Painters, Local Union No. 487

National Labor Relations Board - Board Decisions

Oct 6, 1976

226 N.L.R.B. 299 (N.L.R.B. 1976)

PAINTERS, LOCAL UNION NO. 487 299
United Brotherhood of Painters , Decorators & Paper-
hangers of America, Local Union No. 487, AFL-
CIO (American Coatings , Inc.) and Robert G.
Reise. Case 20-CB-3641
I. ISSUE
The issue is whether the Union violated Section
8(b)(1)(A) and (2) by its refusal, on August 25, 1975, to
refer Reise from its exclusive hiring hall upon the request
of American Coatings, Inc. (herein called the Company).
October 6, 1976
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS JENKINS
AND WALTHER
On May 18, 1976, Administrative Law Judge Rich-
ard J. Boyce issued the attached Decision in this pro-
ceeding. Thereafter, the General Counsel filed excep-
tions and a supporting brief, and the Respondent
filed cross-exceptions 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 briefs
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.
DECISION
STATEMENT OF THE CASE
RICHARD J. BOYCE, Administrative Law Judge: This case
was heard before me in Sacramento, California, on March
24, 1976. The charge was filed on September I and amend-
ed on November 20, 1975, by Robert G. Reise, in his indi-
vidual capacity. The complaint issued on December 16,
1975, and alleges a violation by United Brotherhood of
Painters, Decorators & Paperhangers of America, Local
Union No. 487, AFL-CIO (herein called the Union) of
Section 8(b)(1)(A) and (2) of the National Labor Relations
Act, as amended.
The parties were given opportunity at the hearing to in-
troduce relevant evidence, to examine and cross-examine
witnesses, and to argue orally. Briefs were filed for the
General Counsel and the Union.
II. JURISDICTION
The Company is a painting contractor headquartered in
LaCanada, California. In 1975 it provided services of a
value exceeding $50,000 to various general contractors in
California, each of whom has an annual direct inflow ex-
ceeding $50,000. The complaint alleges, the answer as
amended at the hearing admits, and it is found that the
Company is an employer engaged in unfair labor practices
affecting commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
III. LABOR ORGANIZATION
The Union is a labor organization within the meaning of
Section 2(5) of the Act. -
IV. THE ALLEGED UNFAIR LABOR PRACTICES
A. Facts
The Union's standard labor contract establishes its hir-
ing hall as the sole source of painters hired by signatory
employers. The contract calls for the referral of job appli-
cants in the order of their registration on the Union's out-
of-work list, but with the exception -that:
... whenever an Employer requests a particular
workman by name, the Union will furnish said work-
man to such employer, if available, provided that such
workman is registered on the [out-of-work] list.
In practice, signup on the out-of-work list can be done in
person or by an applicant's telephoning the Union. The
request-by-name exception to the chronological order of
referral is construed to permit a registrant himself to locate
employment, so long as he or the prospective employer
observes the formality of obtaining union clearance before
the start of work.
The Company began the job in question, at McClellan
Air Force Base near Sacramento, on August 4, 1975, com-
pleting it in February 1976. Having become signatory to
the Union's contract for purposes of the job, it obtained its
painters through the Union's hiring hall. Many of them
were unsatisfactory in the Company's view, particularly in
the first 2 or 3 weeks of the job. About 10 painters were
discharged in that period, as against a crew size that fluctu-
ated between 4 and 9. The early turnover was of concern to
the Union's business agent, C. B. Kenney, and its treasur-
er, J. B. Reed, prompting them to discuss the situation
from time to time with' Job Foreman Chris Kappos.
Among those discharged was a spray painter named
Ivan Marinow, on August 21.1 Marinow had been on the
1 Mannow's name is erroneously spelled "Marionow" in the transcript
226 NLRB No. 47
300 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
job since shortly after its inception; and Kenney promised,
on learning of his discharge, to "go out there and check the
job over and see what was going on." Meanwhile, on Au-
gust 20, apparently in anticipation of Marinow's discharge,
Kappos asked of the crew if anyone knew of a "sprayman,
in the area looking for work." There was no response at the
time ; but, that night, the Union's steward on the job, Terry
Tarin, told Reise about it and gave him Kappos' telephone
number. Reise is a member of the Union of several years'
standing. He was not on the out-of-work list, however, hav-
ing been laid off a job that very day.
