Sheet Metal Workers Local 16 (Parker Sheet Metal)

National Labor Relations Board - Board Decisions

Jun 28, 1985

275 N.L.R.B. 867 (N.L.R.B. 1985)

SHEET METAL WORKERS LOCAL 16 (PARKER SHEET METAL)
Sheet Metal Workers International Association,
Local No. 16 (Parker Sheet Metal Co.) and Roy
S. 'Jorgenson . Case 36-CB-1100
28 June 1985
DECISION AND ORDER
By CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
On 26 September 1984 Administrative Law
Judge David G. Heilbrun issued.the attached deci-
sion.- The Respondent filed exceptions and a sup-
porting brief.
The Board has considered the decision and the
record in light of the exceptions and brief and has
decided to affirm the judge's rulings, findings,' and
conclusions and to adopt the recommended Order.
In adopting the judge's decision, we rely on the
following. A nonexclusive hiring hall arrangement
was in effect between Parker Sheet Metal Compa-
ny, herein Parker, and the Respondent. In Septem-
ber 1983, Roy Jorgenson, who had been a member
of the Respondent for 13 years, contacted Parker
about securing employment. When Jorgenson in-
formed the Respondent that he had lined up a job
with Parker, Hill, the Respondent's business man-
ager, refused to dispatch him because of his low
position on the. out-of-work list.2 Thereafter, Jor-
genson contacted the International Union to protest
the Respondent's refusal to refer him. In December
1983, Parker specifically requested the assignment
of Jorgenson and Local 16 member Tom Butler to
its Camas construction site ; the Respondent dis-
patched Butler but refused to refer Jorgenson.
Section 8(b) makes it an unfair labor. practice for
a union "(1) to restrain or coerce (A) employees in
the exercise of rights guaranteed in Section 7,' and
"(2) to cause or attempt to cause an employer to
discriminate against an employee in violation, of
subsection 8(a)(3)."
Jorgenson was engaged in protected activity
when he contacted the International Union to pro-
test the Respondent's refusal to dispatch him. In re-
sponse to Jorgenson's activities, the Respondent,
despite several requests by Parker for Jorgenson's
services, refused to refer Jorgenson to the con-
struction site. As the judge found, the Respondent
dispatched Butler but refused 'to' refer Jorgenson
i The Respondent has excepted to some of the judge 's credibility find-
ings The Board 's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd 188 F2d 362 (3d Cir 1951)
We have carefully examined the record and find no basis for reversing
the findings.
z The Respondent maintained that its arrangement with Parker was an
exclusive hiring hall As noted above , however, the judge found that the
evidence indicated otherwise
867
explicitly because the latter had.called the Interna-
tional Union , and Respondent thereby violated
Section 8(b)(1)(A). Further , even absent an exclu-
sive hiring hall , a union's causing an employer to
refuse to hire an individual for union -related rea-
sons violates Section 8 (b)(2)3 as well as Section
8(b)(1)(A) of the Act. By refusing Parker 's requests
that Jorgenson be referred , explicitly because of
Jorgenson 's complaint to the International Union,
thereby causing Parker not to hire Jorgenson, the
Respondent Union violated Section 8(b)(2) of the
Act.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Sheet Metal
Workers International Local No. 16, Portland,
Oregon, and its officers, agents, and representa-
tives, shall take the action set forth in the Order.
3 See , e g, Operating Engineers Local 17 (Combustion Engineering), 231
NLRB 1287 ( 1977) (where employer acquiesced in union 's demand that
dissident members be replaced on job , union violated Sec 8 (b)(2))
DECISION
STATEMENT OF THE CASE
- DAVID G. HEILBRUN, Administrative Law Judge. This
case was tried at Portland, Oregon, on July 17, 1984.1
The charge was filed' by Roy S. Jorgenson January 6
and the complaint was issued -February 29. The primary
issue ' is whether Sheet Metal Workers International As-
sociation, 'Local No. 16 (Respondent), unlawfully refused
to dispatch Jorgenson to an available job, in violation of
Section 8(b)(1)(A) and (2) of the National Labor Rela-
tions Act.
