United Brotherhood of Carpenters, Local 143

National Labor Relations Board - Board Decisions

Mar 25, 1968

170 N.L.R.B. 746 (N.L.R.B. 1968)

746 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
United Brotherhood of Carpenters and Joiners of
America , Local No. 143, AFL-CIO (Helm Con-
struction, Inc.') and Robert J . Wiles. Case
8-CB-1091
March 25, 1968
DECISION AND ORDER
By CHAIRMAN MCCULLOCH AND MEMBERS BROWN
AND ZAGORIA
On August 23, 1967, Trial Examiner Frederick
U. Reel issued his Decision in the above-entitled
proceeding, finding that the Respondent had en-
gaged in and was engaging in certain unfair labor
practices and recommending that it cease and de-
sist therefrom and take certain affirmative action,
as set forth in the attached Trial Examiner's Deci-
sion . Thereafter, the Respondent filed exceptions to
the Trial Examiner's Decision and a supporting
brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the
Trial Examiner's Decision, the exceptions and brief,
and the entire record in the case, and hereby
adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended , the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner and hereby
orders that the Respondent , United Brotherhood of
Carpenters and Joiners of America , Local 143,
AFL-CIO, its officers , agents , and representatives,
shall take the action set forth in the Trial Ex-
aminer's Recommended Order!
' For the ieasons stated in his separate opinion in Independent Metal
Workers Union, Local No 1 (Hughes Tool Company), 147 NLRB 1573,
1578, Chairman McCulloch does not find a violation based on the theory
stated in fn I of the Trial Examiner's Decision Member Brown does ap-
prove this theory and Member Zagoria finds it unnecessary to reach this
question. Compare Houston Maritime Association, Inc , 168 NLRB 615
2 The address and telephone number for Region 8, appearing at the bot-
tom of the notice attached to the Trial Examiner 's Decision , is amended to
read Federal Office Building, Room 1695, 1240 East Ninth Street, Cleve-
land, Ohio 44199, Telephone 522-3738
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
FREDERICK U. REEL, Trial Examiner: This case,
heard at Canton, Ohio, on May25, 1967, pursuant
to a charge filed the preceding February 2 and a
complaint issued March 14, presents the question
whether the Respondent caused an employer to
discharge two employees and thereby violated Sec-
tion 8(b)(1)(A) and (2) of the Act. Upon the en-
tire record in the case, including my observation of
the witnesses, and after consideration of the briefs
filed by General Counsel and by Respondent, I
make the following:
FINDINGS OF FACT
1. THE CONSTRUCTION PROJECT AND THE LABOR
ORGANIZATION INVOLVED
The events in this case occurred at a construction
site in Canton where Helm Construction Company
(herein called Helm), a Michigan corporation, was
engaged in installing fixtures in a new building for
the S.S. Kresge Company. Helm during 1966 per-
formed such services for S.S. Kresge Company in
many areas located in several States, receiving ap-
proximately $900,000 therefor. Respondent con-
ceded at the hearing that S.S. Kresge Company is
engaged in commerce within the meaning of the
Act, and the evidence establishes that the activities
of Helm affect commerce within the meaning of the
Act. Respondent, hereinafter called the Union, is
admittedly a labor organization within the meaning
of the Act.
II. THE UNFAIR LABOR PRACTICES
A. The Hiring and Firing of Wiles and Gifford
Helm's work at the Canton installation was
scheduled to begin on Monday, December 19,
1966. On the preceding Friday, December 16,
Mason Webb, Helm's construction superintendent,
called on Warren Meyers, the Union's business
representative, to request that Meyers send six car-
penters to the jobsite at 8 a.m. the following Mon-
day. At that time Webb signed a contract with
Meyers; this was a standard agreement which ran
between the Employer and the Carpenters District
Council of four Ohio counties, embracing several
locals, including the Union and also the Carpenters'
local for the nearby city of Massillon. The contract
did not contain any provisions as to a hiring hall. It
provided for preference to be given unemployed
carpenters from the four counties over carpenters
from other districts in both hire and layoff. Meyers
testified that any carpenter, whether or not a union
member, could sign his work list and be referred to
a job.
170 NLRB No. 97
UNITED BROTHERHOOD OF CARPENTERS , LOCAL 143
On the following Monday only four Canton car-
penters were at the jobsite in the morning with
