Laborers Local 1440

National Labor Relations Board - Board Decisions

Dec 21, 1977

233 N.L.R.B. 1366 (N.L.R.B. 1977)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Construction and General Laborers' Local No. 1440
affiliated with Laborers' International Union of
North America, AFL-CIO and Delbert A. Schultz
and William R. Erdman and Southern Wisconsin
Contractors Association; Martindale Builders, Inc.,
Parties in Interest. Cases 30-CB-995 and 30-CB-
997
December 21, 1977
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
PENELLO AND TRUESDALE
On September 15, 1977, Administrative Law Judge
Richard L. Denison issued the attached Decision in
this proceeding. Thereafter, the Respondent filed
exceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,1 and
conclusions of the Administrative Law Judge, to
modify his remedy, 2 and to adopt his recommended
Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the Respondent, Construction and
General Laborers' Local No. 1440 affiliated with
Laborers' International Union of North America,
AFL-CIO, Beloit, Wisconsin, its officers, agents, and
representatives, shall take the action set forth in the
said recommended Order.
I The Respondent has excepted to certain credibility findings made by
the Administrative Law Judge. It is the Board's established policy not to
overrule an Administrative Law Judge's resolutions with respect to credibili-
ty unless the clear preponderance of all of the relevant evidence convinces
us that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91
NLRB 544 (1950). enfd. 188 F.2d 362 (C.A. 3, 1951). We have carefully
examined the record and find no basis for reversing his findings.
2 The Administrative Law Judge inadvertently specified interest to be
paid at 7 percent; however, interest will be calculated according to the
"adjusted prime rate" used by the U.S. Internal Revenue Service for interest
on tax payments. See, generally. Isis Plumbing & Heating Co., 138 NLRB
716(1962).
DECISION
STATEMENT OF THE CASE
RICHARD L. DENISON, Administrative Law Judge: This
consolidated proceeding was heard before me at Janesville,
Wisconsin, on April 12 and 13, 1977, based on charges in
Cases 30-CB-995 and 30-CB-997, which were filed,
respectively, on August 23, 1976, by Delbert A. Schultz and
William R. Erdman.' The consolidated complaint, issued
December 28, alleges that Construction and General
Laborers' Local No. 1440 affiliated with Laborers' Interna-
tional Union of North America, AFL-CIO, the Respon-
dent, violated Section 8(b)(I X)(A) and 8(bX2) of the Act by
failing and refusing to refer Delbert Schultz to employers
through the Respondent's hiring hall, beginning on or
about June 4, because of his continuing failure to pay an
internal union fine levied on June 3; that between Febru-
ary 23 and June 3 on various occasions the Respondent
failed and refused to honor Schultz' requests that he be
permitted to examine the out-of-work referral lists and
other information relating to the operation of the Respon-
dent's hiring hall; and that on or about August 12 the
Respondent attempted to cause and caused Martindale
Builders, Inc., to discharge William R. Erdman from his
job as a construction laborer at the Bauman Hardware
construction site in Monroe, Wisconsin, because he was
not a member of Respondent.
The Respondent's answer denies the commission of the
unfair labor practices alleged in the complaint. At the
hearing, oral argument was waived. Both the General
Counsel and the Respondent filed briefs, which have been
carefully considered. Upon the entire record in the case,
including my observation of the witnesses, I make the
following:
FINDINGS OF FACT
I. JURISDICTION
As alleged in the complaint and admitted in the amended
answer, the Southern Wisconsin Contractors Association is
an organization consisting of employers engaged in the
building and construction industry within the State of
Wisconsin. During the past calendar year, a representative
period, members of the Association collectively purchased
and received in interstate commerce goods and materials
valued in excess of $50,000 directly from points located
outside the State of Wisconsin. I find that, at all times
material herein, the Association has been, and is now, an
employer engaged in commerce and in operations affecting
commerce as defined in Section 2(2), (6), and (7) of the Act.
Martindale Builders, Inc., a Wisconsin corporation, is
engaged in the building and construction industry, operat-
ing from its headquarters located in Beloit, Wisconsin.
During the past calendar year, a representative period,
Martindale purchased and received in interstate commerce
1 All dates are in 1976 unless otherwise specified.
233 NLRB No. 200
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CONSTRUCTION AND GENERAL LABORERS' LOCAL UNION NO. 1440
goods and materials valued in excess of $50,000 directly
from points outside the State of Wisconsin. I find that, at
all times material herein, Martindale has been and is now
an employer engaged in commerce and in operations
affecting commerce as defined in Section 2(2), (6), and (7)
of the Act.
II. LABOR ORGANIZATION
Construction and General Laborers' Local No. 1440
affiliated with Laborers' International Union of North
America, AFL-CIO, the Respondent, is now and has been
at all times material herein a labor organization as defined
in Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Relevant Provisions of the Collective-
Bargaining Agreements
The Respondent has a collective-bargaining agreement
with the Southern Wisconsin Contractors Association. It
also has separate identical agreements with other employ-
ers in the Southern Wisconsin area, including Martindale.
