Operating Engineers Local 150 (Willbros Energy)

National Labor Relations Board - Board Decisions

Apr 27, 1992

307 N.L.R.B. 272 (N.L.R.B. 1992)

272
307 NLRB No. 43
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
1 All dates are in 1990 unless otherwise noted.
2 The General Counsel’s motion to correct transcript, dated Octo-
ber 29, 1991, is granted and incorporated by reference here.
3 The lawfulness of this charge is not in question. Payment of the
charge allows the person referred to work under the referral for 35
calendar days. It must then be paid again to continue working under
the referral.
International Union of Operating Engineers, Local
150, AFL–CIO (Willbros Energy Services
Company) and David D. Dvorak. Case 33–CB–
2858
April 27, 1992
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
On November 19, 1991, Administrative Law Judge
Wallace H. Nations issued the attached decision. The
Respondent filed exceptions and a supporting brief.
The General Counsel filed a brief in support of the
judge’s decision and an answering brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, International Union of Op-
erating Engineers, Local 150, AFL–CIO, Countryside,
Illinois, its officers, agents, and representatives, shall
take the action set forth in the Order.
Judith T. Poltz, Esq., for the General Counsel.
Louis E. Sigman, Esq., of Chicago, Illinois, for the Respond-
ent.
DECISION
STATEMENT OF THE CASE
WALLACE H. NATIONS, Administrative Law Judge. Based
on a charge filed by David D. Dvorak, an individual, on Oc-
tober 22, 1990,1 the Regional Director for Region 33 issued
a complaint and notice of hearing on November 28 against
International Union of Operating Engineers, Local 150,
AFL–CIO (Respondent or Local 150). The complaint alleges
that Local 150 arbitrarily and discriminatorily caused the dis-
charge of David D. Dvorak from his employment with
Willbros Energy Services Company (Willbros or the Em-
ployer) in violation of Section 8(b)(1)(A) of the National
Labor Relations Act (the Act). Respondent filed a timely an-
swer admitting certain factual allegations of the complaint,
including the jurisdictional allegations, but denying the com-
mission of any unfair labor practices.
Hearing was held in these matters on June 19, 1991, in
Rockford, Illinois. Briefs were received from the parties on
or about October 28, 1991.2 Based on the entire record, in-
cluding my observation of the demeanor of the witnesses,
and after consideration of the briefs, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Employer, a Delaware corporation with an office and
primary place of business in Tulsa, Oklahoma, and with var-
ious jobsites in Iowa, Illinois, and other States, is engaged
in the business of the construction of pipelines. The jurisdic-
tional allegations of the complaint are admitted, and I find
that the Employer is now and has been at all times material
to this proceeding, an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
It is admitted and I find that Respondent is a labor organi-
zation within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background Facts and Complaint Allegations
Beginning in the summer of 1990, the Employer engaged
in constructing a pipeline from a portion of Iowa, through Il-
linois, and into Wisconsin. The work force used by the Em-
ployer was composed of operating engineers supplied from
Locals 234 (Iowa), 150 (Illinois), and 239 (Wisconsin), pur-
suant to an agreement between the Employer and the three
locals. The work force thus assembled was intended to stay
intact until the conclusion of the project. The project began
in Iowa and as the pipeline progressed moved into Illinois.
On or about the first of October, the work force constructing
the pipeline moved from Iowa into Illinois and into the juris-
diction of Respondent. Respondent has a current collective-
bargaining agreement with the Employer which provides,
inter alia, for the maintenance of an exclusive hiring hall ad-
ministered by the Respondent throughout its geographical ju-
risdiction in regards to the employ of operating engineer em-
ployees. Respondent admits that it administers an exclusive
hiring hall pursuant to this contract, and in the course there-
of, charges a referral fee of $40 to cover the administrative
costs of this service.3
Charging Party Dvorak was a member of Local 234 and
when he moved with his crew into Illinois on or about Octo-
ber 6, he became liable for the payment of Local 150’s $40
referral fee. This fee can be collected by payroll deduction
or as in the instant case, by collection by the Local 150
steward on the job. The complaint alleges that on or about
October 9, the Respondent, through its admitted agent, Stew-
273OPERATING ENGINEERS LOCAL 150 (WILLBROS ENERGY)
4 Jackson could only accept checks or money orders for payment
of the referral fee.
