Local 542, IUOE, AFL-CIO

National Labor Relations Board - Board Decisions

Feb 28, 1963

141 N.L.R.B. 53 (N.L.R.B. 1963)

LOCAL 542, IUOE, AFL-CIO 53
business with one another, and of forcing or requiring Winwake to cease doing busi-
ness with Whitten, Wood, Weatherhead, and De Mone.
6. The aforesaid violations affect commerce within the meaning of Section 2(6)
and (7) of the Act.
7. Respondents Council and Deady have not violated Section 8(b)(7)(C) of
the Act.
[Recommended Order omitted from publication.]
Local 542, International Union of Operating Engineers, AFL-
CIO and Joseph Paskert, Sr., Francis McCabe , Olin B. Watkins
and Elmhurst Contracting Co., Inc. (Division of Hagan Indus-
tries, Inc.), Party to the Contract
International Union of Operating Engineers , AFL-CIO; Jo-
seph J . Delaney, President ; Hunter P. Wharton , Secretary-
Treasurer ; William McAneny, Agent and Joseph Paskert, Sr.,
Francis McCabe and Elmhurst Contracting Co., Inc. (Division
of Hagan Industries, Inc.), Party to the Contract. Cases Nos.
4-CB-625-1, 4-CB-625-P2, 4-CB-625-3, 4-CB-856-1, and 4-CB-
656-2. February 28, 1963
DECISION AND ORDER
On September 7, 1962, Trial Examiner Thomas F. Maher issued
his Intermediate Report in the above-entitled proceeding, finding that
the Respondents had engaged in and are engaging in certain unfair
labor practices alleged in the consolidated complaint and recommend-
ing that they cease and desist therefrom and take certain affirmative
action, as set forth in the attached Intermediate Report. Thereafter
the Respondents 1 and the General Counsel filed exceptions to the
Intermediate Report and briefs supporting such exceptions.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
these cases to a three-member panel [Members Rodgers, Fanning, and
Brown].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Intermedi-
ate Report, the exceptions and the briefs, and the entire record in these
cases, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner with the following exceptions, additions,
and modifications :
1. For the reasons stated in the Intermediate Report, we agree with
the Trial Examiner that the Respondents violated Section 8(b) (2)
1 Respondent Local 542 's request for oral argument is hereby denied as, in our opinion,
the record, together with the briefs and exceptions , adequately present the issues and
positions of the parties.
141 NLRB No. 3.
54 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and (1) (A) of the Act by maintaining a hiring arrangement and
practice requiring union membership as a condition of employment.
We adopt the Trial Examiner's finding that the Respondents dis-
criminatorily precluded Paskert, Sr., McCabe, and Watkins from
obtaining employment with Elmhurst Contracting Co., Inc. We find,
like the Trial Examiner, that these individual instances of discrimina-
tion violated Section 8(b) (2) of the Act. In so concluding, however,
we do not pass upon, or adopt, the Trial Examiner's additional find-
ing that the Respondents' discrimination against these three individ-
uals deprived them not only of jobs but also of "one of the fruits of
union membership."
2. The Trial Examiner found that the 1959 agreement did not on
its face exceed the permissive limits of the union-security provisions
of Section 8(a) (3) of the Act. We disagree. Although article II,
section 2, of the 1959 agreement, set out below,2 purports to defer op-
eration of a closed-shop hiring system until it becomes legal, the
deferral language is so uncertain and equivocal that no weight may be
given to it. Indeed, according to the practice any ambiguity in the
contract is completely dispelled as it is clear that the parties interpreted
and administered the contract as requiring the Employer "to employ
only engineers and apprentices who are members of the Union in
good standing"-precisely as the contract provides.
There also appears in the 1959 agreement, in article III, section 11,
thereof, the following clause :
Under no circumstances shall any machinery mentioned in this
Contract be started, stopped or maintained by any person unless
this person is a member of the Operating Engineers Local 542.
This clause is clearly illegal as it permits only members of Respondent
Local to work on machinery within the scope of the contract. Thus,
even if the Employer reserves the right to select his own employees
(which is allowed by article II, section 7, of the agreement), these
employees would not be able to work on or around any such machinery
unless they were members of Respondent Local.
Accordingly, for the foregoing reasons, we find that by entering into,
and maintaining, such unlawful closed-shop provisions in a contract
which conditions employment upon membership in Respondent Local,
2Article II, section 2, of the 1959 agreement reads as follows:
As to any and all work finally determined by duly constituted public authority not
to be subject to any statute forbidding a closed shop or a preferential hiring provi-
sion, the Employer agrees to employ only engineers and apprentices who are members
of the Union in good standing , providing the Union is able to supply them . As to all
other work, the Employer agrees, upon the Union ' s obtaining a certificate of approval
from the National Labor Relations Board to institute and maintain a union shop as
shall comply with Section 8 ( a) (3) of the National Labor Relations Act, as amended,
which reads ... .
LOCAL 542, IUOE, AFL-CIO 55
Respondents have violated Section 8(b) (2) and (1) (A) of the Act.'
3. We agree with the Trial Examiner that the Respondent Inter-
national is jointly and severally liable for the unfair labor practices
found. In so concluding, we do not pass upon the issue, discussed in
the Intermediate Report, as to whether the International is liable
because of its constitutional provisions. Instead we base our findings
in this respect on the fact that Respondent International placed the
Local under a trusteeship, which act, as set forth in the Intermediate
Report, squarely vested the International with full and complete con-
trol over the Local's activities.
4. The Trial Examiner found that in addition to the Charging
Parties, two employees, Sedlak and Slatky, who were not named in
the complaint were victims of Respondents' discrimination. We do
not agree with the Trial Examiner that the incidents relating to
McAneny's refusals to clear Sed,lak and Slatky were fully explored
and litigated throughout the hearing. First, these two individuals
did not file charges in either of these cases and their names were not
mentioned in the charges that were filed. Secondly, although the
complaint was specific in alleging individual incidents of discrimina-
tion, the complaint failed to name either Sedlak or Slatky as dis-
criminatees. Thirdly, the Trial Examiner throughout the hearing
and while Slatky was testifying, stated that he took a strict view of
the pleadings and if the General Counsel wished to present evidence
beyond the pleadings, his recourse was to amend the complaint. How-
ever, the complaint was never amended to allege discrimination
against these two individuals. Further, while Slatky was testifying,
the General Counsel advised the Trial Examiner that Slatky's testi-
mony "sheds light of the background showing how this man happened
to get work in spite of not being cleared by Mr. McAneny." Finally,
even in his brief to the Trial Examiner, the General Counsel consid-
ered these incidents only as background in proving a discriminatory
referral procedure. Under this set of circumstances, we hold that
these incidents were not fully explored or litigated. Accordingly, we
do not adopt the Trial Examiner's findings that Respondents violated
Section 8(b) (2) of the Act by causing the Company to discriminate
against Sedlak and Slatky; and we sliall not require the Respondents
to make whole these two individuals.
5. We find merit in the General Counsel's exception to the Trial
Examiner's failure to recommend an appropriate cease-and-desist
order directed against violations of Section 8(b) (1) (A). As the
3 Member Brown agrees that Respondents violated Section 8 ( b) (2) and ( 1) (A) by their
unlawful employment arrangement and practice and that article III, section 11, of the
contract is illegal on its face. However , he deems it unnecessary, either to the ultimate
conclusions here or to an appropriate order, to determine whether the purported deferral
clause effectively precludes a finding of violation with respect to the hiring arrangement
in article II, section 2, of the agreement.
56 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Trial Examiner found, and we agree, that Respondents violated this
section of the Act, we shall include appropriate remedial language in
our Order.