The union-security provisions and the exclusive hiring-hall
provisions of these contracts are as follows:
Article I
Union Security Provisions
Section 1. All present employees who are members
of the Union on the effective date of this section shall
remain members of the Union in good standing as a
condition of employment. All present employees who
are not members of the Union and all employees who
are hired hereafter shall become and remain members
in good standing of the Union as a condition of
employment on or after the seventh (7th) day following
the beginning of their employment, or on the seventh
(7th) day following the effective date of this section,
whichever is later.
Section 2. The Union shall communicate with the
Contractor in writing if they desire a pre-job conference
,on any project. The Union and the Contractor shall
jointly establish a time and place for a pre-job confer-
ence. When the Contractor refuses to participate in a
pre-job conference or execute the existing labor agree-
ment the Union shall reserve the right to withhold the
services of members of the bargaining unit employed
by the Contractor and his subcontractors until a pre-
job conference is held.
Section 3. Members of the firm are not to take the
place of construction laborers without carrying a
laborer's card.
Section 4. The Employer retains the right to reject
any job applicant referred. The Employer shall have the
right to determine the qualifications of his employees
and shall have the right to hire and discharge accord-
ingly. Hiring of employees shall be on a nondiscrimina-
tory basis, and shall in no way be affected by Union
membership, bylaws, rules, regulations, constitutional
provisions or any other aspect or obligation of Union
membership, policies or requirements, race, color,
religion, or sex.
If any Employer asks the Local Union for a specific
laborer, that man shall be sent if he is not working
elsewhere.
It is agreed that the Employer shall furnish the
names and hiring dates of new employees to the Union
when requested, this however, shall not be more than
once a month.
Article II
Hiring Hall
Section I. In the interest of maintaining an efficient
and effective system of production within the construc-
tion industry on a nondiscriminatory basis, to provide
an orderly procedure in referral of applicants for
employment, to eliminate the evils of casual employ-
ment and to secure a fair distribution of work with a
living wage for those workmen who must gain their
livelihood from an industry to which they contribute
their labor, there is hereby established this plan of
referral between the Southern Wisconsin Contractors
Association, herewith referred to as the "Employer"
and the Construction and General Laborers' Union,
Local No. 1440, Janesville, Wisconsin, hereinafter
referred to as the "Union."
1. Registration, selection and referral of applicants
for employment shall be on a nondiscriminatory basis
and in no way affected by Union membership, rules,
regulations, bylaws, constitutional provisions or any
other aspect or obligation of Union membership poli-
cies or requirements. There shall be no discrimination
against race, color, creed, or sex.
2. The Employer shall notify the Union of the need
for workmen and shall not recruit applicants directly or
hire persons who have not been referred by the Union
except under the conditions stated herein.
An Employer reserves the right to:
a. Select any person from the register of applicants
on a nondiscriminatory basis. Such selection shall be
from Group A unless such list is exhausted then such
selection shall be from the Group B list. The Employer
also reserves the right to employ directly employees
hired by him during the previous year.
b. Employ a minimum number of key men. The
minimum number of key men on any project or job
shall be determined in a pre-job conference between
the Contractor and the business representative. At no
time shall the number of key men exceed the ratio of I
to 5, excluding the foreman appointed pursuant to
subparagraph 2(c) of this Article.
c. Appoint a labor foreman of his choice.
d. Recruit or hire applicants directly only after ten
(10) persons who are members of Local No. 1440 are in
his employ.
The Union office shall be notified monthly of all men
so hired, listing the names and date of hire.
3. Persons on the register of applicants in Group A
or Group B may solicit employment from contractors
signatory to this Agreement.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4. In requesting referrals, the Employer shall speci-
fy:
a. Number of employees required.
b. Nature and type of construction work.
c. Location of the project.
d. Information deemed important to enable the
Union to make proper referral of applicants.
5. The Employer reserves the right to accept or
reject an applicant referred by the Union. The Employ-
er also reserves the right to discharge for just cause an
employee who has been accepted, but proves unsatis-
factory, subject to the Appellate Procedure contained
herein.
The Union shall maintain a register of applicants
available for employment established on the basis of
the groups listed below. Each applicant shall be
registered in the highest priority Group for which he
qualifies. Registration and referral of all applicants
shall be in accordance with the following plan.
GROUP A
An applicant for employment who has three (3)
years or more experience as a construction laborer and
has been employed for a period of at least one (1) year
during the last three (3) years by an Employer who is a
party to a collective bargaining agreement with the
Union containing no discriminatory referral provisions,
and who has maintained residence for the past year
within the geographical area constituting the normal
construction labor market.
GROUP B
An applicant for employment who has two (2) years
or more experience as a Construction laborer and who
has held residence for the past year within the geo-
graphic area constituting the normal construction labor
market.