5 Dvorak testified, without credible contradiction, that he did not
have his permanent union book, a plastic card from the International
Union as it had not been sent to him. He did have a temporary card
which served in its place. However, at the time, Dvorak was un-
aware that this is what Jackson wanted to see and thus told him he
did not have a union book. Hereinafter, for the purposes of this deci-
sion, Dvorak’s temporary card will be referred to as his union book
or book.
6 Because of the nature of the pipeline construction project, pay-
ment of the fee was essentially required to continue to work for the
Employer on the project period. Once the work shifted into Illinois,
there would be only a little work left in Iowa, and that would soon
cease.
ard Bobby Jackson, arbitrarily or discriminatorily refused to
accept the referral slip and the $40 referral fee tendered by
Dvorak. It is further alleged that Steward Jackson on that
date ordered Dvorak’s machine turned off, told Dvorak that
he was not going to work in Illinois, and ordered Dvorak to
leave the Employer’s jobsite and return to Iowa. Jackson is
then alleged to have told the Employer that Dvorak was not
eligible to continue working within the jurisdiction of Re-
spondent as he had not paid the $40 referral fee and re-
quested the Employer discharge Dvorak, which it did. Re-
spondent denies the factual allegations of this paragraph.
B. Events Leading to Dvorak’s Discharge
Although I do not believe that it played any part whatso-
ever in Dvorak’s discharge, Respondent attempted to show at
the hearing that Dvorak was somehow not eligible to work
in October because he was delinquent in his dues to Local
234. The business agent and financial secretary for Local 234
testified that, though his dues were delinquent in October,
Dvorak was considered by the Local to be a member in good
standing and eligible for referral.
The crucial determinations to be made in this proceeding
is whether Dvorak attempted to pay the $40 referral fee and
Respondent refused to accept it and whether Respondent
caused the discharge of Dvorak. This determination depends
entirely on whether one believes Dvorak or Respondent’s
witnesses.
Dvorak testified that on September 26, he was referred by
Local 234 to the Willbros job as a backhoe operator under
the supervision of the Employer’s supervisor, Doyle Strum.
He began work for the Employer in Dubuque, Iowa. On Oc-
tober 6, his crew moved into East Dubuque, Illinois, and he
was approached on the jobsite by Local 150’s steward,
Bobby Jackson. Jackson asked for the $40 referral fee,
prompting Dvorak to ask why Local 150 charged such a fee
when the majority of the job was in Iowa and Local 234 did
not charge a referral for the Illinois or Wisconsin engineers
working there. Jackson did not comment. Dvorak then told
the steward that he did not have his checkbook with him and
Jackson said he would stop by again in a couple of days.4
According to Dvorak, Jackson at this time gave him a blank
referral slip, which was to be filled out by Dvorak and given
back to Jackson when the referral fee was paid.
Dvorak worked on the job that day and on October 8 with-
out incident. On October 9, he was working with his oiler,
Brad Folkers. At lunchtime, about 12:30 p.m., he was ap-
proached by Jackson, who asked for the referral fee and the
referral slip, and his union book.5 Dvorak testified that he
handed Jackson his referral slip and his check for $40. He
then explained to Jackson that his Local 234 steward had ad-
vised him not to pay the referral fee because of the likeli-
hood that he was be transferred to another work crew which
was still working in Iowa.
Dvorak testified that this statement annoyed Jackson, who
proceeded to hand back to Dvorak his check and referral
slip. While doing so, Jackson told Dvorak, ‘‘You’re not
working in Illinois, you don’t have a union book, go back
and talk to your union steward.’’ Dvorak tried to explain fur-
ther as he was willing to pay the fee to avoid an argument
and keep his job. However, Jackson instructed the oiler,
Folkers, to turn off Dvorak’s backhoe, stating that Dvorak
was not going to work in Illinois. Dvorak testified that he
then apologized to Jackson for angering him and asked him
to keep the check and referral slip and continue working.
