Operating Engineers Local 513Download PDFNational Labor Relations Board - Board DecisionsOct 29, 1973206 N.L.R.B. 676 (N.L.R.B. 1973) Copy Citation 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. Copy with citationCopy as parenthetical citation