6. The General Counsel excepted to the Trial Examiner's failure
to issue a cease-and-desist order which would effectuate the preven-
tive purposes of the Act. We find merit in this exception. Because
of the nature of the violations and because of Respondents demon-
strated disregard of the Act by a record of similar violations in the
past 4 a broad order against them is necessary in order to prevent
them from continuing, with impunity, to violate Section 8 (b) (2) and
(1) (A) of the Act. Accordingly, we shall enter an order against both
Respondents to cease and desist from in any manner interfering with,
restraining, and coercing employees or prospective employees in the
exercise of rights guaranteed by Section 7 of the Act; and to refrain
from entering into, maintaining, or enforcing any like agreements,
understanding, or practices with Elmhurst or other employers within
the territorial jurisdiction of Respondent Local 542 over whom the
Board would assert jurisdiction.
ORDER
Upon the entire record in these cases, and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondents, International
Union of Operating Engineers, AFL-CIO, its president,' its
secretary-treasurer, Hunter T. Wharton, its agent, William McAneny,
and Local 542, International Union of Operating Engineers, AFL-
CIO, and its officers, agents, representatives, successors, and assigns,
shall :
1. Cease and desist from :
(a) Causing or attempting to cause Elmhurst Contracting Co.,
Inc. (Division of Hagan Industries, Inc.), or any other employer, to
refuse to hire or otherwise discriminate against Joseph Paskert, Sr.,
Francis McCabe, and Olin B. Watkins, or any other employees or
applicants for employment, in violation of Section 8 (a) (3) of the Act.
(b) Maintaining, enforcing, or otherwise giving effect to a hiring
arrangement, understanding, or practice with Elmhurst Contracting
Co., Inc., or any other employer, within the territorial jurisdiction of
Respondent Local 542 and over whom the Board would assert juris-
4 See Local 542, International Union of Operating Engineers , et al (Koppers Company,
Inc ), 117 NLRB 1863, enfd . 255 F 2d 703 (C A. 3) ; N.L R B. v. United States Steel
Corp. (American Bridge Division ), 278 F. 2d 896 (CA 3), enfg 122 NLRB 1324
5 The Trial Examiner recommended that all Respondents be required to make employees
Paskert, McCabe, and Watkins whole for any loss of pay they may have suffered as a re-
sult of the discrimination against them. However, in accord with our usual policy we
shall not hold the individual Respondents personally liable for backpay With respect to
Respondent Delaney, all issues are moot, inasmuch as he died on September 9, 1962, and
therefore no order will be issued against him.
LOCAL 542, IUOE, AFL-CIO 57
diction, whereby employment is conditioned upon clearance or referral
based upon membership in Respondent Local 542, except as authorized
in Section 8(a) (3), as modified by the Labor-Management Reporting
and Disclosure Act of 1959.
(c) Executing, enforcing, or maintaining in effect the closed-shop
provisions of the 1959 agreement with Elmhurst Contracting Co.,
Inc., which conditions employment or referral on membership in Re-
spondent Local 542, or executing, enforcing, or maintaining any like
agreements with any other employer within the territorial jurisdiction
of Respondent Local 542 over whom the Board would assert
jurisdiction.
(d) In any other manner restraining or coercing employees of, or
applicants for employment with, Elmhurst Contracting Co., Inc., or
any other employer over whom the Board would assert jurisdiction
and within the territorial jurisdiction of Respondent Local 542, in
the exercise of their right to self-organization, to form, join, or assist
labor organizations, to bargain collectively through representatives
of their own free choice, and to engage in other concerted activities
for the purpose of collective bargaining or other mutual aid or protec-
tion, or to refrain from any and all such activities, except to the extent
that such rights may be affected by an agreement requiring member-
ship in a labor organization as a condition of employment as author-
ized in Section 8 (a) (3) of the Act, as amended.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act:
(a) Make whole Joseph Paskert, Sr., Francis McCabe, and Olin B.
Watkins for any loss of earnings they may have suffered as a result
of the discrimination against them in the manner set forth in "The
Remedy" section of the Intermediate Reports
(b) Send written notice to Elmhurst Contracting Co., Inc., and
to the employees involved that they have no objection to the current
or future employment of Joseph Paskert, Sr., Francis McCabe, and
Olin B. Watkins and that they will refer the three named individuals
to employment without discrimination.
(c) Post in the business offices of the Respondent Local 542 and its
branches throughout its territorial jurisdiction, copies of the attached
notice marked "Appendix." 7 Copies of said notice, to be furnished
by the Regional Director for the Fourth Region, shall, after being
duly signed by responsible officials of the Respondents, including the
s Interest at the rate of 6 percent per annum shall be added to the awarded backpay
to be computed in the manner set forth in Isis Plumbing & Heating Co ., 138 NLRB 716.
For the reasons stated in his dissenting opinion in that case , Member Rodgers would not
award interest.
7In the event that this Order is enforced by a decree of a United States Court of
ppeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order."
58 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
individual Respondents named herein, be posted immediately upon
receipt thereof, and maintained by them for a period of 60 consecutive
days thereafter, in conspicuous places, including all places where
notices to members are customarily posted. Reasonable steps shall
be taken by the Respondents to insure that said notice is not altered,
defaced, or covered by any other material.
(d) Mail to the Regional Director for the Fourth Region signed
copies of the attached notice marked "Appendix" to be posted by Elm-
hurst Contracting Co., Inc., the Company willing, in conspicuous
places in and about the Company's place of business. Copies of this,,
notice, to be furnished by the Regional Director, shall be returned to
the Regional Director forthwith for appropriate disposition, after
being signed by Respondents and their representatives.
(e) Notify the Regional Director for the Fourth Region, in writ-
ing, within 10 days from the date of this Order, what steps have been
taken to comply herewith.
APPENDIX
NOTICE TO ALL MMIBERS OF LOCAL 542, INTERNATIONAL UNION
OF OPERATING ENGINEERS , AFL-CIO
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, gas amended, we hereby give notice that :
WE WILL NOT cause or attempt to cause Elmhurst Contracting
Co., Inc. (Division of Hagan Industries, Inc.), or any other em-
ployer over whom the Board would assert jurisdiction, to refuse
employment to Joseph Paskert, Sr., Francis McCabe, and Olin B.
Watkins or any other applicants for employment, in violation
of Section 8(a) (3) of the Act, as amended.
WE WILL NOT execute, maintain, or enforce any provision in
our collective-bargaining agreements with Elmhurst Contracting
Co., Inc., or any other employer within the territorial jurisdic-
tion of Local 542 over whom the Board would assert jurisdiction,
or maintain or enforce any arrangement, understanding, or prac-
tice, which conditions employment or referral upon membership
in Respondent Local 542 except as authorized in Section 8(a) (3)
of the Act, as amended.
WE WILL NOT in any other manner restrain or coerce employees
of, or applicants for employment with, Elmhurst Contracting
Co., Inc., or any other employer within the territorial jurisdiction
of Local 542 over whom the Board would assert jurisdiction, in
the exercise of their right to self-organization, to form, join, or
assist labor organizations, to bargain collectively through repre-
sentatives of their own free choice, and to engage in other con-
LOCAL 542, IUOE, AFL-CIO 59
certed activities for the purpose of collective bargaining or other
mutual aid or protection, or to refrain from any and all such
activities, except to the extent that such rights may be affected
by an agreement requiring membership in a labor organization
as a condition of employment as authorized in Section 8(a) (3)
of the Act, as amended.
WE WILL make whole Joseph Paskert, Sr., Francis McCabe,
and Olin B. Watkins for any loss of earnings they may have suf-
fered as the result of the discrimination against them.
WE WILL notify the above-named persons and Elmhurst Con-
tracting Co., Inc., that we have no objection to their employment
and will refer them to employment without discrimination.
LOCAL 542, INTERNATIONAL UNION OF
OPERATING ENGINEERS, AFL-CIO,
Labor Organization.
Dated---------------- By-------------------------------------
(Representative) (Title)
INTERNATIONAL UNION OF OPERATING
ENGINEERS, AFL-CIO,
Labor Organization.
Dated---------------- By-------------------------------------
(JOSEPH J. DELANEY, Pressdent)
Dated---------------- By-------------------------------------
(HUNTER P. WHARTON, Secretary -Treasurer)
Dated---------------- By-------------------------------------
(WILLIAM MCANENY , Agent)
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.
