Operating Engineers Local 513

National Labor Relations Board - Board Decisions

Oct 29, 1973

206 N.L.R.B. 676 (N.L.R.B. 1973)

676 DECISIONS OF NATIONAL LABOR RELATIONS BOARD,
International Union of Operating Engineers,. Hoisting
and Portable Local No. 513, AFL-CIO (J. S. Alber-
ici Construction Co., Inc.) and Ronald E. Heming-
way. Case 14-CB-2572
October 29, 1973
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS FANNING
AND JENKINS
On June 15, 1973, Administrative Law Judge
George L. Powell issued the attached Decision in this
proceeding. Thereafter, the General Counsel filed ex-
ceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board 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 brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
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.
Respondent. This charge resulted in a complaint and notice
of hearing being issued March 28, 1973, on behalf of the
General Counsel of the Board by the Regional Director of
Region 14 of the Board alleging violations of Section
8(b)(1)(A) and (2) of the Act.
Respondent denied the essential allegations that it violat-
ed the Act.
With the General Counsel, Respondent, and Charging
Party each being represented by counsel, the case was tried
before me on April 26, 1973, in St. Louis, Missouri. Briefs
were received from the General Counsel and Respondent
on May 21 and 22, 1973, respectively.
Upon the entire record including my observation of the
demeanor of the witnesses, and after due consideration of
the briefs of the parties, I make the following:
Findings and Conclusions
I JURISDICTION
J. S. Alberici Construction Co., Inc., herein called Alben-
ci, is a corporation organized and existing by virtue of the
laws of the State of Missouri, with its principal office and
place of business in St. Louis, Missouri, where it is engaged,
at various jobsites in Missouri, in the building and construc-
tion industry as a general contractor. Annually, in the
course and conduct of its business operations, Alberici pur-
chased and caused to be transported and delivered to its
Missouri jobsites building materials and other goods and
materials valued in excess of $50,000 directly from points
located outside the State of Missouri. I find Alberici is now,
and has been at all material times herein, an employer en-
gaged in commerce within the meaning of Section 2(6) and
(7) of the Act.
I find Respondent is now, and has been at all material
times herein, a labor organization within the meaning of
Section 2(5) of the Act.
There is no issue concerning jurisdiction.
DECISION
STATEMENT OF THE CASE
GEORGE L. POWELL, Administrative Law Judge: The issues
in this case are did Respondent fail and refuse to refer
Ronald E. Hemingway to employment with J. S. Alberici
Construction Co., Inc., on January 15, 16, and 30, 1973
because Hemingway had opposed Respondent's officers'
administration of Respondent and had campaigned against
the election of Respondent's officers, all in violation of
Sections 8(b)(1)(A) and (2) of the National Labor Relations
Act, herein called the Act (29 U.S.C. § 151 et seq.)
For the reasons hereinafter set forth, I find the General
Counsel has not established by a preponderance of the evi-
dence that Respondent violated the Act as alleged in the
complaint, and I will dismiss the complaint in its entirety.
Ronald E. Hemingway, herein called Hemingway or
Charging Party, filed a charge with the National Labor
Relations Board, herein called Board, on February 5, 1973,
against International Union of Operating Engineers, Hoist-
ing and Portable, Local No. 513, AFL-CIO, herein called
II THE ALLEGED UNFAIR LABOR PRACTICES
Hiring Hall Procedures
Respondent admitted that it is the sole and exclusive
source of operating engineers for Alberici in accordance
with the provisions of a collective-bargaming agreement
and practice thereunder.
Under the relevant referral procedure, Respondent main-
tains card files and dispatch sheets to record the availability
and referral of some 400 registered operating engineers.
Each card contains the name, identification data, qualifica-
tions, and employment record of individual applicants. In
order to maintain a current card and remain eligible for
referral, applicants must report to the union office when
they are out of work and must register on a monthly basis
if still available for work. The cards are maintained in two
files, one for those working and one for those out of work.
The selection of applicants for referral is made on a first-in,
first-out basis, contingent upon an individual's qualifica-
tions for the work requested. If a specific applicant is re;
quested by name, however, the requested employee is
206 NLRB No. 121
OPERATING ENGINEERS LOCAL 513 677
referred without regard to his date of registration . As refer-
rals are made, the cards are marked and the referrals are
recorded on the dispatch sheet. When an individual has
been out on a job for 5 or more consecutive days , his card
is removed from the nonworking file to the working file.
Ronald E. Hemingway '
Hemingway had been a member of the Union since 1966
and is a qualified operator of various equipment used in the
trade, including a payloader and John Deere hoe. He admit-
ted he is not qualified to operate a 3000 crane.