GROUP C
An applicant for employment who has one (1) year
or more experience as a construction laborer. He is
available for full-time or seasonal employment.
GROUP D
An applicant for employment who has had no
previous experience as a construction laborer, is over
eighteen (18) years of age, physically fit and willing to
work.
7. The Union shall maintain each of the separate
Group lists set forth above and shall list the applicants
within each Group in the order they register and
become available for employment.
8. The Union shall refer applicants to the Employ-
er by first referring applicant in Group "A" in the order
of their places on said list and then referring applicants
in the same manner successively from the lists in Group
"B," then Group "C" and then Group "D." Any
applicant who is rejected by the Employer shall be
returned to his appropriate place within his Group and
shall be referred to another Employer in accordance
with the position of his Group and his place within the
Group. Upon a registrant being referred for employ-
ment and actually employed on a job more than three
(3) days, such registrant's name shall be removed from
the list until such time as his employment has been
terminated at which time he shall be registered at the
bottom of the appropriate list under which he is entitled
to be registered. If a registrant, upon being referred in
regular order, refuses to accept the referral, such
registrant's name shall be placed at the bottom of the
appropriate list under which he is entitled to be
registered.
9. Registration of applicants for referral shall be
had not less than once each week for a period or
periods of not less than two (2) hours duration.
Registration periods shall be established by the Union
and notification thereof shall be given to all interested
parties by posting in the Union office and on the job
site in conspicuous locations not less than forty-eight
(48) hours before any registration period.
10. In the event that the referral facilities main-
tained by the Union are unable to fill the requisition of
an Employer for employees within a forty-eight (48)
hour period after such requisition is made by the
Employer (Saturdays, Sundays and Holidays excepted),
the Employer may employ applicants directly at the job
site. In such event, the Employer will notify the Local
Union of the names and dates of such hirings.
11. The Union, its officers, agents and representa-
tives undertake no obligations to search for, or by any
means locate an applicant on the current applicable
referral list who is not physically present in the Union
Hall when referrals are made pursuant to a request of
the Contractor.
12. The order of referral set for the above shall be
followed except in cases where Employers require and
call for employees possessing special skills and abilities
in which case the Union shall refer the first applicant
on the register possessing such special skills and
abilities.
13. The Union shall require all job applicants who
have not previously registered, to submit a resume of
experience and qualifications in order to determine
their proper group and whether they are qualified to
perform the various requisite skills of the craft and
thereby be eligible for registration and/or referral.
14. In the event any job applicant is aggrieved, (1)
with his failure to qualify for registration, or (2) with his
group classification, or (3) with his order of referral, or
(4) by action of the Employer in connection with hiring,
he may within ten (10) days following the occurrence of
the event which constitutes the basis for the grievance,
file, with the person in charge of the Registration and
Referral office, a written statement of the grievance
clearly and specifically setting forth the wrong or
violation charged. An Appellate Tribunal consisting of
an Employer Representative, a Union Representative
and an Impartial Chairman appointed jointly by the
Employer and Union, shall consider the grievance and
render a decision which shall be final and binding. The
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CONSTRUCTION AND GENERAL LABORERS' LOCAL UNION NO. 1440
Appellate Tribunal is authorized to issue procedural
rules for the conduct of its business, but it is not
authorized to add to, subtract from, or modify any of
the provisions of this system and its decision shall be in
accordance with the system.
15. The Employer and the Union shall post in
appropriate places, where notices to employees and
applicants are customarily posted, all provisions relat-
ing to the hiring arrangement set forth in this Agree-
ment.
Should an Employer fail to comply with the provi-
sions of Article II - in its entirety it shall not constitute
a violation of this Agreement in refusing to furnish
qualified workmen for said Employer.
B. Delbert A. Schultz
Delbert A. Schultz has worked as a construction laborer
performing various types of laborers' work in the Southern
Wisconsin area. Schultz wa last employed in January. As
of the time his difficulties with Norman Heintz, business
manager of Local 1440, began, Schultz had been a member
of that Local for approximately 15 years. According to
Schultz, prior to June 1975, when the current collective-
bargaining agreement containing a revised hiring-hall
procedure first became effective, he had no problems with
respect to job referrals. Thereafter, during the course of his
trips to the union hall to sign up for work, he discovered
through conversations with other laborers that they had
been working when he had not. This caused Schultz to
complain. On one occasion shortly thereafter when Schultz
attempted to review the out-of-work list at the union hall,
Heintz' secretary, Sandra Davis, told him that their records
were none of his business. Schultz began to complain that
the Local Union's hiring hall was being operated illegally.
These complaints came to the attention of Heintz, who
became increasingly irritated about the dissension Schultz
was causing among the membership, as illustrated by a
remark to William Erdman during the summer of 1975.
