Sully-Miller Contracting Co.

National Labor Relations Board - Board Decisions

Jun 16, 1965

152 N.L.R.B. 1623 (N.L.R.B. 1965)

SULLY-MILLER CONTRACTING COMPANY 1623
WE WILL NOT in any like or related manner interfere with, restrain, or coerce
our employees in the exercise of their right to self-organization, to form, loin,
or assist Taxi Drivers Organizing Committee, AFL-CIO, or any other labor
organization, to bargain collectively through representatives of their own choos-
ing, or to engage in other concerted activities for the purpose of collective bar-
gaining or other mutual aid or protection, or to refrain from any or all such
activities, except to the extent that such right may be affected by an agreement
requiring membership in a labor organization as a condition of employment as
authorized in Section 8(a) (3) of the Act, as modified by the Labor-Management
Reporting and Disclosure Act of 1959.
All our employees are free to become or remain , or to refrain from becoming or
remaining, members of the above-named union or any other labor organization,
except to the extent that such right may be affected by an agreement in conformity
with Section 8(a) (3) of the Act.
A & A MAINTENANCE CORP.,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional Office, Fifth Floor,
Squibb Building, 745 Fifth Avenue, New York, New York, Telephone No. 751-5500,
if they have any question concerning this notice or compliance with its provisions.
Sully-Miller Contracting Company and Valentin Lucero
Construction Teamsters Union , Local 606 and Valentin Lucero.
Cases Nos. 21-CA-5755 and 21-CB-1252. June 16, 1965
DECISION AND ORDER
On March 5, 1965, Trial Examiner Henry S. Sahm issued his Deci-
sion in the above-entitled proceeding, finding that the Respondents
had engaged in and were engaging in certain unfair labor practices and
recommending that they cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's Deci-
sion. Thereafter, the Respondent Company and the Respondent
Union each filed exceptions to the Trial Examiner's Decision and sup-
porting briefs.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with these cases to a three-member
panel [Members Fanning, Brown, and Jenkins].
The Board has reviewed the rulings made by the Trial Examiner at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and the entire record
in these cases, and hereby adopts the Trial Examiner's findings, con-
clusions, and recommendations for the reasons noted below.
Respondent Company discharged employee Lucero as demanded by
Respondent Union after the latter threatened to "shut the job down."
152 NLRB No. 159.
1624 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondents defend their actions as a lawful application of the collec-
tive-bargaining agreement between Association of General Contrac-
tors, Southern California Chapter, and Teamsters Joint Council No.
42, to which Respondents are parties by virtue of their respective affili-
ations. This contract contains hiring hall referral and union-security
provisions under which a contractor may obtain workmen from other
sources if the dispatch hall fails to fill requests for workmen within 48
hours, and such workmen, as well as those nonmembers referred by the
Union, are required to become members of the Union after 8 working
days.
Respondent Company employed Lucero as a laborer in July 1962
and after 3 weeks assigned him to Work as a truckdriver. Lucero was
neither dispatched by nor a member of Respondent Union's predeces-
sor, Teamsters Local 692.1 Respondent Union succeeded Local 692 in
October 1963, and in January 1964 its business representative, C. E.
Mitchell, contacted Lucero on Respondent Company's premises. In
response to Mitchell's inquiry as to his membership status, Lucero
requested that he be permitted to join the Teamsters Union. After a
conference with Lucero's foreman, Kastner, and in the latter's presence,
Mitchell told Lucero it would be permissible to continue working and to
advise anyone who inquired that Mitchell "was working on" obtaining
Lucero's union membership.
