Local 715

National Labor Relations Board - Board Decisions

Aug 15, 1958

121 N.L.R.B. 543 (N.L.R.B. 1958)

LOCAL 715 543
[The Board certified General Drivers , Salesmen and Warehous-
men's Local Union #984, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen & Helpers of America , and International
Association of Machinists, District Lodge #135, AFL-CIO, jointly,
as the designated collective-bargaining representatives of the em-
ployees in the unit heretofore found appropriate ]
MEMBERS BEAN and FANNING took no part in the consideration of
the above Supplemental Decision and Certification of Representatives.
Local 715, United Brotherhood of Carpenters and Millwrights,
AFL-CIO and Charles S. Wood and Co. Case No W--CB--
(formerly -CB-1555). August 15,1958
DECISION AND ORDER
On October 19,1956, Trial Examiner William F Schariiikow issued
his Intermediate Report in the above -entitled proceeding , a copy of
which is attached hereto , finding that the Respondent had not engaged
in any unfair labor practices , and recommending that the complaint
be dismissed in its entirety Thereafter, the General Counsel filed
exceptions to the Intermediate Report and a supporting brief
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 Leedom and Members Rodgers and Jenkins]
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed x The Board has considered the Inter-
mediate Report, the General Counsel 's exceptions and brief , and the
entire record in the case, and finds merit in the General Counsel's ex-
ceptions We adopt the Trial Examiner 's findings through section
III, C, of the Intermediate Report , with the exception noted below 2
However, we reject his conclusions and recommendations except in-
sofar as they are expressly adopted in this decision S
The General Counsel alleges that by participating with the Com-
pany in an arrangement , understanding , and practice , whereby car-
1
Because the Respondent failed to file a timely answer to the original complaint, the
General Counsel filed a motion that the allegations therein be deemed to be admitted No
exceptions having been filed to the Trial Examiner 's refusal to grant this motion, we
affirm his rpling pro forma
2 The telephone conversation between Union Steward Schmidt and Union Business Agent
Fullagar , in which Fullagar told Schmidt to send Supervisor Searinza down to the union
hall, occurred on May 3, lather than on May 4 as the Trial Examiner found
8 We agree with the Trial Examiner that the Company is engaged in commerce within
the meaning of the Act , and that the Respondent is a labor oiganization within the
meaning of the Act
121 NLRB No 60
544 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
penters who were not members of the Respondent had, to obtain work
permits as a condition of employment on the Company's projects
within the Respondent's territorial jurisdiction, the Respondent has
caused the Company to discriminate against its employees in viola-
tion of Section 8 (a) (3). The General Counsel contends that by
such conduct the Respondent has violated Section 8 (b) (1) (A) and
(2) of the Act. There can be no doubt that conduct of the sort alleged
by the General Counsel violates the statutory provisions upon which
he relies 4 Unlike the Trial Examiner, we believe that the evidence
which he credited establishes that the Respondent' engaged in such
conduct.
As set forth in greater detail in the Intermediate Report, the Com-
pany hires union men only "by policy." The Respondent's rules, taken
in conjunction with the rules of the district council and the inter-
national with which the Respondent is affiliated, at the very least
require members of the Respondent's sister locals to obtain work per-
mits "before going to work" within the Respondent's territorial juris-
diction.' On May 3, 1955, the Company transferred Supervisor
Scarinza, a member of one of the Respondent's sister locals, from a
job outside to a job within the Respondent's territorial jurisdiction.
Before Scarinza went on the new job, Company Manager Attridge
instructed him to get a work permit from the Respondent.
Notwithstanding Attridge's instructions, Scarinza, at, noon on May
3, reported to the new job without a permit. He was accompanied by
Rinker, a rank-and-file carpenter who was a member of one of the
Respondent's sister locals, and whom the Company had also trans-
ferred from another job. Rinker told Schmidt, the Respondent's job
steward,' that he had a work permit from the Respondent; Schmidt
then told Rinker that he "could go to work." Schmidt told Scarinza,
who had not yet obtained a work permit, that he could work for the
rest of the day but would have to see Fullagar, who was the Re-
spondent's business agent and was in charge of issuing work permits,
"the first thing in the morning."
On the following day, when Rinker reported to work, Schmidt told
him, "it was all right for [him] to go to work, being as [he] did have
a permit and [Schmidt] verified it with the union delegate." On the
4N. L R. B. v. Daboll, 216 F. 2d 143 , 145 (C. A. 9 ), certiorari denied, 348 U. S 917;
Local No. 1 4 00, United Brotherhood of Carpenters and Joiners of America, AFL-CIO
(Pardee Construction Company ), 115 NLRB 126, 126-127 , The Babcock & Wilcox Com-
pany, 110 NLRB 2116, 2132-2133, enforced sub nom N. L . R B. v. International
Brotherhood of Boilermakers , Iron Ship Builders and Helpers of America, District No. 2,
AFL, 232 F. 2d 393 (C A. 2).
5 The Trial Examiner found that these rules "on their face" did not require work permits
as a condition of employment . The General Counsel excepts to this finding . We find it
unnecessary to pass on this issue
d Schmidt was a carpenter employed by another contractor on the project. We agree
with the Trial Examiner that the Respondent is answerable for Schmidt 's conduct for all
purposes relevant here.
LOCAL 715 545
other hand, Scarinza still had no permit when he reported to work.
Schmidt told him, "You know the rules. If you don't get a permit,
why, you are not allowed to work." Scarinza then went down to the
union hall and asked Fullagar to give him a work permit. For
reasons not clear in the record, Scarinza did not obtain the permit
at that time. Scarinza then telephoned Company Manager Attridge
that he "didn't get a permit and . . . couldn't go to work yet."
Company President Wood took the telephone and told Scarinza to
return to work, adding, however, that "he [Wood] was trying to get
in touch with Mr. Fullagar."
Scarinza then told Schmidt what had happened and that "we were
waiting for a return call from Miss Attridge to see what we were
going to do." Schmidt replied, "Let's wait until we hear from Miss
Attridge." Thereafter Attridge telephoned Scarinza that "they were
trying to get ahold of Mr. Fullagar, and that [Scarinza] should try
to go to work." Scarinza reported this conversation to Schmidt, who
said , "You can go back to work until they get ahold of Mr. Fullagar."
Scarinza then began to work, about 3 hours after he had reported to
the job. Scarinza worked all day on May 5 and 6. At noon on
Friday, May 6, Fullagar ascertained from Scarinza that the job was
expected to last only another week, and instructed Schmidt to collect
the permit fee from Scarinza? Scarinza paid Schmidt $4 and re-
ceived his permit on Monday, May 9. He worked steadily on the
job until later in the month, when the Company withdrew from the
project.
We find that the facts summarized above, in the light of the record
as a whole , establish that the Company and the Respondent were
parties to an unlawful arrangement under which nonmembers of the
Respondent were required to, have work permits as a condition of
employment .8 Thus, the record shows that the Respondent regarded
work permits as a condition of employment for nonmembers . Steward
Schmidt's statement to Scarinza, "You know the rules. If you don't
get a permit, why, you are not allowed to work," unequivocally sup-
ports this view. A similar inference is compelled by Schmidt's state-
ment to employee Rinker, upon learning that he had a permit, that
he "could go to work" and "it was all right for [him] to go to work."
Further evidence that the Respondent regarded work permits as a
condition of ' employment is the statements by Fullagar, the Re-
TFullagar instructed Schmidt to obtain a work permit fee from Rinker , but withdrew
these instructions on learning that Rinker was exempted from the fee because he was a
member of a local affiliated with the same district council as the Respondent
8 Although Scarinza was a supervisor , we deem the evidence as to him relevant to estab-
lish an unlawful arrangement applying indiscriminately to supervisors and nonsupervisors.
There is no suggestion in the record that either the Company or the Respondent singled
out Scarinza because he was a supervisor On the contrary , the record affirmatively
shows that the Respondent expected Rinker, a rank -and-file employee , to obtain a work
permit before he "could go to work "
48792 6-5 9-vol . 121-36
546 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
spondent's business agent, that a member of a sister local "must .. .
obtain" or "has to have a work permit . . . before he can perform
carpentering within [the Respondent's] jurisdiction."
Moreover, the record as a whole establishes that the Company, to
the Respondent's knowledge, acceded to the Respondent's requirement
of work permits as a condition of employment. Company Manager
Attridge testified that she had instructed Scarinza to obtain a work
permit because she knew that this requirement is "normal" and "ac-
cepted practice" when a carpenter obtains a job outside the territorial
jurisdiction of his own local. Such knowledge must, we think, have
been based upon the Respondent's position that work permits were
in fact a condition of employment for nonmembers e Thus, the Com-
pany had been doing business within the Respondent's territorial
jurisdiction for 4 years, hired practically all of its carpenters for such
projects through the Respondent, and had had previous contacts with
the Respondent concerning work permits.1° For similar reasons, the
Respondent must have been aware that the Company was abiding
by the Respondent's work permit requirements. Such joint and con-
sistent action by both the Company and the Respondent establishes
the existence of an arrangement requiring work permits as a condition
of employment of nonmembers of, the Respondent 11
Accordingly, we find that by participating with the Company in
an agreement, understanding, and practice that required carpenters
who were not members of the Respondent to obtain work permits from
the Respondent as a condition of employment, the Respondent has
caused the Company to discriminate against its employees in violation
of Section 8 (a) (3) of the Act. We conclude that by engaging in
such conduct, the Respondent has violated Section 8 (b) (1) (A)
and (2).12
9 The Respondent 's position plainly predated Scarinza 's assignment to the project in-
volved here . Fullagar had been the Respondent 's business agent for 4 years before the
Scarinza incident . Schmidt, whose position was the same as Fullagar 's, had been a
member of the Respondent for 9 years and had served as steward from time to time over
the preceding 2 years.
io Thus, after Scarinza obtained his permit , Attridge talked to Fullagar about work
permits, and asked "why he had held up Scarinza , .. . that we had never had any
trouble before."
nN. L.. R. B. v. Local 4 20, United Association of Journeymen and Apprentices of the
Plumbing and Pipe Fitting Industry of the United States and Canada (J. J. White, Inc.),
239 F 2d 327 , 330-331 (C. A. 3) ; International Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America , Utica, New York ( The Lane Construction Co.),
111 NLRB 952, enfd. 228 F. 2d 83 (C. A 2) ; Alexander-Stafford Corporation, 118 NLRB
79, 95-104, enforced sub nom. International Association of Heat & Frost Insulators and
Asbesto s Workers, AFL-CIO v. N. L. R. B., 254 F 2d 955 (C. A, D. C.).
12 Furthermore , even assuming that the arrangement required all employees to obtain
work permits as a condition of employment , such arrangement would be tantamount to
an exclusive hiring hall , and, accordingly , would be unlawful because it did not meet the
standards set forth in Mountain Pacific Chapter of The Associated General Contractors,,
Inc., et al, 119 NLRB 1067.
LOCAL 715
THE REMEDY
547
Having found that the Respondent has violated the Act, we shall
order that it cease and desist therefrom and take certain affirmative
action in order to effectuate the policies of the Act. However, because
Scarinza is a supervisor, he is not protected by Section 7 of the Act,
and the discrimination against him has significance only as evidence
of similar discrimination against rank-and-file employees. Accord-
ingly, we shall not require the Respondent to repay Scarinza's work
permit fee.13
ORDER
Upon the entire record in this case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent Local 715, United
Brotherhood of Carpenters and Millwrights, AFL-CIO, and its offi-
cers, agents, successors, and assigns, shall:
1. Cease and desist -from :
(a) Performing, maintaining, or otherwise giving effect to any
understanding, arrangement, and practice, with Charles S. Wood and
Co., or with any other employer, whereby employees or applicants for
employment who are not members of the Respondent must obtain
work permits from the Respondent as a condition of employment,
except in accordance with Section 8 (a) (3) of the Act.
(b) Causing or attempting to cause Charles S. Wood and Co., or
any other employer, to discriminate against employees or applicants
for employment.
(c) In any like or related manner restraining or coercing employees
in the exercise of the 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 the Board finds will
effectuate the policies of the Act:
(a) Post at its main office in Elizabeth,, New Jersey, copies of the
notice attached hereto marked "Appendix A." 14 Copies of said
notice, to be furnished by the Regional Director for the Twenty-sec-
ond Region, shall, after being duly signed by the Respondent's rep-
resentative, be posted by the'Respondent immediately upon the receipt
thereof, and maintained by it for sixty (60) consecutive days there-
after in conspicuous places, including all places where notices to mem-
28
Cf. Local 420, United Association of Journeymen and Apprentices of the Plumbing
and Pipe Fitting Industry of the United States and Canada, AFL (J. J. White, Inc.),
111 NLRB 1126, 1129 , 1141 , enfd . 239 F . 2d 327 (C. A. 3).
14 In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order."
548 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
bers are customarily posted. Reasonable steps shall be taken by the
Respondent to insure that such notices are not altered, defaced, or
covered by any other material.
(b) Mail to the Regional Director for the Twenty-second Region
signed copies of the notice for posting, Charles S. Wood and Co. will-
ing, in places within the Respondent's territorial jurisdiction where
notices to said Company's employees are customarily posted.
(c) Notify the Regional Director of the Twenty-second region in
writing, within ten (10) days from the date of this Order, what,steps
it has taken to comply herewith.
APPENDIX A
NOTICE TO ALL MEMBERS, AND TO EMPLOYEES OF AND APPLICANTS
FOR EMPLOYMENT WITH CHARLES S. WOOD AND CO.
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify you that :
WE WILL NOT perform, maintain, or otherwise give effect to any
understanding, arrangement, and practice, with Charles S. Wood
and Co. or any other employer, whereby employees or applicants
for employment who are not members of the undersigned local
union must obtain work permits from such local union as a condi-
tion of employment, except in accordance with Section 8 (a) (3)
of the Act.
WE WILL NOT cause or attempt to cause Charles S. Wood and
Co., or any other employer, to discriminate against employees or
applicants for employment.
WE WILL NOT in any like or related manner restrain or coerce
employees or prospective employees of Charles S. Wood and Co.
or any other employer, in the exercise of the rights guaranteed in
Section 7 of the Act, except in a manner permitted by Section 8
(a) (3) of the Act.
LOCAL 715, UNITED BROTHERHOOD OF CARPENTERS
AND MILLWRIGHTS , AFL-CIO,
Labor Organization.
Dated---------------- By-------------------------------------
(Representative )' (Title)
This notice must remain posted for 60 days from the date hereof,
and must not be ^ altered, defaced, or covered by any other material.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
The amended complaint, which was based upon a charge filed by Charles S.
Wood and Co ., herein called the Company , asserts that , on and since approximately
May 3, 1955 , the Respondent , Local 715, United Brotherhood of Carpenters and
LOCAL 715 549
Millwrights, AFL-CIO, has committed unfair labor practices affecting commerce
within the meaning of Sections 8 (b) (1) (A) and (2) and 2 (6) and (7) of the
National Labor Relations Act, as amended (61 Stat. 136). Specifically, the
amended complaint alleges:
(1) That the Respondent and the Company "had any arrangement, under-
standing and practice whereby the Company agreed to be bound by and apply the
working rules of the [Respondent] to all carpenter employees and applicants for
employment with the company at construction sites located within the jurisdiction
of the [Respondent]."
(2) That pursuant to such "arrangement, understanding and practice [and] with
the knowledge of the Company," the Respondent (a) "required carpenter em-
ployees of the Company working at [a construction site in Union, New Jersey]
who were non-members of the [Respondent], including employees John Scarinza
and Eugene Rinker, to have or obtain a work permit from the [Respondent] as a
condition for work at said construction site"; and (b) also "required carpenter em-
ployees of the company working at said construction site who were non-members
of the [Respondent] or of any other local affiliated with the [Central New Jersey]
District Council [of Carpenters], to pay any work permit fee [to the Respondent]
as a condition for work at said construction site; and
(3) That, by the foregoing conduct, the Respondent "caused or attempted to
cause the company to violate Section 8 (a) (3) of the Act by discriminating against
employees and applicants for employment to encourage their membership in the
[Respondent] and . . . [also] restrained and coerced employees and applicants for
employment in the exercise of their rights guaranteed by Section 7 of the Act."
In its answer to the amended complaint, the Respondent denies those allegations
relating to the commission of any unfair labor practices, and disclaims any
knowledge concerning the truth of those allegations of the amended complaint
relating to the business operations of the Company.
Pursuant to notice. a hearing was held in New York City on March 26 and July
9 and 10, 1956, before the Trial Examiner duly designated by the Chief Trial
Examiner.' The General Counsel, the Respondent, and the Company appeared
by counsel and were afforded full opportunity to be heard, to examine and cross-
examine witnesses, and to introduce evidence bearing upon the issues. Before
the close of the hearing, the General Counsel submitted oral argument upon the
issues, but the other parties waived their rights to do so. Since the close of the
hearing, the Trial Examiner has received a brief from counsel for the Respondent.
Upon the entire record in the case, and from his observation of the witnesses,
the Trial Examiner makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
Charles S. Wood and Co., a New Jersey corporation with its principal office and
place of business in West Orange, New Jersey, is engaged in the sale and installation
of industrial acoustic and thermo insulation. In the calendar year 1955, its gross
receipts amounted to more than $1,000,000, between 40 and 60 percent of which
was represented by sales or installations at points outside the State of New Jersey.
One of the contracts performed, by the Company during this year, involved an
installation for the Atomic Energy Commission at Portsmouth, Ohio, for which
the Company received $146,858.72. During the same year, the Company's re-
ceipts for sales and contracts performed in the State of New York amounted to
$510,151.96.
The Trial Examiner finds that the Company is engaged in commerce within the
meaning of the Act.
I
1 At the session on March 26, 1956, the Trial Examiner granted a motion made by the
General Counsel and based upon the provisions of Sections 102 20, 102.21, and 102.22 of
the Board's Rules and Regulations, that the allegations of the original complaint be
deemed to be admitted to be true and be so found by the Board. On May 25, 1956, how-
ever, the Trial Examiner issued a Memorandum and Order In which (for reasons and
upon terms therein set forth at length) he vacated the ruling on default, directed the
General Counsel to clarify certain allegations of the complaint by appropriate amendment,
granted leave to the Respondent to file an answer to such an amended complaint, and
reopened the hearing for such further proceedings as might be necessary and proper under
the circumstances. Following the filing and service of an amended complaint by the
Generdt Counsel and the filing and service of the Respondent's answer thereto, further
hearing in the present case was held on July 9 and 10, 1956.
550 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
II. THE LABOR ORGANIZATION INVOLVED
Local 715, United Brotherhood of Carpenters and Millwrights , AFL-CIO, is a
labor organization within the meaning of the Act.
IH. THE ALLEGED UNFAIR LABOR ORGANIZATION
A. Introduction
According to the testimony of Anne Attridge , the Company 's manager of acoustics
for the past 5 years, the Company employs only union men as a matter of "policy."
Consequently , its carpenters have been members of various locals of the United
Brotherhood of Carpenters and Millwrights , herein called the Carpenters . A number
of these locals in central New Jersey , including the Respondent (Local 715 of
Elizabeth ) have been affiliated with the Central New Jersey District Council , herein
called the District Council . On June 1 , 1954 , the Company entered into a 1-year
contract with the District Council , covering all carpenters working for the Company
in the area over which the District Council and its affiliates , including the Respond-
ent, assert jurisdiction.
Stated broadly , the General Counsel 's contention is that on and since May 3, 1955,
the Respondent enforced , and also caused or attempted to cause the Company to
assist in the enforcement of, certain discriminatory "working rules" which are set
forth in the Carpenters ' constitution , the Respondent-local's trade rules, and the
District Council 's bylaws. According to the General Counsel 's construction, these
particular "working rules" provide that, as a condition of employment within the
Respondent 's territorial jurisdiction , carpenters who are not members of the Re-
spondent-local must procure a work permit from the Respondent and, unless they
are members of another local affiliated with the District Council , must also pay
a permit fee. To show that the Respondent not only itself enforce these rules against
the Company 's carpenters as discriminatory conditions of employment but did so
with the acquiescence and assistance of the Company under an existing "arrangement,
understanding and practice ," the General Counsel relies upon ( 1) the Company's
contract with the District Council ; ( 2) the testimony of Manager Attridge concern-
ing an allegedly existent practice on the part of the Company to comply with Re-
spondent's "working rules," including the work -permit requirements; and (3) the
testimony of Attridge and other witnesses as to the manner in which the work -permit
requirements were ' applied to carpenters John Scarinza and Eugene Rinker on and
after May 3, 1955, while they were working on a job for the Company at the Union
Drive-In Theatre which was located within the Respondent 's territorial area.
The Respondent disputes every one of these elements in the General Counsel's
argument . It contends , in substance , that the work-permit requirements in the
Carpenters ' constitution , simply impose an obligation upon the members of the
Carpenters , and therefore constitutes a condition of continued membership in good
standing and not a condition of employment . Consistently , the Respondent in effect
also denies that the evidence in the present case shows that it or its agents enforced
or attempted to enforce the work -permit rule as a condition of employment , or that
there was an "arrangement , understanding [or] practice" through which it can be
said to have caused or attempted to cause the Company to enforce this requirement
as a condition of employment.
In passing , it should be noted that , both in the amended complaint and in state-
ments made by him during the hearing , the General Counsel has contended merely
that the Respondent had committed unfair labor practices by enforcing its work-
permit rule as a condition of employment and by causing or attempting to cause the
Company to accept and enforce this condition of employment , and thus to dis-
criminate against its employees and applicants for employment in violation of Sec-
tion 8 (a) (3) of the Act. During the hearing , the General Counsel expressly dis-
claimed any contention that the Respondent had also committed unfair labor prac-
tices by causing or attempting to cause the Company to employ only members of
the Carpenters in violation of Section 8 (a) (3).2 The present case was thus tried,
and must be decided , upon the limited theory set forth in the amended complaint
and affirmed by the General Counsel at the hearing.
2In his examination of the witnesses during the hearing, counsel for the Company
sought to advance the contention that the Respondent had compelled the Company to
adopt and follow "closed-shop" practices. But the General Counsel insisted upon limiting
the theory of the complaint to a violation based upon the Respondent's enforcement of
its work-permit rule. Thereupon, counsel for the-Company moved to withdraw its charge
Upon the General Counsel's opposition to this motion , the Trial Examiner denied the
motion.
LOCAL 715 551
B. The work-permit rule
Under the caption, "Clearance Cards," section 46 of the Carpenters' constitution
sets forth in three pages of fine print, the union-rules governing cases in which a
member of one Carpenter local or District Council "desires to leave the jurisdiction
of the Local Union or District Council to work in another jurisdiction." Under
these provisions, it appears (and the Trial Examiner finds) that a member of the
Carpenters may either (1) transfer his membership to the local in the area in which
he is going to work, by securing a "clearance card" from his old local and depositing
it with the local to which he is transferring (see paragraphs A, B, and D); or (2)
secure a work permit from the local or District Council in the area to which he is
going to work (see paragraph C). In the case of a transfer of membership upon a
"clearance card," the transferring member is required to pay all current dues and
arrearages and (if a member for less than 2 years) also any difference in the initia-
tion fees of the two locals. (See paragraphs A and F.) In the case of work per-
mits, a member is also required to pay "a charge of not less than Seventy-five Cents
(750) per month nor more than the monthly dues of the Local Union or District
Council...." (See paragraph C.)
The language of section 46, paragraph C of the Carpenters' constitution, which
contains all of the provisions governing the issuance of work permits, is the follow-
ing:
A member who desires to work in another jurisdiction and returns home
daily, or who does not desire to transfer membership, shall before going to
work, secure a Working Permit in writing from the Local Union or District
Council in the jurisdiction where work is secured. The member shall pay
for such Working Permit a charge of not less than Seventy-five Cents (750)
per month nor more than the monthly dues of the Local Union or District
Council, and if less than two years a member shall pay any difference in initia-
tion fee, and shall be subject to all local assessments levied exclusively for direct
trade purposes by and for the use of the Local Union or District Council.
Section 4 of the trade rules of the Respondent-local provides:
All members of the United Brotherhood coming into the Jurisdiction of
Local Union No. 715 must comply with Sec. 46, Par. C. of the General Con-
stitution and secure a working permit from the Business Agent before starting
to work.
The bylaws of the District Council make no reference to the work-permit rule
but provide simply, in section 42:
Trade Rules of each Local Union are to be applied in their respective terri-
tories until such time as the District Council Trade Rules are adopted by the
District Council.
According the the testimony of Harold Fullagar, business representative of the
Respondent, the District had not yet adopted any trade rules. Fullagar testified, how-
ever, and the Trial Examiner finds, that the District Council had eliminated the
requirement of the payment of any fee on the issuance of a work permit by any
affiliated local to an applicant who was a member of another affiliated local.
An examination of the Company's contract with the District Council discloses
no provision which refers to the Carpenters' work-permit requirement or which
could be regarded as binding the Company to an observance of either that require-
ment or the general working rules of the Carpenters or its subordinate units.
C. Scarinza, Rinker, and the work-permit rule
John Scarinza and Eugene Rinker had been regularly and steadily employed by
the Company on its various contract jobs for several years before May 3, 1955. On
that day, Scarinza, who had acted as carpenter foreman on the Company's preceding
job and others, was a member of Carpenters' Local 853 of Bound Brook, New Jersey,
and Rinker, a journeyman carpenter, was not only a member of Carpenter's Local
155 of Plainfield, New Jersey, but held a work permit from the Respondent which
asserts jurisdiction over an area in and about Elizabeth, New Jersey, including the
town of Union. Local 155 was affiliated with the Central New Jersey District
Council. Local 853 has not been affiliated with any District Council.
On May 3, 1955, Anne Attridge, the Company's manager, appointed Scarinza
foreman of the carpenters who were to work for the Company as sub-contractor
on the installation of an acoustical ceiling in the concession building of the Union
Drive-In Theatre, then under construction in the town of Union. As foreman on
552 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the job, Scarinza was to have authority to hire and fire carpenters who worked under
him, as he had in the past . In instructing Scarinza as to what he was to do, Manager
Attridge told him to bring Rinker to work at the Drive-In job, to report the start
of the job to the Respondent , to secure several additional carpenters from the
Respondent , and also to get a work permit for himself as foreman.
In her testimony , Attridge explained that she instructed Scarinza to get a work
permit, not because of her knowledge of the provisions relating to work permits,
,as [they were ] defined under the [Carpenters '] Constitution"-although she had
at some time read these provisions-but rather because she "was aware of the fact
that the working permits are normally required when a man from an outside juris-
diction comes into a Local." She further explained that she had acquired this infor-
mation "from the mechanics themselves .. The fact that a permit is required
is common knowledge , just as it is common knowledge that in some areas it is an
eight-hour day and in some areas it is a seven-hour day. It is just common knowl-
edge-accepted practice."
At about noon on May 3, Scarinza and Rinker reported at the Drive-In job to
Ray Schmidt who was employed as a carpenter by the prime contractor and had
been appointed by the Respondent as its steward on the job. Rinker told Schmidt
that he had a work permit from the Respondent . According to Schmidt's testimony,
Scarinza told him he would bring in his work permit the next morning, and Schmidt
said nothing about whether he would "let" Scarinza work without a permit. Both
Rinker and Scarinza , however, testified that Schmidt , upon being told that Scarinza
had no permit , said that since it was noon , they could work the rest of the day.
Scarinza testified that Schmidt told him that he (Scarinza ) would have to call Busi-
ness Representative Harold Fullagar of the Respondent "the first thing in the morn-
ing." Upon this testimony , the Trial Examiner finds that Schmidt told Scarinza
on May 3 that, .notwithstanding Scarinza 's lack of a work permit, the two men
could work the rest of the day but that Scarinza would have to call Fullagar "the
first thing in the morning."
On the morning of. the following day, May 4, Scarinza again came to work at
the Drive -In Theatre without a work permit . In answer to Steward Schmidt's
question , Scarinza said he had not yet called Fullagar but would do so immediately.
Scarinza then telephoned to the Respondent 's office and spoke to a man whom he
addressed as "Fullagar ." Scarinza testified without contradiction 3 ( and the Trial
Examiner finds ) that he asked "what we were going to do on the Union job"; that he
requested two men ; that "Fullagar" asked who Scarinza was; and that "I told him
over the telephone , and from what I could gather , he said okay , so I went back
to work."
When Scarinza returned to the Drive -In Theatre , he told Schmidt of his telephone
conversation with "Fullagar." According to Scarinza 's credited testimony, he in-
formed Schmidt that "from what I gather , I got an okay from Mr. Fullagar to go to
work." Schmidt , however , then telephoned to Fullagar and, according to his credited
testimony , was told by Fullagar that he was to send Scarinza down to the union hall.
Thereupon Schmidt went back to Scarinza and told him that he would have to go
to the Respondent 's office and get a permit . In spite of Schmidt's denial , the Trial
Examiner credits Scarinza's testimony that Schmidt also told him , "You know the
rules. If you don 't get a permit , why, you are not allowed to work." ,
Scarinza immediately went to the Respondent 's office and asked Fullagar for a
permit to work at the Drive -In job. According to Scarinza 's uncontradicted and
credited testimony, Fullagar remarked that there was already a foreman on the job;
Scarinza said , "That was me. I just called you"; and the conversation ended with
Fullagar's saying , "No, you are kidding." In explaining this abrupt ending of their
conversation , Scarinza testified that ". . the telephone rang and he [Fullagar]
turned around to answer the 'phone , and I thought my conversation was over so I
said okay , and I left."
On leaving the Respondent 's office Scarinza spoke by telephone with Manager
Attridge and Charles A. Wood, the Company 's president . Scarinza told Attridge
that he "didn 't get a permit and . couldn 't go to work yet." Attridge said she
would try to get in touch with Fullagar . Wood told Scarinza that he was trying to
get in touch with Fullagar and that Scarinza should go to work.
Scarinza then returned to the job and informed Schmidt of his conversation with
Attridge . Schmidt suggested waiting until they heard further from Attridge. At
about 11 o'clock , Attridge telephoned Scarinza to say that she was still trying to
reach Fullagar but that Scarinza "should try to go to work." Upon hearing this,
Schmidt said , "Well, we will wait until Miss Attridge calls back , but you can go back
to work until they get ahold of Mr. Fullagar."
I
I
s Fullagar did not testify concerning this conversation.
LOCAL 715 553
Rinker and Scarinza both continued to work on the Drive-In job as long as the
Company was engaged there, i. e., until about May 20. On May 6, Fullagar came
to the job at lunchtime and told Schmidt to collect the permit fee from Scarinza.
Scarinza paid the fee of $4 and, on Monday, May 9, received a work permit.
In the meantime, Attridge had not been able to reach Fullagar on the telephone.
According to her testimony, however, the telephone calls which she made to Fullagar
after May 4, were made for the purpose of securing an overtime-work authorization
from the Respondent and not for the purpose of discussing Scarinza's work permit.
She did talk with Fullagar on the job on or about May 18, however, and, according to
her testimony then asked him "why he had held up Scarinza, mentioning that we
had never had any trouble whatsoever before. I just didn't understand it." But
Attridge could not recall what Fullagar's reply was.
D. Conclusions
The initial problem raised by the present case is whether the evidence shows that
the Respondent has in any manner made, or sought to make, the procurement of a
work permit and the payment of a permit fee by carpenters who are not members of
its local, conditions of their employment by the Company in the Respondent's "juris-
dictional" area. If it be found that the Respondent has done so, there still remain
the questions of whether it thereby (a) has, in violation of Section 8 (b) (2) of the
Act, caused or attempted to cause the Company to discriminate against employees in
violation of Section 8 (a) (3); and (b) has also, in violation of Section 8 (b) (1)
(A) of the Act, restrained or coerced the employees in the exercise of their rights
guaranteed in Section 7.
The Trial Examiner does not agree with the General Counsel's apparent argument
that, on their face, the provisions of section 46, C, of the Carpenters' constitution pur-
port to make the work permit and the permit fee conditions of employment. As
Respondent points out, this section of the constitution apparently deals with the
legitimate rights and obligations of Carpenter membership, and particularly with the
general obligation of a member to give his aid and support, and to be responsible,
to the local actually representing him in the geographical area in which he is cur-
rently working. Consequently, unless the language of the section also clearly
would make his employment dependent upon the permit and the payment of the fee,
it should be construed by the Board as having only its apparent, legitimate sigmfi-
canc o of defining an element of the membership obligation, and not as also having,
by i iference, the improper significance of imposing conditions of employment.4
Iii the opinion of the Trial Examiner, the language of section 46, C, of the Carpen-
ters' constitution does not state, nor does it necessarily imply, that the procurement'
of a work permit or the payment of the fee shall be anything but an obligation of
membership. It is true that this section provides that a member of one local shall
secure and pay for a work permit "before going to work" in the jurisdiction of an-
other local. But even so, this phrase on its face does no more than fix the time for
the Carpenter member's compliance with his union obligations. Upon these con-
siderations and contrary to the General Counsel's apparent contention, the Trial
Examiner has concluded that, on its face, section 46, C, of the Carpenters' constitu-
tion does not purport to make the work permit or the permit fee a condition of
employment.5
Nor does the Trial Examiner believe that the evidence supports the General Coun-
sel's further contention that the Respondent and the Company "had an arrangement,
understanding, and practice" under which they agreed to apply, and did apply, the
work-permit rule as a condition of employment. Certainly, the Company's contract
with the District Council included no such agreement, since, as the Trial Examiner
has already found, this contract contained no reference to work permits nor anything
else which could be said to amount to an agreement or promise by the Company to
A See N. L. R B v Amalgamated Local 286, International Union, United Automobile
Workers of America, AFL, 222 F. 2d 95 (C. A. 7).
6In his oral argument, the General Counsel referred to the Board's decision in Local 983,
United Brotherhood of Carpenters etc, 115 NLRB 1123, as dealing with a situation "on
all fours with the factual situation" in the present case. But the Trial Examiner does
not believe that this decision furnishes any guide as to what interpretation may, and
should be, given to the mere language of the union rule itself. For, although the
language of the union rules in the Local 983 case was stronger in its prohibition of work
withofit a permit, the Board did not find that these rules per se created an illegal con-
dition of employment, but found, instead, that it was the manner in which the union-
respondents apparently construed the rules and applied them under a contract with the
employer, which made the work permit an actual and illegal condition of employment.
554 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
observe the union rules generally and thus, by implication , to require a work permit
as a condition of employment . Furthermore , since the mere language of section
46, C, of the Carpenters' constitution in itself furnished no reasonable basis for
believing that the Respondent intended to make the work permit and fee conditions
of employment, a contrary'understandmg by the Company (if it is to be charged to
the Respondent) would have to rest on some other significant supplementary act,
course of conduct, or statement of the Respondent or its agents. But all that is
shown by the evidence in the case, is that Attridge, the Company's manager, having
read section 46, C, and having spoken with various "mechanics" on the jobs, had
come to the conclusion, in accordance with what she termed "common knowledge,"
that "working permits are normally required [as a condition of employment] when
a man comes from an outside jurisdiction into a Local." So far as the evidence in
the present case shows, therefore, neither the Company's "understanding" that the
Respondent's work-permit rule was intended to make the permit a condition of
employment, nor any resultant practice by the Company in instructing carpenters to
secure the permits and pay the fees, was based upon anything that the Respondent
or its representatives had ever said or done. And for that matter, there is no evi-
dence as to whether, at least before the Scarinza incident in May 1955, the Respond-
ent even knew that the Company instructed its carpenters to secure work permits
from the Respondent. Upon this state of the record, the Trial Examiner perceives
no basis for finding , as the General Counsel urges, either that there was an "arrange-
ment, understanding, or practice" on the part of the Company and the Respondent
making the work permit and the fee therefor conditions of employment, or that
the Respondent was in any way responsible for any practice on the part of the
Company itself making them conditions of employment.
At least we come to the consideration of the remaining elements in the case, i. e.,
the manner in which the Respondent dealt with Scarinza with respect to a work
permit for the Drive-In job in May 1955. Scarinza, as a foreman with power to
hire and discharge , was admittedly a supervisor and not an employee within the
meaning of the Act . Although Scarinza was therefore not entitled to the protection
of the Act, the General Counsel points out that the Respondent's work-permit rule
applied, without distinction, to both supervisors and rank-and-file employees. In
view of this fact, the General Counsel argues that, by its insistence that Scarinza
secure and pay for a work permit, the Respondent made it clear to the Company
and also employee Rinker (who was present during Scarinza 's conversations with
Steward Schmidt) that it regarded the rule in section 46, C, of the Carpenters' con-
stitution as requiring the procurement of a work permit and the payment of the fee
therefor as conditions of employment , and furthermore that it intended to see that
the rule was so enforced. Apparently, the General Counsel contends that the Re-
spondent thereby violated Section 8 (b) (2) of the Act by causing , or attempting
to cause the Company to recognize and henceforth to observe the rule as requiring
discriminatory conditions of employment , and at the same time and by the same
conduct, also committed an independent violation of Section 8 (b) (1) (A) of the
Act, by restraining and coercing those employees of the Company (including
Rinker) who were not members of the Respondent, in the exercise of their rights
under Section 7 of the Act to refrain from assisting a labor organization or from
engaging in any concerted activity.
It will be recalled that when Manager Attridge of the Company instructed Scarinza
to secure a work permit from the Respondent on May 3, 1955, Scarinza had not yet
gone to the Drive-In job nor had the Respondent been notified that the Company was
coming on the job as a subcontractor. Thus, there had apparently been no dis-
cussion or contact between any representatives of the Company and the Respondent
with respect to the Drive-In job and how it would be staffed by the Company.
Furthermore, the Trial Examiner has concluded (for reasons which have been fully
set forth ) that , so far as the evidence in the case discloses , there was no existing
agreement , arrangement , or understanding between the Respondent and the Company,
nor company-practice which could be attributed to the Respondent, under which the
Company was bound to require , or in fact was requiring , a work permit as a con-
dition of employment. Consequently, it appears from the present record, and the
Trial Examiner accordingly finds, that the Respondent cannot be held responsible
for the Company's original instructions to Scarinza to procure a work permit.
It was only when Scarinza appeared on the job without a work permit on both
May 3 and 4, the first and second days of his work there, that the Respondent became
involved in any way. For it was during these first 2 days on the job that Steward
Schmidt made the statements to Scarinza which the General Counsel contends showed
that the Respondent was insisting upon the work permit and the permit fee as con-
ditions of employment . Thus, as the Trial Examiner has found , Schmidt told
Scarinza on May 3 that , although Scarinza did not have a work permit, he and
LOCAL 715 555
Rinker could work the rest of the day but that Scarinza would have to can Fullagar
"the first thing in the morning." And, on May 4, when Scarinza again failed to
produce a work permit, Schmidt told him to go to the Respondent's office and get
a permit and then added, "You know the rules. If you don't get a permit, why,
you are not allowed to work." And finally when Scarinza told him later the same
day that Attridge was trying to reach Business Representative Fullagar, Schmidt
said to Scarinza, "Well, we will wait until Miss Attridge calls back, but you can
go back to work until they get ahold of Fullagar."
Upon consideration of the substance of these statements made to Scarinza by
Schmidt as the Respondent's steward, and also the circumstances under which they
were made, the Trial Examiner finds at this point:
(1) That the clear meaning of Schmidt's statements was that under the Carpenters'
rules, the procurement of a work permit and the payment of a fee therefor were
not merely obligations of union membership but were also conditions of employ-
ment which the Respondent would enforce, or seek to enforce through the Company.
(2) That the Respondent was responsible for these statements thus made by
Schmidt as its duly appointed steward on the Drive-In job.
(3) That since these statements were made in the presence of employee Rinker
and were reported to Manager Attridge and President Wood of the Company, they
constituted notice to the Company and employee Rinker that the Respondent re-
garded the rules in section 46, C, of the Carpenters' constitution as requiring the
procurement of a work permit and the payment of the fee therefor as conditions
of employment and that the Respondent intended that the rules were so enforced.
These findings, however, do not completely dispose of the case. There still re-
mains the final question of whether or not Schmidt's statements (though chargeable
to the Respondent and constituting notice to the Company and its employees that
the Respondent was seeking to enforce the work permit as a condition of employ-
ment) constituted an unfair labor practice within the meaning of either Section
8 (b) (1) (A) or Section 8 (b) (2) of the Act.
The evidence in the present record would not support a finding that Steward
Schmidt's statements actually caused the Company to discriminate against Scarinza,
nor therefore to accede to the demand, implicit in Schmidt's statements, that the
permit rule was to be applied generally, to rank-and-file employees as well as
foremen, as a condition of employment. For, as has been noted, the Company's
original instructions to Scarinza that he secure a work permit, were not chargeable
to the Respondent. Then, when Scarinza failed to secure a permit and was chal-
lenged by Schmidt, Attridge and Wood told him to go to work, anyway, and he
worked 2 days before, without any further instructions from the Company so far
as the record shows, he did pay his permit fee and secure his permit. In short,
when the Company learned that the Respondent's steward insisted that Scarinza
have a work permit, it in effect refused to recognize any requirement that a work
permit was a condition of employment.
Upon this state of the record, the most that the evidence could show would be
an attempt on the part of the Respondent to cause the Company to discriminate
against Scarinza and, in the future, also against its rank-and-file employees. But,
in the present case, the evidence again fails to support an essential element of an
unfair labor practice. For, nowhere, in the record can there be found any evidence
that Steward Schmidt or the Respondent backed up Schmidt's insistance upon a
work permit as a condition of employment, with any coercion or pressure upon the
Company, or any threat thereof. And, as the Trial Examiner has already observed
in the Memorandum and Order which he issued in this case on June 4, 1956, the
Board has held that under Section 8 (b) (2) of the Act; it is an illegal attempt
by a union to cause employer-discrimination only when the union attempts to
procure the discrimination by coercion or pressures upon the employer-a mere
request or demand (to which the employer does not accede) being insufficient .6
The Trial Examiner accordingly concludes that the evidence in the case does not
justify a finding that the Respondent committed an unfair labor practice within the
'meaning of Section 8 (b) (2) of the Act.
For somewhat similar reasons, the Trial Examiner does not believe that Steward
Schmidt's statements, though made in the presence of employee Rinker, constituted
such a restraint upon the employees' exercise of their statutory rights as would be
violative of Section 8 (b) (1) (A) and Section 7 of the Act. For the Board has
held that an unsuccessful attempt by a union to cause an employer to accept and
apply illegal, discriminatory conditions of employment is not in violation of the
See Plumbers & Pipefitters, etc. (Carrier Corporation), 112 NLRB 1385, and cases
therein cited.
556 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees' rights, nor therefore an unfair labor practice within the meaning of
Section 8 (b) (1) (A).7
For the foregoing reasons , the Trial Examiner concludes that the evidence does
not disclose the violations of Section 8 (b) (1) (A ) and (2 ) of the Act which are
alleged in the amended complaint . He will therefore recommend that the amended
complaint be dismissed in its entirety.
Upon the basis of the foregoing findings of fact and upon the entire record in
the case , the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. Charles S. Wood and Co. is engaged in commerce within the meaning of Sec-
tion 2 (6) and (7) of the Act.
2. Local 715, United Brotherhood of Carpenters and Millwrights, AFL-CIO, is
a labor organization within the meaning of Section 2 (5) of the Act.
3. The aforesaid labor organization has not engaged in unfair labor 'practices
within the meaning of the Act.
[Recommendations omitted from publication.]
7Medford Building and Construction Trades Council , et al. (Kogap Lumber Industries),
96 NLRB 165, 166, and cases therein cited.
Hensley Equipment Company , Inc. and Hensley Metal Treating
Company, Inc. and Operating Engineers Local Union No. 3 of
International Union of Operating Engineers , AFL-CIO. Case
No. 2O-CA-1238. August 15,1958
DECISION AND ORDER
On July 9, 1957, Trial Examiner Howard Myers issued his Inter-
mediate Report in this proceeding finding that the Respondents had
engaged in. and were engaging in certain unfair labor practices and
recommending that they cease and desist therefrom and take certain
affirmative action, as set forth in the copy of the Intermediate Report
attached hereto. Thereafter, the Respondents filed exceptions to the
Intermediate Report and a supporting brief.
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings so made are hereby affirmed. The Board has considered
the Intermediate Report, the exceptions and brief; and the entire
record in the case, and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner with the modification herein-
after set forth.'
The Trial Examiner found that the Respondents refused to bargain
collectively with the Union, in violation of Section 8 (a) (5) and (1)
of the Act. We agree, but for the following reasons and not for the
reasons advanced by the Trial Examiner. On October 11, 1956, the
Union, as the statutory representative of all the Respondents' parts
i The Respondents also requested oral argument In our opinion , the record and the
exceptions and briefs fully present the issues and the positions of the parties . Accord-
ingly, the request for oral argument is hereby denied.
121 NLRB No. 72.