On the-entire record, including my observation of the
demeanor of witnesses and after consideration of oral
summation made by the General Counsel at the conclu-
sion of hearing and a written brief filed by Respondent, I
make the following . '
FINDINGS OF FACT
I. JURISDICTION
Parker Sheet Metal Company; a corporation, maintains
an office and place of business in Longview, Washing-
ton, where it engages as a sheet metal/mechanical con-
tractor. During a representative • past 12-month period it
had gross sales of goods and. services - in 'excess of
$100,000, while purchasing and receiving goods and ma-
terials valued in excess of $50,000 at its facilities directly
from points outside Washington or from- suppliers within
that State which in turn obtained such goods and materi-
i All dates are from August 1983 until February 1984 unless otherwise
indicated
275 NLRB No.. 121
868 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
als directly from sources outside Washington. On- these
admitted facts I find that Parker Sheet Metal Company is'
an employer engaged in commerce within the meaning
of Section 2(6) and (7) of the Act, and that Respondent
is a labor organization within the meaning , of Section
2(5).
II. ALLEGED UNFAIR LABOR PRACTICES
A. Basis of Analysis
Respondent has approximately 2000 members and a
geographical jurisdiction of 24 counties, 'primarily those
situated in Oregon. It maintains a nonexclusive - hiring
hall program, featuring an out-of-work list keyed to indi-
vidual dispatch/qualification cards. These show a mem-
ber's dispatch record, chronology of job termination
dates, and specific trade abilities. Actual day-to-day, dis-'
patching is ordinarily performed by Bob Hawes, who is'
spelled as necessary by Business Representatives Les
Wallingford and Leo Lyman, or, least likely of all, by'
Business Manager-Financial Secretary/Treasurer Milton
Hill. An office device of Respondent permits • member
cards to be associated' with an out-of-work roster for
purposes of filling 'currently available craft- openings with
those members most-lengthily unemployed.
Sister Local No:- 150 has approximately 700 'members
in a geographical jurisdiction of seven Washington coun-
ties, within which the Parker Sheet Metal Company is,
found. The addendum to Local 150's standard form of
Sheet Metal Workers' International Association (SMIA)'
Union Agreement with industry employers, sets forth an
exclusive hiring hall provision as ' its article XX. Under-
this a contractor established in Local 150's geographical
jurisdiction may obtain a qualified person by name only
to fill a foreman position or if the individual so requested
has ' worked for the contractor-wit hin the past 6 month's:
Parker had previously performed on jobs within Re-"
spondent's geographical jurisdiction including those at'
Newberg and St. Helens, Oregon. In mid-1983 it became
subcontractor to Wright, Schuchart & Harbor for instal-
lation' of a machine hood at-a Camas, Washington paper-
mill located in one of Respondent's counties` In August a
prejob conference was'-held in Longview atwhich'Local'
150's business representative Robert Steele introduced
fellow unionists Hill and Wallingford' to Company
Owner Peter Parker. John Daniels, the job's intended su-
perintendent, was also present. - This' meeting - dealt first'
with craft- preeminence of the SMIA'as -opposed to any,
jurisdictional claim by the Iron Workers Union,'arid'tlieii
separate 'conversation' was subsequently =engaged in 'by
the same participants except for' Parker:
Concerning - this, Hill' testified ' that he 'and colleagues -
explained to Daniels that- they `wanted-fo adopt Local
150's exclusive hiring hall as a staffing guide for the
Camas job and to this Daniels assented wanting only to
secure a transfer of named journeymen -•Sworden and
Simpson: Hill is corroborated by Wallingford that hiring`
from the out-of:wor , board' was settled; upon;,' while'.11
Steele also believed' this to have been the agreement.
