Marquette Cement Manufacturing Co.

National Labor Relations Board - Board DecisionsSep 5, 1974

213 N.L.R.B. 182 (N.L.R.B. 1974)

182 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Marquette Cement Manufacturing Company and Ron- ald J. Wilson. Local 799, International Longshoremen 's Association, AFL-CIO and Ronald J. Wilson . Cases 1-CA-9014 and 1-CB-2287 September 5, 1974 DECISION AND ORDER BY MEMBERS JENKINS, KENNEDY, AND PENELLO ORDER Pursuant to Section 10(c) of the National Labor Relations Act as amended the National Labor Rela- tions Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the complaint be, and it hereby is, dis- missed in its entirety. DECISION STATEMENT OF THE CASE On April 29, 1974, Administrative Law Judge Ber- nard J. Seff issued the attached Decision in this pro- ceeding . Thereafter, the Charging Party filed exceptions and a supporting brief and the Respondent Employer filed a brief in answer to the Charging Party's exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings,' and conclusions 2 of the Administrative Law Judge and to adopt his recommended Order. t The Charging Party has excepted to certain credibility findings made by the Administrative Law Judge . It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibili- ty unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect . Standard Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have carefully examined the record and find no basis for reversing his findings. 2 While we adopt the Administrative Law Judge's recommendation that the complaint be dismissed , we do not adopt his rationale in its entirety. Rather, we agree with his conclusion solely because, as appears from the Decision , there is no evidence that Wilson 's union membership or activity was a consideration in the Respondents ' actions. For, it is clear that the Union 's request for his discharge was pursuant to its policy and for the purpose of having jobs assigned to men who devoted all their time to long- shore work at a period when the job situation for longshoremen was critical, whereas Wilson was a "two jobber" ( i.e., a member who held a nonlongshore- man job in addition to his longshore job). It is well settled that discrimination at the instance of a union is not per se an unfair labor practice . N. L. R. B. v. Local 294, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Independent (Valetta Motor Trucking Co., Inc.), 317 F.2d 746, 748-749 (C.A. 2, 1963). Thus, the mere fact that a union 's power to refer employees in accordance with some type of listed priority will en- courage membership does not render it the kind of discrimination to which the Act is addressed ; there are countless situations in which the very concept of collective action demands that the union have the power to influence the employer to make changes in the job status of individual employees. Since the Respondent Union acted here in furtherance of a valid objective for the benefit of its membership as a whole, we find that it did not cause or attempt to cause the Respondent Company to discharge Wilson in violation of Sec. 8(aX3). Accordingly, neither Respondent Employer nor Respondent Union violated the Act. N.L.R.B. v. Local 294, International Brotherhood of Team- sters, supra, and cases cited therein. BERNARD J. SEFF , Administrative Law Judge : This pro- ceeding, with all parties represented , was heard on Novem- ber 26 and 27, 1973,' at Boston , Massachusetts, on the amended and consolidated complaint of the General Coun- sel issued on September 262 Briefs were received from the General Counsel and both Respondents which have been carefully considered. Upon the entire record, and from my observation of the demeanor of the witnesses , and with due consideration being given to the arguments advanced by the parties, I make the following: FINDINGS OF FACT 1. JURISDICTION Respondent Company maintains its principal office in Chicago , Illinois , and a place of business at Commercial Street in the City of Everett, Commonwealth of Massachu- setts, where it is engaged in the sale and distribution of Portland Cements and related products. Respondent Com- pany receives Portland Cements valued in excess of $50,000 in interstate commerce and ships these products, valued in excess of $50,000, in interstate commerce . It is stipulated and I find that Respondent Company is an employer en- gaged in commerce within the meaning of Section 2(6) and (7) of the Act. 11. THE LABOR ORGANIZATION INVOLVED It is admitted and I find that Respondent-Union is a labor organization within the meaning of Section 2(5) of the Act. r All dates referred to occur in 1973 unless otherwise indicated. 