is operated on the basis of cards filed by the applicants.
These cards, besides listing pertinent data about the applicants including the posi-
LOCAL 18, INT'L UNION OF OPERATING ENGINEERS 1371
tions for which they are qualified, provide six numbered blank spaces under the
heading, "Dates called to register" upon which their reregistrations are recorded.
When these blanks have all been filled in they are erased either in total or one by
one by the union office so as to make room for further registration notations. This
practice avoids the necessity of using a new card each time a man reregisters.
There is no contention of any illegality in any of the agreements or the referral
system. Their significance will appear in relation to the facts regarding the failure
to refer Richard Long to the Ohio Pipe Line Construction Company, and the dis-
charge of Curtis Pipes and Vernon Mann by that Company. With these agree-
ments in mind let us turn first to the matter involving
Richard Long
The facts regarding Long's situation are relatively simple. At all times mate-
rial, he was a member of Respondent Union in good standing. According to his
testimony, when he paid his dues on August 11, 1962, at the union hall, he asked
Union Representative Young to reregister him on the referral list? Young said,
"I sure will." Because Young had been quite busy when this occurred to double
check Long went back on August 13 and asked Young if he had registered for him.
Young said, "He sure did."
As appears from the above-quoted provisions of the referral agreement, registra-
tion, or reregistration can be accomplished by a request through the mail, over the
telephone, or in person at the union hall. In all instances, the request is simply
made to Miller, Young, or Respondent's stenographer that the applicant be registered
and anyone of the three will make the necessary notation on the applicant's card.
Normally the person registering never sees his card.
Young testified that in mid-August he had a conversation with Long in which he
informed Long that his card had been "pulled." At that time Long insisted that
he had registered and asked that his card be returned to the active referral list.
Young refused and walked away. There was no denial in Young's testimony that
Long had asked him at or about the time he paid his dues to reregister him .3
It is admitted by Respondents that as of August 27, 1962, Long would have been
on the top of the list for referral as a mechanic if he had been reregistered as of
August 11 or 13. As of August 27, of course, Long's card had been "pulled" and
was no longer in the active file. On that date, the Union referred Roland Groth
to Ohio Pipe Line as a mechanic.
The General Counsel's contention apparently is that Long had been registered
on August 11 and that subsequently his registration had been erased because he
was working for a nonunion contractor.4 In an attempt to prove this there was
considerable cross-examination of Miller and Young. Whether or not Long's reregis-
tration was ever noted on his card on August 11 or 13, and subsequently erased
is unnecessary for me to decide. Having credited Long's testimony that he had
indicated on either August 11 or 13 or both dates to the Union's officials that he
wished to be reregistered, I find that such communication was sufficient under the
general practice to amount to a de lure registration on his part. Accordingly, any
failure on the part of the Union to make the necessary notation on his card,
2 It was his practice to register each month at the same time that he paid his union dues.
3 The only testimony regarding this matter was as follows:
Q. Isn't it true that he came in and registered on August 11 ? Don't your records
show that?
A. No, sir
Whether or not this could be considered a denial of Long 's testimony as to what transpired
on the 11th , it is clear that it does not encompass what he said took place on August 13.
I credit Long's testimony.
'The undenied and credited evidence shows that from about the first of the year until
the time of the hearing, Long was indeed working for a nonunion employer which services
equipment of a kind not operated by members of Respondent Union. Respondents insisted
throughout the hearing ( somewhat inconsistently at times ) that there was never any
definite information on the part of the Union that Lon g was working ; that Long had
on at least one occasion indicated that he had an "odd job" (which was a common and
accepted practice among the registrants) ; that even though there had been "rumors" that
Long was working, no action ( such as removing him from the referral roster ) would ever
be taken on the basis of rumors ; and finally, that even if it had definite information that
Long was working for a nonunion contractor , the Union could take no action against him
for that reason because it had no collective -bargaining relationship with that contractor.
1372 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
whether deliberate or "Freudian ," 5 makes it liable for the consequences of its
omission in the absence of any other bona fide defense.
Respondents attempt to raise such a defense by claiming that the Company had
indicated that it did not want Long referred to it. In this connection Miller testified
as follows: About August 20, he received a telephone call from Equipment Super-
intendent R. B. Rhodes asking for the names of some available mechanics. Miller
named four including Long. Rhodes said he knew Long personally and "did not
feel he was a qualified pipe line mechanic," and "would rather [the union] didn't
send him." Young corroborated Miller, testifying that he listened in on the conversa-
tion through an extension.