Daniels testified contrarily that beyond tacit consent to
his early utilization of Sworden and Simpson , nothing
was said to him about his imminent job at Camas being
subject to 'the exclusive hiring hall that existed within
Local '150's seven-county area. -
Charging Party Jorgenson has been- a member of Re-
spondent for approximately 13 years. He was employed
during 1983 by Superior Air Handling Corporation on a
project in downtown Portland which phased out during
the fall. Anticipating-layoff, Jorgenson contacted Daniels
by telephone on September- 19: to inquire about future
employment prospects with Parker, for whom Jorgenson
had worked on three occasions in the past. Daniels ad-
vised of the coming Camas job, and was favorably dis-
posed.toward using Jorgenson which could then be esti-
mated as around early November. Jorgenson called Dan-
iels again on October 25, learning on that occasion how
the job timetable was delayed and that controversy- had
arisen between Daniels and Hill with respect to transfer
of journeymen between jobsites. Daniels remarked about
how this could, signify a problem insofar as an inclination
to have Jorgenson specifically dispatched to the job
would be concerned.2
When actually laid, off by Superior -Air-Handling on
October 27, Jorgenson went' immediately to Respond-
ent's' union hall and there spoke with Hill. He registered
on the out-of-work list and told Hill of having lined up a
job-with Parker at the Camas project. Jorgenson, testified
that Hill cursed Daniels and resolutely refused to allow
the desired dispatch to take place. After another follow-
up call to Daniels in,November, Jorgenson then contact-
ed two 'SMIA International representatives concerning
the subject, and advice from them was to correspond
with the International -Union. Jorgenson did not do so
until early January, however both Hill and Lyman
learned of the verbal contact 'around December 9. Hill's
recollection of the late October conversation with Jor-
genson was that-he had explained how Respondent had
set up arhiring' system for the, Camas project, and was
going to strictly follow the out-of-work list with quali-
fied members, who in some cases; had been out of work
for as much as 2 years. Hill testified that this explanation
engendered` some hostility in Jorgenson, who was clearly '
told he would' not be sent to the job because of his low:
position on'the list: '
Also about December 9, Daniels had occasion to re-
quest two' journeymen for the Camas job. Members -Ron
Beach and Leo' Messick were dispatched; however, both
left within a week because of unwillingness to work at
the a heights, that were involved. •
"On approximately December 15, Daniels spoke to;
Lyman atthe'jobsite' saying that he,Wanted'Jorgenson
and member Tom Butler.3 Lyman's response to this al-
2 Daniels. did not testify- to such an episode and Hill dented ever
having had background problems with Daniels as - a Parker superintendent
except for an occasion in 1980• Lyman's testimony alluded only passingly
to. having talked- with. Daniels several times early in the Camas job, in-
cluding,once in October,•but the specific, subject of such talks was not,
descnbed However what .dtd occur dunng October was'a Jorgenson-
Lyman' discussion at the 'Portland' Iobsite of -Supeno'r Air Handling, in
which Jorgenson told of his promising contacts with Daniels concerning
future employment with Parker, to which Lyman stated such a dispatch
would not happen because of a claimed written rule of Respondent for-
bidding name requests by out-of-town contractors
a Butler has been a member of Respondent for approximately 15 years
and once previously had worked for Parker In 1983 he had been em-
Continued
SHEET METAL WORKERS LOCAL 16 (PARKER SHEET METAL)
luded to Jorgenson having called the International, re-
sulting in a situation that Lyman would not touch with
the proverbial 10-foot pole. Lyman did in fact decline to
relay Daniels request for Jorgenson, however' Butler was
in fact dispatched for the Camas job where he worked
for over 3 months. At this point in time Daniels had re-
peatedly requested the dispatch of Jorgenson; and he ad-
vised of these efforts in several telephone conversations
with Jorgenson that occurred during December. At the
time of Butler's referral on December 15, he was rela-
tively low in out-of-work rotation. because of having last
terminated on only August 3 (except for unaffecting tem-
porary employment in November), and numerous other
members stood above him in the dispatch numbering
program.
B. Analysis
The General Counsel 'is contending that nonexclusive
hiring hall principles are applicable to the Camas job
staffing or, as an alternative, should the evidence show
an exclusive hiring hall to be applicable that arbitrary
and discriminatory actions have been shown on the part
of Respondent leading to a showing of unfair labor prac-
tice conduct within the meaning of NLRB v. Iron Work-
ers Local 433, 600 F.2d 770 (9th Cir 1979). Respondent
contends that its evidence shows the exclusive hiring hall
provisions of Local 150's addendum were agreed upon
by an authorized representative of Parker, and this bind-
ing mode of obtaining journeymen sheet metal workers
did not allow for the name request of Jorgenson. Alter-
natively, as to Butler's actual dispatch, Respondent as-
serts this was at worst an isolated mistake but that prob-
ably even those higher standing members of the out-of-
work list who were fully qualified for this specific work
underway at Camas were unavailable at the time.
On the fundamental question of controlling contractual
language I credit Daniels' testimony that nothing was
said to him at-the prejob conference from which it could
be established that Local 150's contract became applica-
ble to' Parker's -functioning at Camas 'as an out-of-town
contractor with respect to the geographical jurisdiction
of Respondent. Daniels was direct and persuasive in his
description of what was and what was not said as he
stood with Hill, Wallingford, and Steele. I am persuaded
that Hill has misrecalled this conversation, particularly in
view _of his palpable inclination to see his Union as a pre-
ferred source of employees rather than private dealings
between members and contractors. I cannot credit Wal-
lingford's corroboration, for demeanor factors. make it
appear he supports Hill only from institutional alignment.
Finally the testimony of Steele is insufficiently convinc
ing, with its composite being a disclaimer of actually
hearing any conversational exchange that, could yield
this sort of binding arrangement which is claimed. For'
these reasons I conclude as a -threshold matter that the
strictures of an exclusive hiring hall were not present,
ployed by the general contractor at the Camas job; which influenced him
to solicit future work from Daniels as generally Jorgenson had done.
869
and that Daniels, on behalf of- Parker, was thus free to
staff his job, in discretionary manner from among avail-
able members of Respondent. The bare assertion that
out-of-town contractors could not do so as a matter of
practice has been convincingly "contradicted by the
highly credible testimony of both Jorgenson himself and
of member Max Hintz, whose description of having se-
cured his own employment in the past from at least three
out-of-town contractors was not shown to be inaccurate.
Furthermore, I cannot . accept Respondent's argument
that its functionaries were without animosity toward Jor-
genson . It is not a matter of resolving whether Lyman
said that he would not touch Jorgenson for having con-
tacted the International Union versus not touching a sub-
ject that had been taken outside his responsibilities, but
rather that contemporaneous with such a general expres-
sion the similarly situated Butler was handily dispatched
upon a name request while Jorgenson remained frozen
out of the procedure. Such conduct establishes the Gen-
eral Counsel 's alternate contention that discriminatory,
arbitrary, and invidious considerations were at play in
the denial of referral privileges to Jorgenson. Respondent
has pointed to the'decision in Plumbers Local 392 v.
NLRB, 712 F.2d 225 (6th Cir. 1983), as suggesting exon-
eration of its conduct. This case is unavailing-however,
for in denying enforcement to a Board Order, the court
declared itself unconvinced that deviation from clear and
unambiguous provisions of the collectively bargained
hiring hall had occurred, nor was there separate and dis-
tinct proof of any unlawfully discriminatory motive. Cf.
Operating Engineers Local 17 1 Combustion - Engineering),
231 NLRB 1287 (1977);. Plasterers Local 232 (John G.
Ruhhn Construction), 268 NLRB 795 (1984) According-
ly, I render a conclusion of law that Respondent, by fail-
ing and'refusing to dispatch Jorgenson to Parker's Camas
jobsite, has engaged in unfair labor practices affecting
commerce within the meaning of Section 8(b)(1)(A) and
(2) of the Act. -
REMEDY
Having found-that Respondent has engaged in certain
unfair labor practices, it is necessary to order it to cease
and desist and to take certain affirmative action designed
to effectuate the policies of the Act.