Jackson responded by telling Dvorak to keep the check and
referral slip, go back to Iowa, and talk to his own steward.
Dvorak then went to the Employer’s Iowa office. Approxi-
mately 2 hours later, he had a conversation at that office
with Jackson and the Employers’ office manager, Kelly
Osborn. Dvorak approached Jackson and showed him his
union book and Jackson said that he had said he didn’t have
one. Dvorak replied that he was new and did not realize his
temporary card was his union book. He asked Jackson if it
would have made any difference, and Jackson said no.
Dvorak then left.
Sometime later that day, Dvorak received his last checks
from a female clerical employee who worked in the Employ-
er’s office. At that time, his Local 234 steward, Jimmy Vin-
cent, was present. After getting his checks, Dvorak went to
his motel and wrote an affidavit which he delivered to Vin-
cent’s motel. The affidavit reads:
I’m filing a grievance for all wages lost while work-
ing for Willbros Pipeline Co., against IUOE Local 150.
I had no complaint against my work. On or about 12:30
p.m., Bobby Jackson, Union Local 150 steward ap-
proached me and asked me for my referral slip and
book. I handed him a check for $40 with my referral
slip, offering to purchase my job for 35 days. I showed
him my Registration Slip in lieu of a book. He returned
my 35 day registration slip along with my check and
then told my oiler to shut my machine off, that I wasn’t
going to work in Ill.
Steward Jackson’s version of his contacts with Dvorak
varies somewhat. He testified that he tried to collect the $40
fee from the workers on the first day they began work in Illi-
nois. However, many of them did not have a check or money
order with them and as he could not accept cash, he would
give them a blank referral for the workers to fill out and col-
lect both the money and referral in the next 2 to 4 days. The
payment of the fee is required for the workers to continue
to work for the Employer in Illinois.6
Jackson said that the first time he asked Dvorak for the
fee, Dvorak said he did not need the Local 150 referral slip
and did not have his checkbook with him. Jackson told him
to keep the referral slip and to get a check to him whenever
he could, that he would pick it up in 2 or 3 days. Jackson
274 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7 Based on my credibility findings at a later point in this decision,
I do not believe that Jackson told Dvorak of the consequences of
his refusal to pay the referral fee at this first meeting.
8 This is not true as Osborn testified that if Jackson had asked him
to put Dvorak back on the job, he would have done so. Moreover,
Respondent contends on brief that Dvorak refused to pay the referral
fee earlier in the day because he thought he was being sent back
to work in Iowa by Willbros and learned that this was wrong when
he spoke to his steward after being told to leave the job by Jackson.
If one accepts Respondent’s contentions in this regard, there is cer-
tainly no valid reason Jackson could not have accepted the referral
fee during this meeting, as it was only a few hours after the earlier
request.
9 Though Osborn was the witness in the best position to testify
about the possibility that Dvorak was being considered for remaining
work in Iowa, he offered nothing in this regard. He also made no
adverse comments about the quality of Dvorak’s work, though again
he was the only witness who could validly testify about this subject.
first testified that at this meeting, he did not tell Dvorak the
consequences of failing to pay the fee, just that he had to
pay it. Jackson later testified that at this meeting, Dvorak
agreed to pay the fee, after having been told he would have
to pay it in order to work in Illinois.7
Jackson could not remember the date of this first request,
though it was in early October. He testified that a few days
later, he approached Dvorak again to collect the fee. At this
time, Dvorak was operating his backhoe and was in the pres-
ence of his oiler, Folkers. At a later point in this conversa-
tion, he had told the oiler to turn off Dvorak’s backhoe as
he ‘‘had done told Mr. Dvorak he’d go back to Illinois, or
Iowa and see his steward, that he couldn’t work in Illinois
without paying a referral.’’
During this conversation, he also asked for a union book
and was told by Dvorak the did not have a book or a receipt
for a book, as Local 234 had not sent him one. Jackson testi-
fied that during this conversation, Dvorak did not offer to
pay the referral fee and did not tender him a check for $40.