2 The complaint is based on charges filed by an individual , Ronald J. Wilson, on April 13 and answers filed by Respondent -Company, Marquette Cement Manufacturing Company and Respondent-Union, Local 799, Inter- national Longshoremen 's Association , AFL-CIO. In issue are the questions whether Respondent-Union, in violation of Section 8(b)(IXA) and (2) by removing the charging party from his job because he had steady employment outside the longshoremen's industry and the Company, by acquiescing in the removal of Wilson violated Section 8(a)(3) and (1) of the Act. MARQUETTE CEMENT MANUFACTURING COMPANY 183 Ill. THE ALLEGED UNFAIR LABOR PRACTICES A. Background The company maintains a dock facility at Everett, Massa- chusetts, where the events took place which are the subject of the instant case. The dock facility is used to unload cement barges. The cement is manufactured at. the Company's plant in Catskill, New York. After the cement arrives at the dock it is distributed in the form of bulk and bags through Massachusetts, New Hampshire and part of Rhode Island. Prior to the operation of the Everett facility by Mar- quette, it functioned under a predecessor company, North American Cement. Thereafter the facility was owned by Marquette but was operated by P. B. Mutrie Motor Trans- port on a cost-reimbursement basis. Respondent assumed direct control and operation on February 13, 1971. B. Facts The essential facts are not in dispute. The Company uses the services of two longshoremen referred by Local Union 799 in the unloading of the barges. The longshoremen fasten cables and cement lines to the ship and operate an electric motor which is activated by pushing buttons. This causes the raising and lowering of a gantry to compensate for changes in the tide level. While the unloading of a barge goes on continuously for from 24 to 30 hours the two men need not be present at the same time but, according to past practice, they "spell" one another during the unloading pro- cess. According to the testimony of Edward Callahan, present- ly the union business agent and formerly, for 10 years, presi- dent of Local 799, members of the Union have been employed at the site in question for about 12 years. The record does not disclose when the referral relationship was first established but it is clear that referral systems have been in effect for a long period of time. The practice of referring longshoremen to cement compa- nies by union sources preexisted the establishment of a formal hiring hall in the Boston area. Because the use of casual men resulted in expensive damage to equipment, North American Cement, the predecessor to Marquette, in 1962 asked the Union to provide two longshoremen on a steady basis to perform the loading function. In compliance with this request Local 799 held a meeting of its members at which time 30 longshoremen placed their cards in a hat. The two men whose cards were drawn were assigned to the North American Cement job. The two men assigned to work at North American Cement were the charging party, Ronald Wilson and Clifford Thompson. At the time Wilson and Thompson received the job as- signment, Respondent Union did not operate a hiring hall. The hiring hall came into existence on December 6, 1966. According to the unrebutted testimony of Callahan when Wilson received his job assignment he accepted it subject to the condition that he had to remain a full-time longshore- man. Wilson is a fully paid up member in good standing of Local 799, International Longshoremen's Association, AFL-CIO. At the outset of this employment it was the practice of North American Cement to inform the then union business agent, Daniel Doherty, of the arrival of a cement barge. Doherty then relayed the information to Thompson and Wilson. When Callahan took over from Doherty he made arrangements for the Company to contact the two men directly. This change was a matter of convenience for Calla- han since he had received some of the Company's phone calls at his home in the early hours of the morning. This practice has continued to the present day. Marquette's fore- man in charge of the Everrett facility is John Madden. He testified that he typically called either Thompson or Wilson to notify them of the arrival of a cement barge. It is the duty of the longshoreman who received the call to advise the other of the arrival of a cement barge. Thus the practice became a regular matter that the Union as such did not directly participate in sending the men to the job. On July 28, 1969, Wilson joined the Chelsea police de- partment. Before this appointment became permanent Wil- son had to complete a probationary period. Wilson attended two union meetings in 1969 and 1970 at which he appealed to the membership to allow him to retain his long- shore job until his probationary period had been completed. These requests were granted. Another union meeting