Employees may communicate directly with the Board's Regional
Office, 1700 Bankers Securities Building, Philadelphia 7, Pennsyl-
vania, Telephone No. Pennypacker 5-2612, if they have any question
concerning this notice or compliance with its provisions.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
Upon charges and amended charges filed on August 8 and 29 and September 9,
1960, in Cases Nos. 4-CB-625-1, 625-2 , and 625-3 by Joseph Paskert, Sr ., Francis
McCabe, and Olin Watkins , the Regional Director for the Fourth Region of the
National Labor Relations Board, herein called the Board , issued a consolidated com-
plaint on behalf of the General Counsel of the Board, on October 28, 1960, against
Local 542, International Union of Operating Engineers , AFL-CIO; and upon charges
filed on December 22, 1960, in Cases Nos . 4-CB-656-1 and 656-2 by Joseph
Paskert, Sr., and Francis McCabe the Regional Director issued an order consolidating
the aforementioned cases, together with an amended consolidated complaint on
March 16, 1961 . And on April 6, 1962 , he issued a second amended complaint, both
against Local 542 and International Union of Operating Engineers , AFL-CIO,
60 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
hereinafter referred to as the International; Joseph J. Delaney, president; Hunter P.
Wharton, secretary-treasurer; and William McAneny, agent. The second amended
consolidated complaint upon which this cause was heard alleged violations by the
named Respondents of Section 8(b)(1)(A) and (2) of the National Labor Rela-
tions Act, as amended (29 U.S.C., Sec. 151, et seq.), herein called the Act. In their
duly filed answers Respondents, while admitting certain allegations of the complaint,
denied the commission of any unfair labor practice.
Pursuant to notice, a hearing was held before Trial Examiner Thomas F. Maher in
Stroudsburg, Pennsylvania, on May 28 and 29, 1962. All parties were represented
and were afforded full opportunity to be heard, to introduce relevant evidence, to
present oral argument, and to file briefs with me. On July 3, 1962, all parties filed
briefs with me.
Upon consideration of the entire record in this case, including briefs of the parties,
and upon my observation of each of the witnesses testifying before me, I make the
following:
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYER
Elmhurst Contracting Co., Inc. (Division of Hagan Industries, Inc.), is a New
York corporation engaged in the construction industry. It has been performing
construction services valued annually in excess of a million dollars at the flood
control project located at Stroudsburg, Pennsylvania. The parties admit the fore-
going facts and concede that the Employer is engaged in commerce within the mean-
ing of Section 2(6) and (7) of the Act and I so find.
Jr. THE STATUS OF LOCAL 542 AND THE INTERNATIONAL
Local 542, International Union of Operating Engineers , AFL-CIO, and Inter-
national Union of Operating Engineers , AFL-CIO, two of the Respondents herein,
are conceded to be labor organizations within the meaning of the Act and I so find.
Between August 19, 1952 , and December 20, 1960 , Local 542 operated under
the supervision of Supervisor Hunter P . Wharton , Respondent herein appointed by
the general president of the Respondent International pursuant to an order of super-
vision dated August 19 , 1952.1
I The order Invoking International supervision over Local 542 and Its branches reads,
In part, as follows:
In accordance with the power invested in me as General President by the Constitu-
tion of the International Union of Operating Engineers I hereby place Local Union
#542, its branches, officers, members, business and affairs under International
Supervision effective forthwith pending a bearing before me as hereinafter designated.
I further appoint Brother Hunter Wharton as my deputy International Supervisor
over Local Union #542 and its Branches and I direct him to administer the business
and affairs thereof, and to conserve Its assets to the best of his knowledge and ability
and as a trust solely for the benefit of the membership to the end that the rights of
members will be protected ; their property safeguarded ; their affairs administered
with fairness and in a business-like manner, and that the Constitution, laws, customs,
Ritual, and Authority be recognized and enforced by the membership He shall app
point, subject to my approval, such temporary assistants and officers pro tem. as
may be deemed necessary for the conduct of business of the Local.
The present officers of Local Union #542 are instructed not to Interfere in the
administration of the business of Local Union #542 by Supervisor Wharton and are
further Instructed to turn over to the Local Union any property belonging to it which
they are withholding.
I direct that all Banks and Depositories of Local Union #542, its Branches,
officers and committees, give full recognition to my Deputy, Hunter Wharton, as
International Supervisor in the premises and to honor the official character of his
appointment.
I direct International Supervisor Wharton to keep full records, to cause regular
audits to be made by Certified Public Accountants, to make true accounting of his
trust and be strictly accountable for his stewardship thereof.
During this emergency under International Supervision the earned good standing
of the members shall In no way be adversely affected nor shall the rights of mem-
bers in good standing to work be interfered with, and the Charter of Local Union
#542 shall remain in force under the protection of Constitutional Supervision
LOCAL 542, IUOE, AFL-CIO
III. THE ISSUES
61
1. Maintenance of an exclusive hiring arrangement or practice requring union
membership.
2. Denial of specific referrals or clearances as evidence of a closed-shop arrange-
ment.
3. Denial of specific referrals or clearances for reasons connected with union
membership and obligations as a cause of unlawful employer discrimination.
4. Joint responsibility of an International and a constituent local labor organiza-
tion operating under "supervision" or "trusteeship."
IV. THE UNFAIR LABOR PRACTICES
A. The facts
1. The hiring procedures at the Stroudsburg jobsite
In early June 1960, Elmhurst Contracting Co. (to which I will refer hereafter as
the Company) commenced work on a concrete and earthwork flood control project
at Stroudsburg, Pennsylvania. Before operations had actually begun William Mc-
Aneny, business agent of Local 542 and one of the Respondents herein, appeared on
the scene, introduced himself, and in a conversation with the Company's super-
intendent, Marshall Morrow, and its project manager, Joseph Gibison, stated that he
would like them to use members of the Operating Engineers on the project. In
reply the company officials told McAneny that they were union contractors and would
cooperate with him. Whereupon McAneny handed Gibison a document identified in
the record as "Agreement and Working Rules of Local 542 . . effective May 1,
1959 to April 30, 1961." This document was unsigned and remained so in the files
of the Company. While Project Manager Gibison could assign no specific reason
for it not being signed, nor is there evidence of a specific request that it be signed,
Superintendent Morrow credibly referred to it as the "agreement" which they were
"trying to live up to," and Business Agent McAneny credibly testified that all the
terms and provisions set forth in the document (which I shall hereafter refer to as
the 1959 agreement) were followed by the Company.
Included among its provisions was the Employer's agreement "to employ only
engineers and apprentices who are members of the Union in good standing, providing
the Union is able to supply them"; 2 and the reservation on the part of the Employer
of "the right at all times to select his or their employees" (article II, section 6). In-
cluded also was a "savings clause" (article II, section 1) the effect of which was to
render null and void any provision of the contract found to be unlawful, and to save
in full force and effect the remainder of the contract.
As of the time these events transpired no one had been hired for the Stroudsburg
project. Gibison, however, gave the names of several prospective employees to Super-
intendent Morrow who hired them without reference to or consultation with
McAneny. Thus, Lee Mack was hired as master mechanic, John Sedlak as bulldozer
operator, and John Slatky as greaser. All were members of Local 542, as were all
other operators whom the Company thereafter put to work.
No protest appears to have been registered by McAneny for the hiring of Master
Mechanic Mack who was hired after a number of operators had already been taken
on. In fact, it appears from the record that Mack thereafter cooperated with Mc-
Aneny by calling him for men when instructed to do so by Superintendent Morrow.
