Local 18, Operating Engineers

National Labor Relations Board - Board Decisions

Jun 29, 1973

204 N.L.R.B. 681 (N.L.R.B. 1973)

LOCAL 18, OPERATING ENGINEERS 681
International Union of Operating Engineers , Local 18,
AFL-CIO and William F. Murphy. Case 8-
CB-1896
June 29, 1973
DECISION AND ORDER
By CHAIRMAN MILLER AND MEMBERS FANNING AND
PENELLO
On February 28, 1973, Administrative Law Judge
Gordon J. Myatt issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
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 was 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 as modified herein.
We agree with the Administrative Law Judge's ulti-
mate conclusion that Respondent violated Section
8(b)(1) and 8(b)(2) of the Act. However, we do so for
somewhat different reasons. The Administrative Law
Judge's decision rests on the rationale that a violation
of Section 8(b)(2) occurs whenever a union interferes
with an employee's employment status for reasons
other than the failure to pay dues and initiation fees
or other forms of service fees uniformly required for
the use of a hiring hall. This per se approach derives
from a misconception of the law and is clearly at odds
with Board precedent.2
When a union prevents an employee from being
hired or causes an employee's discharge, it has dem-
onstrated its influence over the employee and its pow-
er to affect his livelihood in so dramatic a way that we
will infer-or, if you please, adopt a presumption that-
the effect of its action is to encourage union member-
ship on the part of all employees who have perceived
that exercise of power.3 But the inference may be
i Respondent's request for oral argument is hereby denied . In our view, the
record, exceptions , and brief adequately present the positions of the parties.
The General Counsel filed an exception to the Administrative Law Judge's
inadvertent failure to provide for backpay in his recommended Order. This
issue is now moot because the Administrative Law Judge issued a correction
to his recommended Order which provides for backpay as requested by the
General Counsel.
2 See, for example , Millwrights' Local Union 1102, United Brotherhood of
Carpenters and Joiners of America, AFL-CIO (Planet Corporation), 144
NLRB 798; Houston Typographical Union No. 87 (Houston Chronicle Pub-
lishing Company), 145 NLRB 1657.
3 Radio Officers' Union [A H. Bull Steamship Co.] v. N L R B, 347 U.S.
17 (1954).
overcome, or the presumption rebutted, not only
when the interference with employment was pursuant
to a valid union-security clause, but also in instances
where the facts show that the union action was neces-
sary to the effective performance of its function of
representing its constituency.
Thus the Supreme Court has sanctioned union con-
trol over access to employment through hiring hall
agreements ,4 even though recognizing that "the very
existence of a hiring hall encourages union member-
ship." And this Board has found legitimate a union's
action in causing the layoff of an employee who insist-
ed on working without receiving a subsistence allow-
ance called for by the collective-bargaining
agreements In such cases, the union's actions, while
incidentally encouraging union membership, were
nevertheless essential to its effective representation of
employees.
And in Philadelphia Typographical Union No. 2 (Tri-
angle Publications), 189 NLRB 829, we dismissed a
complaint when the union's interference with a
member's employment was necessary to deter feloni-
ous and egregious conduct which could seriously
threaten the union's very financial survival-the of-
fending employee there having embezzled a very sub-
stantial amount of union funds.
Respondent in this case sought, and was denied by
a ruling of the Administrative Law Judge, an opportu-
nity to establish that its purpose in denying Murphy
his normal seniority on the referral list was not unlaw-
ful by proving that he had engaged in offensive con-
duct at the hiring hall and had also engaged in
conduct disruptive of an internal union election. We
must therefore decide whether the rejection of this
testimony and the failure of the Administrative Law
Judge to consider such evidence was prejudicial to
Respondent. In so deciding, we must determine
whether such proof would have been sufficient to ov-
ercome the inference-or rebut the presumption-that
Respondent's interference with this employee's em-
ployment operated unlawfully to discourage union
membership. Under applicable precedent, that, in
turn, requires us to make a judgment as to whether the
Union's actions here were necessary to the effective
performance of its function in representing employ-
ees.
That question must be answered in the negative.
While it might well be convenient for the Union, in
enforcing its own internal rules of conduct, to have
available an employment-related sanction, it can
hardly be said that such severe sanctions are neces-
sary to that end. Internal union discipline -fines, sus-
4 Local 357, Tamsters [Los Angeles-Seattle Motor Express] v. N L R B , 365
U.S 667 (1961).