Rhodes, called as a witness by the General Counsel, flatly contradicted Miller
and Young. He denied that Long's name came up at all in the conversation. He
testified that later, "pretty well along on the job" Miller had indicated that he
thought Long "might not be a good pipe line mechanic" and had asked him if Long
"would have been the right man for the job if they had sent him out." Rhodes
replied that he could not say, that he did not know Long that well.6 I credit Rhodes.
Moreover, even if I were to credit Respondents' version, I still would have dif-
ficulty in finding that Long was not referred to the Ohio Pipe Line job because he
had been turned down by that Company. It seems to me that Rhodes' alleged
comments about Long in the context of three other names can hardly be interpreted
as much more than an indication of an order of preference. In addition, that the
Union was so responsive to an employer's wishes in such matters (as testified to by
Miller) 7 is refuted by the fact that on October 19, 1962, Long was offered a referral
to an employer, one Creager, as a bulldozer operator when Creager had actually
rejected Long for just such a position the previous July.
I believe that the foregoing evidence is a clear-cut example of the "unfair or
irrelevant or invidious treatment" of an employee by his bargaining agent which was
proscribed by the Board in Miranda Fuel Company,-Inc., 140 NLRB 181, and
that that case is controlling here .8 Accordingly, having found that Long was not
properly referred to Ohio Pipe Line Construction Company on August 27, 1962,
through Respondents' referral procedures, I find that Respondents' failure in that
respect violated Section 8 (b) (1) (A) and ( 2) of the Act. Cf. International Brother-
hood of Electrical Workers, Local Union 340, AFL-CIO (Walsh Construction Com-
pany), 131 NLRB 260.
The Prejob Conference
A few days prior to August 31, the Company called Local 18 to arrange a prejob
conference. August 31 was the date the conference took place. General Superin-
5 There is evidence that Respondents were unhappy about what Miller described as the
practice of Long and one or two others, to refuse referrals unless the jobs involved were
of the choicest . As appears from Miller 's testimony , prior to the time Long 's card was
pulled there was no limit on the number of refusals one could exercise and still remain at
the top of the referral list Subsequently a rule was adopted relegating a man to the
bottom of the list after two refusals In any event , while Miller testified regarding numer-
ous referrals to Long , his card belies this claim . And in the last analysis , Miller admitted
that he may have told Long that one of the reasons for having pulled his card was his
working for a nonunion contractor
6 On cross -examination when asked if he had not told Respondents ' counsel and Miller
(at the time they were preparing Respondents' case) that he would not have had Long "as
a mechanic under any circumstances " he promptly and forcefully replied, "No , sir. You
and George Miller tried to get me to say that that day."
7 However, Young testified inconsistently that it was the practice of the Union to insist
that a man be given the right by an employer to prove his qualifications.
8 Notwithstanding Miller's admission that at the time he talked to Long about his card
having been pulled he may have mentioned Long's working for a "nonunion contractor,"
I believe (contrary to the General Counsel's contention) that the preponderance of the
evidence shows that Respondents' concern about Long was his alleged repeated failure to
accept referrals and retaining his position of priority on the referral list. As pointed out,
this was not prohibited by any union rule or by the terms of the referral system at the
time . Thus, the evidence shows no action by Long which would have afforded the Union
the right to refuse to reregister him as he requested in August . I doubt that the re-
quirement to report employment to the Union within 24 hours applies to work outside the
functional jurisdiction of the Union . As acknowledged, this type of interim employment
is commonly accepted as being in the category of "odd jobs " and not reportable In any
event, at the time Long 's card was pulled, Respondents disavow any knowledge of his
employment and further deny that they would have taken any punitive action if it had
been known.
LOCAL 18, INT'L UNION OF OPERATING ENGINEERS 1373
tendent Peters testified that little was said at the prejob conference on that date.
When the union representatives were informed that Elmer Ewing was being brought
in as master mechanic 9 "that set off the fireworks." Miller "proceeded to curse
[them] out and got in his car and drove off." According to Peters, the primary
reason for the prejob conference was to discuss the men they "were going to bring
on the job under the International Pipe Line agreement."
Young testified that he and Miller told Rhodes that they "had no beef" with
Ewing's appointment as master mechanic and that they asked Rhodes "what equip-
ment he would have on the job." Rhodes told them "he did not know." As Young
described it, "they didn't know what they were going to have on the job, they didn't
know when they were going to start, they didn't know nothing " Miller admitted
walking out of the conference but denied cursing.10 Apparently there was no further
contact between the Company and union officials until September 15 a couple of weeks
after the job had gotten underway.