took place on February 22, 1973, at which Wilson was not pres- ent. At this meeting the men decided to take Wilson's job away in favor of another member, Jack Doherty. Wilson heard a rumor that he was going to lose his job and he called Callahan to check on this news. Callahan told Wilson that since he was no longer an active member of the longshore craft, as of April 1, he would be taken off the cement job. It is uncontroverted that on or about April 1, Wilson was replaced by Jack Doherty. Respondent Union requested Wilson's discharge and Marquette acquiesced in granting this request. The record shows that there has been serious unemploy- ment among the ranks of longshoremen in the Boston area in 1973. This came about when automation and containeri- zation hit the port of Boston. On one of the days while the hearing was in progress out of 30 regular gangs which would be normally employed on the docks only 2 were working. It was not controverted that the job situation for longshore- men in Boston is critical. Thus the Union's concern to have jobs assigned to men who devote all their time to longshore work is a legitimate union consideration. What the Union objected to in the instant case was the fact that Wilson was a "two jobber" (held two jobs) at a time when many full-time longshoremen were without employ- ment. As Callahan expressed it, until all regular union mem- bers had jobs the "two jobbers" must go to the rear of the bus. C. Discussion Wilson initially accepted the job in 1962 on the sole basis that he could keep it only if he remained a full -time long- shoreman . He agreed to this condition as witness his atten- dance at two union meetings where he requested of the local members that he be allowed to continue on the job until his probationary period as a member of the Chelsea police department had been completed. At such time as he secured 184 DECISIONS OF NATIONAL LABOR RELATIONS BOARD full-time work on a regular job he agreed to relinquish his employment at Marquette. Two extensions on the job were granted to Wilson by members of Local 799. The General Counsel in his brief states , "Moreover it is readily apparent that there is not even an oral under- standing between the parties . . . officials of the Company have never communicated with one another by any means to discuss wages, hours or working conditions." This state- ment is not supported in the record. The evidence shows that approximately every 2 years when the Union and the Boston Shipping Association renegotiated wages the three cement companies would contact Local 799's business agent and request that he forward the new wage scale which would then be implemented by the companies' putting the new rates into effect. The current wage agreement between Marquette and Lo- cal 799 is an oral agreement. Callahan testified without contradiction that when companies other than members of Boston Shipping Association unload at the Boston docks most of the agreements are oral. It is true that Marquette is not a member of the Boston Shipping Association and is not bound by a written agreement between the said Association and Local 799. Nevertheless it is clear that the Company has an oral understanding with the Union as to wages and the overtime provisions of the Association contract which has been in effect for more than 10 years. Such an oral under- standing, and the custom and practice which flowed from it, has equal validity with a written contract. There is and has been an ongoing relationship between the Company and Local 799. Wilson himself testified that he first secured his job with Marquette as the result of the union-conducted lottery. He also stated that if neither Thompson nor he were not available for work he would have contacted the union hiring hall and not the Company to secure replacements for the missing men. The evidence in the record demonstrates the existence of a referral system between the Company, its predecessors, and Local 799 for more than 10 years. The Union has been the exclusive source of longshoremen for the Everette facili- ty throughout this long period. At no time during this period did Marquette or its predecessors secure the manning of its operations through its own efforts. Longshoremen were se- cured solely through Local 799. In support of its position that a valid exclusive referral system existed and that no formal collective-bargaining contract is necessary for a finding of a valid referral system the Company cites the case of Hoisting and Portable Engineers, Local 302 (West Coast Steel Works).3 In this case the Board held "We believe that independent of the hiring hall requirements of the AGC contract (an association contract) there existed an informal arrangement between the Respondent (the Union) and West Coast (the subcontractor) that West Coast would ob- tain clearance or referral of its Alaska job applicants from Respondent." Having found that a valid hiring hall or refer- ral system existed the Board concluded that the Union had not violated the Act in securing the discharge from employ- ment with the subcontractor of the employees who had not secured clearance by the Union. 