' Planet Corporation, In 2, supra
204 NLRB No. 112
682 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pension, expulsion from membership, and the like-
ought surely to be adequate for this purpose. Thus,
while the evidence proffered here might indeed show
that the Union had no intent to encourage union
membership by interfering with Murphy's employ-
ment , yet the display of union power exhibited by an
exercise of control over employment opportunity
solely for reasons relating to the conduct of an em-
ployee as a union member would necessarily have that
effect. Since the Union's discrimination against Mur-
phy was, at best, related to his obligations as a union
member such action by the Union comes within the
proscription action of Section 8(b)(2).
Upon this rationale, rather than the one adopted by
the Administrative Law Judge, we find that Respon-
dent violated Section 8(b)(1)(A) and 8(b)(2) of the
Act, as alleged by the complaint.
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 as modified
below and hereby orders that Respondent, Interna-
tional Union of Operating Engineers, Local 18, AFL-
CIO, Cleveland, Ohio, its officers, agents, and repre-
sentatives, shall take the action set forth in the said
recommended Order as modified herein.
Add as paragraph 2(b) the following and reletter
subsequent paragraphs accordingly:
"(b) Preserve and, upon request, make available to
the Board or its agents, for examination and copying,
all payroll records, social security payment records,
timecards, personnel records and reports, and all
other records necessary to analyze the amount of
backpay due under the terms of this Order."
DECISION
STATEMENT OF THE CASE
GORDON J. MYATT, Administrative Law Judge: Upon a
charge filed on June 2, 1972,1 by William F. Murphy, an
individual, against International Union of Operating Engi-
neers , Local 18, AFL-CIO (hereinafter called Respondent
Union), a complaint and notice of hearing was issued by the
Regional Director for Region 8 on July 14, 1972. The com-
plaint alleged, inter alia, that the Respondent Union was a
party to a collective-bargaining agreement with the Ohio
Contractors Association and the Associated General Con-
tractors of America, Inc., and pursuant to the terms of the
collective-bargaining agreement maintained an exclusive
referral system by which it referred individuals to pros-
pective employers. The complaint further alleged that on or
1 Unless otherwise indicated , all dates herein refer to 1972.
about May 8, the Respondent suspended Murphy from
membership in the Union and removed his name from the
exclusive referral list. Further, the Respondent Union re-
quired him to prepare a new registration card and register
as a new applicant for employment for reasons other than
nonpayment of dues. It is alleged that by this conduct the
Respondent Union engaged in unfair labor practices within
the meaning of Section 8(b)(1)(A) and 8(b)(2) of the Act.
The Respondent Union filed an answer in which it admitted
several of the allegations of the complaint, denied others,
and specifically denied committing any unfair labor practic-
es.
This case was tried before me in Cleveland, Ohio, on
September 20, 1972. All parties are represented by counsel
and afforded an opportunity to be heard and to introduce
relevant evidence bearing on the issues herein. Briefs were
submitted by all counsel and were fully considered in arriv-
ing at my decision in this matter.
Upon the entire record herein, including my evaluation
of the testimony of the witnesses based upon my observa-
tion of their demeanor, and upon consideration of the rele-
vant evidence, I make the following:
FINDINGS OF FACT
I JURISDICTIONAL FINDINGS
The complaint alleges, and the answer admits , that the
Respondent Union is a local union affiliated with the Inter-
national Union of Operating Engineers , AFL-CIO, and
maintains its principal office in Cleveland, Ohio . It is fur-
ther alleged that the Respondent Union has a collective-
bargaining agreement with various employers in the State of
Ohio and Kentucky , who are in turn members of the Ohio
Contractors Association and the Associated General Con-
tractors of America, Inc. The employer-members of the
associations annually receive materials in excess of $50,000
at their places of business in the State of Ohio , which are
shipped directly from suppliers located outside the State.
Further the Respondent Union collects dues within the
State of Ohio in excess of $200,000 annually, a portion of
which is remitted to the International Union in Washington,
D.C.
On the basis of the above , I find that the employer-mem-
bers of the associations , individually and collectively, are
employers as defined in Section 2(2) of the Act engaged in
commerce within the meaning of Section 2(6) and (7) of the
Act.
II THE LABOR ORGANIZATION INVOLVED
International Union of Operating Engineers , Local 18,
AFL-CIO, is a labor organization within the meaning of
Section 2(5) of the Act.
III THE ALLEGED UNFAIR LABOR PRACTICES
A. Background Facts
Murphy was a member of the Union and his registration
card for referral purposes was dated November 23, 1971.