According to Jackson, he asked first for the fee, and Dvorak
refused to pay it. According to Jackson, Dvorak gave no rea-
son for his refusal. He testified that he then twice informed
Dvorak that payment of the fee was a condition to working
in Illinois. At this point he asked for Dvorak’s book, which
Dvorak could not produce. Dvorak told him he was a mem-
ber of Local 234, but that they had not sent him a book.
Jackson then testified that Dvorak could not pay the fee at
this time, stating, ‘‘He couldn’t, then, he didn’t even have a
book.’’ Jackson testified that at this point in the conversa-
tion, with Dvorak refusing to pay the fee despite having been
told he must pay it to continue working, and without a union
book, he told Dvorak that he would have to go back to Iowa
and talk to his steward.
Jackson then left the area. He met the Employer’s super-
visor, Doyle Strum, and told him that Dvorak would not pay
the referral fee and had been told to go back to Iowa, see
his steward, and work on the Iowa side. In later testimony
he said that he also told Supervisor Strum that Dvorak could
not work in Illinois.
Later that day, he told the Employer’s office manager,
Kelly Osborn, that Dvorak was not eligible to work in Illi-
nois because he would not pay the fee. Depending on which
part of Jackson’s testimony one credits, if any, this conversa-
tion occurred either as the Employer was cutting Dvorak’s
final checks or after the checks had been cut. According to
Jackson, Osborn said, ‘‘[H]e’s laid off now.’’ Jackson testi-
fied that Dvorak came in during this conversation and of-
fered to show Jackson his union book and give him a check
for the fee. Jackson replied, ‘‘Well, there’s nothing I can do
about it now, you’re already laid off.’’8 Jackson did not even
look at Dvorak’s book, testifying, ‘‘I didn’t make a practice
of being a steward in Iowa. I tried to keep mine across the
river and that’s where I check everything out at, was on this
side of the river, Illinois.’’
Kelly Osborn testified that on October 9, he was contacted
by Doyle Strum who told him that Dvorak was ineligible for
employment in Local 150’s jurisdiction according to the
steward, Bobby Jackson. He testified that the Employer then
prepared Dvorak’s final checks. In the early afternoon, Jack-
son came to the office and told him that Dvorak had refused
to pay the referral fee and that he could not work in Local
150’s jurisdiction. Osborn testified that he made the decision
to terminate Dvorak because Dvorak was a backhoe operator
on the ditch crew and all their work was in Illinois. There
was no other work available for Dvorak given the nature of
the project.9 Although Osborn testified that he made the final
checks out for Dvorak immediately on hearing from Super-
visor Strum, I do not credit this testimony. He had no inde-
pendent knowledge about the checks and could not remem-
ber whether he had one or two prepared. Osborn did not re-
member the conversation between Dvorak and Jackson which
took place in his presence. Osborn testified that he gave
Local 234 Steward Jim Vincent the checks and never had a
conversation with Dvorak about them. I credit instead
Dvorak’s testimony that the checks were made out in his
presence by the office payroll clerk after his conversation
with Jackson in which Jackson refused to look at his book
and accept his referral fee.
Brad Folkers testified about the conversation between
Jackson and Dvorak at lunch. He testified that Jackson asked
Dvorak for his referral and for the check, and wanted to see
his card (book). Dvorak was reluctant to pay the fee. Folkers
remembered that Dvorak said he heard from Jim Vincent that
he was going to move back to a tie in crew (working then
in Iowa). Jackson said, ‘‘I asked you the other day and you
got smart with me.’’ At about this point in the conversation,
Folkers walked away because it was becoming heated. A few
minutes later, Jackson told him to cut Dvorak’s backhoe off,
and Jackson left the scene. Dvorak left shortly thereafter.
Folkers was asked in a leading fashion if he observed
Dvorak tender Jackson a check or referral slip. He replied he
did not. I do not credit this answer as establishing whether
Dvorak did or did not tender the check and referral slip. He
testified that he walked away when the conversation became
heated, and thus was no longer part of it. Additionally, he
volunteered that his memory of the meeting was not clear.
