United Brotherhood of Carpenters, Etc., Local 743

National Labor Relations Board - Board Decisions

Jun 12, 1964

147 N.L.R.B. 422 (N.L.R.B. 1964)

422 DECISIONS OF NATIONAL LABOR- RELATIONS BOARD
cases, in each of which the employer's statement of legal position, read
in the context of its other objectionable campaign statements, was,
construed by the Board to mean that it would in no event bargain col-
lectively and that selection of a representative would be a, futile act
as we have overruled all the objections and as the-
Petitioner did not secure a majority of the valid votes cast in the sec-
ond election, we shall certify the results.
[The Board certified that a majority of the valid votes has not been
cast for Retail Clerks International Association, AFL-CIO, and that
the said labor organization is not the exclusive representative of the
employees in the unit found appropriate.]
' We reject the exceptions relating to other objections , as in our opinion, they raise no
substantial issues warranting reversal of the Regional Director 's findings with respect.
thereto and his recommendations that they be overruled.
United Brotherhood of Carpenters and Joiners of America,
AFL-CIO, Local 743 [C. R. Tumblin , Wilbur Rickett, and
John C. Reaves, d/b/a Tumblin Company] and William R.
Parker. Case No. f1-CB-2140. June 112, 1964
DECISION AND ORDER
On March 18, 1964, Trial Examiner Howard Myers issued his Deci-
sion in the above-entitled proceeding, finding that the Respondent had
engaged in and was engaging in certain unfair labor practices and
recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's Deci-
sion. Thereafter, the Respondent filed exceptions to the Trial Exam-
iner's Decision and supporting briefs and General Counsel filed a
reply brief.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Members Leedom, Fanning, and
Brown].
The Board has reviewed the rulings of the Trial Examiner made
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 the case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner.
147 NLRB No. 53.
UNITED BROTHERHOOD OF CARPENTERS, ETC., LOCAL 743 423
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the Board hereby adopts as its Order, the Recommended
Order of the Trial Examiner and orders that Respondent United
Brotherhood of Carpenters and Joiners of America, AFL-CIO,
Local 743, its officers, agents, and representatives, shall take the action
set forth in the Trial Examiner's Recommended Order.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Upon a charge duly filed on June 14, 1963 1 by William R. Parker, herein called
Parker, the General Counsel of the National Labor Relations Board, herein respec-
tively called the General Counsel 2 and the Board, through the Regional Director for
the Twenty-first Region (Los Angeles, California), issued a complaint, dated Novem-
ber 6, against United Brotherhood of Carpenters and Joiners of America, Local 743,
AFL-CIO, herein called either the Union or Respondent, alleging that Respondent
has engaged in, and is engaging in, unfair labor practices affecting commerce within
the meaning of Section 8(b) (1) (A) and (b) (2) and Section 2(6) and (7) of the Na-
tional Labor Relations Act, as amended from time to time, 61 Stat. 136, herein called
the Act.
Copies of the charge, complaint, and notice of hearing were duly served on Re-
spondent and copies of the complaint and notice of hearing were duly served on
Parker.
Specifically, the complaint alleged that Respondent, in violation of Section
8(-b) (1) (A) and (b) (2) of the Act, (a) on or about June 6, requested and demanded
that Parker's then employers, C. R. Tumblin, Wilbur Rickett, and John C. Reaves,
d/b/a Tumblin Company, discharge and deny employment to Parker because he
was not a member in good standing in the Union, and (b) on or about June 10,
upon Respondent's request and demand, Parker's employers discharged him and
thereafter refused to reinstate or reemploy him until June 19.
On November 15, Respondent duly filed an answer denying the commission of
the unfair labor practices alleged.
Pursuant to due notice, a hearing was held on January 13, 1964, at Bakersfield,
California, before Trial Examiner Howard Myers. All parties were represented
by counsel and participated in the hearing. Full and complete opportunity was
afforded the parties to call, to examine and cross-examine witnesses, to introduce
evidence pertinent to the issues, to argue orally on the record at the conclusion of
the taking of the evidence, and to file briefs on or before February 4, 1964.