Reise telephoned Kappos the night of August 21, relat-
ing his understanding that the Company was ,looking for a
sprayman. Kappos, after satisfying himself of Reise's expe-
rience and familiarity with spray equipment, said he would
call the Union the next day for his referral. Stating that he
would not be first on the out-of-work list, Reise advised
Kappos to "ask for me personally, and the Union would
contact me, and I could go out."
At or about 7:30 a.m. on both August 22, a Friday, and
August 25, a Monday, Reise telephoned Business Agent
Kenney. The testimony of the two suggests confusion by
one or both concerning what was said in which conversa-
tion, but basic agreement as to the content of the conversa-
tions in aggregate. Reise testified that, in the Friday con-
versation, he asked to be placed on the out-of-work list,
making no mention of an expected request for him by the
Company. He remembered Kenney saying that he "would
be going out real shortly because there was a lot of work
ready to break."
Kenney testified, on the other hand, that Reise asked on
Friday "for a referral slip to go to work" for the Company;
and that Kenney, alluding to the spate of discharges in
general and to that of Marinow in particular, replied that
he could not give Reise a referral slip "cause we're having
trouble on the job and . . . wasn't nobody going out
there."
It was not until the Monday conversation, according to
Reise, that he requested referral to the Company and that
Kenney refused, giving as the reason the Company's
"union troubles." Kenney recalled that Reise "blew his
stack" on Monday, threatening to file an unfair labor prac-
tice charge. It is unnecessary to resolve these conflicts, the
upshot either way being the same.
On the morning of August 22, after Reise's first conver-
sation with Kenney, Kappos called Sharon Rodgers, secre-
tary to the Union's dispatcher, asking that Reise be cleared
to begin work on Monday, August 15. Rodgers gave every
indication that the request would receive routine treat-
ment 2 Then on August 25, a couple hours after Reise's
second conversation with Kenney, Kappos again called
Rodgers expressing puzzlement that Reise had not report-
ed for work. Rodgers explained that there was "some mix-
up," and that Kenney would be out to see Kappos about it.
Kenney presently arrived at the jobsite, followed in a
few minutes by Treasurer Reed. To Kappos' question why
Reise had not been referred, Kenney answered that Reise
2 Kappos is credited over Rodgers' denial that Reise was requested by
name The manner in which the present dispute arose and the overall con-
text of the case support Kappos in this respect.
"hadn't signed the out-of-work list." Kappos protested,,
asking "if a man still couldn't solicit his own employment."
Kenney acknowledged that practice, but said that it did
not obtain in Reise's case because he had not signed the
out-of-work list. Kenney asked ' how Kappos had gotten
Reise's name and it was "brought out" that Tann, the
steward, had told Reise of the opening. Kenney then re-
buked Tarin, saying it was not his job, as steward, to serve
as a go-between for the Company and prospective employ-
ees "it was the same thing as jumping the list."
During the same conversation, Kenney questioned Kap-
pos about the Marinow discharge. Upon learning the cir-
cumstances, he became satisfied that it was for good reason
and withheld any objection 3 Kappos then complained
about one Benny Bennefield, a brush painter on the job,
declaring that he was about to be fired. Reed suggested,
since there was a need for another spray painter and since
he knew that Bennefield was "a heck of a good sprayman,"
that Bennefield be tried at spraying rather than'discharged
outright. Kappos did not ,voice immediate acceptance of
the idea, persisting that he wanted the Union to refer a
sprayman by noon. Bennefield nevertheless was reassigned
that morning, and, as things turned out, performed accept-
ably as a sprayman.