3 144 NLRB 1449. The fact that the referral system was not in writing does not affect its validity. The Board has stated in a number of cases that a hiring hall or other referral system need not be in writing but may be established by evidence of an oral understanding or of a course of conduct 4 The principle that a referral system need not be in writing has been reaffirmed by the Board as recently as 1972 in the case of International Union of Operating Engineers, Hoisting and Portable Local No. 513 (McFry Excavating and Demolition Co.).' Both the General Counsel and the Charging Party rely on the precedent established in Teamsters' Local No. 676 (Tel- lespan Petro Chemical Co.), 172 NLRB 948. Respondent Company notes in its brief, " . . . the Board found viola- tions of 8(b)(1)(A) and (2) of the Act arising out of the Respondent labor organization procuring the charging party's discharge." The Board relied "solely on the grounds that there was no contract, arrangement or course of conduct which would establish a lawful hiring hall arrangement be- tween the parties at the time the charging party was hired." Marquette distinguishes Tellesp,7n from the instant case "since there is no question that at the time he was hired, Wilson was referred by Local 799 pursuant to an exclusive referral system." It is further contended by the Company that Tellespan holds that the question of an employee's job being subject to a referral system depends on the arrange- ment at the time of hire and not at the time of discharge. Thus it supports the position of Local 799 and Marquette. Attention is called to the case of International Typographi- cal Union, Columbus Typographical Union No. 5, AFL-CIO (The Dispatch Printing Company), 177 NLRB 855, 856. Grubb appeared at the Company's composing room seeking employment as a proofreader. She was a member of the union . At this time there were no substitutes available for duty on the night shift and no employees in any other classi- fication had sought such assignment. She was hired. The union contended that its representative, Albright, should have taken people on the floor to fill the position that Grubb had been hired to fill. Albright was charged with failure to hire a presently employed individual or he should have retrained presently employed composing room employees instead of hiring outside help. The Board held: " . . . in the absence of any evidence that the rule (law of the shop) was arbitrarily applied to Grubb; that Grubb was not otherwise singled out for discriminatory treatment; or that the action taken against her related to her union or other concerted activities, or her failure to engage in such activities; or that it was for the purpose of encouraging or discouraging union activities, we find no basis for holding that, by its conduct with respect to Grubb, the Respondent Union violated the Act." Accordingly, the Board dismissed the complaint in its entirety. In the Cafero case,6 Cafero was a night proofreader for the New Times. For the past 13 years, in addition to his night job at the Times, Cafero has had a regular daytime 4 Local Union No. 106, United Brotherhood of Carpenters and Joiners of America, AFL-CIO (Otis Elevator Company), 132 NLRB 1444, 1448; Labor- ers and Hod Carriers Union, Local 652, AFL-CIO, 135 NLRB 43, 44. s 197 NLRB 1046 (1972). 6 See New York Typographical Union Number Six, International Typographi- cal Union, AFL-CIO (Lawrence F. Cafero), 144 NLRB 1555, 1559, enfd. 336 F.2d 115 (C.A. 2). MARQUETTE CEMENT MANUFACTURING COMPANY position and for the past 3 years he was employed as princi- pal of a junior high school. In that case there is no evidence that the action taken against Cafero was related to his union or other concerted activities or that it was for the purpose of encouraging or discouraging union activities. The Board found that the action against Cafero was not arbitrary or capricious and that it did not represent a failure by Respon- dent in carrying out its representative responsibilities in a fair and evenhanded manner. Respondent did not violate Section 8(b)(1)(A) and (2). The complaint was dismissed. In a very recent case, Ashley, Hickham-Uhr Co.,' the facts are as follows: The respondent company bid successfully for a job at a Columbia Township, Michigan, jobsite, and thereafter hired a foreman and three millwrights who began working at the jobsite on June 26, 1972. On