Thereafter, at the suggestion of, and through Respondent Com-
pany's assistant superintendent, Wilks, Lucero tendered to the Union
the $60 membership initiation fee. Foreman Kastner later returned
the money advising Lucero that Mitchell could not permit him to
become a union member. The next day Kastner sent Lucero to Gen-
eral Superintendent Crosby's office. Crosby told Lucero that Mitchell
had been at the plant and had ordered that Lucero be discharged
because he was not a union member. Crosby told Lucero to go to the
union office to see Mitchell and get the matter straightened out and
that "when you get your membership straightened out your job will
be waiting for you...." Later that same day Lucero saw Mitchell at
the union office and tendered the initiation fee which Mitchell refused
explaining that he could not accept it because his "boss" 2 had received
several phone calls complaining that Lucero, a nonmember, was work-
' The Local 692 business agent rejected Respondent Company superintendent 's request
that Lucero be allowed to join the Union but advanced no objection to his continued
employment as a truckdriver . About a year later the business agent sent word through
Respondent Company that Lucero would then be allowed to join but at that time Lucero
was on leave due to an industrial accident . When he returned to work and contacted
the business agent, the opportunity to join the Union had passed but he was told to keep
in touch with the agent . It further appears that , in practice, strict adherence to the
hiring hall provisions of the contract was not required by Local 692.
2 Not otherwise identified in the record.
SULLY-MILLER CONTRACTING COMPANY 1625
ing at the Sully-Miller job. A second tender to Mitchell made later
that day after Lucero visited the National Labor Relations Board
office was again refused.
Asserting that it merely refused to clear Lucero to the job of truck
driving, Respondent Union nevertheless claims that it was entitled to
obtain his discharge under either the union-security or hiring hall pro-
visions of its contract because Lucero had complied with neither in
securing the work involved. In this connection, Respondent Union
contends that it is not bound by the conduct of its predecessor union
either as to waiver of the applicable hiring hall provisions or as to any
implied clearance of Lucero. Respondent Company argues that its
actions were lawful because it discharged Lucero at the Union's
demand in order to rectify a breach of its bargaining agreement.
We agree with the Trial Examiner that the foregoing evidence
clearly establishes that Respondent Union caused Respondent Com-
pany to discharge Lucero because of his lack of union membership
rather than his failure to obtain union referral to his job and that such
membership had been denied him for reasons other than his failure to
tender periodic dues and initiation fees uniformly required therefor.
Accordingly, we find that such conduct was predicated upon discrimi-
natory reasons and that respectively Respondents thereby violated Sec-
tion 8(b) (2) and (1) (A) and 8(a) (3) and (1) of the Act .3
As we are not persuaded that Respondents' conduct reveals an atti-
tude of general opposition to the purposes of the Act, we shall order
only that Respondents cease and desist from engaging in the violations
found herein.
ORDER
Pursuant to Section 10 (c) of the National Labor Relations Act, as
amended, the National Labor Relations Board hereby adopts as its
Order the Recommended Order of the Trial Examiner, as modified
herein, and orders that the Respondents, Sully-Miller Contracting
Company, Long Beach, California, its officers, agents, successors, and
assigns, and Construction Teamsters Union, Local 606, its off=icers,
agents, and representatives, shall take the action set forth in the Trial
Examiner's Recommended Order, as so modified :
1. Change paragraph A 1(b) to read :
"(b) In any like or related manner interfering with, restraining,
or coercing its employees in the exercise of the rights guaranteed in
Section 7 of the Act."
3District Council of Painters No. 52, etc. (Maynard C. Belvoir), 150 NLRB 1094;
Local Union No. 369, International Brotherhood of Electrical Workers et al. (Bentley
Electric Company ), 143 NLRB 1297 ; Rusciano Construction Corporation Del Balso Con-
struction Corporation , 136 NLRB 1332, 1340.
1626 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Change paragraph B 1(a), (b), and (c) to read:
"(a) Causing or attempting to cause Respondent Company to dis-
charge, refuse to hire, or otherwise discriminate against Valentin
Lucero, or any other employee, in violation of Section 8(a) (3) of the
Act, or otherwise to discriminate against employees or applicants for
employment in violation thereof.
"(b) In any like or related manner causing or attempting to cause
Respondent Company to discharge, lay off, decline to hire, or other-
wise discriminate against its employees or applicants for employment
for lack of union membership or union clearance for reasons other than
failure to tender dues and initiation fees uniformly required as a con-
dition of acquiring and retaining membership in Respondent Union,
as authorized in Section 8 (a) (3) of the Act, as modified by the Labor-
Management Reporting and Disclosure Act of 1959.
"(c) In any like or related manner restraining or coercing employ-
ees or applicants for employment in the exercise of rights guaranteed
in Section 7 of the Act."
3. Change the first line in the fourth indented paragraph in Appen-
dix A to read :
WE WILL immediately offer reinstatement to Valentin Lucero to
his...
4. Change the fifth indented paragraph in Appendix B to read:
WE WILL jointly and severally with Sully-Miller Contracting
Company make Valentin Lucero whole for any loss of pay he may
have suffered as a result of his being fired by Sully-Miller Con=
tracting Company for not being a member of our Union.
5. Amend the first line in the paragraph immediately below the
signature line in Appendixes A and B of the notice to read :
"This notice must remain posted for 60 consecutive days from the
date of posting . . ."
TRIAL EXAMINER 'S DECISION
STATEMENT OF THE CASE
Upon charges filed on January 30, 1964, by Valentin Lucero, the General Counsel
of the National Labor Relations Board, herein called respectively the General
Counsel and the Board, through the Regional Director for Region 21, issued a con-
solidated complaint on April 22, 1964, against the Union and the Company named
herein as Respondents The consolidated complaint, alleging violations of the
National Labor Relations Act, 61 Stat. 136, as amended, herein called the Act,
alleges that the Respondents had engaged in and were engaging in unfair labor prac-
tices affecting commerce within the meaning of Section 2 ( 6) and ( 7) of the Act.
Copies of the complaints , the charges, and notices of hearing were duly served upon
all the parties.
The consolidated complaint herein alleges in substance that the Respondent Union
and Respondent Company violated Section 8 (b)(2), 8(b )( 1)(A), 8(a )(3), and
8(a)(1) when:
(1) The Union demanded that the Respondent Company discharge Lucero, the
alleged discriminatee.
SULLY-MILLER CONTRACTING COMPANY 1627
(2) The Company discharged Lucero pursuant to the demand of the Respond-
ent Union.
The Respondents ' answers were a general denial , disclaiming equivocally the com-
mission of any unfair labor practices . The answers are in contravention of Section
102.20 of the Board 's Rules and Regulations , Series 8, as amended , which requires
a specific statement of the facts which constitute the grounds of defense for the dis-
charge and refusal to reinstate the alleged discriminatee unless the Respondent is
without knowledge , in which case the Respondent shall so state , such statement
operating as a denial.'
As a cloak behind which to shroud any and all sorts of potential defenses, the
general denial , in many situations , is'without question responsible for unwarranted
abuse.2 In view of the modern trend in pleadings that "denials shall fairly meet the
substance of the averments denied," 3 it would seem that to condone the practice
of answering the complaint in this case by general denials is to retrogress procedur-
ally. Rather than crystalizing the issues , which is the purpose of a pleading, the
general denial obscures them , with the result that it handicaps opposing counsel in
preparing his case for hearing and the Trial Examiner is seriously hampered in
ruling intelligently on objections to testimony . This, in turn , unduly prolongs a
hearing because of the probing of issues which often eventually prove to be irrelevant.
Such misdirected effort might better be focused on the real issues in the case .4
Thus, in a case where the Respondent averred in its answer that it had no knowl-
edge of the facts asserted in the complaint , the court held that the facts were neces-
sarily within the knowledge of the Respondent and that Respondent 's averments of
ignorance , therefore , were clearly frivolous . In such circumstances , stated the court,
the facts alleged in the complaint stand admitted.5
Pursuant to notice, a hearing was held in Los Angeles, California , before Trial
Examiner Henry S. Salim . All parties were represented by counsel and were
afforded full opportunity to participate in the hearing, to introduce relevant evi-
dence, and to argue orally . The General Counsel and the Respondent Union filed
briefs.
Upon the entire record in this proceeding , including the briefs and citations of
cases alleged to be dispositive of the issues in this proceeding , and from observation
of the demeanor of the witnesses while testifying , I make the following:
i It has been my experience that this section is honored more in its breach than in its
observance , and that the General Counsel 's representatives too frequently assume a
cavalier attitude toward its enforcement which is apathetic and condoning
2 Cyclopedia of Federal Procedure , 2d ed., section 1290 See 2 Moore's Federal Practice
¶8 22 1A , Barron