In 1971, prior to the Auguste14 election of union officers,
Hemingway actively campaigned for candidates opposed to
the Union's present officers . After the defeat of his candi-
dates, Hemingway congratulated the new officers . Accord-
ing to Hemingway, Business Representative Marty Murphy
refused to shake his hand and told him that as far as he,
Murphy, was concerned, the job Hemingway had at that
time was the last job he would get out of the hiring hall in
the next 3 years.
From the time of the election to the date of the Hearing,
Hemingway was referred to work approximately 20 times,
could not be reached for referral on 3 occasions , twice failed
to reregister on a monthly basis, and once had to be re-
placed on a job when he left a note for the contractor to
which he had been referred informing the contractor he had
been called back by another contractor. There is no indica-
tion that the callback was made through the Union's hall or
that Hemingway notified the Union of his actions.
Hemingway 's work record since becoming a member of
the Union indicates that he worked 79 days in 1966, 125
days in 1967, 234 days in 1968, 168 days in 1969, 150 days
in 1970, 171 days in 1971, 95 days in 1972, and 23 days in
1973 to the date of the hearing. During the time material
hereto, he registered out of work on November 22, 1972,
and maintained his place in the out -of-work file until Janu-
ary 30, 1973, when he was referred to Alberici on a hilift.
At the time of the hearing , Hemingway was within the
first hundred of the approximate 400 persons on the out-of-
work list.
Other Activities
In April, 1972, Hemingway met with Union President
John Murphy to discuss alleged misuse of union powers and
rules of order, the referral system, and some 60 other times,
among them a delay in ratification of a pipeline contract.
Murphy denied any such delay and explained that the other
items, if incorrectly handled , were matters of little impor-
tance or simple mistakes . Some 2 weeks later , Hemingway
filed an unfair labor practice charge against the Union. By
May of the same year, some four charges or suits had been
filed against the Union by its members. At a union meeting
on May 12, 1972, Union Vice President'Ed Trueman in-
formed the membership that the labor suits were costing the
Union considerable expense and that something in the way
of bylaw changes, or, according to Hemingway, punishment
would have to be done' to remedy the situation. Trueman
refused, when requested by a member, to disclose the names
of those who -had filed the suits.
The charge filed by Hemingway in April 1972 was settled
without formal hearing. Hemingway met with union offi-
cers and their attorney and, as part of the settlement, was
referred to prospective long-term employment in June 1972.
Since this settlement, Hemingway testified that he "received
no static or bad talk or trouble orally from any of the union
officers about that case." Apparently, about all that was
said to him in this regard by both union officers and their
attorney was that the Union considered the case over and
done with and wanted to make an unhappy union member
a happy union member. After some 49 days on the job to
which he was referred in settlement of the case , Hemingway
was discharged by his employer following a dispute and
fight with a company superintendent. Hemingway was ad-
vised by the Union's attorney that he could file a grievance
protesting the discharge and that the Union owed him a
duty of fair and honest representation.
The Present Case-January 15, 1973
The complaint alleged that Hemingway was discriminat-
ed against in a referral on January 15, 1973. On that date,
the Respondent made 16 referrals of operating engineers,
three of whom went to Albenci. The referrals were William
Leyerle, James Struebbe, and Frank Reis. No evidence was
introduced by any party as to the work record of Leyerly
and Struebbe . As for Reis, his workcard reveals that he was
referred to Alberici by request on July 24, 1972 and again
on August 8 or September 12, 1972. After referrals to other
employers, he reported in on November 6, 1972, as out of
work . His workcard shows his referral thereafter to Santa Fe
on November 21, 1972, and his reporting in on November
27, 1972, as again out of work. In 1972, November 23 was
Thanksgiving Day and November 25 or 26 fell'on Saturday
and Sunday. Hence he did not work 5 or more days so he
did not lose his position on the out-of -work register.
The parties stipulated that Reis was employed by O. B.
Avery Company, Inc., from December 15, 1972, to approxi-
mately December 30, 1972, performing shop work and
mounting snow plows and welding . This job does not ap-
pear on Reis' work card. Whether this was due to the fact
that Avery is not a signatory to AGC contract, as explained
by Respondent, or to the fact that the referral to Avery was
not made through the Respondent's system, is immaterial.
According to the card, Reis possessed registered out-of-
work seniority as of November 6, 1972, as against
Hemingway's registered seniority of November 22, 1972,
and the General Counsel adduced no evidence that Reis'
card was manipulated so as to maintain his seniority over
Hemingway. Accordingly, when Reis was referred to Alber-
ici on January 15, 1973, it appears to be a' routine referral
and no discrimination was practiced on Hemingway be-
cause Reis was entitled to earlier referral based on his se-
niority on the out -of-work register. (Reis ' referral of 2 days'
work to Vollmar and 1 day's work to Midwest on January
3 and January 5, 1'974, respectively, as shown on Reis' card,
likewise was nondiscriminatory as against Hemingway and
did not remove Reis from the seniority'date,of November'
6, 1972.) As the General Counsel has not sustained his bur-
den of proof that Hemingway was disci iminated against by
lack of referral on January 15, 1973, this` allegation in the
678
complaint will be dismissed.