LOCAL 18, OPERATING ENGINEERS
Because of his qualifications and work experience , Murphy
was a member of group A on the referral list.'
During the course of a delegates' election held by the
Union on February 12, Murphy engaged in conduct which
resulted in his being brought up on charges before the union
membership. As a result of the hearing on the charges, the
members voted to suspend Murphy from membership in the
Union for a period of 2 years and fined him $500.3 Murphy
paid the fine and appealed the action of the local to the
International Union.
The office dispatcher at union headquarters removed
Murphy's card from its place of priority in the referral stack
after he was suspended. This was the customary practice
followed by the Union whenever a member was under sus-
pension. Most of the suspensions prior to that of Murphy,
however, were for nonpayment of dues.
The referral system as operated by the Respondent Union
separates applicants into priority groups based on experi-
ence, length of employment in the trade, and length of
residence in the area .4 Once an individual has registered, his
card is placed in the priority group for which he is eligible,
based on the date of his registration. When a request is
received from an employer, the dispatcher starts with the
top card in group A to determine who is available with the
experience and skill required by the employer. If the first
group is exhausted without an individual being available for
referral, the dispatcher is required to go to the next priority
group until all of the groups are exhausted.'
The Union also follows the practice of returning an
individual 's card to its original place in rotation , if the indi-
vidual has not worked more than 12 days in a 90-day peri-
od.6 Thus during each 90-day period, if an individual has
not exceeded the limit of employment, his card is placed
back in its original order of priority instead of being placed
at the bottom of the list in his group.
2 Under the terms of the collective -bargaining agreement, applicants were
classified in priority groups based on years of experience and residence in the
area. Group A is defined as follows.
Article Ill , § 19. Group A All applicants who have worked as Operating
Engineers at least 120 days per year during each of the last 4 years and
have been employed for at least twelve ( 12) months during that four-year
period on work as defined in Article I of this Agreement within the State
of Ohio and who have lived in the State of Ohio or in any county
contiguous thereto for at least one (1) year prior to application.
3 The evidence indicates that Murphy was apparently angry over the out-
come of the election and he took several of the ballots in order to prevent
them from being counted . In addition to being brought up on internal
charges by the Union, Murphy was charged with petty theft, i e, of the
ballots, in a criminal prosecution . At the time of the trial herein , the criminal
matter had not been resolved
4 The referral system is operated for members and nonmembers alike The
cost of the service for members is included in their monthly dues Nonmem-
bers are charged a $5 fee which makes them eligible to receive the referral
service for a 30-day period . At the expiration of 30 days nonmembers are
required to pay an additional $5 fee to keep their cards in order of priority
in the particular referral group . Members are also required to reregister every
30 days in order to indicate their availability for employment They can
accomplish this by appearing at the union office in person , or on the basis
of a telephone call to the office dispatcher
5 The contract porvides for five priority groups, with a separate grouping
for apprentices
6 The testimony indicates that during 1972, because of the serious unem-
ployment situation , the requirement of working less than 12 days was extend-
ed to 20 days within a 90-day period
683
B. Murphy's Efforts to Register
After His Suspension
After he was suspended, Murphy went to the union hall
on May 22 to attempt to reregister his referral card. He was
accompanied by Norman Hess, a fellow union member.
The office where the applicants registered for the referral
list had a glass partition separating the waiting area from the
office area. This petition did not extend all the way to the
ceiling. The applicants went to a window in order to talk to
the clerk. The window contained iron bars and apparently
had a ledge beneath it. There was also a door adjacent to
the window by which the office personnel could enter the
office area. The door contained opaque glass louvers so that
it was not possible to see inside the office from the waiting
area.
Murphy spoke to Mrs. Hacker, the dispatcher for the
Respondent Union. He tendered the $5 nonmember regis-
tration fee and asked to have his card reregistered. He was
told by Hacker that she could not accept the fee unless he
filled out a new card. This card would have carried the date
of his registration. Murphy insisted that he wanted to rereg-
ister his old card, and Hacker refused to allow him to do so.
Hacker stated that she was acting under orders of the union
officials. Murphy testified that he returned to the union
office on May 23 and 26, June 1 and 27, and July 24. On
each occasion Murphy tendered the $5 nonmember regis-
tration fee, and on each occasion this fee was refused. Mur-
phy was told that he could not register until he executed a
new card, which would be placed at the bottom of his priori-
ty group. Murphy continued to demand that his original
card be placed back in the stack in its rightful order of
priority.