Pipes and Mann
Curtis Pipes started working for the Company on September 10 and Vernon
Mann started on September 3. Neither man was hired through the Union's referral
system but were hired "off the bank." 11 Pipes ran a ditching machine and Mann
operated a back hoe machine. Neither belonged to Respondent Local but were mem-
bers of out-of-State locals of the Operating Engineers Union. Both were experienced
pipeline operators and had worked for many of the members of the Pipeline Con-
tractors Association,12 but had never before worked for the Ohio Pipeline Construc-
tion Company. They both testified without contradiction that their custom and
practice in starting on a job for a member of the Contractors' Association was to
satisfy the union steward (usually the master mechanic) as to their qualifications
and their paid up status in the Union and tell him for whom they had worked.13
This they did when they started working for the Ohio Pipeline Company, clearing
with Master Mechanic Ewing.
On September 15, Miller and Young came out to the job and complained to
Ewing that an oiler whom they had referred to the job had told them he had been
laid off because an operator had a friend he wanted to get on the job. Overhearing
this, Pipes spoke up and said that Miller's information was incorrect explaining that
he was the operator in question and "that he had run the oiler off because he wasn't
doing his job Young asked Pipes if he had a paid-up book and Pipes asked
Young if he had one. They exchanged books, Pipes' indicating his membership in a
Spokane, Washington, local. Miller thereupon spoke up saying. "There is no
from a Washington local going to come in here and run a Local 18
man off the job." 14 Apparently nothing more occurred at that time.
According to the undenied and credited testimony of Oscar Ralston, president of
Ohio Pipe Line Company, on September 20 Miller came out to the job and threatened
to close it down if the men did not clear through the Union.15 Ralston promised
to send the men to the offices that night to "do whatever was necessary to be done."
Pursuant to this exchange, the men reported to the union hall that evening.
Approximately 30 men were there, about half of them from Local 18. Miller told
9 This had previously been agreed upon between the Company and Local 18's president,
John Possehl, apparently without Miller's knowledge. Local 18 according to Miller, had
its own man for the position.
10 Young testified that no profanity was used "out of the ordinary that wouldn't happen
in any prejob (conference) or any group of Legionnaires." I credit Peters' version of the
meeting. Since the Company called the conference it seems to me that Young' s version is
patently incredible.
"Hiring "off the bank" Is a direct hire of the man without going through a referral
system or prior union action
' There is no evidence, however, they had worked for any of such employers within the
previous 9 months.
13 There is no showing , however, that the exercise of this past practice ever occurred in
an area or under locals where a nondiscriminatory referral system was in effect.
14 Miller's only denial of the foregoing was the use of profanity.
15 According to the testimony of Superintendent Peters, Miller told them that they
would have to get rid of the out-of-State boys or have the job closed down . He further
testified that Miller specifically referred to Pipes and Mann in this connection. This testi-
mony also is undenied . In view of Peters' further testimony that all the Respondents
were asking of the Company was compliance with the collective-bargaining agreement I am
inclined to view Ralston's testimony as the more accurate.
1374 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
them that anyone who worked in the area would have to go through the referral
system.ts Then he had them fill out registration cards (those who had filed none).
From the information supplied by the cards he informed the assemblage that he
could not clear operators on back hoes, bulldozers, and ditching machines because
he had men in his district qualified and registered to handle them. Side boom
operators he would clear because he had none available. He then informed those
who were eligible to go back on the job and those who were not. The latter group
was comprised of Pipes, Mann, and a bulldozer operator by the name of Reid.17
After the meeting Miller told Reid, "Reid, you seem like a pretty nice guy. I
will clear you on a side boom, if one is open. I will personally see that you get
,on it." On September 23 Reid went back to the job on a side boom machine.
According to Mann's testimony, he asked Miller on this occasion why he would
not clear him. Miller replied that it was because he had men that could run Mann's
machine. Mann asked, "Mr. Miller, how about the International Pipe Lines agree-
ment?" Miller answered, "I don't give a damn what the International Pipe Lines
agreement says, I am going to furnish all operators Furthermore, don't you say
another word, and if you are on any piece of equipment down there tomorrow, I
will come down there and bring a hundred men and close the whole job down."
Miller also told Mann that his book wasn't "worth a damn."
Mann also testified that he called Miller a couple of days later and wanted to come
in and talk to him. Miller told him to call back in 2 or 3 days. Mann tried to reach
Miller after that, but never was able to do so. Mann further testified that he told
Miller that he had moved his family to the area and wanted to go to work. Miller's
reply was "You are wasting my time. I wouldn't put you to work if the International
told me to . besides they are not going to tell me." There was no denial of the
foregoing by Miller. I credit Mann.