Respondent having discriminatorily caused Parker to
fail to hire Jorgenson for the now completed' job, it must
make him whole for any loss of earnings and other bene-
fits computed on a quarterly basis from December 9, less'
any net interim, earnings , as prescribed .in F. W. Wool,
worth Co., 90,,NLRB 289 (1950), plus, interest as comput-
ed in Florida Steel Corp.,- 231, NLRB B 651 (1977)-., .
On these findings of fact ! and conclusions of law and
on the entire record, I issue the. following recommend-;
ed4
* If no exceptions are 'filed as. provided,by Sec 102 46 of the Board's
Rules and Regulations , the -findings, conclusions, and recommended
Order shall, as provided in Sec 102 48 of the Rules, be adopted by the
Board and all objections to'them shall be deemed waived for'all pur-
poses.
870 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
. ORDER
The Respondent, Sheet Metal- Workers International
Association, Local No. 16, Portland, Oregon, its officers,
agents, and representatives, shall
1. Cease and desist from
(a) Operating its nonexclusive hiring hall in disregard
of the provisions of its collective- bargaining agreement
with Portland, Oregon vicinity employers, or any succes-
sor agreement.
(b) Dispatching any person in violation of said con-
tractual nonexclusive hiring hall provisions. -
(c) Failing to dispatch any person who is entitled to
dispatch pursuant to the contractual nonexclusive hiring
hall provisions. • - • '
(d) Restraining or coercing Roy S. Jorgenson,, or any
other member utilizing ' Local 16's nonexclusive hiring
hall, by refusing to refer persons to employment with
contractors who have requested them by name because
they have chosen to accept employment with 'out-of-
town contractors who obtain their employees by direct-
contact rather than through the Union's hiring hall.
(e) Causing or attempting to cause 'Parker Sheet Metal
Co. to fail to employ Roy S. Jorgenson or any other
qualified member. -
(t) In any like or related- manner restraining or coerc-
ing employees in the exercise of the rights guaranteed
them by Section 7 of the Act. `
2. Take the following affirmative action which is nec-
essary to effectuate the policies of the Act.
(a) Operate its nonexclusive hiring hall and referral
system in a nondiscriminatory manner.
(b) Make whole Roy S. Jorgenson in the manner set
forth in the remedy section of this decision.
(c) Preserve and, on request, make available to the
Board or its agents for examination and copying, all pay-
roll records, social security, payment records, timecards,
personnel records and reports, and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order.
(d) Post at Respondent's business offices and meeting
hall copies of the attached notice marked "Appendix."5
If this Order is enforced by a Judgment of a•Umted States Court of
Appeals, the words in the notice reading "Posted by Order of the Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board "
Copies of the notice, on forms provided by the Regional
Director for Region 19, after being signed by the Re-
spondent's authorized representative, shall be posted by
the Respondent immediately upon receipt and maintained
for 60 consecutive days in conspicuous places including
all places where notices to members are customarily
posted. Reasonable steps shall be taken by the Respond-
ent to ensure that the notices are not altered, defaced, or
covered by any other material.
(e) Furnish the . Regional Director for Region 19
signed copies of such notice for posting by Parker Sheet
Metal Co., if willing, in places where notices to employ-
ees are customarily posted.
• (f) Notify the Regional Director- in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply..
APPENDIX -
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT coerce or restrain Roy S. Jorgenson, or
any other members utilizing Local 16's nonexclusive
hiring hall, by refusing to refer persons to employment
with contractors who have requested them by name be-
cause they have chosen to accept employment with out-
of-town contractors who obtain their employees by
direct contact rather than through the Union's hiring
hall.
WE WILL NOT cause or attempt to cause Parker Sheet
Metal Co. to fail to employ Roy S. Jorgenson, or any
other qualified member.
-WE WILL NOT in any like or related manner coerce or
restrain employees in the exercise of the rights guaran-
teed them by Section 7 of the Act.
WE WILL make Roy S. Jorgenson whole for any, loss
of earnings suffered by reason of discrimination against
him, with interest. -
SHEET METAL WORKERS INTERNATIONAL
ASSOCIATION , LOCAL No. 16