Carpenters Local 43 (McDowell Bldg. & Foundation)

National Labor Relations Board - Board Decisions

Aug 26, 2010

355 N.L.R.B. 632 (N.L.R.B. 2010)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
355 NLRB No. 132
632
United Brotherhood of Carpenters, Local 43 and New
England Regional Council of Carpenters
(McDowell Building & Foundation, Inc.) and
Kevin Lebovitz. Case 34–CB–3047
August 26, 2010
DECISION AND ORDER
BY CHAIRMAN LIEBMAN AND MEMBERS SCHAUMBER
AND BECKER
On December 31, 2009, the two sitting members of the
Board issued a Decision and Order in this proceeding,
which is reported at 354 NLRB No. 122.1 Thereafter,
Respondent Carpenters Local 43 filed a petition for re-
view in the United States Court of Appeals for the D.C.
Circuit, and the General Counsel filed a cross-application
for enforcement. On June 17, 2010, the United States
Supreme Court issued its decision in New Process Steel,
L.P. v. NLRB, 130 S.Ct. 2635, holding that under Section
3(b) of the Act, in order to exercise the delegated author-
ity of the Board, a delegee group of at least three mem-
bers must be maintained. Thereafter, the Board issued an
order setting aside the above-referenced decision and
order, and retained this case on its docket for further ac-
tion as appropriate.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.2
The Board has considered the judge’s decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings, and conclu-
sions and to adopt the recommended Order to the extent
and for the reasons stated in the decision reported at 354
NLRB No. 122, which has been set aside and which is
incorporated herein by reference, except as modified
below.
At slip opinion page 1, substitute the following for the
first three sentences of the fourth full paragraph, ending
with “Council local”:
“The judge found that the Respondents’ maintenance
of the mobility clause violated Section 8(b)(1)(A) of the

1 Effective midnight December 28, 2007, Members Liebman,
Schaumber, Kirsanow, and Walsh delegated to Members Liebman,
Schaumber, and Kirsanow, as a three-member group, all of the powers
of the National Labor Relations Board in anticipation of the expiration
of the terms of Members Kirsanow and Walsh on December 31, 2007.
Thereafter, pursuant to this delegation, the two sitting members issued
decisions and orders in unfair labor practice and representation cases.
2 Consistent with the Board’s general practice in cases remanded
from the courts of appeals, and for reasons of administrative economy,
the panel includes the members who participated in the original deci-
sion. Furthermore, under the Board’s standard procedures applicable to
all cases assigned to a panel, the Board Members not assigned to the
panel had the opportunity to participate in the adjudication of this case
at any time up to the issuance of this decision.
Act. We agree with the judge’s conclusion. The mobil-
ity clause operates as an exception to geographic restric-
tions on signatory employers’ hiring previously con-
tained in separate agreements between the locals in the
New England Council and the multiemployer association
of which employer McDowell Building & Foundation,
Inc. was a member. As explained by the Unions, ‘While
this provision replaced the terms of the old local hiring
requirement, it did not eliminate them. Thus, in the
event an employer’s employees do not satisfy the mobil-
ity rule . . . , the default rule remains a local hiring re-
quirement.’ Brief at 5. In other words, in order for an
employee from outside the local’s geographic jurisdic-
tion to be hired, the employee must satisfy the two
prongs of the mobility clause: (1) the employee must
have worked for the employer for a minimum of 3 weeks
in the previous 5 months and (2) the employee must be ‘a
member in good standing of any local affiliate of the
New England Regional Council of Carpenters.’ It is the
second prong that is at issue here.
On its face, the second prong of the clause appears to
be an unlawful requirement that employees be members
of a local union prior to hiring. Even if the requirement
is construed to reduce the obligations of membership to
its financial core, the clause appears to require member-
ship in good standing prior to or at the time of hiring
rather than 7 days thereafter as permitted by the proviso
to Section 8(a)(3) as modified by Section 8(f). The Un-
ions argue that the clause should be further construed to
require only financial core membership after the 7th day
of employment and that all employees who satisfy the
first prong of the requirement will, necessarily, satisfy
the second because “the mobility exception to the local
hiring restriction applies only to those who have worked
for 3 weeks for the employer. By definition, such 3 week
employees will have been subject to the seven day secu-
rity clause.” Brief at 12. But this is not the case for sev-
eral reasons. First, an employee who was employed by
signatory employer for a minimum of 3 weeks in the
previous 5 months might not have been a member in
good standing and might not have satisfied his or her
financial obligations to the Unions. Most obviously,
such an employee might have left employment when the
union-security clause was enforced against him or her.
Second, the proviso to Section 8(a)(3) combined with
Section 8(f) permit a requirement that employees become
members within 7 days of hire. Even as construed by the
Unions, the mobility clause requires membership during
a period prior to hire. Third, if the second prong of the
mobility clause is construed as suggested by the Unions,
it is superfluous because its requirement is necessarily
CARPENTERS LOCAL 43 (MCDOWELL BUILDING & FOUNDATION) 633
satisfied by the first prong,3 and also because it is redun-
dant of the union-security provision. The proposed con-
struction is thus not a reasonable one.”
Also on page 1, insert the following at the end of the
fourth full paragraph, before footnote 4:

3 The Unions expressly argue that the second prong is superfluous:
“The only real operative ‘requirement’ for satisfaction of the mobility
clause, then, is the 3 weeks of employment requirement.” Br. at 13
“The reference to ‘members’ in the current clause in essence is super-
fluous.” Br. at 13.
“The Unions argue that Lebovitz was in compliance
with the second prong of the mobility clause and thus,
even assuming the Unions invoked the clause and
thereby caused him to leave employment, the Unions
invoked only the lawful prong of the clause. But our
precedent does not permit such detailed splicing of an
unlawful clause. See Double Eagle Hotel & Casino, 341
NLRB 112, 112 fn. 3 (2004), enfd. 414 F.3d 1249 (10th
Cir. 2005), cert. denied 546 U.S. 1170 (2006).”