According to Ralston's testimony, late on the night of September 20 he got a call
from Miller saying he had cleared all but two of the operators for the job; that he
had replacements for those two and that the Company "would have to accept them."
Peters testified that operators of bulldozers, side booms, ditching machines, back
hoes, and coating machines "are definitely key men on the pipeline.18 They have to
work without foremen and must know what they are doing. He explained that if a
man on a back hoe machine digging by the side of a 24-inch gas line under 1,200-
pound pressure "hits it, that is the end of the operator, the machine and the pipeline."
In his testimony, Miller conceded that "there is a lot of difference in pipeline con-
struction and some other construction."
It was admitted by Respondent that Pipes had indicated on his registration card
the night of September 20 that he could operate trenching machines and side boom
machines. It was Miller's testimony that he had cleared the other out-of-State
operators because there were no side boom operators available in Respondent Local.
The evidence shows that a Local 18 member, George Tustison had registered as a
side boom operator on August 9 and September 4, 1962. Notwithstanding his
prior registration, Tustison was not referred to the job on September 20.
Contentions and Conclusions as to Pipes and Mann
The General Counsel contends that under the National Agreement, Pipes and
Mann were "key men"; and that as such the Respondents had no right to cause their
displacement under the terms of the referral system provided for in the local agree-
ment; and further, that in any event Respondents were motivated in their action by
malice or resentment against Pipes and Mann.
Respondents contend that the General Counsel's interpretation of the term "key
men" in the National Agreement is too broad and that the evidence does not estab-
lish that Pipes and Mann were indeed "key men" entitled to exemption from the
registration requirements of the referral system Respondents also contend that
all that this case involves is a "contractual dispute between the union and the
employer" and (as admitted in the testimony of Peters) "that all the Union asked
from the employer was compliance with the agreement "
10 Mann testified that Miller had said, "Now you Local 18 hands know that you are sup-
posed to clear through this hall." This testimony is also undenied although Miller did
deny that a number of Local 18 men were found to have been working on the job without
the benefit of referrals
17 Miller testified there were 15 or 20 out-of-State men at the meeting. He admitted
telling Pipes, Mann, and Reid that he could not refer them but denied clearing any of the
others He later testified that some of the out-of-State men were cleared.
18 Oilers and operators of tow cats , cleaning machines , and mechanical paint pots he did
not consider to be kev people.
LOCAL 18, INT'L UNION OF OPERATING ENGINEERS 1375
In my opinion the essence of the case involving Pipes and Mann is rooted in a
contract dispute between the Union and the Company. Assuming, then, that the
Union was wrong in the position it took regarding this dispute, would its position
,per se result in a violation of the Act? Or to put it another way, if indeed Pipes
and Mann were "key men" as contemplated in the National Agreement, would
Respondents' nondiscriminatory and good-faith insistence that Pipes and Mann
observe the requirements of the referral system be an unfair labor practice? I do
not believe so.19 It seems to me that on the surface the evidence shows just such
an ostensible purpose. The question then is whether or not there is anything in the
evidence substantial enough to permit an inference of a different purpose and illegal
motive on the part of Respondents regarding Pipes and Mann. I believe and find
that there is not.
The General Counsel has alleged that Pipes and Mann were forced out of their.
jobs because they belonged to out-of-State locals-and/or because of Respondents'
malice and resentment toward them. The evidence is uncontroverted that on the
night of September 20, Local 18 members were entitled under the referral system
to the jobs of Pipes, Mann, and Reid. The record also shows that those three were
the only ones out of perhaps a dozen and a half out-of-State men who were not
referred back to their jobs at that time. Thus it would seem that their being from
out-of-State locals could hardly have been the reason, real or pretext, for not
referring the three on that occasion.29
As for the possible motivation of malice or resentment against them in connection
with their referrals there are only two bits of evidence. These are (1) Miller's
statement to Pipes on September 15 that "There is no -
from a Washington Local going to come in here and run a Local 18 man off the job,"
and (2) Miller's threat to close down the job if the men did not clear through the
Union. The only specific resentment reflected in the foregoing is in the first state-
ment and that resentment is directed only toward Pipes.21 Having found that on its
face Respondents' conduct here was not illegal, I would be reluctant to infer an
illegal motive (particularly against Mann) on the basis of the foregoing incident.22
Accordingly, I conclude and find that in failing and refusing to refer Pipes and Mann
back to their jobs on September 20 Respondents have not committed unfair labor
practices.
