INTERNATIONAL UNION OF OPERATING ENGINEERS LOCAL 181 (MAXIM CRANE WORKS), (2017)

Docket Number:25-CB-150584
 
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NOTICE: This opinion is subject to formal revision before publication in the bound volumes of NLRB decisions. Readers are requested to notify the Executive Secretary, National Labor Relations Board, Washington, D.C. 20570, of any typographical or other formal errors so that corrections can be included in the bound volumes.

International Union of Operating Engineers Local 181 (Maxim Crane Works) and Rickie J. Vance. Case 25–CB–150584

January 4, 2017

DECISION AND ORDER

BY CHAIRMAN PEARCE AND MEMBERS MISCIMARRA AND MCFERRAN

On July 13, 2016, Administrative Law Judge David I. Goldman issued the attached decision. The General Counsel filed exceptions and a supporting brief, and the Respondent filed an answering brief.

The National Labor Relations Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge’s rulings, findings,1 and conclusions and to adopt the recommended Order.

ORDER

The recommended Order of the administrative law judge is adopted and the complaint is dismissed.

Dated, Washington, D.C. January 4, 2017

______________________________________

Mark Gaston Pearce, Chairman

______________________________________

Philip A. Miscimarra, Member

______________________________________

Lauren McFerran, Member

(SEAL) NATIONAL LABOR RELATIONS BOARD

Raifael Williams, Esq. (NLRB Region 25), of Indianapolis,

Indiana, for the General Counsel.

Charles L. Berger, Esq. (Berger & Berger, LLP), of Evansville,

Indiana, for the Respondent.

1 In dismissing the 8(b)(1)(A) allegations, Members Miscimarra and McFerran observe that the Respondent Union was in the midst of defending the Charging Party’s unfair labor practice charge when it required him to make an appointment to view exclusive hiring hall lists so that union counsel could be present. They express no view on whether such a requirement lawfully could be imposed in other circumstances.

DECISION

Introduction

DAVID I. GOLDMAN, Administrative Law Judge. In this case an employee registered with a union’s exclusive hiring hall requests that the union show him the hiring hall’s “out-ofwork” list. The union refuses to let him see the list at its district office in Evansville, Indiana, but offers to have the union’s business manager show it to him at the main district office in Henderson, Kentucky, a 10–15 minute farther drive for the employee. The business manager explains that he wants to make sure that in showing the list negative comments made by contractors about employees are not disclosed. The employee refuses the offer to view the list in Henderson and files charges with the National Labor Relations Board (Board).

A couple of months later, in an effort to settle the dispute, the union’s attorney writes to the Board’s investigating agent and offers to let the employee view the out-of-work list in Evansville by making an appointment with the office. The investigating Board agent and the union’s attorney tell the Evansville staff representative that for this meeting the employee will need to make an appointment so that the union’s attorney can be present. A few weeks later the employee shows up at the Evansville office unannounced and requests to view and copy the records. The union representative denies the request because he has been instructed that there has to be an appointment so that the union attorney can be present when the charging partyemployee reviews the records.

On these facts, the government alleges that the union has unlawfully refused to allow the employee to view and copy the out-of-work lists in breach of the union’s duty of fair representation. The question is whether under the circumstances the union’s rationales for, first, requiring the employee to go to Henderson to view the list, and second, requiring an appointment so that counsel could be present at Evansville, are arbitrary and irrational. I conclude that they are not. Further, I reject as unsupported by any evidence the suggestion that the union’s actions toward the employee were motivated by hostility toward him because of his union political activities. Finally, given my resolution, I do not reach the issue of whether evidence of the second incident at the Evansville office should be barred by Federal Rule of Evidence 408 as contended by the Union at trial. I recommend dismissal of the complaint.