Bennefield's -reassignment eliminated the immediate
need for a sprayman, prompting Kappos, to call Sharon
Rodgers in the late morning of August 25 canceling his
request of the previous Friday. Still later on August 25, the
shift of Bennefield having created the need for another
brush painter, Kappos called in such a request, which was
filled the next morning by the referral of one Zachary Tar-
lanovic.4
On the night of August 25 Reise telephoned the Union's
president, Jim Gordon, asking "where it said in our bylaws
I could not solicit my own work." Gordon replied that
Reise could, whereupon Reise related "what had taken
place." Gordon told Reise he would call him back, and
shortly did so, telling Reise to report to the job in the
morning, ready to work, and he_ would be cleared. Reise
followed Gordon's instructions, only to be told by Kappos
that Tarlanovic had dust been sent and that there was no
opening.
Reise testified that, about a year before the events in
question, when he and Kenney were on the same crew, the
crew was involved in "a safety uprising about toxic fumes."
There was some disagreement, Reise continued, whether he
and several others had quit in protest, or had been fired,
Kenney taking the former view, Reise the latter. As a re-
sult, according to Reise, "it was obvious" that he had a
"dispute" with Kenney. There is no basis in the record for
inferring that Kenney saw the matter in the same light.
There is some evidence, limited but unrebutted, that the
Union sometimes makes referrals pursuant to specific re-
quests even though the requested person is not then on the
3 Certain errors in the transcript are hereby noted and corrected
4 Rodgers is credited over Kappos' denials that he canceled the Friday
request and that he requested a brush painter on August 25. Bennefield's
reassignment having eliminated the need for a sprayman and created a need
for a brushman, and it being contrary to the probabilities of the situation
that the Union would have sent Tarlanovic without invitation, the weight of
plausibility favors Rodgers.
PAINTERS, LOCAL UNION NO. 487
out-of-work list. The record is silent whether this ever hap-
pens when others are on the list, awaiting dispatch.
There was little if any turnover, because of discharges
for cause, between the August 25 visit of Kenney and Reed
to the jobsite and the completion of the job.
B. Analysis
The Board stated in International Union of Operating En-
gineers, Local 18, AFL-CIO, 204 NLRB 681 (1973):
When a union prevents an employee from being hired
... it has demonstrated its influence over the employ-
ee and its power to affect his livelihood in so dramatic
a way that we will infer-or, if you please, adopt a
presumption that-the effect of its action is to encour-
age union membership on the part of all employees
who have perceived that exercise of power.
There is no doubt that the Company wished to hire Reise,
and that it was prevented from doing so by the Union's
refusal to refer him on the morning of August 25, bringing
the presumption of illegality into play.
The real question is whether the Union's action and ra-
tionale were such as to overcome the presumption. As is
further stated in Operating Engineers, Local 18, 204 NLRB
681, the presumption is rebutted:
... in instances where the facts show that the union
action was necessary to the effective performance of
its function of representing its constituency.
Or, as put in Millwrights' Local Union 1102, United Brother-
hood of Carpenters and Joiners of America, AFL-CIO,
(Planet Corporation), 144 NLRB 798, 800 (1963), the pre-
sumption:
... may be rebutted by evidence of a compelling and
overriding character showing that the conduct com-
plained of was referable to other considerations, law-
ful in themselves, and wholly unrelated to the exercise
of protected employee rights or to other matters with
which the Act is concerned.
It is plain that union actions reasonably designed to pre-
serve the integrity of contractually prescribed referral prac-
tices, even though those actions bring changes in job status
to individual employees, are of a nature meeting the bur-
den of rebuttal. E.g., Birmingham Country Club, 199 NLRB
854 (1972); Everett Construction Company, Inc., 186 NLRB
240 (1970). What is reasonable, moreover, is not to be nar-
rowly construed in matters of this sort. Extracting from
Ford Motor Company v. Huffman, 345 U.S. 330, 338 (1953):
A wide range of reasonableness must be allowed a
statutory bargaining representative in serving the unit
it represents, subject always to complete good faith
and honesty of purpose in the exercise of its discre-
tion.
Similarly, to quote from Chicago Federation of Musicians,
Local 10, American Federation of Musicians (Shield Radio &
T.V. Productions, Inc.), 153 NLRB 68, 84 (1965): "[T]he
Board does not, and should not, substitute itself for the
Union in weighing the wisdom of the stated objective." In
other words, there is no violation if a union can show that
301
its conduct was not motivated by improper considerations
of union membership or activity, and that it:
... was acting out of a legitimate concern for the
other unit employees . . . its action in taking its posi-
tion was not arbitrary, irrelevant, or invidious.
International Association of Machinists and Aerospace Work-
ers, San Francisco Lodge No. 68 (West Winds, Inc.), 205
NLRB 132, 133 (1973). See also Marquette Cement Manu-
facturing Company, 213 NLRB 182 (1974); Local Union No.
337, United Association of Journeymen and Apprentices of the
Plumbing and Pipefitting Industry of the United States and
Canada, AFL-CIO (Townsend & Bottum, Inc.), 147 NLRB
929, 931 (1964); New York Typographical Union Number
Six, International Typographical Union, AFL-CIO (Law-
rence F. Cafero), 144 NLRB 1555, 1558-59 (1963); Miranda
Fuel Company, Inc., 140 NLRB 181 (1962).
Applying this overlay of legal principle to the present
situation it is concluded that the Union has successfully
rebutted the adverse presumption. To begin, the General
Counsel's argument that Kenney was acting out of malice
toward Reise, derived from the "safety uprising" of a year
before, fails for want of record support. Malice eliminated
as a motive, the weight of evidence indicates that Kenney's
conduct was prompted by a sincere suspicion that the in-
tegrity of the exclusive hiring hall was under challenge.5
Thus, when Kenney rebuked Tarin, he spoke of concern
about "jumping the list." And, when he told Kappos that
Reise had not been referred because he "hadn't signed the
out-of-work list," Kenney plainly was not quarreling with
the efficacy of Reise's calling in as a registration technique,
but with the Company's having made a deal with Reise
when he was not registered-which, together with the pan-
demic discharge of those previously referred, suggested to
Kenney that the Company was making a mockery of its
hiring-hall commitment.
\' It is evident that, before referring Reise, Kenney simply
wanted to assure himself that everything was on the up-
and-up, lest he become accessory to hiring-hall abuse.
Once he was satisfied, referrals resumed; and, perhaps not
coincidentally, the turnover rate dropped precipitately.
That Reise was not then referred does not carry sinister
import, Kappos having canceled the request for him after
Bennefield's successful shift to spraying. The Union hardly
can be faulted for proposing that the shift be made, as an
alternative to Bennefield's being fired, even though it de-
prived Reise of a job. Incumbent employees are valid ob-
jects of union concern, perhaps more so than those await-
ing referral.' The Company's next request-filled by
Tarlanovic-would not have warranted Reise's referral, he
being at or near the bottom of the list, unless expressly for
him. There is not evidence that it was.
5 Fairness compels the caution, when weighing Kenney's words, that he is
not blessed with verbal skills enabling precise articulation of his thought
processes
6 As noted in International Association of Machinists and Aerospace Work-
ers, Local Union No. 697, AFL-CIO (The H 0 Canfield Rubber Company of
Virginia, Inc), 223 NLRB 832, fn 4 (1976)
"[T]he nonunion applicant for employment, who utilizes the hiring hall, is
clearly not an employee in the unit which is represented by the Union and is
therefore not entitled as a matter of right to the unconditional provision of
services that the Union must make available to all unit employees 11
302 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In short, while Kenney arguably jumped to conclusions
that were premature, if not unfounded; and while-he argu-
ably did not address himself to those- conclusions with opti-
mum prudence, he nevertheless acted in furtherance of a
valid objective, untainted by improper motivation, in a
way that cannot be said to have been arbitrary, irrelevant,
or invidious. The Union therefore did not cause or attempt
to cause the Company to discriminate against Reise in vio-
lation of Section 8(a)(3), and so did not itself violate Sec-
tion 8(a)(2) and (1)(A) of the Act.
CONCLUSIONS OF LAW
1. American Coatings, Inc., is an employer within the
meaning of Section 2(2) of the Act, engaged in unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7).
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. The Union did not violate the Act as alleged.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER7
The complaint is dismissed.
In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions , and recommended Order herein shall , as provided in Sec
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