A brief has been received from the General Counsel which has been carefully
considered .3
Upon the basis of the record as a whole and from my observation of the witnesses,
I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF TUMBLIN COMPANY
C. R. Tumblin, Wilbur Rickett, and John C. Reaves are, and during all material
times were, copartners doing business as Tumblin Company and have their principal
offices and place of business at Bakersfield, California, where they are engaged in,
and during all times material were engaged in, heavy construction business.
Tumblin Company, during all times material, has been a member of the Build-
ing Contractors Association of California, Inc., herein called BCA.
1 Unless otherwise noted all dates mentioned herein refer to 1963.
2 This term specifically includes counsel for the General Counsel appearing at the hearing.
8 At the conclusion of the General Counsel's case-in-chief, Respondent's counsel moved
to dismiss the complaint for lack of proof. Decision thereon was reserved . The motion is
disposed of in accordance with the findings , conclusions, and recommendations hereinafter
set forth.
424 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
BCA is an employer association and exists in part for the purpose of representing
its members in multiemployer collective bargaining with labor organizations in
negotiating , executing , and administrating collective-bargaining agreements with
labor organizations who represent , for the purpose of collective bargaining , the em-
ployees of its members.
The members of BCA all of whom have offices and places of business in the State
of California , annually ship goods and perform services valued in excess of $50,000
directly to points located outside the State of California , and annually receive goods
and services valued in excess of $50 ,000 directly from points located outside the
State of California.
Upon the basis of the foregoing uncontroverted facts, I find, in line with established
Board authority, that Tumblin and BCA are engaged in, and during all times mate-
rial were engaged in, businesses affecting commerce within the meaning of Section
2(6) and (7) of the Act and that Tumblin Company's business operations and those
of the members of BCA meet the standards fixed by the Board for the assertion of
jurisdiction.
II. THE LABOR ORGANIZATION INVOLVED
Respondent is a labor organization admitting to membership employees of Tumblin
Company.
III. THE UNFAIR LABOR PRACTICES
A. The pertinent facts
On December 12, 1962 , C. H. Sutton , Respondent 's business representative, filed
written charges with the Union alleging that Parker on certain stated dates in Novem-
ber 1962, had violated certain provisions of the constitution and laws of the Union's
parent organization.
On January 12, a hearing on the aforementioned charges were held before a
trial board.4 Parker attended said hearing and participated therein.
Under date of March 1, Respondent wrote Parker that the trial board found him
guilty as charged and that the trial board recommended that he be fined the sum of
$250 which was to be paid within 30 days. The letter added that the members of
the local unanimously upheld the trial board's recommendations.
On Saturday, June 1, Parker went to the Union's hall and asked Vernon W. Munn,
Respondent's financial secretary, when the "deadline" was for paying the fine which
had been assessed against him. After making certain inquiries, Munn informed
Parker that the deadline was the following Tuesday. Parker then told Munn that
he intended to pay $25 toward the fine and that at the next regular membership
meeting he would ask for an extension of time to pay the balance.
On Monday, June 3, Parker paid Munn $25 toward the fine.
On Wednesday, June 5, at the regular membership meeting of the Union, Parker
requested the membership to grant him an extension of time to pay the balance of
the fine. He was ruled out of order by Sutton.
Under date of June 6, having received only $25 in part payment of the fine
referred to immediately above, Respondent wrote to Tumblin, Parker' s then em-
ployer, as follows:
W. P. Parker, an employee of your firm, is no longer a member of Carpenters
Local #743 in good standing as per Master Labor Agreement .5
Article II, B, 6 , of the then existing Master Labor Agreement 6 referred to in
the aforementioned Respondent's letter of June 6, reads, in part, as follows:
Employees employed by one or more of the Contractors for a period of 8 days
continuously or accumulatively shall be or become after the 8-day period, or
8 days after the effective date of this Agreement, whichever is later , members
of the Union and shall remain members of the Union as a condition of continued
employment... .
* Also referred to in the record as a trial committee.
6 Parker's dues were paid up through May 1963 . The constitution and bylaws of Re-
spondent and the constitution and laws of Respondent 's parent organization each provide
that a member is not considered in arrears or not in good standing until he owes at
least 2 months' dues.