IV. THE REMEDY
Having found that Respondents engaged in certain unfair labor practices, I will
recommend that they cease and desist therefrom and take certain affirmative action
to effectuate the policies of the Act. Thus, having found that Respondents, in viola-
tion of Section 8 (b) (1) (A) and 8 (b) (2) of the Act, have deprived Richard A. Long
of employment by Ohio Pipe Line Construction Company, I shall recommend that
Respondents notify said Richard A. Long and the Company in writing that Respond-
ents have no objection to his employment by the Company. I will also recommend
that Respondent Union make said Long whole for any loss of earnings suffered by
reason of the discrimination against him 23 Respondent Union's liability for back-
For this reason, I deem it immaterial whether Pipes and Mann were "key men" or not
That Reid was later referred to the job would also seem to be inconsistent with an
out-of-State motivation. He also was an out-of-State man.
91 There is no evidence of any feeling whatsoever by Respondents toward Mann prior to
the time that he was notified that he could not be referred back to the job because of the
prior claim of a Local 18 man to it. After that, of course, a heated discussion between
Mann and Miller took place. Miller's subsequent statements to Mann are subject to vari-
ous interpretations at least one of which can be that they merely reflected Miller's legal
and nondiscriminatory position regarding Mann's referral to the job That he was willing,
to back up this position by strike action does not necessarily render it illegal
^ The General Counsel apparently relies on Miller's statement to Reid that lie was "a
pretty nice guy" and Reid's referral to the job on September 23 to bolster his contentions
regarding Pipes and Mann There is no showing that Reid was not referred in accoid-
ance with the referral system. I am unable to translate Miller's pleasantry to Reid into
malice or resentment against Pipes and Mann. The General Counsel also apparently relics
on the failure of Respondents to refer its own member Tustison as a side boom operator
on September 20 (notwithstanding his eligibility by reason of his prior registration) as
further supporting his contentions regarding Pipes and Mann I fall to see any support
for the General Counsel in this connection, whatever implications it might carry as con-
cerns Tustison's relationship to Respondents
23 As Respondent Miller acted only as agent for the Respondent -Union, an order requir-
ing him personally to reimburse the discriminatees for losses suffered is not necessary to,
effectuate the policies of the Act. Myles lVorstell, et al , 114 NLRB 503, 514
1376 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pay shall terminate 5 days after it notifies said parties as aforesaid . Loss of earnings
shall be computed in the manner established by the Board in F. W . Woolworth Co.,
90 NLRB 289 . The backpay obligation of the Union shall include the payment of
interest , to be computed in the manner set forth in Isis Plumbing & Heating Co.,
Inc., 138 NLRB 716.
In view of the nature of the unfair labor practices committed, and of a previous
similar violation by these same Respondents , (Earl D . Creager, Inc., 141 NLRB
512) the commission by Respondents of similar and other unfair labor practices may
be anticipated . Accordingly I shall recommend that Respondents be ordered to
cease and desist from infringing in any manner on the rights of employees guaran-
teed in Section 7 of the Act.
By the basis of the foregoing findings of fact and upon the entire record in the
case , I make the following:
CONCLUSIONS OF LAW
1. By causing and attempting to cause Ohio Pipe Line Construction Company to
discriminate against its employee Richard A . Long, Respondent Union and its agent,
George E . Miller , engaged in unfair labor practices within the meaning of Section
8(b)(2) of the Act.
2. By the foregoing conduct Respondents also restrained and coerced employees in
the exercise of the rights guaranteed in Section 7 of the Act and thereby committed
unfair labor practices within the meaning of Section 8(b) (1) (A ) of the Act.
3. The aforesaid unfair labor practices affect commerce within the meaning of
Section 2 ( 6) and ( 7) of the Act.
4. Respondents did not cause or attempt to cause discrimination against Curtis
Pipes and Vernon Mann within the meaning of Section 8(a)(3) of the Act.
[Recommended Order omitted from publication.]
The Lord Baltimore Press, Inc.' and Local 90, Amalgamated
Lithographers of America, Independent , Petitioner. Case No.
18-RC-5534. November 4, 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 Alan Bruce, Hearing Officer.
The Hearing Officer's rulings made at the hearing are free from prej-
udicial error and are hereby affirmed.
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 [Members Leedom, Fanning, and
Brown].
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of
the Act.
2. The labor organizations 2 involved claim to represent certain
employees of the Employer.
1 The name of the Employer appears as amended at the hearing.
2 Clinton Printing Specialties and Paper Products Union, Local 711, AFL-CIO (sub
ordinate to the International Printing Pressmen and Assistants ' Union of North America,
AFL-CIO), was permitted to intervene at the hearing on the basis of its contractual
interest In the employees herein.
144 NLRB No. 134.