June 24 and 26, respon- dent union's business manager, Spano, and its business rep- resentative, Beschoner, respectively, told representatives of respondent company that an experienced steward would be sent to the jobsite from the union hall. On June 26, respon- dent company's superintendent, Smith, told Beschoner that, if respondent union sent a steward to the jobsite, he (Smith) would have to lay off one of the millwrights previously hired. Beschoner replied that a steward would nevertheless be sent. The next day, Frontera, the steward designated by respondent union, reported to work. Thereupon, Meyers, the charging party, was laid off "due to replacement by steward from union hall." Respondent Union's asserted reason for wanting Front- era to act as steward was that Frontera was a strong militant steward familiar with jurisdictional disputes with craft unions on a project similar to the Columbia Township job- site, and was also familiar with its collective-bargaining con- tract, and who would enforce respondent union's jurisdictional claims without involving it in any unlawful conduct. The Administrative Law Judge found that Respondent Union's motive in seeking Frontera's appointment as stew- ard was irrelevant since it was aware that Frontera's ap- pointment as steward would cause respondent company to lay off another employee. He found therefore that Respon- dent Union violated Section 8(b)(1)(A) and (2) of the Act by causing the layoff of Meyers and that respondent compa- ny, by acquiescing in the latter employee's layoff, violated Section 8(a)(3) and (1) of the Act. The Board disagreed stating that Respondent Union's reasons in seeking Frontera's appointment as steward are material and rele- vant and critical to the issue of whether it thereby commit- ted an unfair labor practice. Not every encouragement of union membership is unlawful, and mere acquiescence of an employer in a demand of a union is not unlawful encour- agement per se. Thus, when the circumstances do not in- volve an objective of furthering, requiring, or conditioning employment on union membership as such, the illegality, if any, must be found in those actions by a union that impinge upon the employment relationship which are arbitrary, in- vidious, or irrelevant to legitimate union interests. 7 210 NLRB No. I. 185 The Shield case 8 is instructive in that it contains a run- down of many cases decided by the Board in this trouble- some and somewhat murky area of the law. Suffice it to say that when the circumstances do not involve an objective of furthering, requiring, or conditioning employment on union membership as such, the illegality, if any, must be found in those actions by a union that impinges upon the employ- ment relationship which are arbitrary, invidious, or irrele- vant to legitimate union interests. The key issue is whether Respondent Union's action herein was arbitrary, invidious, irrelevant, and thus a mask for discriminatory motivation. The General Counsel has failed to establish that it was done for this purpose and I conclude that Wilson's displace- ment has not been shown to constitute an unfair labor prac- tice. Likewise there is a similar failure of proof to establish any violation of the Act by Respondent Company in laying off the Charging Party after its compliance with the Union's request to lay off Wilson. Conclusion When Local 799 had Wilson removed from his job this act was done in the legitimate exercise of the Union's adher- ence to the policy of the Local Union to spread the work and eliminate a two jobber man at a time when full-time longshoremen were out of work. It was reasonable and not arbitrary, invidious, or irrelevant to the Local's legitimate interests . Clearly, on the facts in the instant case , the dis- placement of Wilson was not a mask for discriminatory motivation. Upon the foregoing factual findings and conclusions, I come to the following: CONCLUSIONS OF LAW 1. Marquette Cement Manufacturing Company is an employer engaged in commerce within the meaning of Sec- tion 2(6) and (7) of the Act. 2. Local 799 is a labor organization within the meaning of Section 2(5) of the Act. 3. Neither Marquette nor Local 799 has engaged or is engaging in unfair labor practices as alleged in the consoli- dated complaint. Upon the foregoing findings of fact and conclusions of law, upon the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following: RECOMMENDED ORDERS Upon the basis of the foregoing findings of fact and con- clusions of law, I recommend that the consolidated com- plaint be dismissed in its entirety. 8 Chicago Federation of Musicians, Local 10, American Federation of Musi- cians (Shield Radio & T.V. Productions, Inc.), 153 NLRB 68, 83-84. 9 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes.