Laborers' Local Union No. 264

National Labor Relations Board - Board Decisions

Jun 11, 1974

211 N.L.R.B. 345 (N.L.R.B. 1974)

LABORERS ' LOCAL UNION NO. 264 345
Construction and General Laborers ' Local Union No.
264, affiliated with Laborers' International Union
of North America, AFL-CIO (Midwest Cabinet &
Store Fixture Co.) and R. D. Waller and William
C. Burton. Case 17-CB-1 198
June 11, 1974
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND JENKINS
On February 25, 1974 , Administrative Law Judge
John M . Dyer issued the attached Decision in this
proceeding . Thereafter, Respondent filed exceptions
and a supporting brief , and counsel for the General
Counsel filed an answering brief to Respondent's
exceptions and brief in support thereof.
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
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
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that Respondent, Construction and
General Laborers ' Local Union No. 264, affiliated
with Laborers' International Union of North Ameri-
ca, AFL-CIO, Kansas City, Missouri, its officers,
agents , and representatives , shall take the action set
forth in the said recommended Order.
DECISION
STATEMENT OF THE CASE
Center project , had two stewards , Floyd McDaniel and
Gene Parrissee , and that Respondent violated Section
8(b)(1)(A) and (2) by causing the Company to lay Waller
and Burton off on or about July 3.
Respondent's answer admitted the service allegations,
stated that it had no knowledge of the commerce
allegations, admitted that the two individuals were job
stewards who had limited authority , and denied that it had
in any way violated the Act.
At the hearing held December 11, in Kansas City,
Kansas , all parties were afforded full opportunity to
appear, to examine and cross -examine the witnesses, and
to argue orally . General Counsel and Respondent have
filed briefs which have been carefully considered.
In the main, the facts in this case are not controverted,
but the parties draw different legal conclusions form those
facts . During the trial of this matter Respondent took the
position that there was no jurisdictional dispute between
two local unions , that is Respondent and the Masons and
Plasterer Tenders Union Local No . 555 (herein called
Local 555), which is also affiliated with the Laborers'
International Union of North America, AFL-CIO, and
both are in the same local council . It was Respondent's
position at the trial that Local 264 and Local 555 clearly
understood their separate areas of work in that Local 555
worked with masons , bricklayers , and plasterers, while
Respondent worked with carpenters and that such division
of jobs was agreed to by both . Respondent 's position,
which was expressed at the jobsite, was that this work
belonged to Local 264 and that they were protesting the
Company's assignment of that work to members of Local
555 in an effort to keep the work strictly for members of
Respondent.
In its brief , Respondent takes the position that there is a
jurisdictional dispute and since there is, the Complaint
must be dismissed since the only proper way to bring such
a proceeding under Board law is through Section 10(k) or
Section 8(b)(4)(D).
Thus , there was no real litigation of the question of a
jurisdictional dispute during the trial because Respondent
claimed that there was no jurisdictional dispute , and stated
that the facts so showed . I am inclined to agree with
Respondent 's position at trial and will find in this decision,
that there is no jurisdictional dispute and that Respon-
dent's actions were violative of the Act.
On the entire record in this case, including all the
evidence received , I make the following:
JOHN M. DYER , Administrative Law Judge : The original
charge was filed and served on July 17 , 1973,1 and
amended on November 7, alleging that Construction and
General Laborers' Local Union No. 264 , herein called
Respondent or Local 264, had violated Section 8 (b)(2) and
(1)(A) of the Act by causing Midwest Cabinet & Store
Fixture Co ., herein called the Company , to discharge R.D.
Waller and William C. Burton because of their lack of
membership in Local 264 . The Acting Regional Director of
Region 17 issued a complaint against Respondent on
November 9, alleging in addition to the standard service
and commerce allegations , that Respondent , on the Crown
FINDINGS OF FACT
1. COMMERCE DATA AND CONCLUSIONS AND UNION
STATUS
Midwest Cabinet & Store Fixture Co. is a Missouri
corporation engaged in the manufacture and installation of
store fixtures and related items , with its plant and principal
area of business located in Kansas City , Missouri.