41 Page 210 of General Counsel's Exhibit No. 10.
UNITED BROTHERHOOD OF CARPENTERS , ETC., LOCAL 743 425
On Friday, June 7, the day Tumblin received Respondent 's June 6 letter, Bill
Hannah, Tumblin 's foreman, came to where Parker was working and, according to
Parker 's uncontroverted and credited testimony , the following ensued:
. and told me that the company had received a letter, 7 and that they were
going to have to discharge me within seven days, and he thought it would be
best, [and] I could save face with the company , by taking off on my own-till
I got this thing straightened out. So I took off at noon.
Upon leaving the Tumblin job, Parker went directly home. Upon arriving there,
he discovered that a Federal income tax refund check had arrived in that morning's
post. Thereupon , Parker and his wife went to Respondent 's hall. There Parker's
wife made out a check for $225 to the Union 's order in payment of the balance due
on Parker 's fine. Parker proffered the $225 check to Sutton who refused to accept
it maintaining that he could not do so because he was not the financial secretary.
Parker then offered the check to Munn , the financial secretary . Munn informed
Parker that he could not accept the check without the express approval of the execu-
tive board because Parker was 2 days late in paying the fine. Munn informed Parker
that he would also have to pay an additional $ 155 to "rejoin the union ." Munn then
suggested that Parker make arrangements to call the executive board together and
have it authorize the acceptance of the $225 check.
Following Munn 's suggestion , Parker telephoned Pete Webb, Respondent 's presi-
dent, and informed him about his predicament . Webb said that he was leaving town
and hence he could not do anything for Parker , adding that Parker should call
George McKinney , another union official. Parker then called McKinney, who stated
that he was going fishing and could not help Parker.
After failing to obtain any assistance from Webb or McKinney, Parker talked to
Recording Secretary George Mclnearney . The following took place during this talk,
according to Parker 's undenied and credited testimony:
I told him [Mclnearney ] that I tried to get a meeting with the executive board
and everything , and that I took off on the job at noon, I had been advised that
they thought that would be the best, and he said, "Well , I'll tell you , Bill .
you can still work five more days . you go back out there Monday morning
and report to work , and tell them that you want to work five more days, and
then that you will take off; to keep them from having to fire you . . . Maybe
by that time we can have this thing straightened out."
On Monday , June 10, Parker went to the Tumblin jobsite and told Superintendent
Jeff Manning that McInearney said that he could work 5 more days and since he
really needed a job he would like to work the 5 days and then he would "take off"
on his own to keep from being fired . Manning refused to put Parker to work main-
taining that since Parker was already off the job he should remain off until he got
the trouble he was having with the Union straightened out. Parker thereupon left
the jobsite.
On Friday, June 14, Parker filed the charge which is the basis of the present
proceeding.
On Wednesday, June 19, Parker was reinstated to his job at Tumblin.
B. Concluding findings
The Act is explicitly directed at the elimination of improper union interference
with employee job opportunities . Thus, Section 8(b) (2), in relevant part , forbids a
"labor organization or its agents . . . to cause or attempt to cause an employer to
discriminate against an employee in violation of subsection ( a) (3)." The latter sub-
section , with qualifications immaterial here, forbids employer "discrimination in re-
gard to hire or tenure of employment to encourage or discourage membership in any
labor organization ." By these interlaced provisions, Congress has forbidden union
and employer interference with jobs where it is shown first, that a union has attempted
to cause or succeeded in causing an employer to discriminate, and secondly, that such
discrimination tends to encourage or discourage union membership .8
Respondent's June 6 letter to Tumblin , wherein it claimed that according to the
Master Agreement Parker was not a member of Respondent , was nothing more than
a clear demand that, pursuant to said agreement, Parker could no longer remain in
P Referring to Respondent 's June 6 letter.
8 See Radio Officers' Union , etc. (A. H. Bull Steamship Company ) v. N.L.R .B., 347
U.S. 117 ; Local 357 , International Brotherhood of Teamsters , etc. (Los Angeles-Seattle
Motor Express ) v. N.L.R.B., 365 U.S. 667.