2. The refusals to refer or clear for employment with the Company
McAneny was not so agreeably disposed to approve the Company's hiring of
either Sedlak or Slatky. Thus, Joseph Sedlak, who first applied to the Company for
work on July 3 and was referred to McAneny, was refused clearance twice by him
2 This provision , article II , section 2 , reads as follows:
As to any and all work finally determined by duly constituted public authority not
to be subject to any statute forbidding a closed shop or a preferential hiring provi-
sion, the Employer agrees to employ only engineers and apprentices who are members
of the Union In good standing, providing the Union is able to supply them As to all
other work, the Employer agrees, upon the Union's obtaining a certificate of approval
from the National Labor Relations Board to Institute and maintain a union shop as
shall comply with Section 8(a) (3) of the National Labor Relations Act, as amended,
which reads as follows: (The provision of the contract then quotes In full Section
8(a) (3) of the Act.I
62 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
before the Company hired him , on July 17, without clearance and over McAneny's
protests.
Similarly, John Slatky was hired by Morrow without approval or clearance by
McAneny and over his protests . Slatky's employment with the Company did not
begin , however , until August 8, 1961, after 2 months of unsuccessful attempts, be-
ginning in early June, to obtain McAneny's clearance. All the remaining employees
performing work within the work jurisdiction of the Operating Engineers were
members of Local 542 and were referred to the Company for hiring by McAneny.
Slatky and Sedlak had the good fortune of eventually being hired without Mc-
Aneny's blessing. Others were not only refused clearance by McAneny but were
also refused jobs by the Company.
a. Francis McCabe
Francis McCabe first sought work on June 5 as a shovel operator , a classification
for which he was concededly well trained . At this time Superintendent Morrow
told him that they would need shovel operators as soon as the machines were avail-
able and that at such time he would be calling for men. He also informed McCabe
that they had agreed with McAneny to call the Union for men .3 Several days pre-
viously, however , McCabe had had a verbal altercation with McAneny in which the
latter cast vulgar reflections on McCabe 's maternal ancestry , and the encounter
ended with McAneny 's assurance to McCabe that he would never work as long as he,
McAneny, was boss? Several days after his first visit to Morrow , McCabe returned
to see if any work had become available . This time he told Morrow of his troubles
with McAneny and asked that he be given a job nonetheless . Morrow told him to
return later . McCabe appeared at the jobsite almost every day thereafter , and was
present on one day when a new shovel arrived , only to be told that an operator had
been hired to run it. Finally , on July 25 or 26, as McCabe was busying himself
about the jobsite and awaiting employment , Superintendent Marshall told him and
Olin Watkins , who was also seeking employment , "If you two boys get cleared
through McAneny and the International and make your peace . . . I'll hire you,
I'll put you to work." On the following day an operator named Bud Smith appeared
at the jobsite , announced he had been sent there by McAneny , and was put to work
on the shovel . Thereafter , when McCabe asked McAneny for clearance he has told
it would be given to him if Superintendent Morrow would give him the job. When
this arrangement was explained to Morrow he told McCabe that he could do nothing
until McAneny granted the clearance . As this evasion continued McCabe continued
to press McAneny, and after a heated telephone conversation in which McCabe
asked, "Are you going to clear me , Mac?" McAneny replied, "I am not going to
send you down there to build an organization against myself ." McCabe was never
cleared by McAneny nor did he work for the Copmany until a year later when he
was referred to the job by the new business agent and McAneny's successor , Paskert,
one of the Charging Parties herein.
b Joseph Paskert, Sr.
Joseph Paskert , Sr., an operating engineer with extensive experience on most types
of machines and a master mechanic on a number of earlier jobs, was concededly a
highly qualified operator and known to be such by the Company . Paskert, in the
company of McCabe and Slatky, who had previously sought employment , went to
Project Manager Gibison on July 11 and asked for a job. Gibison informed him
that the Company had agreed to hire all men through McAneny, to which Paskert
replied such a procedure was not necessary. Gibison replied that he was aware that
he did not have to do this but that the Company , having other jobs in other areas,
did not "want to get in trouble with the Union ." Two weeks later Paskert returned
to the job and spoke to Master Mechanic Mack who told him that "anyone that was
put on the job was being hired through the business agent." A third attempt to get
employment was equally futile and for the same stated reason . Meanwhile Paskert
called McAneny, requesting that he be referred to the Stroudsburg job. McAneny's
3 The credited testimony of Morrow and McCabe
4 This is the credited testimony of McCabe . McAneny , who testified on other matters,
was not called upon to deny the testimonial details of the dispute in question, which, in-
cidentally , arose as a result of an intraunion rivalry between two factions contesting for
the leadership of Local 542. In finding that McAneny made the remarks attributed to
him I find it unnecessary to evaluate the credibility of McCabe ' s further testimony that
he countered McAneny's vulgarity by saving, "Mac, that is not a nice thing to call me "
LOCAL 542, ItiOE, AFL-CIO 63
only reply was "there were lots of other jobs, and that he would have them going
in a few days." Paskert was never thereafter referred to the Company, nor else-
whei e, by McAneny.
c. Olin B. Watkins
Olin B. Watkins, a concededly qualified shovel operator, applied for work with
the Company on a visit, in the company of John Slatky, to Superintendent Morrow
in mid-June 1960. Actual work had not yet begun. Morrow informed him that he
was the first man put on his books and that as soon as a shovel they had ordered ar-
rived he would call him. Watkins made 12 or 15 visits to the project thereafter,
sometimes in the company of McCabe, and on other occasions with Slatky. Finally
on the last such occasion, Superintendent Morrow told him, "If I were you boys, I
would make my peace with the International and your business agent, McAneny.
Clear through them, and I can put you to work." Watkins thereupon called McAneny
to ask for clearance. McAneny's only reply was that had Watkins and McCable
"kept off of that job [referring to the several visits they had made to the project and
to their gratuitous moving of several of the machines on a number of occasions]
the both of you would have been to work." Watkins was never thereafter referred
to the project although other qualified union operators were referred and worked
steadily thereafter.
3. The hiring of operators at the project, generally
In addition to the facts found with respect to the hiring or rejection of the
individuals considered above, the record is clear that all employees hired for the
jobs in the operating engineer classifications were concededly members of Local 542
when hired and for the duration of their employment with the Company there.
Numerous witnesses called by the General Counsel credibly testified that they were
hired by referral and clearance of Business Agent McAneny. And except as con-
sidered above in the cases of Mack, Sedlak, and Slatky, no operating engineer em-
ployed at the project has been shown to have been hired without such clearance .5
4. The intraunion dissention
Underlying McAneny's wilfulness in refusing clearance to the individuals noted
above was the struggle that was taking place within Local 542 itself, and in which
McAneny was a dominant figure.
Since August 1952, Local 542 had operated under a supervisorship or trusteeship
imposed upon it by order of the International. Respondent Hunter P. Wharton,
the International's secretary-treasurer, was the duly designated supervisor during
this period. It would appear from the record that at various times during the
supervisory period the membership became restive under the International's control
and that particularly during the final years of the period a dissident group actively
opposed the arrangement, organized an opposition party within the Local known
as the Freedom Ticket, and instituted legal proceedings directed to lifting the Inter-
national's supervisorship. A slate of officers was nominated by this group and
included on it were Paskert, a candidate for the office of treasurer of the Local, and
McCabe for the office of auditor. Watkins, Sedlak, and Slatky were among the
ticket's most active supporters. The incumbent officers of the Local favored by the
International and by the supervisor appointed by the International, had as one of
its most active supporters Business Agent McAneny, whose continued employment
in the appointive office which he held, business agent of the Wilkes-Barre-Scranton
area, depended upon the success of the "International Party" candidate for business
manager of the Local, Peter Pantaleo. The election for which frenzied campaigning
was taking place throughout June and July became the subject of legal action involv-
ing the continuation of the International's supervision over Local 542 and its branches.
As a result of this action the International and the Local 542 membership seeking
release of the supervisorship entered into a stipulation by the terms of which the
6 All of the foregoing facts are based upon the virtually undisputed testimony of wit-
nesses called by the General Counsel. In considering this testimony I find the witnesses
corroborated one another in many instances and independently establish facts relating to
the hiring or employment status of other witnesses. No witnesses were called by any of
the Respondents to refute the facts so adduced. Furthermore, Business Agent McAneny
was among those called and gave credible testimony, none of which was in denial of
statements or conduct attributed to him. In such a state of the record I accept as
credible, for this additional reason , several accounts of his statements and actions.