C. Credibility Resolutions, Findings, and Conclusions
with Respect to the Complaint Allegations
For the reasons set forth above and hereinafter, I credit the
testimony of Dvorak over that of Jackson, Osborn, and
Folkers to the extent that any conflict exists. Not only did
Dvorak have a better and more credible memory of the
events in question, but, in my opinion, Jackson’s testimony
275OPERATING ENGINEERS LOCAL 150 (WILLBROS ENERGY)
10 Although on brief, Respondent makes the contention that when
Jackson ordered Dvorak back to Iowa for nonpayment of the referral
fee, he was was simply referring him back to work there as Dvorak
had based his reluctance to pay the fee on his understanding that he
was being shifted back to Iowa temporarily. It further contends that
thereafter, when Jackson told Supervisor Strum that Dvorak could no
longer work in Illinois, he was not asking that he be discharged, but
was merely having him sent back to Iowa where presumably there
was work available for him. However, Jackson in his testimony
could not remember any reason given for Dvorak’s purported refusal
to pay the referral fee, and did not mention the matter of Dvorak
being transferred by the Employer back to Iowa. He also testified
that even if Dvorak had tendered him the referral fee at that time,
he would not have accepted it and allowed Dvorak to remain on the
job, because Dvorak could not produce a union book. I believe that
Jackson fully intended that Dvorak be discharged when he told Su-
pervisor Strum that Dvorak could no longer work in Local 150’s ju-
risdiction and that he had no other thought in mind.
11 NLRB v. Hotel & Club Employees Local 568 (Philadelphia
Sheraton), 320 F.2d 254, 258 (3d Cir. 1963), enfg. 136 NLRB 888
(1962).
shows that he did not tell the truth to the Board during the
investigation stage of the proceeding and did not appear to
be telling the whole truth at the hearing. Folkers is a member
of Local 150, who appeared and testified on behalf of Re-
spondent without subpoena, and was shown to have a faulty
memory of the events that occurred on October 9, aside from
the critical events about which he testified. Osborn’s memory
of the events in which he was involved was poor and, more
than anything, he seemed to be testifying in a manner to
avoid problems for his Employer.
First, with respect to the credibility of Steward Jackson, in
a position paper submitted by Respondent to the Board, it as-
serted, in connection with events following the October 9
lunchtime confrontation between Jackson and Dvorak:
Approximately four hours later, Steward Jackson re-
ported to the warehouse [Employer’s office] in Iowa
when Dvorak approached him and attempted to show
him his Local 234 receipt. The Local Union was also
advised that, without involvement of Steward Jackson
or any other Local 150 representative, the Company
had laid the charging party [Dvorak] off.
In another position paper from Respondent memorializing
a conversation with a Board agent, Jackson, and Respond-
ent’s attorney, it represented:
It should be further noted that in the telephone con-
ference with Mr. Jackson that Jackson stated that he did
not speak with any representative of Willbros Pipeline
regarding Dvorak’s failure to tender the $40.00 referral
fee and did not in any way attempt to have him dis-
charged. This was noted in our letter of November 12,
1990 in the last paragraph of page 2 and the first para-
graph of page 3. [The material set forth above.]
These positions and statements of Jackson given to the
Board during the investigation are patently untrue. Jackson,
without question, told Employer Representatives Strum and
Osborn that Dvorak could not work in Local 150’s jurisdic-
tion before he was discharged and that position was the prox-
imate cause of his discharge. It must be remembered that
these position papers are not merely the submission of an at-
torney who may have been misinformed about the facts. The
second one purports to accurately recount what Jackson told
the Board agent. If Jackson will falsify facts to a Board
agent, I can see no reason to believe his testimony given at
the hearing.
I therefore find as fact, in addition to the other evidence
offered through Dvorak, that he did tender his referral fee to
Jackson and Jackson refused to accept it before Jackson in-
formed the Employer that Dvorak could not work in Illinois.
I further find that Jackson did in fact inform the Employer
that Dvorak could not work in Local 150’s jurisdiction,
thereby causing Dvorak to be discharged because of the geo-
graphically advancing nature of the Employer’s pipeline
project.10 I find that Jackson again refused to accept from
Dvorak his referral fee and the opportunity to inspect his
union book at the Employer’s office before Dvorak’s dis-
charge. Based on these findings, I conclude that Jackson
caused the discharge of Dvorak without any legitimate rea-
son being shown for this action.