Respondent, in a yearly period, performed work outside of
the State of Missouri, valued in excess of $54 ,000 and
annually received supplies and materials directly from
I Unless otherwise stated , all events herein took place during 1973.
211 NLRB No. 53
346 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
outside of the State valued in excess of $38,000, and
received other supplies and materials which originated
from outside the State valued in excess of $13,000. The
situs of the immediate dispute is the Crown Center
complex (herein called Crown Center), which is a complex
of hotel, office, and retail establishments in Kansas City,
Missouri, the total value of which is in the neighborhood of
$250 million. Respondent's contract with the Crown
Center Development Corporation for work to be per-
formed in installing fixtures and some walls for eight
commercial establishments located in the Crown Center
was in the amount of $270,000.
On the basis of these facts, I find that Midwest Cabinet
& Store Fixture Co. is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
Respondents admit, and I find, that Respondent, Local
264, is a labor organization within the meaning of Section
2(5) of the Act.
II. THE UNFAIR LABOR PRACTICES
A. Background and Undisputed Facts
The Company employs some five to seven carpenters in
its inside shop who build the store fixtures which it later
installs . This inside group is represented by the Cabinet-
makers' Local 1635 of the Carpenters' District Council and
Respondent has a collective-bargaining agreement with
that Union. The Company also has an agreement with
Carpenters' Local 61, which is also affiliated with the
Carpenters' District Council, and employs members of that
Local Union for the installation and remodelling work
which is done at the site of the installations. The Company
has not had any contracts with and does not regularly
employ laborers who are members either of Respondent or
Local 555. According to the Company's President, Law-
rence M . Haglund, the Company has hired laborers on
occasion for cleaning up or tearing down a wall, or starting
a new wall when it is engaged in remodelling projects.
After receiving notification that it had the contract for
Crown Center, the Company began assembling materials
and building the fixtures it needed. It actually began work
at the Crown Center site around June 27. Mr. Haglund
testified that on June 29, he contacted the business agent
for Local 555, asking that he refer Mr. Burton specifically
and one other laborer to the Crown Center site to unload a
truckload of sheetrock scheduled to be delivered on
Monday, July 2. Because of weather predictions of severe
thunderstorms in the area on that date, Mr. Haglund called
Local 555 and rescheduled the two laborers for Tuesday,
July 3, after rescheduling delivery of the sheetrock for that
day. When Haglund arrived at the Crown Center site on
Tuesday, July 3, he saw the truck of sheetrock and noticed
that the truckdriver and helper had started to undo the
straps when Local 264 steward, McDaniel, talked to the
truckdriver and his helper and they stopped work.
McDaniel then told Haglund that the men were not
laborers and could not unload the material. Haglund told
McDaniel that it did not make any difference to him since
he had two laborers coming there to unload the truck.
After Haglund found Burton and Waller at the jobsite, he
told them to take a cart down and unload the truck at the
street level and push the cart up the ramps since there was
no elevator service that day and the truck was too high to
drive up the ramps. Burton and Waller proceeded to follow
his directions, but after working some 10 to 15 minutes
Haglund saw McDaniel talk to them and they stopped
work. McDaniel then came over to him and said that
Burton and Waller could not unload the truck because
they did not belong to Local 264.
Burton and Waller, despite being cancelled out on
Monday, July 2, went to the jobsite in the hope of getting
some work but were unable to do so. While at the jobsite
they saw Local 264 steward, McDaniel, who asked them to
show him their union cards which they did, and he wrote
their numbers down in his book. On the following morning
when they again reported for work, Tuesday, July 3, they
again saw McDaniel, who again asked them for their cards,
wrote the numbers down in his log book, wished them luck
on the job, and walked off.
After being instructed by Mr. Haglund to unload the
truck, they started doing so and had worked some 10 or 15
minutes when McDaniel came up, again asked to see their
cards, and then said they were from Local 555 and could
not do that work, and stopped them from working.