64 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
election was to be held on December 10, 1960. Pursuant to the stipulation, as ap-
proved by the United States District Court for the District of Delaware, the newly
elected officers would succeed to the administration of the Local on December 20,
1960, in the stead of the International-appointed supervisor, and the Local would
be restored to its regular status as a constituent local of the International. In the
election thus held the Freedom Ticket opposed by McAneny was successful.
McAneny was shortly thereafter replaced by Paskert, the unsuccessful applicant for
work with the Company, as business agent for the area.
B. Analysis and conclusions
1. The legality of the 1959 agreement
Although the 1959 agreement between the Company and Local 542 was never
signed, the evidence is ample and undisputed that its terms were lived up to by all
parties. Prescinding, therefore, from any consideration of the effects of a lack of
signatures the content of the document provides better basis for evaluating its
legality. Thus, article II, section 2, by which the Employer agrees to hire only
union members, establishes by its very terms an unlawful closed shop (supra). This
is so because the language of the agreement specifically contradicts the permissive
provisions of Section 8 (a) (3) so directly and explicity that further citation of au-
thority would be unnecessary to establish the fact.
By article II, section 6, on the other hand, the Employer reserves to himself "the
right at all times to select his or their employees." This section, however, contradicts
the one previously quoted and eviscerates it of any closed-shop substance. To con-
clude otherwise, whether this contradiction be in the agreement by design or inept
draftsmanship, would find us playing at semantics and at the expense of obvious fact.
For clearly were an employer to rest upon his contractual right to select whom he
pleased it would be difficult to reason that such a contract gave him no such right-
appearing as it does in clear print. Granting him such a right, it follows, therefore
(article II, section 2, to the contrary notwithstanding), that a right to hire whom one
pleases cannot be distorted to mean "whom one pleases, so long as he belongs to the
Union."
Moreover there appears in the agreement a savings clause which makes clear the
impact of the provision giving the employer the right to hire whom be pleases. Thus,
article II, section 1, provides that should the terms of the agreement be found to
be unlawful its consequent nullification would not thereby render any other portion
of the agreement null and void 6 As such a closed-shop provision has been held to
be unlawful the savings clause which I have quoted gives unquestioned effect to the
employer's reserved right to hire whom he pleases.? Accordingly I would find that
the 1959 agreement would not, by its express terms, constitute a violation of Section
8(a)(3) of the Act, and that by entering into such an agreement containing such
express terms Respondents have not violated Section 8 (b) (2) of the Act.
2. Maintenance of an arrangement or practice requiring union
membership as a condition of employment
Wholly apart from the terms of the 1959 agreement, there is abundant testimony
that the Company was obliged to hire only members of Local 542 to operate its
machinery and that in the main it honored its obligation. Project Manager Gibison
and Superintendent Morrow so testified, and Business Manager McAneny testified
that all of the terms of the 1959 agreement, which included the exclusive hiring of
Local 542 members, were followed." 8 And a list of all employees hired, stipulated
by all parties to be an accurate one, indicates that every employee in the engineer
category was a member of Local 542. This evidence, plus the uniform testimony of
all applicants for employment, clearly defines an arrangement whereby Local 542
membership and clearance by Local 542's business agent were required as a condi-
^Article II, section 1, reads as follows:
Should any of the terms or provisions of this Agreement be determined to be, or
held to be, in contravention of any applicable statute, ruling or regulation enacted,
promulgated or issued by any duly qualified governmental agency or body, any such
term or provision shall be null and void, without thereby affecting any of the other
terms or conditions hereof.
7 N L.R B. v. News Syndicate Company, Inc , at al., 365 U S. 695.
S See N.L R B. v. United States Steel Corp. (American Bridge Division), 278 F. 2d 896
(C.A. 3), a case involving the identical Local herein, where the court found the absence
of a formal contract to be no obstacle to a conclusion that an agreement existed.
LOCAL 542, IUOE, AFL-CIO 65
tion of employment .9 In this example of the classic hiring arrangement wherein it
can be determined "whether discrimination has in fact been practiced" 10 the evi-
dence abounds that in all but three instances Business Agent McAneny caused the
Company to discriminate in favor of Local 542 members by requiring that they be
cleared by him and referred by him before hiring. When, as here, it has been estab-
lished by credible evidence that only union members have been referred, the Board
has consistently held that such action constitutes evidence that the company and a
union maintained a hiring arrangement or practice requiring union membership as
a condition of employment in violation of Secton 8(b) (2) of the Act." I so find
here.
Moreover in the cases of Joseph Sedlak and John Slatky it is evident that they were
hired in the face of McAneny's refusal to clear or refer them. Quite contrary to the
inference which respondents would attribute to them, these exceptions, by their
very rarity, accentuate the existence of an exclusive arrangement.12 Moreover,
it is clear that everyone, McAneny included, considered the hiring of these individu-
als to be a flouting of the hiring system and not a relaxation of it. Therefore,
McAneny, however unsuccessful be his attempt to insist upon clearance in each of
these two cases, most certainly tried. And in so trying, there was clearly an attempt
to cause discrimination, an attempt which had succeeded in all other instances. Ac-
cordingly, I find in such attempts to cause discrimination, however unsuccessful,
further evidence of the maintenance of an arrangement and practice requiring union
membership as a condition of employment in violation of Section 8(b) (2) of the Act.
3. Individual instances of caused discrimination
Independent of the foregoing conclusion, based upon the uncontradicted testimony
of job applicants and upon the admission of the principals that an exclusive hiring
arrangement existed requiring clearance of union members by Business Agent
McAneny, the specific failure to refer or clear for hire in three instances, and the
delays in doing so in two other instances manifests a pattern of discrimination pro-
scribed by the Act.
a. Paskert, McCabe, and Watkins
There is no question in the record, or otherwise, of either the competence of
Paskert, McCabe, or Watkins, or of the availability of jobs with the Company when
they applied for them, or when each of them requested McAneny to clear them for
such jobs. Neither is there any doubt but that McAneny refused to refer each one
of them despite their numerous requests. Indeed the facts set forth above clearly dis-
close a pattern of intransigence on McAneny's part that was grounded solely upon his
opposition to them in the mtraunion dispute that was then raging.
Viewing these facts in the light of the unlawful hiring arrangement between the
Respondents and the Company, with the obvious control over the employment of
operators exercised by Business Agent McAneny, it is clear that Paskert, McCabe,
and Watkins were the victims of McAneny's discriminatory hiring system and his
use of it for purposes of reprisal. In this respect the discrimination against them
stands on no different footing than does identical discrimination in an earler case
upon which I rely, N.L.R.B. v. United States Steel Corp., supra. There, as here,
Local 542 was the offending labor organization, and as here the individual upon
whom the discrimination was visited (Russell, in that case) was the victim of an
internal union dispute, no doubt the same dispute. Neither the Board (122 NLRB
1324) nor the Court of Appeals for the Third Circuit showed any hesitancy in
finding such conduct to be violative of Section 8(b) (2). I so find here.
Moreover we have here another facet of discrimination, even were we to find no
unlawful hiring arrangement. What McAneny did by refusing to clear union mem-
6 Master Mechanic Mack, whose union membership was required by the contract which
was being "followed," credibly testified that all applicants had to be cleared by McAneny.
I view this to be a further admission by the Company of its willingness to abide by union
control of its hiring. Philadelphia Iron Works, Inc., 103 NLRB 596, 597, enfd. 211 F. 2d
937 (C.A. 3).
"Local 557, International Brotherhood of Teamsters, etc. (Los Angeles-Seattle Motor
Express) v. N L.R B., 365 U.S. 667, 677.