426 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Tumblin's employ after June 14. There is, therefore, no question upon the facts
found above, that Respondent "caused" Tumblin to discriminate against Parker
within the meaning of Section 8(b) (2) of the Act .9
The second essential element of Section 8(b)(2) also has been established. For
the record as a whole clearly discloses, and I find, that Parker was not delinquent in
his union dues at the time that Respondent notified Tumblin that Parker was no
longer a member in good standing. This notification was, in effect, a demand that
Tumblin discharge Parker within the prescribed time unless Parker within said time
placed himself in good standing.
Since the credited evidence discloses that Respondent was motivated not by
Parker's failure to tender periodic dues and initiation fees but by his failure to pay
a union fine, Respondent caused Tumblin to discriminate against Parker to en-
courage membership in violation of Section 8(b)(1)(A) and (b)(2) of the Act.
Thus Respondent cannot now avail itself of the protection afforded by the second
proviso of Section 8(a)(3) of the Act.io
I further find that Respondent's conduct, as found above, tended to restrain and
coerce Parker in the exercise of the rights guaranteed him by Section 7 of the Act.
Respondent thereby violated Section 8(b)(1)(A), of the Act."
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth in section III, above, occurring in con-
nection with business operations of Tumblin and those of the members of BCA de-
scribed in section I, above, have a close, intimate, and substantial relation to trade,
traffic, and commerce among the several States and tend to lead to labor disputes
burdening and obstructing commerce and the free flow of commerce.
V. THE REMEDY
It having been found that Respondent from June 6 until June 19, 1963, had en-
gaged in certain unfair labor practices violative of Section 8(b)(1)(A) and (b) (2),
it will be recommended that Respondent take certain affirmative action designed to
effectuate the policies of the Act.
Having found that Respondent discriminatorily restrained Parker from being em-
ployed from June 6 until June 19, 1963, I recommend that Respondent make him
whole for any loss of pay suffered by him as a result of its unlawful conduct, by
payment to him of a sum of money equal to the amount he would normally have
earned as wages during said period.
Upon the basis of the above findings of fact and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. The Union is a labor organization within the meaning of Section 2(5) of the
Act.
2. Tumblin and other members of BCA are engaged in commerce within the mean-
ing of Section 2 ( 6) and (7) of the Act.
3. By causing or attempting to cause Tumblin to discriminate against Parker in
violation of Section 8(a)(3) of the Act, Respondent has engaged in, and is engaging
in, unfair labor practices within the meaning of Section 8(b) (2) of the Act.
4. By restraining and coercing Parker in the exercise of the rights guaranteed in
Section 7 of the Act, Respondent has engaged in, and is engaging in, unfair labor
practices within the meaning of Section 8(b) (1) (A) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices within the
meaning of Section 2 ( 6),and (7) of the Act.
0 See, for example, N.L.R.B. v. Miami Valley Carpenters' District Council, etc., 297
F. 2d 920 (C.A. 6) ; N.L.R.B. v. Oklahoma City General Drivers, etc., Local Union 886,
International Brotherhood of Teamsters, etc., 235 F. 2d 105 (C.A. 10) ; N.L.R.B. v. Jarka
Corp., 198 F. 2d 618.
10 See Avon Sheet Metal Co., 140 NLRB 384.
li It is, of course, settled law that the Act proscribes discrimination in employment
aimed at encouraging union membership even of union members . See, for example, Radio
Officers', supra, at 42.
UNITED BROTHERHOOD OF CARPENTERS, ETC., LOCAL 743 427
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law and upon
the entire record in the case, it is recommended that United Brotherhood of Carpen-
ters and Joiners of America, AFL-CIO, Local 743, its agents, officers, representatives,
successors, and assigns, shall:
1. Cease and desist from:
(a) Causing or attempting to cause C . R. Tumblin , Wilbur Rickett and John C.
Reaves, d/b/a Tumblin Company to discharge William R . Parker or any other
employee of the said Employer . for failing to pay any fine imposed upon him or
,otherwise cause or attempt to cause the said Employer to discriminate against any
employee in violation of Section 8(a) (3) of the Act.
(b) In any other manner, restraining or coercing employees in the exercise of
rights guaranteed in Section 7 of the Act except in a manner permitted by Section
8(a)(3) of the Act.
2. Take the following affirmative action which I find will effectuate the policies of
the Act.
(a) Make whole William R. Parker for any loss of pay he may have suffered by
reason of his discharge by Tumblin as provided in the section herein entitled "The
Remedy."