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
January 16,,1973
The complaint alleged that Hemingway was discriminat-
ed against in a referral on January 16, 1973.
The evidence discloses that at least five operating engi-
neers were referred to Alberici on January 16, 1973: Jerry
Scott, Dennis Cherio, Virgil Gummersheimer, Ralph Sny-
der, and Don Jordan. No testimony was presented by any
party with respect to the work records of Scott, Cherio, and
Snyder.
The parties stipulated as to the employment of Jordon in
late 1972 and his referral to Alberici on January 16, 1973,
to operate a 3000 crane. Hemingway admitted he could not
operate a 3000 crane, I dismissed the complaint as to the
Jordan referral at the trial, and confirm that decision upon
review.
As to Gummersheimer's workcard (discovered at the
trial), it shows that he reported out of work on October 6,
1972, that on December 4, 1972, he did not register, that his
card was found in the work file and that he came in to
reregister on January 15, 1973, and that he was referred to
Alberici on January 16, 1973, on a John Deere hoe. Gum-
mersheimer did not testify. Why he did not reregister to
keep up his October 6, 1972, seniority or position on the
out-of-work register is not known. Marty Murphy, business
representative of Local 531, testified that he operates the
dispatch every third week and that on December 4, 1972,
when Gummersheimer failed to reregister he removed
Gummersheimer's card from the out of work register and
put it in the work file. There was testimony as to why, on
January 15, 1973, when Gummersheimer came in to reregis-
ter, Gummersheimer's seniority was reinstated to October 6,
1972, so he rather than Hemingway would be sent to Alberi-
ci January 16, 1973, on ajob Hemingway could perform. It
is known, that so far as Respondent's records reveals, and
so far as any other evidence revealed, Gummersheimer had
not worked for a much longer period than Hemingway, and
had he complied with the requirements of reregistration he
would have had seniority over Hemingway without ques-
tion. In these circumstances, and in the absence of evidence
that would support a presumption that Respondent deliber-
ately manipulated Gummersheimer's card to prefer him
over Hemingway because Hemingway some 2 years earlier
had supported a rival candidate for office, I find no viola-
tion of the Act in the referral of Gummersheimer to Alberici
on January 16, 1973. So long as unions are permitted to
operate exclusive hiring halls we must expect human errors
and indeed even expect occasional moments of compassion.
Evidence showed that Hemingway himself had been ex-
cused in the past from reregistration. Even in banking prac-
tice, tellers' errors are not held against them so long as a
reasonable amount of errors accrue to the benefit of the
bank. The General Counsel adduced evidence showing a
decrease in the number of days of work Hemingway ob-
tained after the election in 1971, but introduced no evidence
tending to account for this on the basis of discrimination.
For example we know the work force in the nation has
increased, that there are fewer jobs per applicant, that re-
turning veterans are being preferred for jobs, and even that
'the elimination of sex and race as a job barrier had added
to those seeking jobs. On the other hand there is no evidence
that at all times Hemingway was ready willing and able to
take referrals that would have added to his total of days
worked. As for the written and oral complaints of Heming-
way to Respondent's representatives in April 1972, there is
no evidence that anything was said or done in retaliation for
these complaints. Hemingway's case was settled with no
evidence of hositility and Respondent's counsel advised him
of his right to grieve his discharge and of Respondent's duty
to afford him a fair representation. Accordingly, I find in-
sufficient evidence to establish a violation of Section 8(a)(3)
of the Act in the referral of Gummersheimer on January 16,
1973, and will dismiss the complaint insofar as the allega-
tions therein refer to January 16, 1973. '
January 30, 1973
The complaint alleged that Hemingway was discriminat-
ed against in a referral on January 30, 1973. Hemingway
himself was referred to Alberici on January 30, 1973, and
there was no evidence of discrimination in jobs. This allega-
tion was dismissed at the trial, the General Counsel does not
contest the dismissal in his brief and upon review I reaffirm
my dismissal of this allegation of the complaint.
Upon the foregoing findings and conclusions and upon
the entire record, I make the following:
CONCLUSIONS OF LAW
1. Respondent is a labor organization within the meaning
of Section 2(5) of the Act.
2. Alberici is an employer engaged in commerce and in
a business affecting commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act.
3. The alleged violations of the Act were not established
by a preponderance of the evidence.
THE REMEDY
Upon the foregoing findings of fact and conclusions of
law and the entire record and pursuant to Section 10(c) of
the Act, I hereby issue the following:
ORDER'
The complaint is dismissed in its entirety.
i In the event no exceptions are filed as provided by Section 102.46 of the
Rules and Regulations of the Board, the findings, conclusions and Order
herein shall, as provided in Section 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.