11 Yuba Consolidated Industries, Inc., 136 NLRB 683, and cases cited in footnote 3;
Local 215, International Brotherhood of Electrical Workers ( Eastern New York State
Chapter of the National Electrical Contractors Association ), 136 NLRB 1618.
13 N L R.B. v. United States Steel Corp. (American Bridge Division), 278 F. 2d 896,
898, where similar exceptions to the general hiring pattern were made in a case involving
the same local and the court nonetheless found an illegal arrangement.
66 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
bers Paskert, McCabe, and Watkins was to deprive them of one of the fruits of union
membership-the right to participate in the job clearance and referral program of
the Union. By so restricting their participation in union affairs McAneny, to that
extent, deprived these individuals of their membership in good standing.13 It follows,
therefore, that this refusal of clearance and referral is unlawful specifically because
it does restrict membership in good standing 14 For only when the restrictions upon
membership in good standing are the permissive ones deriving from failure to tender
periodic dues and initiation fees may they be legally imposed. But as the restrictions
here were not for such reasons but because Paskert, McCabe, and Watkins engaged
in intraunion political activity, I would find that Respondents have thereby and addi-
tionally caused their discrimination in violation of Section 8(b)(2), even were it
shown that a legal hiring arrangement were in existence and in effect.
b. Sedlak and Slatky
Everything that has been said and all the conclusions that have been reached
concerning the three engineers who were deprived of employment may be said with
equal validity concerning the two others who waited up to two months for their jobs.
For they too, both Joseph Sedlak and John Slatky, both active in the union campaign
in support of the "Freedom Ticket" and opposed to McAneny's "International
Ticket," were refused clearance for employment with the Company (supra). Thus,
John Slatky unsuccessfully sought McAneny's clearance for a job through June and
July 1960, he having credibly testified that McAneny "told me definitely he would
not clear me for that job or any other job." On August 8, as previously noted, the
Company hired Slatky in spite of McAneny's objections.15
Similarly, Joseph Sedlak applied for work with the Company beginning in the first
week of July 1960, and was immediately sent to McAneny for clearance. When
Sedlak then called McAneny he was told "that the job wouldn't start for about three
months," although the job was then under way. And when Sedlak next called
McAneny he was told "that the best thing that could happen is to stay away from
that job." 16 Two weeks after the first application for employment, however, on
July 17, the Company put Sedlak to work without clearance of McAneny. McAneny
protested this hiring even after it had been accomplished, stating to company officials
that the Union could send good men any time it was called upon.17
As both Slatky and Sedlak were effectively deprived of employment with the
Company by McAneny's refusal to refer or to clear them for stated periods prior
to the Company's independent hiring of them, I find that the discrimination against
them stands upon no different footing than that visited upon Paskert, McCabe, and
Watkins (supra). It is but a question of the duration of the offense-the latter having
been deprived of employment in the some manner and for the same reasons but for
a longer period. For all the reasons stated above, therefore, I find that Respondents
caused the Company to discriminate against Sedlak and Slatky for the respective
periods of their nonemployment in June, July, and August, 1960, and thereby violated
Section 8(b) (2) of the Act.
Nor do I find less cause for such a finding in the absence of an appropriate allega-
tion of the complaint, in the General Counsel's failure to amend the complaint at the
hearing, or his failure to consider their cases to be anything more than background
when referring to them in his brief. Indeed, I find the incidents of McAneny's
refusals to clear these two individuals to have been fully explored and litigated
throughout the hearing. Both Sedlak and Slatky testified credibly and fully as to
their experiences, as did Superintendent Morrow, Master Mechanic Mack, Olin
Watkins, and Francis McCabe. Business Agent McAneny was present in the hearing
'S The Radio Officers' Union of the Commercial Telegraphers Union, AFL (A H. Bull
Steamship Company) v. N.L R B., 347 U.S. 17, 29, 42; N.L.R.B. v Bell Aircraft Corpora-
tion, 206 F 2d 235, 238 (C.A. 2).
14 The Radio Ofcere' Union of the Commercial Tebegraphers Union, AFL (A . H. Bull
Steamship Company ) v. N.L.R .B., supra.
'5 The credited testimony of Slatky, Superintendent Morrow, and Master Mechanic Mack.
In testifying to his efforts to obtain McAneny's clearance , Slatky made reference to
earlier instances of similar refusals which resulted in the filing of other charges with
the Board. Upon Respondents' objection to this line of questions I rejected the evidence,
as I rejected thereafter General Counsel's offer of proof with respect to it, as background
I reaffirm my ruling with respect to this evidence of conduct occurring prior to the period
covered herein.
'° The credited , undenied testimony of Sedlak.
17 The credited, undenied testimony of Superintendent Morrow
LOCAL 542, IUOE, AFL-CIO 67
room throughout all of this testimony and was thereafter called as a witness by the
General Counsel. He did not testify to either these incidents nor to any other inci-
dent attributed to him. In such a state of the record simple justice to these engineers
dictates that they be made whole for the reprisal visited upon them for their par-
ticipation in union affairs.
4. Restraint and coercion
It is also alleged that the foregoing conduct which I have already found to con-
stitute on the part of the several Respondents the causing or attempting to cause the
Company to discriminate against the employees, also constitutes restraint and coercion
of these employees in violation of Section 8 (b) (1) (A).
Clearly, McAneny's efforts at retaliation against Paskert, McCabe, Watkins,
Sedlak, and Slatky stemmed from their adherence to the "Freedom Ticket" and their
opposition to his conduct of Local 542's affairs. The Board has traditionally found
such conduct to be the form of restraint and coercion proscribed by Section 8(b)
(1) (A) 18 and I so find here.
Similarly, it has long been settled that the maintenance of an arrangement or
practice imposing closed-shop conditions upon employees or otherwise unlawfully
causing or attempting to cause an employer to discriminate against them independently
restrains and coerces such employees in violation of Section 8(b) (1) (A) 19 and I
find accordingly here.
5. Liability of the respective Respondents
The essence of the International's and Local 542's respective positions in the matter
of liability for the foregoing conduct is, in each case, that the other party is re-
sponsible, depending in each case upon the legal view that is to be taken of the
supervisorship imposed by the International upon Local 542 and in full force and
effect during the relevant periods herein.
It is Local 542's position that by virtue of the International's order imposing super-
visorship (supra, footnote 1), by the subsequent implementation of the order by the
supervisor appointed by the International, Respondent Wharton, and by interpretation
of article VI, section 3, of the International constitution then in force,20 Local 542
18Inteinational Union, United Automobile , Aircraft and Agricultural Implement Work-
ers of America, CIO, Local 291 (Wisconsin Axle Division , The Timken-Detroit Axle Com-
pany), 92 NLRB 968 , 973; The Radio Officers' Union of the Commercial Telegraphers
Union, AFL (A. H. Bull Steamship Company), 93 NLRB 1523, 1527, enfd. 347 U.S. 17.
18 Namm's, Inc , 102 NLRB 466, 469; Mundet Cork Corporation and Insulation Con-
tractors of Southern California, Inc., 96 NLRB 1142, 1150.
2O Article VI, section 3, of the International constitution amended April 1960, reads as
follows:
He shall have power to direct and supervise all Local Unions, Local Officers and
any other subdivision of the International Union and members. For the purpose of
correcting corruption or financial malpractice , assuring the performance of collective
bargaining agreements or other duties of a bargaining representative, restoring demo-
cratic procedures, or otherwise carrying out the legitimate objects of the International
Union, including the observance of the Ritual, Obligation , laws, rules or decisions of
the organization or its duly constituted authorities , he shall have full power to sus-
pend or remove such Local officers, suspend or revoke charters of such Local Unions
or place such Local Unions and their officers and members under International super-
vision. He shall have power to designate and appoint persons to fill the places of
those Local Officers of Local Unions suspended , removed or placed under International
supervision , which appointees shall conduct the affairs over which they have been
appointed for such time and in such manner as he may direct. All of the business,
finances, affairs and government of any Local Union whose charter shall have been
suspended by the General President or shall have been placed under International
supervision by him, shall be fully and completely conducted and administered by the
General President or his deputy thereunto appointed with full power of control
therein and thereover . During such suspension or International supervision all rights
and powers of the Local Union to conduct its own affairs shall be suspended. He or
his deputy shall countersign all vouchers and checks for payment of monies or for
withdrawing funds from the bank. He shall have power to appoint Local officers
pro tem and all committees not otherwise provided for, to deputize any member in
good standing to perform any of the powers and duties of his office.