(b) Notify William R. Parker and the said Employer , in writing , that it has no
objection to the employment of Parker in any capacity satisfactory to the said
Employer.
(c) Post at its offices in conspicuous places, including all places where notices to
members are customarily posted , copies of the attached notice marked "Appendix." 12
Copies of said notice to be furnished by the Regional Director for the Twenty-first
Region (Los Angeles, California), shall, after being duly signed by a representative
of Respondent, be posted by Respondent immediately upon receipt thereof, and be
maintained by it for a period of 60 consecutive days thereafter. Reasonable steps
shall be taken by Respondent to insure that such notices are not altered, defaced,
or covered by any other material.
(d) Promptly mail or deliver to said Regional Director signed copies of the Ap-
pendix for posting, the said Employer willing, at the jobsites of said Employer.
(e) Notify the Regional Director for the Twenty-first Region , in writing , within
20 days from the date of the receipt of this Decision , as to what steps Respondent has
taken to comply herewith.13
12 In the event that this Recommended Order be adopted by the Board , the words "a
Decision and Order" shall be substituted for the words "the Recommended Order of a
Trial Examiner" in the notice . In the further event that the Board 's Order be enforced
by a decree of a United States Court of Appeals , the words "a Decree of the United States
-Court of Appeals, Enforcing an Order" shall be substituted for the words "a Decision
and Order."
13 If this Recommended Order Is adopted by the Board, this provision shall be modified
to read : "Notify said Regional Director , In writing, within 10 days from the date of this
,Order, what steps Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL MEMBERS
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board , and in order to effectuate the policies of the National Labor Rela-
tions Act, we hereby notify you that:
WE WILL NOT cause or attempt to cause C . R. Tumblin, Wilbur Rickett, and
John C. Reaves, d/b/a Tumblin Company to discharge William R. Parker or
any other employee of the said Employer for failing to pay any fine imposed upon
him or otherwise cause or attempt to cause the said Employer to discriminate
against any employee in violation of Section 8 (a) (3) of the Act.
WE WILL NOT in any other manner, restrain or coerce employees in the exercise
of rights guaranteed in Section 7 of the Act except in a manner permitted by
Section 8 (a) (3) of the Act.
WE WILL make whole William R. Parker for any loss of pay he may have
suffered by reason of his discharge by Tumblin.
428 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL notify William R. Parker and the said Employer in writing that
we have no objection to the employment of Parker in any capacity satisfactory
to the said Employer.
UNITED BROTHERHOOD OF CARPENTERS AND JOINERS
OF AMERICA, AFL-CIO, LocAL 743,
Labor Organization.
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 with the Board's Regional Office, 849 South Broad-
way, Los Angeles, California, Telephone No. 688-5204, if they have any question
concerning this notice or compliance with its provisions.
Brunswick Corporation and Amalgamated Clothing Workers of
America, AFL-CIO, Petitioner. Case No. 10-RC-5464. June 15,
1964
SUPPLEMENTAL DECISION, ORDER, AND DIRECTION
OF SECOND ELECTION
Pursuant to a stipulation for certification upon consent election, ap-
proved February 12, 1963, an election by secret ballot was conducted
on March 14, 1963, under the direction and supervision of the Re-
gional Director for the Tenth Region among the employees in the
agreed unit. At the conclusion of the balloting, the parties were fur-
nished a tally of ballots which showed that of approximately 144
eligible voters, 21 cast valid votes for the Petitioner, none cast valid
votes for the Intervenor, Local 3265, United Brotherhood of Car-
penters and Joiners of America, AFL-CIO, 115 cast valid votes
against the participating labor organizations, and 3 cast challenged
ballots. The challenges were insufficient in number to affect the elec-
tion results. Thereafter, the Petitioner filed timely objections to con-
duct affecting the results of the election.
In accordance with the Board's Rules and Regulations, the Re-
gional Director conducted an investigation and served upon the parties
his report on objections, in which he recommended that objections
Nos. 3 and 4 and certain unnumbered objections be sustained and that
the election be set aside and a new one held. The Employer filed
timely exceptions to the report.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Chairman McCulloch and Members Fanning and
Brown].
147 NLRB No. 56.