McDaniel called the other Local 264 union steward,
Parrissee, and asked if that was not correct. Parrissee
agreed. McDaniel stated that this was Local 264s work
and Burton and Waller would have to be members of
Local 264 in order to do it. McDaniel told Company
President Haglund that Burton and Waller could not
unload the truck of sheetrock because they did not belong
to Local 264. Haglund stated that they were all union men,
belonged to the same Laborers' Council, and should be
allowed to work. The parties then went to the construction
shack so that calls could be made to the various locals.
McDaniel called Local 264 and after a conversation
reported to Haglund that being under the same District
Council made no difference, that the work was work for
Local 264 and men from Local 555 could not unload
sheetrock. Haglund then called Local 555, advised them of
what had occurred, and was told that there was an
understanding between the Locals that would allow the
men to go ahead and work. After Haglund reported this,
McDaniel called Local 264 and reported back to Haglund
that there was no such understanding and that the only
way the men could unload the sheetrock would be if they
transferred into Local 264.
McDaniel talked to Burton and Waller, who did not
indicate that they wanted to transfer immediately into
Local 264, and McDaniel said they could not let them do
that kind of work. Burton protested that under the laws a
man is entitled to work 7 days before he has to become a
union member but received no response. Mr. Haglund then
told Burton and Waller he would try to straighten it out
but to go down to his office and he would pay them the
half day "show-up" time. Haglund told McDaniel he still
needed the truck unloaded and McDaniel asked the
construction foreman if he could spare two members of
Local 264 to do so. The contractor agreed and two
members of Local 264 unloaded the truck.
LABORERS' LOCAL UNION NO. 264 347
B. Analysis and Conclusions
Respondent's brief states that there is no evidence of any
intent or request by Local 264 to have Burton and Waller
fired. Respondent points out that these two men could
have transferred into Local 264 without cost, or fee, and
the procedure would have taken about 5 minutes. Howev-
er, the testimony is clear as recited above, that Respondent
was taking the position that these two men could not work
at that particular job on the jobsite without being members
of Local 264. Since Burton and Waller did not evidence
any intent of joining Local 264 or transferring to that
Local, the position was one of a stalemate in that the
Company was not being allowed by Respondent to use
them unless they were members of Local 264. The only
thing left for the Company to do at that point, since the
two employees were unwilling to transfer, was to replace
them with Local 264 employees which Local 264 readily
did. Therefore, I conclude that there was a specific intent
by Respondent to have Burton and Waller knocked off the
job if they did not join or transfer into Local 264. Their
discharges were violative of Section 8(a)(3) of the Act since
they were occasioned illegally because of nonmembership
in Local 264.
As noted above, Respondent states for the first time in
its brief that there is a viable jurisdictional dispute present
in this situation. Respondent's change of tactics in this
regard appear to stem from General Counsel's statement
made during the trial, that if there was a bona fide
jurisdictional dispute present, there would be no choice
under the Board's rulings in J. L. Allen Co., et al., 199
NLRB 675, but to dismiss the present proceedings since
under the Board's ruling, where a viable jurisdictional
dispute is present, it would have to go through Section
10(k), 8(b)(4)(D) proceedings.
As noted above, it was Respondent's trial position that
there was no jurisdictional dispute, that the two Unions,
Local 264 and Local 555 , were in agreement that work that
laborers did in regard to assisting carpenters was work that
was performed by Local 264, whereas the work laborers
did in assisting brick masons, etc., was work for Local 555.
There was testimony that another laborers' local handled
the heavy construction work associated with road work in
the Missouri area but that in Kansas one local performs all
three jobs.
Respondent introduced the joint agreement between the
Builders' Association of Kansas City, Missouri, and the
three laborers union in the Kansas City, Missouri, area, but
it is clear that since the Company was not a subcontractor
on the Crown Center project, it is not bound by the
subcontracting provisions in that contract. Even if the
Company were bound by such contract, which it is not,
this contract provides for settlement of jurisdictional
disputes between unions affiliated with the Building and
Construction Trades Department and provides for no work
stoppage because of any such dispute.