STATEMENT OF THE CASE

On April 22, 2015, Rickie J. Vance (Vance) filed an unfair labor practice charge alleging violations of the Act by the International Union of Operating Engineers Local 181 (Union) docketed by Region 25 of the National Labor Relations Board (Board) as Case 25–CB–150584. Based on an investigation into the charge, on August 31, 2015, the Board’s General Counsel, by the Regional Director for Region 9 of the Board, issued a complaint and notice of hearing alleging that the Union had violated the National Labor Relations Act. On September 10, 2015, the Union filed an answer denying all alleged violations of the Act. The Union filed an amended answer December 14, 2015. A trial was conducted in this matter on January 28, 2016, in Evansville, Indiana. Counsel for the General

365 NLRB No. 6

2

Counsel and counsel for the Union filed briefs in support of their positions by April 6, 2016. On the entire record, I make the following findings, conclusions of law, and recommendations.

Jurisdiction

The Union is a labor organization within the meaning of Section 2(5) of the Act. Maxim Crane Works (Maxim) is a limited partnership that has, at all material times, been engaged in the business of providing cranes and other lifting equipment nationwide. Maxim has an office and place of business in Indianapolis, Indiana. At all material times, Maxim has been an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. The Indiana Contractors Association, Inc. (ICA) is a multiemployer bargaining association. At all material times the Union has been the exclusive collectivebargaining representative of the following employees, including employees of Maxim:

The employees described in Article I and II of the collective bargaining agreement between Respondent and the Building Division–ICA, Inc. which was effective from March 13, 2012 to March 31, 2015.

Charging Party Vance is a member of the Union, and at various times worked for employers, including Maxim, under terms and conditions established by the labor agreements bargained by the Union and ICA. Based on the foregoing, I find that this dispute affects commerce and that the Board has jurisdiction of this case, pursuant to Section 10(a) of the Act.

UNFAIR LABOR PRACTICES

Factual Findings

Background

The Union is the recognized collective-bargaining representative for, among others, the employees of employers who are members of, or otherwise abide by the terms and conditions negotiated by the multiemployer bargaining association known as the building division of the ICA.

The Union’s jurisdiction includes all the counties in Kentucky (except for four Kentucky counties just to the south of Cincinnati, Ohio) and 28 counties in Indiana. Within this jurisdiction the Union maintains six district offices throughout the jurisdiction.

Howard Hughes is the Union’s elected business manager. He oversees the Union’s operations for all districts. His office is in District 1, in Henderson, Kentucky. District representatives and business agents are located in all of the district offices except for District 1.

Business agents in these districts report to the district representatives. The district representatives report to Business Manager Hughes. But, as Hughes, explained, “they all work for me.” The district 2 office is in Evansville, Indiana. Hughes testified that the driving distance from the Henderson office to the Evansville office is 12.8 miles and that it took him 13 minutes to drive it. Driving distance from the center of Hen-

derson to the center of Evansville is 10.7 miles.1

For many years, the Union has operated an exclusive hiring hall. Pursuant to the collectively-bargained agreement between ICA and the Union, ICA-affiliated contractors needing operators notify the Union and the Union has 24 hours to refer qualified employees. After 24 hours the contractor can hire from any source. The contractor has the right to determine the competency and qualifications of union-referred employees and to decide whether to hire the referred employees.

The Union maintains an out-of-work list of all members (and nonmembers who have worked within the jurisdiction) listing the last date that they registered as out-of-work. The Union’s out-of-work list tracks all reporting employees who are laid off and want to be contacted when the Union has received contractor requests for employee referrals. An employee or applicant can register with one district, or all six, depending on their willingness to travel for work.

The Union’s out-of-work list is maintained through a computer program developed by a company named Benassist. As maintained by this computer program, the list contains not only the names of employees, their address, telephone, self-reported job skills, and out-of-work date, but also contractor comments about employees that amount to negative reviews of the employees’ work skills or refer to their having failed a drug test. Applicants registering for the out-of-work list self-identify which (of approximately 150 possible) job skills they possess. If the applicant has overstated his or her qualifications and the contractor finds the employee deficient, the contractor will contact the union and reference the problem. Those show up in comments and they are considered in future referrals.

The out-of-work list is updated in the computer system on a daily basis by secretaries working in the Henderson office, who receive reports and input the information from the district offices each morning. The districts get their information from employees who, after being...

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