When Erdman complained to Heintz that the hiring hall
was illegal, because he understood from Schultz that the
meeting at which these provisions were adopted was not
lawful since not enough members were present, Heintz
responded that Schultz had better keep his mouth shut or
he would be looking for work also.2
On March 16 the Local Union's executive board passed a
resolution, sponsored by Heintz, that suspended members
would be reinstated "at a cost of $50, including 3 months'
dues." It was also provided that "reinstatement will not be
paid on account, and [the] member will not work until paid
in full." On May 17 Schultz and Heintz had an argument at
Heintz' office during the course of which Schultz said that
Heintz and the Local Union's officers were not operating
the Union right, that they did not know how to run it, and
that consequently he was going to go nonunion. On May
2 Heintz did not deny having this conversation with Schultz.
3 None of the trial board members, aside from Heintz, testified. Heintz
did not contradict Schultz' version of what transpired at the June 3 hearing.
Schultz, who impressed me as an honest witness, is credited.
4 Smith impressed me as an honest and forthright witness. He courteous-
ly but firmly resisted all efforts on cross-examination to get him to change
his version of the conversation with Heintz. I credit his testimony. I do not
24 Heintz brought charges against Schultz for "slanderous
statements" allegedly made during the May 17 confronta-
tion, and complaints Schultz had made at that time and
other times about internal union affairs including the
operation of the hiring hall. These charges also included
allegations concerning belligerent conduct by Schultz
including threats directed toward Heintz while Schultz was
allegedly intoxicated. As Schultz began to testify in his
defense at his June 3 hearing, Heintz interrupted, com-
menting that whatever Schultz said was going to be wrong.
Then Schultz said that the trial board should go ahead and
do whatever they wanted since they were going to do it
anyway. Gus Bonier, president of the Local Union, then
stated that they could fine Schultz up to $70 or more, but
that it would have to be $70 because they had to pay for
their way or their time being there. Schultz responded that
they would have to find him a job before he could pay any
fine. Then Bonier announced that Schultz was suspended,
and that until the fine was paid he was suspended and there
was no obligation for them to look for ajob for him, or find
him, or send him out on a job. At this point Heintz
interjected, "That's right, he's suspended until he pays the
fine." Schultz left the meeting. He later received a letter, in
evidence, stating that he pleaded guilty, and consequently
was fined $100 which must be paid before he would be
considered a member in good standing. 3
After making several unsuccessful attempts to contact
Heintz by phone during the month of June, Schultz finally
succeeded in reaching him. He stated that he did not have
the $100 to pay the fine. He told Heintz that he was barely
keeping his head above water, but wanted to pay just his
union dues. Heintz said no, and added that without the
$100 Schultz was out. Sometime shortly thereafter Heintz
was contacted by George Smith, an attorney representing
Schultz' wife. Smith was interested in obtaining employ-
ment for Schultz in connection with his efforts to effect a
marital reconciliation. Smith asked Heintz if there were
any possibility of obtaining employment for Schultz.
Heintz replied that until Schultz paid his fine he could not
go back to work. Then Smith asked if they could suspend
the fine, or if Schultz could obtain a loan or something
from the Union. The conversation ended with Heintz
answering that "there was no provision" for such assis-
tance.4
Norman Heintz testified that he never had any disagree-
ments with Delbert Schultz, but then proceeded to describe
how he brought the charges against Schultz which resulted
in the June 3 hearing. When asked about what formed the
basis for these charges, Heintz instantly responded that
Schultz had been slandering the business agent and the
officers of the Local Union. Heintz also admitted having
an argument with Schultz on May 17 in which Schultz
accused him and the Local's officers of not running the
Union right, and said he was going to go nonunion.5
Finally, Heintz testified, when questioned by his counsel
credit Heintz' testimony that during his conversation with attorney Smith he
told Smith that he would try to help Schultz obtain a job at the Chevrolet
plant. Generally, in testifying, Heintz was an evasive witness who frequently
displayed hostility during lengthy questioning by the General Counsel. I do
not credit his testimony except where specifically indicated.
s When questioned about his additional assertion in the charges that
Schultz had threatened him. Heintz at first declined to answer, until
(Continued)
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
concerning the policy of the Local Union concerning the
operation of the hiring hall vis-a-vis nonmembers and
members not in good standing, that members who have
been suspended or who are not in good standing have the
right to register for work but do not have the right to be
referred out and have not been referred out to his
knowledge.
Heintz further testified that he offered to refer Schultz in
February to a job with Michael's Pipeline, but that Schultz
declined to accept the referral because, as a result of special
negotiations between that company and the Union, the job
paid 70 cents an hour below union scale. Heintz' secretary,
Sandra Davis, testified that she heard Heintz offer Schultz
the job. When asked whether or not Heintz had offered
him this work, Schultz responded "Not to my knowledge."
I credit the testimony of Heintz and Davis in this respect,
but find that the incident has no significance with respect
to the violations alleged since the record shows that the
disagreement between Schultz and Heintz did not become
serious until their argument on May 17.
Thus, it is clear, based on the testimony of both Schultz
and Heintz, that Schultz was brought up on charges and
fined by the Respondent mainly because of his persistent
criticism concerning the operation of the hiring hall by
Heintz and other union officers. Pursuant to this action by
the Union's trial board, and in accordance with the
documented policy of the Local, as reaffirmed by Heintz'
testimony, that nonmembers, suspended members, and
other members not in good standing would not be referred
out until all fines were paid, Schultz was denied the
opportunity to work even though he specifically offered to
pay his dues. It is well established that a union violates
Section 8(b)(1)(A) and 8(b)(2) of the Act by discriminatori-
ly refusing to refer an employee pursuant to an exclusive
referral system. Nor may a union decline to refer an
employee because of the existence of a union-related fine,
or in order to enforce the payment of that fine. It is clear
from the testimony of both Schultz and Heintz that this is
precisely the type of unlawful conduct in which the Union
engaged with respect to Schultz. The fact that Schultz was
not denied the opportunity to register at the hiring hall
following his fine, a point emphasized by the Respondent,
is meaningless in the face of clear evidence that pursuant to
the Union's policy he would not be referred. I find that the
Respondent violated Section 8(b)(1)(A) and 8(b)(2) of the
Act by discriminatorily failing to refer Schultz for employ-
ment.
I also find that the General Counsel has failed to prove,
as alleged in the complaint, that on various occasions
between February 23 and June 3 the Respondent rejected
Schultz' requests to permit him to examine the out-of-work
referral list at the union hall and thereby failed and refused
to permit such an examination. The only evidence in the
record that Schultz was actually denied an opportunity to
examine the out-of-work list relates to an incident in
August 1975, well outside the 6 months' limitations period
of Section 10(b) of the Act. While there is evidence in the
record that on other occasions Schultz asked questions
instructed to do so. He then reluctantly testified that he had heard from
other unidentified individuals that Schultz had appeared at the union hall
intoxicated and had made threats to "get" Heintz.
concerning his standing on the list, there is no evidence
within the 10(b) period that Schultz ever asked to examine
the list or was refused an opportunity to do so. The
evidence concerning Schultz' conversations within the
10(b) period with Sandra Davis, Gladys Heintz, and
Norman Heintz, about his standing on the list, cannot
properly be construed to contain refusals on the part of the
Respondent to permit Schultz to examine the list, even
when considered in the light of the August 1975 incident. I
shall recommend that this allegation of the complaint be
dismissed.
C. William Erdman
William Erdman credibly testified that he had been a
member of Local 1440 off and on from 1965 until 1975,
and up until that time had no difficulty in being reinstated
to membership following each lapse. Erdman had worked
for most of the employers in the Southern Wisconsin area,
performing all types of laborers' work. Erdman's problems
with Norman Heintz and Local 1440's hiring hall also
began in the summer of 1975 when Erdman went to the
union hall to talk with Heintz about a job. Erdman asked if
there was any work, and Heintz responded that he didn't
have all the members out yet, but that Erdman could fill out
a form with his name and address. After Erdman did this
he told Heintz that he thought he could get a job in Beloit,
but Heintz responded that Erdman could not take it
because they had a hiring hall. Then Erdman inquired
whether it would make any difference if he paid his dues
and got reinstated. Heintz said it did not matter, and that
Erdman could not do that because the members had to go
out first. He said that if Erdman took the Beloit job the
contractor would be in big trouble because Heintz had a
contract with him and they had to hire men from his hall.
Heintz and Erdman continued talking as they walked
together toward the parking lot. It was at this point, as
described earlier in this Decision, that Erdman remarked
about Schultz having said that the hiring hall was not legal,
to which Heintz replied that Schultz had better keep his
mouth shut or he would be out looking for work too.
The next such conversation between Erdman and Heintz
occurred in June or July 1976 in the Cronin Hotel, where
the unemployed Erdman lived and occasionally performed
odd jobs. On this occasion Erdman was cleaning the
coolers behind the bar when Heintz came in for a drink.
Erdman asked Heintz if there were any jobs available, and
Heintz replied no, that work was slow, and he did not have
all the members off the bench yet. Erdman responded that
he badly needed a job and was going to get one on his own.
Heintz said that he did not care whether Erdman did or
not.6
About a month later Erdman was informed by another
man who also lived at the Cronin Hotel that he was going
to the union hall to see Heintz before reporting for work at
the Chevrolet plant. The man (unidentified in the record)
said he knew Heintz personally and offered to intercede for
Erdman. When the two men arrived at the union hall
Heintz gave this man and one other man at the hall slips to
6 Heintz recalled talking to Erdman in the bar while Erdman was
cleaning the coolers, but testified he did not recall any of the conversation.
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CONSTRUCTION AND GENERAL LABORERS' LOCAL UNION NO. 1440
report for work at Chevrolet, but refused to refer Erdman,
saying that he did not have all the members off the bench
yet but that he would give Erdman a call if anything came
up.
Thereafter, in August, Erdman sought and found em-
ployment with Martindale Builders, Inc., for whom he had
worked in the past. Erdman contacted Martindale Superin-
tendent Harold Patten and was eventually hired as a
laborer on a job in Monroe, Wisconsin. Erdman reported
for work on Thursday, August 5. On August 6 Patten
called Heintz to request the referral of another laborer.
During the course of the conversation he reported to
Heintz that Erdman was working on the Monroe job. On
the following Monday Erdman called Heintz, told him he
was working in Monroe, and asked how much time Heintz
would give him to get reinstated in the Union. Heintz said
that he had all the men on the bench working, and had a
lot of l-day jobs that nobody wanted. He said that Erdman
could have 30 days, if he needed it, because everyone was
working and, in fact, he was hiring new men at this time.
Later that day Patten informed Erdman of his earlier
conversation with Heintz, and told Erdman that Heintz
had said he would have to check the job and if Erdman was
not in good standing with the Union he would have to
make himself in good standing. Erdman answered that he
had contacted Heintz and had "squared himself." 7
Nevertheless, on Thursday, August 12, Erdman was
terminated. He was pouring cement that afternoon when
Heintz and a laborer named Kenny Masterson ap-
proached. Heintz said he was going to have to take Erdman
off the job. Erdman asked what Heintz meant, and Heintz
responded, "Well, you're not paid up in your dues and you
didn't get the job through the hall so you're going to have
to leave." Erdman then reminded Heintz that he had said
Erdman could have 30 days to join the Union, to which
Heintz answered, "Well, look, it's not your fault. It's the
contractor's fault that he hired you. I have a hiring hall,
and you are going to leave." Then Erdman stated that he
was going to sue Heintz for back wages if he took him off
the job, and that he would like "to pound the hell" out of
him. This ended the conversation, and Heintz left.
Next Heintz talked to Bruce Martindale, the president of
the Company. According to Martindale, Heintz stated that
Erdman was not a current member of the Local, and was
past due on his dues. Heintz said that the Company had
not followed the hiring-hall provisions of the contract and
if they did not terminate Erdman they would have a picket
on the job the following day. Martindale promised to be in
touch with Heintz, and immediately contacted Patten. He
instructed Patten to clear up the problem because they did
not want the job shut down, and to contact Heintz and
"rectify the situation." After receiving the call from
Martindale, Patten attempted to reach Heintz by phone,
but was unsuccessful. He managed to reach Heintz' wife
and left a message that a replacement for Erdman should
be sent to the jobsite the following day. That evening
Patten talked with Erdman, told him about the threat to
picket the job, and gave him his final paycheck.
Norman Heintz denied having any phone conversation
with Erdman between August 6 and August 12. I do not
credit his denial. I note that Erdman's testimony concern-
ing the conversation with Heintz meshes both in time and
substance with the testimony of Patten, with whom Heintz
agrees he talked on August 6, when Patten requested an
additional laborer whom Heintz said was not in good
standing with the Union and "would have to get straight-
ened around...." However, I credit the testimony of
Patten over that of Heintz that the laborer who was the
subject of this discussion was Erdman and not Douglas
Ebbenneder (or Ebbenthraler) as Heintz testified. There is
no reason for Patten to falsify his testimony that the first
time he ever heard Ebbenthraler's (or Ebbenneder's) name
mentioned was when Heintz brought it up during their
phone conversation on August 12.
Neither do I credit Heintz' versions of his conversations
with Erdman and Patten on August 12. According to
Heintz, he told Erdman that he was surprised that he was
on the job, and asked how long he had been working there.
Erdman responded a couple of days, and Heintz said that
it was not right because there were other men on the layoff
slip that had been there a long time. According to Heintz, it
was after he made this statement that Erdman threatened
to sue him if Heintz ran him off the job. Heintz' testimony
concerning this conversation is clearly contrived and
incomplete. Again it conflicts not only with Schultz'
testimony but also with that of Patten who testified that he
had informed Heintz of Erdman's presence on the job on
Friday of the previous week. Heintz also testified that after
talking to Erdman on August 12 he went to Patten and
informed him of the problem with Erdman whereupon
Patten said he had given Erdman a job several days ago
and was unaware of the situation. This also conflicts with
Patten's credited testimony concerning the August 6
conversation with Heintz and, in addition, Patten's testi-
mony that on August 12 Heintz told him simply that he
should hire his help through the hall since they had a hiring
hall. Heintz' version of the subsequent conversation with
Martindale is similar to Martindale's version. According to
Heintz, he told Martindale that he was in violation of their
agreement since he had a man on the Monroe job that was
not in good standing with the Union. The remainder of
Heintz' testimony, concerning the conversation with Mar-
tindale, to the effect that he raised the union-security
provision in the contract, is not credited since it conflicts
with Martindale's credited testimony that the only subjects
discussed between them were that Erdman was not a
current member of the Local, was delinquent in his dues,
and had not been hired through the hiring hall.
I find that the Respondent violated Section 8(bXIXA)
and (2) of the Act by attempting to cause and causing the
discharge of Erdman from Martindale's Bauman Hard-
ware job in Monroe, Wisconsin, on August 12, as alleged in
the complaint. The credible evidence clearly shows that the
Respondent forced Martindale to discharge Erdman be-
cause Erdman was not a member of the Union. Respon-
dent's contentions that Erdman's discharge was justified by
Martindale's failure to comply with the hiring-hall and
T These findings are based on credited testimony by Patten and Erdman.
1371
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
union-security provisions of their contract does not excuse
Respondent's conduct under the circumstances presented.
The Board has long held that causing the discharge of an
employee for nonmembership in a union violates the Act
unless justified by a valid union-security agreement which
has been properly enforced. Although Respondent's union-
security agreement with Martindale contains a 7-day
clause, it is clear from Erdman's credited testimony that
during their telephone conversation Heintz assured Erd-
man that he would allow him up to 30 days to be reinstated
in the Union. Under these circumstances Heintz' failure to
honor this commitment constitutes a breach of the Respon-
dent's fiduciary duty to administer the union-security and
hiring-hall provisions of its contract fairly and indiscrimi-
nately. Thus, the Respondent violated Section 8(bX)()(A)
and 8(b)(2) of the Act.8
CONCLUSIONS OF LAW
i. The Southern Wisconsin Contractors Association
and Martindale Builders, Inc., are each employers engaged
in commerce within the meaning of Section 2(6) and (7) of
the Act.
2. Construction and General Laborers' Local No. 1440
affiliated with Laborers' International Union of North
America, AFL-CIO, the Respondent, is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
3. By threatening to refuse to refer and by refusing to
refer Delbert Schultz from June 3 to September 24, 1976,
because of his refusal and continuing failure to pay an
internal union fine levied June 3, 1976, the Respondent
violated Section 8(b)(1)(A) and (2) of the Act, respectively.
4. By causing Martindale Builders, Inc., to discharge
William Erdman from his job as a construction laborer at
Martindale's Bauman Hardware construction site in Mon-
roe, Wisconsin, because he was not a member of the
Respondent, the Respondent violated Section 8(b)(1)(A)
and (2) of the Act.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
6. The Respondent has not violated the Act in any
respect other than those specifically found.
THE REMEDY
Having found that the Respondent has engaged in
certain unfair labor practices, I find it necessary to order
the Respondent to cease and desist therefrom and to take
certain affirmative action designed to effectuate the poli-
cies of the Act.
Having found that the Respondent unlawfully failed and
refused to refer Delbert Schultz for employment at all times
from June 3, 1976, to September 24, 1976, I shall recom-
mend that the Respondent be required to make Schultz
whole for any loss of earnings he may have suffered during
that period. Since, in addition, I have also found that the
Respondent caused Martindale Builders, Inc., an employ-
a General Counsel's motion renewing his offer into evidence of G.C.
Exhs. 7(n) and 7(p) is denied.
9 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,
er, to unlawfully discharge William Erdman on August 12,
1976, I shall recommend that the Respondent be ordered to
make Erdman whole for any loss of earnings he may have
suffered as a result of the discrimination against him.
Respondent's backpay liability, with interest at 7 percent
per annum, shall be computed in accordance with the
formula set forth in F. W. Woolworth Company, 90 NLRB
289 1950, and Florida Steel Corporation, 231 NLRB 651
(1977). In the case of Delbert Schultz, the Respondent's
backpay liability shall cease, in accordance with the
allegations of the complaint, on September 24, 1976. In the
case of William Erdman, Respondent's backpay liability
shall terminate 5 days after it notifies Martindale Builders,
Inc., and William Erdman that it has no objection to the
employment of William Erdman.
Finally, since the record discloses that the Respondent
has flagrantly abused its fiduciary obligation to operate its
exclusive hiring hall in a nondiscriminatory manner and in
accordance with the provisions of its June i, 1975,
collective-bargaining agreement with the Southern Wiscon-
sin Contractors Association, and its agreement with Mar-
tindale, I shall recommend that the Respondent be re-
quired to maintain for a period of 6 months and make
available for inspection by the Regional Director for
Region 30 or his agents a written record of the persons who
have registered at the Union's hiring hall, job referrals, and
requests for job referrals, to employers with whom the
Respondent has collective-bargaining agreements. I shall
also order that an appropriate notice be posted by the
Respondent.