I find that Respondent had a right to collect a $40 referral
fee from and see the union book of Dvorak. However, be-
cause of the evident personal animosity that Jackson devel-
oped for Dvorak, he refused to accept these documents when
tendered, at a time before the discharge of Dvorak. I further
find that it is totally disingenuous of Respondent to claim it
did not discharge Dvorak or cause him to be discharged. Be-
cause of the nature of the pipeline project, if Dvorak could
not work in Illinois, he could not work on the project. Re-
spondent’s speculation that there was work in Iowa and that
Dvorak was not an adequate employee is not borne out by
the testimony of Osborn, the only witness in a position to
know what work the Employer had available or what it
thought of Dvorak. There is certainly no evidence that the
Employer had any reason other than the direction of Jackson
to discharge Dvorak. The Employer freely admits that it
would have put Dvorak back to work given the okay from
Jackson.
There are no reasons advanced by Respondent to give le-
gitimacy to its actions. Certainly there was no time deadline
for employees to pay the referral fee. Jackson testified that
employees are routinely given 2 to 4 days to do so. Dvorak
was certainly within that timeframe when he showed Jackson
his union book and again proffered the required referral fee
at the Employer’s office on October 9. What more could the
Respondent legitimately want. Under Board law, the Union
had a minimum obligation to fully ‘‘inform the employee of
his obligations in order that the employee may take whatever
action is necessary to protect his tenure.’’11 In Teamsters
Local 122 (August A. Busch & Co.), 203 NLRB 1041
(1973), the Board defined this minimum obligation as requir-
ing giving reasonable notice of the delinquency, including a
statement of the precise amount and months for which dues
were owed, as well as an explanation of the method used in
computing such amount, coupled with giving adequate op-
portunity to make payment. In Teamsters Local 150 (Delta
Lines), 242 NLRB 454, 455 (1979), the Board stressed that
inquiries made by an individual as to his or her obligations
do not relieve a union of its affirmative obligation under the
Act specifically to inform an individual of his obligations
and afford him a reasonable opportunity to satisfy them be-
fore seeking his discharge under a union-security clause. The
276 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
12 Teamsters Local 122 (August A. Busch & Co.), supra.
13 The Employer’s involved project had been completed as of the
date of hearing. Therefore reinstatement is not feasible. The remedy
here is believed to serve the purposes of the Act and is proper under
Board law. Sheet Metal Workers Local 355 (Zinsco Electrical), 254
NLRB 773 (1981); Iron Workers Local 111 (Northern States), 298
NLRB 930 (1990).
14 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
15 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
Board has held that a week does not constitute reasonable
opportunity.12 Here, Dvorak raised a reasonable inquiry at
the jobsite about the necessity of paying the referral fee if
he were to be transferred back to Iowa and was not only
given no clear explanation of his obligations in that event,
but was given no opportunity to comply with the request for
the referral fee. Some 2 or 3 hours later, he again offered
to pay the fee and again the offer was rejected. In my mind,
this does not begin to satisfy the Respondent’s obligation as
defined by the Board. It was offered its fee by a member of
a neighboring local, and refused to accept it, thus forcing the
termination of Dvorak. Lacking any legitimate reason, the
only reasons apparent from the record are personal animos-
ity, or personal animosity coupled with a dislike, of an out-
of-state employee questioning the authority of Steward Jack-
son.
I find and conclude that Respondent, acting through its ad-
mitted agent, Steward Bobby Jackson, arbitrarily and
discriminatorily refused to accept Dvorak’s referral fee and
referral slip, as alleged in the complaint, and thereafter
caused him to be discharged because of its arbitrary and dis-
criminatory refusal to accept the referral fee. Respondent’s
actions in this regard are in violation of Section 8(b)(1)(A)
of the Act.
CONCLUSIONS OF LAW
l. Willbros Energy Services Company is an employer en-
gaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
2. The Respondent, International Union of Operating Engi-
neers, Local 150, AFL–CIO, is a labor organization within
the meaning of Section 2(5) of the Act.
3. By arbitrarily and discriminatorily refusing to accept the
referral fee and slip of David Dvorak on October 9, 1990,
and thereafter causing the Employer to discharge Dvorak be-
cause of its refusal to accept Dvorak’s referral fee and slip,
Respondent has engaged in unfair labor practices in violation
of Section 8(b)(1)(A) of the Act.
4. The unfair labor practices found to have been commit-
ted by Respondent are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
REMEDY
Having found that Respondent has violated Section
8(b)(1)(A) of the Act, it is recommended that it be ordered
to cease and desist therefrom and to take the following af-
firmative action necessary to effectuate the policies of the
Act.
It is recommended that Respondent be ordered to affirma-
tively notify the Employer that it has no objections to the re-
instatement of Dvorak on the job in question or any future
jobs it may have in Respondent’s jurisdiction.13 Further, Re-
spondent should be ordered to make Dvorak whole for any
losses of wages or benefits he may have suffered by reason
of Respondent’s discriminatory actions in causing his dis-
charge on October 9, 1990. Such backpay liability shall
begin October 9, 1990, and end on the date the crew to
which Dvorak was assigned completed its work on the entire
involved project. Backpay and benefits shall be computed in
the manner prescribed in F. W. Woolworth Co., 90 NLRB
289 (1950), with interest computed as prescribed in New Ho-
rizons for the Retarded, 283 NLRB 1173 (1987).
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended14
ORDER
The Respondent, International Union of Operating Engi-
neers, Local 150, AFL–CIO, Countryside, Illinois, its offi-
cers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Arbitrarily and discriminatorily refusing to accept the
referral fee and referral slip tendered by employees in satis-
faction of obligations under its collective-bargaining agree-
ment with Willbros Energy Services Company, or with any
other employer.
(b) Arbitrarily and discriminatorily demanding and causing
the discharge of an employee under the union-security clause
of its collective-bargaining agreement with Willbros Energy
Services Company, or with any other employer, when the
employee has tendered such dues and fees as required under
the collective-bargaining agreement.
(c) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Immediately inform Employer Willbros Energy Serv-
ices Company that Respondent has no objections to reinstate-
ment of David Dvorak to his former position or to positions
with the Employer on any future jobs it may have within Re-
spondent’s jurisdiction and make David Dvorak whole for
any losses he may have suffered by virtue of Respondent’s
unlawful and discriminatory action in causing the Employer
to discharge him, in the manner prescribed in the remedy
section of the decision.
(b) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
(c) Post at its business office and meeting places copies
of the attached notice marked ‘‘Appendix.’’15 Copies of the
notice, on forms provided by the Regional Director for Re-
gion 33, after being signed by the Respondent Union’s au-
thorized representative, shall be posted by the Respondent
Union at its business office immediately upon receipt and
277OPERATING ENGINEERS LOCAL 150 (WILLBROS ENERGY)
maintained for 60 consecutive days in conspicuous places in-
cluding all places where notices to members are customarily
posted. Reasonable steps shall be taken by the Respondent
to ensure that the notices are not altered, defaced, or covered
by any other material.
(d) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of
their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.
WE WILL NOT arbitrarily and discriminatorily refuse to ac-
cept the referral fees and referral slips tendered by employees
in satisfaction of obligations under our collective-bargaining
agreement with Willbros Energy Services Company, or with
any other employer.
WE WILL NOT arbitrarily and discriminatorily demand and
cause the discharge of an employee under the collective-bar-
gaining agreement with Willbros Energy Services Company,
or with any other employer, when the employee has tendered
such dues and fees as required under the collective-bar-
gaining agreement.
WE WILL immediately inform Employer Willbros Energy
Services Company that we have no objections to reinstate-
ment of David Dvorak to his former position or to positions
with the Employer on any future jobs it may have within our
jurisdiction.
WE WILL make David Dvorak whole for any loss in wages
and benefits he may have suffered by virtue of our arbitrary
and discriminatory refusal to accept his tendered referral fee
and slip and our procurement of his discharge from employ-
ment by Willbros Energy Services Company.
INTERNATIONAL UNION OF OPERATING ENGI-
NEERS, LOCAL 150, AFL–CIO