Whenever the General President exercises his power under this Section to sus-
pend or remove local officers , suspend or revoke charters of Local Unions, or place
708-006-64-vol. 141-6
68 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
thereby became a mere shell of its former self. As Respondent Local 542's counsel
states in his brief: "The bare fact is that during the trusteeship there is no local."
While I am quite cognizant of the many and extreme restrictions placed upon
Local 542 during its travail I do not share counsel's dim view that a restriction
upon autonomy may be equated with nonexistence. In the first place the Local was
held out to the public and most certainly to the employing contractors as a going
organization, and its business agent certainly made representations in the Local's
name. And indeed when, as a party to proceedings before the Court of Appeals for
the Third Circuit, N.L.R.B. v. United States Steel Corp. (American Bridge Division),21
it contended that proposed bylaws of Local 542 were never technically put into
effect since it had no officers but only a supervisor appointed by the International
the court replied (278 F. 2d at 898, footnote 4) that it had been shown that because
a majority of the Local 542 membership had approved these bylaws it was reasonable
for the Board to concede as it had that they were being observed by the membership
regardless of International action or approval. In a word, a functioning membership
was, in itself, adequate testimony of life.
And finally, regardless of who appointed Business Agent McAneny to his position,
he did represent himself as an official of Local 542, and not solely as an agent of
either the International or of Trustee Wharton, nor does it appear that any employer
doing business with him considers his status to be other than represented. Under
such circumstances the rules of agency dictate no conclusion other than that McAneny
was the agent of Local 542, and that Local 542 was an organization capable of his
representation.
Upon the foregoing, therefore, and upon the authority of cases I shall discuss in
detail hereafter (infra), I conclude and find that Local 542 and its then business
agent, William McAneny, were responsible for the unfair labor practices found herein.
With respect to the responsibility of the International, its president, Respondent
Delaney, and its appointed supervisor of Local 542, Respondent Wharton, the law
appears settled in holding that each shares in the liability incurred by Local 542.
Indeed the International's constitution effective during the pertinent period herein
is replete with instances of control by the International and its officers over locals,
including those locals not under supervisorship or trustee 22 Each clearly manifests
a modicum of control ample to justify coordinate responsibility for a local's actions.
And it is to be assumed that the International, through its officers and appointees, has
used its constitutional powers, even apart from those derived by the invocation of
its order of supervision, and is thereby equally responsible for the actions taken by
Local 542.23
Counsel for the General Counsel has provided me a substantial number of cases
decided by the Board which, upon study, I find to support my conclusion that both
the International and Local 542 as well as the International's president, Delaney,
Trustee Wharton, and Business Agent McAneny are jointly and severally liable for
the conduct found herein to constitute violations of the Act. Because counsel for
both Respondent International and Respondent Local 542 both seek to distinguish
these cases, and other cases not cited to me by the General Counsel, I deem it
necessary to consider in detail each of the cases upon which I rely:
Local No. 600, Truck Drivers and Helpers, Gasoline & Oil Drivers, etc. (Osceola
Foods, Inc.), 107 NLRB 161. In considering the responsibility for unfair labor
practices committed by two "trusteed" locals it was stated with Board approval (at
p. 173) :
According to the constitution of the International Brotherhood the trustee
takes full charge of the affairs of the Local Union, he reports to the general
such Local Unions and their officers and members under International supervision,
a hearing shall be held before him , or his authorized representative, to determine the
necessity for taking such action , with the General President making the ultimate
decision . Reasonable notice of such hearing shall be afforded the officers and mem-
bers of the subordinate union involved. If the General President determines that an
emergency exists requiring immediate action to be taken prior to a hearing, he may
take such action, but the hearing shall be held within a reasonable time thereafter.
In all other cases the action will not be taken until a hearing has been held.
278 F. 2d 896.
See for example : the authority to call strikes , article XXIII , subdivision 11, section C;
sanction of the International president, article XXIII, subdivision 11, section D ; approval
of bylaws, article XXIII, subdivision 12.
=s See: International Brotherhood of Electrical Workers, AFL-CIO, and Local 59 (Tex-
lite, Inc.), 119 NLRB 1792, 1800.
LOCAL 542, JUDE, AFL-CIO 69
president, and is subject to the supervision of the general president . . .
In view of this direct control over the policies and operations of Local 600.. .
the International Brotherhood shares responsibility . for the course of
conduct found violative of the Act. [Emphasis supplied.]
Respondent Local 542, by way of raising a distinction, includes this case among those
which "do not discuss the extent and manner of control exercised by the trustee,
nor do they go into any question whether or not the local had any autonomous
power during the period of the trusteeship." In response to this argument, and in
rejection of it, I submit that upon a rereading of the excerpt quoted above, as well
as similar excerpts in cases quoted hereafter, the expressions "take full charge" and
"direct control over policies and operations" have a clear and unequivocal meaning.
Respondent International cites this case in its brief, and others as well, as example
of instances were the injunctive relief of a cease-and-desist order was all that was
imposed upon the International, and that the International was not burdened with
a backpay reimbursement order. This, Respondent claims, distinguishes the back-
pay liability in the cited case from the liability that would flow in the instant case.
What Respondent has failed to note in suggesting this distinction is that in the cited
case no backpay was assessed against anyone.
General Drivers, Warehousemen and Helpers, Local 968, International Broth-
erhood of Teamsters, etc. (Otis Massey Company, Ltd.), 109 NLRB 275. Here,
a trustee of Local 968 appointed by the International argues that the complaint should
be dismissed with respect to him for lack of knowledge. The Board stated (at p. 279) :
According to the constitution of the International Brotherhood, Miller, as
Trustee, has full charge of the affairs of the Local Union and of the subordinate
officials of such Union. In view of this direct control over the policies and
operations of Local 968 we find that Miller, as Trustee, shares the responsibility
with the Local.... [Emphasis supplied.]
As in the previous case, "full charge" of the trustee is noted as evidence of the
responsibility of the International, and the trustee. In my view this is the "full
charge" exercised by the Respondent International and Respondent Wharton in the
instant case. Furthermore, as the order in the cited case contains no backpay re-
quirement against it, it cannot be regarded as authority for the distinction sought
in that respect by Respondent International.
Albert Evans, Trustee of Local No. 391, International Brotherhood of Teamsters,
etc. (Thurston Motor Lines Inc.), 110 NLRB 748, 749:
We note that the amended complaint alleged that Evans at all material times
was the trustee of Local 391 by virtue of an appointment by the International in
accordance with its constitution, and had full and complete control of Local
391 .. . . [W]e further find that the International, by virtue of its trusteeship
of Local 391 at such times, also violated . . . the Act. (Citing Local No. 600,
discussed above.)
No backpay was assessed in this case , thus making it valueless as authority for the
distinction sought on that score.
Oregon Teamsters' Security Plan Office, et al., 113 NLRB 987; 119 NLRB 207,
pursuant to remand of the U.S. Supreme Court, 353 U.S. 313. Here, upon an Inter-
mediate Report and Recommended Order, the Board initially refused to assert its
jurisdiction. Upon petition for review the Supreme Court ultimately remanded the
case to the Board for determination of the merits (119 NLRB 207). The Inter-
mediate Report, in discussing the "trusteed" status of Local 223, one of the Re-
spondents in the case stated (113 NLRB at 1036-1037) with ultimate Board ap-
proval (119 NLRB 207) :
The record amply demonstrates that International Representative Sweeney
was in complete control of the affairs of Local 223 . . Accordingly, I find
that the International by virtue of its trusteeship of Local 223, has violated
Section 8(a)(1) and (2) of the Act. Thurston Motor Lines, Inc., 110 NLRB
748. [Emphasis supplied.]
A reading of the Board's opinion after remand (119 NLRB at 208 and 215) discloses
that as Local 223, the trusteed local, was found to have violated only Section 8(a) (1)
and (2) no backpay would be assessable against it. For this reason alone, the failure
to assess the jointly responsible International is evident and any distinction which
might otherwise be drawn has no foundation.
70 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
International Brotherhood of Teamsters, etc. and Local Union No. 294, et al.
(E. G. Delia & Sons Construction Corp.), 117 NLRB 1401. Here the Board adopted
without comment a detailed description of the duties and authorities of the Inter-
national appointed trustee (117 at 1405) and the following conclusions drawn from it
(at 1406):
On the above evidence I find and hold that at the time of the events herein
Dietrich was trustee of Local 294 under appointment by the general president
of the International Union, that at such time Dietrich was in full charge of its
affairs subject to the supervision of the general president, even though Dietrich
committed the Local's officers to conduct its day-to-day business. As trustee,
Dietrich was in full and complete control of Local 294 by virtue of an appoint-
ment by the International Union in accordance with its constitution, both
Dietrich and the International Union violated Section 8(b) (4) (A) and (B)
of the Act if, as will now be considered Local 294 violated those Sections of
the Act.
Significantly, the Board, contrary to Respondent Local 542's contention herein, has
in this case approved the quantum of control necessary for "full and complete con-
trol" for it finds such completeness even when the Local is permitted to "conduct its
day-to-day business." By such recognition it would appear that the Board does not
view the vestiges of a local's autonomy to be the criterion of its existence, as Re-
spondent insists that it should. Furthermore, it is to be noted that in this case, as in
the others previously considered, no backpay was assessed against any party, thus
removing any distinction upon such a basis.
International Brotherhood of Teamsters, etc.; Merchandise Drivers Local 641,
IBT (Ruffalo's Trucking Service, Inc ), 119 NLRB 1268, 1283:
Local 506 functions under a trusteeship with DePerno as trustee under the
jurisdiction of the president of the Teamsters. Pursuant to the Teamsters' con-
stitution article VI, section 6, the trustee has full charge of the affairs and sub-
ordinate officers of Local 506 subject to the supervision of the Teamsters'
president. I find that DePerno, by virtue of this direct control over the policies
and operations of Local 506 and the Teamsters, by virtue of its trusteeship of
Local 506, share responsibility for the unlawful conduct of that Respondent.
(Citing Otis Massey and Thurston Motor Lines Inc.) [Emphasis supplied.]
From the foregoing characterization of the duties and authority of the trustee the
resulting conclusion of the Board may readily be equated Trustee Wharton and
the International in the instant case without in any way relieving the Local of re-
sponsbility for the unlawful conduct committed. In the Ruffalo case it is also to be
noted that the payment of backpay was ordered against no one, thus disposing of any
possible distinction of cases on that ground.
Local 612, International Brotherhood of Teamsters, et al. (Avery Freight Lines,
Inc ), 121 NLRB 1571, 1585:
Respondents argue that the complaint likewise cannot be sustained against the
International and Clarence Mandoiza because they did not directly participate
in the Local's unlawful conduct. However, during the times material to this
case Clarence Mandoiza was the trustee in full charge of the affairs of the Local,
pursuant to an appointment by the International with power to designate and
remove the officers of the Local. In these circumstances the unfair labor prac-
tices of the Local are attributable to both the International and Mandoiza and I
therefore find that they are equally responsible with the Local for the violations
. . . . [Emphasis supplied.]
Once again "full charge of the affairs of the Local," even as Respondent Local 542
insists was vested in Respondent Wharton herein, is the determinant of joint liability.
And as in each of the previous cases discussed backpay was assessed against no one
and hence is no basis for distinguishing this case from either the instant situation
or from other cases relied upon.
In summary it is sufficient to note that a study of the foregoing cases suggests
two conclusions. First, the Board was satisfied in each of these cases I have discussed
that "full charge of the Local's affairs" constituted evidence of "direct and complete
control." Nonetheless, the Board showed no hesitancy whatever in finding the local
to be responsible, and with it the International, its officers, and its appointed trustee.
While the Board, in its previously decided cases, may not have spelled out the extent
and manner of trustee control over a local union to the measure suggested by Re-
spondent Local 542, 1 am not persuaded that we must thereby conclude that the
LOCAL 542, IUOE, AFL-CIO 71
Board meant something contrary to what it held in those cited cases . But rather I am
satisfied that the responsibility of the International officials, appointees , and trusteed
locals in these cases was amply explicated.
Secondly, there is nothing in any of the cases to suggest , as Respondent Inter-
national does, that the Board 's order against the International was perfunctory.
Respondent posits this conclusion upon the Board 's failure in each of the cases
to assess backpay against the International involved. No party in any case cited
was required , by the nature of the violations found, to make payments of backpay.
The cases therefore , cannot logically support a proposition that in a different type of
violation backpay would or would not be assessable against an International, or any
other party, for that matter.
For the foregoing reasons, therefore , I would find that Respondent International
and Respondent Local 542 together with Respondents Delaney, Wharton, and Mc-
Aneny in their respective official capacities , are jointly and severally liable for the
conduct found to be in violation of the Act.
V. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondents set forth in section IV, above, occurring in con-
nection with the operations of the Company herein involved , as described in section
I, above, have a close , intimate, and substantial relation to trade, traffic , and com-
merce among the several States, and tend to lead to labor disputes burdening and
obstructing commerce and the free flow thereof.
VI. THE REMEDY
Having found that the Respondents engaged in certain unfair labor practices
violative of Section 8(b)(2) and (1) (A) of the Act, it will be recommended that
they cease and desist therefrom and take certain affirmative action to effectuate
the policies of the Act. And having found that the Respondents have jointly and
severally discriminated against Joseph Paskert , Sr., Francis McCabe, Olin B. Watkins,
Joseph Sedlak, and John Slatky, I shall further recommend that the Respondents be
required to refer the foregoing individuals for future employment without discrimina-
tion, and that jointly and severally they shall make them whole for any loss of
earnings suffered by them as a result of the unlawful conduct committed by payment
to them of sums of money equal to the amount they would normally have earned as
wages absent discrimination against them , from the dates upon which said discrimina-
tion began in their respective cases until such times as they were no longer available
for employment , or were actually referred to work. Loss of earnings shall be
computed on a quarterly basis in the manner established by the Board in F. W.
Woolworth Company, 90 NLRB 289.24
CONCLUSIONS OF LAW
1 International Union of Operating Engineers , AFL-CIO , and Local 542 , Inter-
national Union of Operating Engineers , AFL-CIO, are labor organizations within
the meaning of Section 2(5) of the Act
2. Elmhurst Contracting Co., Inc. ( Division of Hagan Industries , Inc.), is an em-
ployer engaged in commerce within the meaning of the Act.
3. By causing and attempting to cause Elmhurst Contracting Co., Inc, to
discriminate in regard to the hire and tenure of employment and terms and
conditions of employment in violation of Section 8(a)(3) of the Act, the respective
Respondents herein have engaged in and are engaging in unfair labor practices within
the meaning of Section 8(b) (2) of the Act.
4. By restraining and coercing employees in the exercise of rights guaranteed
in Section 7 of the Act, the respective Respondents herein have engaged in and are
engaging in unfair labor practices within the meaning of Section 8 (b) (1) (A) of the
Act.
5. The aforesaid labor practices are unfair labor practices affecting commerce
within the meaning of Section 2 ( 6) and ( 7) of the Act.
[Recommended Order omitted from publication.]
24 General Counsel requests that interest be assessed on any backpay awarded. The
Board, however , has never granted such a request . I deny it here , therefore , as contrary
to established practice.