Hacker testified regarding Murphy's efforts to reregister
his card. Hacker acknowledged that she was under instruc-
tions from the union officials to require a new card from
Murphy. This card, under the practice followed by the Re-
spondent Union, would then be put at the bottom of the
priority group. Hacker stated that she attempted to explain
this to Murphy on each occasion, but he refused to accept
the explanation. According to Hacker, Murphy would come
to the union office and stand on a chair looking over the
petition. He would shout and yell obscenities at the people
working in the office area. She also stated that on occasions,
Murphy would lie on the floor on his stomach looking
through the louvers and would yell at the office personnel.
Hacker further testified that on August 14, pursuant to
instructions from the president of the Union, she returned
Murphy's card back to its proper order of rotation under the
date that it was executed in November 1971. Hacker made
the observation that had Murphy's card remained in the
stack following his suspension, he still would not have been
eligible for referral to employment. She stated that there
were many other cards on the list which had a higher priori-
ty than Murphy's card. She could not state with certainty,
however, that Murphy would not have been referred a job.
After his card was returned to its proper position of priority
on August 14, Murphy was referred to jobs in his proper
order of rotation.
684 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Concluding Findings
The Respondent Union argues that it was justified in
moving Murphy's card from the referral stack because of his
suspension . Therefore , it had a right to require Murphy to
reregister as a nonmember and execute a new card . It is also
argued that Murphy 's conduct , including the theft of the
ballots and his offensive actions at the union office, were
such that the Respondent Union had a right to deny him the
use of the referral service . In support of this latter argument,
the Respondent Union cites Local 1838, International
Longshoremen 's Association, AFL-CIO, 179 NLRB 425. In
Local 1838, the Board found that a union could lawfully
refuse to refer members of sister locals as winchmen be-
cause they had refused to report to assigned jobs in contra-
vention of a no-strike clause in the union
collective-bargaining agreement . Thus, reasons the Respon-
dent Union in this case , it had a right to withhold all privi-
leges from Murphy because of his offensive and
reprehensible conduct.
This argument , in my judgment , misconceives the issues
presented by this case . Murphy was suspended and fined by
the Union for his actions regarding the ballots during the
delegates' election . He paid the fine and was appealing both
the fine and the suspension to higher internal union authori-
ty. His conduct, both during the delegates ' election and at
the union office when seeking to reregister , were not the
reasons for withholding of the referral privileges from him.
Hacker testified that she was under instructions to remove
Murphy 's card and to require a new registration card be-
cause he was a suspended member.
Notwithstanding the Respondent Union 's claim that it
could withhold or, as the facts here show , reduce Murphy's
referral priority because of his bizarre conduct, the law is
clear that the only ground on which Murphy's referral status
could be changed is the nonpayment of membership dues
and initiation fees uniformly required as a condition of
acquiring or retaining membership in the local . The Radio
Officers Union of the Commercial Telegraphers Union, A.F.L.
[Bull Steamship Co.] v. N.L.R.B., 347 U.S. 17, 41 (1954);
United Brotherhood of Carpenters and Joiners of America,
Local 1913, AFL-CIO, 189 NLRB 521. This is not a situa-
tion where the Union is seeking to protect the integrity of
its contractual obligations with others, as in Local 1838,
Longshoremen, supra . Rather, it involves dealing with a dis-
ruptive individual who has caused the Union grave concern.
In such a situation the Respondent Union must rely on its
normal internal sanctions which do not affect his employ-
ment or referral status.
Accordingly , I find that the Respondent Union reduced
Murphy's referral priority , and thereby lessened his chances
for employment , for reasons unconnected with any failure
to tender or pay periodic dues or initiation fees required as
a condition of acquiring or maintaining membership in the
Union . More specifically in Murphy 's case , the reduction in
priority status was for reasons other than the failure to
tender the nonmembers fee required to make use of the
exclusive referral systerm maintained by the Respondent
Union . I conclude , therefore , that the foregoing conduct
violated Section 8(b)(1)(A) and 8 (b)(2) of the Act . United
Brotherhood of Carpenters and Joiners of America, Local
1913, supra; Waitresses ' Union No. 276, Hotel & Restaurant
Employees and Bartenders International Union , AFL-CIO,
186 NLRB 484.
CONCLUSIONS OF LAW
1. International Union of Operating Engineers, Local 18,
AFL-CIO, is a labor organization within the meaning of
Section 2(5) of the Act.
2. Ohio Contractors Association and Associated General
Contractors of America, Inc., are employers as defined in
Section 2(2) of the Act and are engaged in an industry
affecting commerce within the meaning of Section 2(6) and
(7) of the Act.