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:
ORDER9
The Respondent, Construction and General Laborers'
Local No. 1440 affiliated with Laborers' International
Union of North America, AFL-CIO, Beloit, Wisconsin, its
officers, agents, and representatives, shall:
1. Cease and desist from:
(a) Operating its exclusive hiring hall in disregard of the
provisions of its June 1, 1975, collective-bargaining agree-
ment with the Southern Wisconsin Contractors Associa-
tion, and its agreement with Martindale Builders, Inc., and
in derogation of its fiduciary obligation to those persons
who utilize the services of Respondent's hiring hall.
(b) Threatening to refuse to refer and failing and refusing
to refer Delbert Schultz or any other individual who is
lawfully entitled to referral pursuant to the hiring-hall
provision of the June 1, 1975, collective-bargaining agree-
ment.
(c) Unlawfully causing or attempting to cause Martin-
dale Builders, Inc., or any other employer to discharge or
otherwise discriminate against William Erdman or any
other individual because that individual is not a member of
the Respondent.
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.
1372
CONSTRUCTION AND GENERAL LABORERS' LOCAL UNION NO. 1440
(d) In any manner restraining or coercing employees or
applicants for employment in the exercise of rights guaran-
teed to them in Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Operate its exclusive hiring hall in a nondiscriminato-
ry manner and in accordance with the provisions of its
June I, 1975, collective-bargaining agreements with the
Southern Wisconsin Contractors Association, Martindale
Builders, Inc., and its agreements with other employers.
(b) Make whole Delbert Schultz, who was unlawfully
refused referrals, and William Erdman, who was unlawful-
ly caused to be discharged, for any loss of earnings they
suffered, in the manner set forth in the section of this
Decision entitled "The Remedy."
(c) Maintain for a period of 6 months and make available
for inspection by the Regional Director for Region 30 or
his agents a written record of persons registering at its
hiring hall, all job referrals, and requests for job referrals,
to employers with whom the Respondent has collective-
bargaining agreements.
(d) Preserve, and upon request, make available to the
Board or its agents, for examination and copying, all
records pertaining to employment through its hiring hall,
and all records relevant and necessary for compliance with
the terms of this Order.
(e) Notify Martindale Builders, Inc., of Beloit, Wiscon-
sin, in writing, with a copy to William Erdman, that it
withdraws its objection to the employment of William
Erdman by Martindale Builders, Inc., and will not oppose
his reemployment.
(f) Post at its business offices, hiring hall, and meeting
places copies of the attached notice marked "Appendix." 10
Copies of said notice, on forms provided by the Regional
Director for Region 30, after being duly signed by
Respondent Business Manager Norman Heintz, shall be
posted by the Respondent immediately upon receipt
thereof, and be maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all places
where notices to members are customarily posted. Reason-
able steps shall be taken by Respondent to insure that the
notices are not altered, defaced, or covered by any other
material.
(g) Forward to the Regional Director for Region 30
signed copies of the Appendix for posting by Martindale
Builders, Inc. at its Beloit, Wisconsin, offices and its
jobsites if it so desires.
(h) Notify the Regional Director for Region 30, in
writing, within 20 days from the date of this Order, what
steps the Respondent has taken to comply herewith.
10 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."
APPENDIX
NOTICE TO MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing in which all parties had the opportunity to
present evidence, it has been decided that we violated the
law, and we have been ordered to post this notice. We
intend to carry out the Order of the Board and abide by the
following:
WE WILL NOT operate our exclusive hiring hall in
disregard of the provisions of our June 1, 1975,
collective-bargaining agreement with the Southern Wis-
consin Contractors Association, and our contracts with
Martindale Builders, Inc., and other employers.
WE WILL NOT threaten to refuse to refer nor will we
fail or refuse to refer Delbert Schultz or any other
individual in violation of our contractual hiring-hall
procedures.
WE WILL NOT unlawfully attempt to cause or cause
Martindale Builders, Inc., or any other employer to
discharge William Erdman or any other individual
from his job as a construction laborer because said
individual is not a member of the Union.
WE WILL NOT in any manner restrain or coerce
employees or applicants for employment in the exercise
of rights guaranteed to them in Section 7 of the Act.
WE WILL operate our exclusive hiring hall in a
nondiscriminatory manner and in accordance with the
provisions of our June 1, 1975, collective-bargaining
agreement with the Southern Wisconsin Contractors
Association, and our contracts with Martindale Build-
ers, Inc., and other employers.
WE WILL make whole Delbert Schultz and William
Erdman for any loss of earnings they suffered by reason
of the discrimination practiced against them.
WE WILL maintain for a period of 6 months a written
record of persons registering at our hiring hall, job
referrals, and requests for job referrals to employers
with whom we have collective-bargaining agreements.
CONSTRUCTION AND
GENERAL LABORERS' LOCAL
No. 1440 AFFILIATED WITH
LABORERs' INTERNATIONAL
UNION OF NORTH
AMERICA, AFL-CIO
1373