Respondent representatives agreed that if an employee
was not a union member he would have 7 days within
which to join the Union after having been put to work by a
company. Asked if the person had been a member of some
other union such as the Steamfitters, the answer was still
the same, that he would have 7 days within which to join
Respondent. When queried as to why a person from Local
555 would not be given 7 days within which to transfer to
Local 264, the answer was that the transfer does not
involve as much. Asked whether the person would have to
cease doing work, the answer was "You've got me on this. I
don't know whether he will stop, or not. I haven't had to
place men on our work. I haven't been through this
procedure of transfer too much." To another question of
whether a member of another laborers' union would be
given 7 days to transfer into Local 264, the answer was "I
don't think he is given 7 days to transfer to the Union, but
he has the time that he would be before the board to get a
transfer." On another query about the status of a member
of the Kansas local which does all three types of work, the
answer was that he would be able to work back and forth
with Local 264 or any of the other Missouri laborers'
locals.
Respondent also argues that this is a "work rights" case
and it has authority to take the action it did in order to
preserve such a work right. Respondent's testimony was
that some 90 to 95 percent of the work in the Kansas City,
Missouri, area which is mainly construction work, is
divided in this manner. However, Respondent has not
shown any pattern in regard to the work done by
companies such as Midwest Cabinet. Respondent's pat-
terns are those prevailing in the construction industry
where for the most part the contract it has governs the
construction work in the Kansas City area. But that
contract does not set forth such jurisdictional particulars.
Not having found any jurisdictional dispute, I cannot
accord this argument any weight. Local 555, although
assertedly, through Mr. Haglund's testimony stating that it
had an agreement regarding members working in this area,
did not appear and has presented no agreement or claim
that it has any jurisdiction over this work.
Respondent's final argument is that its action in causing
the interruption was minimal and could have no impact on
commerce. Respondent neglects to note that if the
Company had persisted and insisted on employing Waller
and Burton, and Respondent had then picketed the Crown
Center project, which was implicit in its statements, work
could have been halted on a $250 million construction site
with tremendous impact on all of the goods flowing to that
project which was then under construction and to the
contractors and subcontractors then at work. I find that
the action of Respondent was not minimal or de minimus,
and did affect commerce.
C. Duration of Employment
One of the questions raised was whether the job Burton
and Waller were reporting to would have lasted 1 day or
longer. The Company stated that the particular work
would have lasted 1 to 2 days but that if these men had
been given enough time to see whether they would work
effectively with the other employees, they would have been
extended on the job over the next several months when the
Company used laborers for a large amount of work.
Respondent argues that this could only be a 1-day job
and since the Company did not have an opportunity to see
how the two men worked or how they would have worked
out with others, that if found guilty of violating the Act it
348 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
can only be held for remedying the loss of 1 day's work. I
find otherwise.
The fact that these employees were not given sufficient
time to work on the job so that the Company could
evaluate their performance is Respondent 's fault since the
Company acceded to Respondent's demand. I cannot, as
Respondent's position would have me do, state that these
two employees would not have been good employees who
could conceivably have worked a number of months on
this job. Since Respondent caused the problem, it is up to
Respondent to untangle it, and in this situation , that means
that Respondent is responsible for the work these two men
could have received at this jobsite. I will therefore direct
that the backpay period run from the date that they were
laid off, July 3, 1973, through a date to be determined on
compliance when Respondent ceased using laborers on the
Crown Center project, absent Respondent's notifying the
Company it had no objection to their employment.
In summary, I find that Respondent's action by its union
stewards in stopping employees Burton and Waller from
working for the Company at the Crown Center project
violated Section 8(b)(1)(A) and (2) of the Act.
III. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent as set forth in section II,
above, occurring in connection with the Employer's
operations described in section I, above, have a close,
intimate, and substantial relationship 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.
IV. THE REMEDY
Having found that Respondent violated Section 8(b)(2)
and 8(b)(1)(A) of the Act, I shall recommend that
Respondent cease and desist from causing or attempting to
cause the Company not to employ William C. Burton and
R. D. Waller because of their lack of membership in the
Respondent.
Respondent shall make William C. Burton and R. D.
Waller whole by paying each of them a sum equal to what
each would have received as wages from July 3, 1973, until
he is reinstated, or to that time when they would have
worked for the Company at the Crown Center project as
stated above, less any net interim earnings. Backpay is to
be computed on a quarterly basis in the manner estab-
lished by the Board in F. W. Woolworth Company, 90
NLRB 289, with interest at the rate of 6 percent per annum
to be computed in the manner set forth in Isis Plumbing &
Heating Co., 138 NLRB 716.
Respondent shall also make William C. Burton and R.
D. Waller whole by granting or providing for such benefits,
privileges, or other protections or status, such as seniority,
2 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.
as they would have had and enjoyed if they had continued
to be employed by Midwest Cabinet & Store Fixture Co.
On the basis of the foregoing findings and the record
herein, I make the following:
CONCLUSIONS OF LAW
1. Respondent is a labor organization within the
meaning of Section 2(5) of the Act.
2. The Employer is an employer within the meaning of
Section 2(2) of the Act.
3. The Employer is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
4. By causing and attempting to cause the Company to
discriminate against employees William C. Burton and R.
D. Waller in violation of Section 8(a)(3) of the Act and by
restraining or coercing employees in the exercise of 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) and 8(b)(2) of the Act.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
RECOMMENDED ORDER2
Upon the basis of the foregoing findings of fact and
conclusions of law and the entire record in this case, I
recommend that Respondent, its officers, agents, and
representatives, shall:
1. Cease and desist from in any manner causing or
attempting to cause the Employer, Midwest Cabinet &
Store Fixture Co., or any other employer, to discriminate
against William C. Burton and R. D. Waller in violation of
Section 8(a)(3) of the Act or restraining or coercing them in
the exercise of their rights guaranteed in Section 7 of the
Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Notify Midwest Cabinet & Store Fixture Co. that it
has no objections to William C. Burton and R. D. Waller
being employed by it.
(b) Make William C. Burton and R. D. Waller whole for
the losses they suffered because of Respondent's discrimi-
nation against them in accordance with the recommenda-
tions set forth in the section of this Decision entitled "The
Remedy."
(c) Respondent is to post at its business office, union
hall, and any other place where it customarily posts notices
to members, copies of the attached notice marked
"Appendix." 3 Copies of the notice shall also be posted at
the Company's place of business, if the Company is willing,
and at the Crown Center project if the company having
control over that premises is willing. Notices on forms
provided by the Regional Director for Region 17, after
being signed by an authorized representative of the
Respondent, shall be posted by the Respondent immedi-
3 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."
LABORERS ' LOCAL UNION NO. 264 349
ately upon receipt thereof in the manner provided above.
The notices are to be posted for 60 consecutive days in
conspicuous places , including all places where notices to
members are customarily posted , and reasonable steps
shall be taken by Respondent and by the others permitting
posting to insure that the notices are not altered , defaced,
or covered by any other material.
(d) Notify the Regional Director for Region 17, in
writing, within 20 days from the receipt of this Decision,
what steps have been taken to comply herewith.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
Following a trial in which the Union, Midwest Cabinet
& Store Fixture Co., and the General Counsel of the
National Labor Relations Board participated and offered
evidence, it has been found that we violated the Act. We
have been ordered to post this notice and we intend to
carry out the order of the Board and abide by the
following:
WE WILL NOT cause or attempt to cause Midwest
Cabinet & Store Fixture Co., or any other employer, to
discriminate against William C. Burton and R. D.
Waller in violation of Section 8(a)(3) of the Act.
WE WILL make William C. Burton and R. D. Waller
whole for any amount they lost when we refused to
have them continue as employees of Midwest Cabinet
& Store Fixture Co., at the Crown Center project in
July 1973.
WE WILL further make William C. Burton and R. D.
Waller whole by providing for them the rights,
privileges, benefits, and seniority they would be entitled
to if they had worked for Midwest Cabinet & Store
Fixture Co.
Dated By
CONSTRUCTION AND
GENERAL LABORERS' LOCAL
UNION No. 264, AFFILIATED
WITH LABORERS'
INTERNATIONAL UNION OF
NORTH AMERICA,
AFL-CIO
(Labor Organization)
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
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.
Any questions concerning this notice or compliance with
its provisions may be directed to the Board's Office,
616-Two Gateway Center, Fourth At State, Kansas City,
Kansas 66101, Telephone 816-374-4518.