3. By refusing, for reasons other than nonpayment of
dues, initiation fees and/or registration fees to allow Wil-
liam F. Murphy, a suspended member, to reregister his
referral card and continue his place of priority on the refer-
ral list, the Respondent Union engaged in a discriminatory
hiring hall practice in violation of Section 8(b)(1)(A) and
8(b)(2) of the Act.
4. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, I shall recommend the issuance of an
order that it cease and desist therefrom and that it take
certain affirmative action necessary to effectuate the poli-
cies of the Act. Inasmuch as the record evidence indicates
that Murphy's card was restored to its rightful place of
priority on August 14, 1972, I shall order the Respondent
Union to make him whole for any loss of earnings he may
have suffered by not being referred to jobs in proper rota-
tion for the period beginning May 17, 1972 and ending
August 14, 1972.
Accordingly, upon the foregoing findings of fact and con-
clusions of law, and upon the entire record in this case,
pursuant to Section 10(c) of the Act, I make the following
recommended:
ORDER7
The Respondent , International Union of Operating Engi-
neers , Local 18 , AFL-CIO, its officers , agents , and repre-
sentatives , shall:
1. Cease and desist from:
7 In the event no exceptions are filed to this Order as provided by Sec.
102 46 of the Rules and Regulations of the National Labor Relations Board,
the findings , conclusions, recommendations , and Order herein, shall as pro-
vided in Sec. 10(c) of the Act and 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 purposes herein
LOCAL 18, OPERATING ENGINEERS
(a) Refusing to reregister William F. Murphy, or any
other person, in his rightful order or priority on the referral
list for reasons unconnected with his failure to tender and
pay periodic dues , registration fees , and initiation fees uni-
formly required as a condition of acquiring or maintaining
membership in the Union, or as a condition required for
using the Respondent's exclusive hiring hall system.
(b) In any like or related manner , restraining or coercing
employees in the exercise of rights guaranteed by Section 7
of the Act.
2. Take the following affirmative action which I find will
effectuate the policies of the Act.
(a) Notify William F. Murphy that it has no objection to
his reregistering of his name in the rightful order of priority
on the referral list maintained at the union hall.
(b) Post at its business and meeting hall, copies of the
attached notice marked "Appendix."' Copies of the notice,
on forms provided by the Regional Director for Region 8,
after being duly signed by authorized representatives of the
Respondent Union, shall be posted immediately upon re-
ceipt thereof, and be maintained by it for 60 consecutive
days thereafter , in conspicuous places , including all places
where notice to members are customarily posted . Reason-
able steps shall be taken to insure that said notices are not
altered, defaced, or covered by any other material.
(c) Mail or deliver to the Regional Director for Region
8, signed copies of said notice for posting by Ohio Contrac-
tors Association, provided that employer association is will-
ing, at its place of business within the Union's jurisdiction.
(d) Notify the Regional Director for Region 8 , in writing,
within 20 days from the date of receipt of this Order, what
steps the Respondent Union has taken to comply herewith.
IT IS FURTHER ORDERED that the allegations of the complaint
setting forth violations not specifically found herein be dis-
missed.
8 In the event this Order is enforced by a judgment of the United States
Court of Appeals , the words in the notice reading "Posted by Order of the
National Labor Relations Board" shall be changed to read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."
685
APPENDIX
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board having found, after
a trial before a duly designated Administrative Law Judge,
that we violated Federal law by refusing to allow William
F. Murphy, a suspended member, to reregister his name on
thejob referral list in its rightful order of priority for reasons
unconnected with his failure to tender or pay periodic dues,
registration fees, and/or initiation fees, we hereby notify our
members that:
WE WILL NOT refuse to reregister William F. Murphy,
or any other person, in his rightful order of priority on
the referral list for discriminatory reasons.
WE WILL NOT in any like or related manner interfere
with the Section 7 rights guaranteed employees under
the National Labor Relations Act, as amended.
WE WILL make William F. Murphy whole for any loss
of earnings he may have suffered as a result of our
unlawful conduct in preventing him from reregistering
his name in its place of priority on the job referral list
maintained by us.
INTERNATIONAL UNION OF_ OP-
ERATING ENGINEERS , LOCAL 18,
AFL-CIO
(Labor Organization)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
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. Any questions concerning
this notice or compliance with its provisions may be direct-
ed to the Board's Office, 1695 Federal Office Building, 1240
E. 9th Street, Cleveland, Ohio 44199, Telephone 216-522-
3715.