work referrals from Meyers. Also present and seek-
ing employment were two carpenters from Massil-
lon, Arthur Gifford and Robert Wiles, members of
Local 881 of the Carpenters International, the Mas-
sillon local. These two men had not been referred
to-the job by Meyers, but came "on their own" as
they had heard of the project and had done similar
work in Massillon. Webb telephoned Meyers, who
said that he would send Webb additional men, but
that Webb could hire Gifford and Wiles to unload
the construction truck. Webb, pursuant to that con-
versation, had just hired Gifford and Wiles about
10 a.m. when the carpenters on the job -stopped
work, and did not resume until Meyers visited the
jobsite during the lunch hour. The record is not
clear as to the cause of the work stoppage, for the
union representatives attributed it to certain un-
satisfactory conditions but, according to Webb, the
union steward, Starr Surbey, told him to "Get rid of
the Massillon men and then you can go back to
work."
While the job was shut down, four more Canton
carpenters appeared on the scene, ready for work.
They had been sent by Meyers, and when the latter
appeared at the jobsite that noon Webb remon-
strated with him for sending eight men when Webb
had asked for only six. According to Webb, Meyers
insisted that Webb ' keep the eight Canton men or
pay them "show up time," and further demanded
that Webb let the Massillon men go . The matter
was temporarily settled by Webb's retaining all 10
men, and the work stoppage ended.
That evening Helm's vice president, John Bru-
neel, who was in Michigan, learned of the difficul-
ties on the Canton job and telephoned Meyers long
distance. Meyers urged Bruneel to release the Mas-
sillon employees, indicating that Meyers would
send Canton men to replace them. Bruneel agreed,
but, in a later conversation with Webb, told Webb
to use his own judgment in the matter.
Webb retained all 10 men for 2 days, and then on
December 21 let 2 of the Canton men go.
Thereafter, according to Webb's testimony, both
Meyers and Shop Steward Surbey told him that in
the event of a subsequent layoff the Massillon men
must, be the first to go. Also, according to Webb,
the job did not progress satisfactorily because the
Canton carpenters were not working at a reasona-
ble pace, and when he complained of this to Sur-
bey, the latter replied that if Webb would let the
Massillon men go, the problem would be solved.
Eventually on December 30 Webb discharged
Wiles and Gifford, the Massillon men, as well as
two more' Canton employees, and a short while
later he hired two more men from Canton. Webb
testified that the Massillon men were well qualified,
but he discharged them because Meyers and Surbey
"made it so rough."
747
B. Concluding Findings
I credit Webb's testimony that he discharged
Wiles and Gifford because of the unremitting pres-
sure of Meyers and Surbey. As General Counsel
states in his brief, "It is not likely that Webb, a card
carrying member of -the Carpenters Union himself,
would fabricate such testimony in support of charge
which he did not file, was not filed by the company
for which he did work or now works, and which re-
lates to a job now completed. . . " Where the
testimony of Meyers and Surbey conflicts with that
of Webb, I credit the latter. Even Meyers testified
that on one occasion he complained to Webb over
the hiring of the Massillon men. But, unlike
General Counsel, I cannot agree that this finding of
union causation ends the matter and establishes the
violation of Section 8(b)(2). The issue with respect
to that alleged violation is not whether the Union
caused Helm to discharge Wiles and Gifford, but
whether it did so (to quote the complaint) "be-
cause neither of them was a member" of the
Union. The theory of the complaint is that the
Union caused Helm to discharge the men in viola-
tion of Section 8(a)(3), and an essential element in
the violation is that the discrimination "encourage
or discourage membership in any labor organiza-
tion." It is this aspect of the case, rather than the
factual issue of causation, which proves
troublesome.
If Meyers and Surbey compelled the discharge
because the Massillon men were not members of
the Canton local, the violation is clear. But if
Meyers and Surbey acted because the Massillon
men were not from the Canton locale, a contrary
result may follow. Although earlier Board and court
decisions suggest that proof of union causation
establishes the Section 8(b)(2) violation ( see, e.g.,
N.L.R.B. v. Local 542, Operating Engineers, 255
F.2d 703, 705 (C.A. 3); International Brotherhood
of Boilermakers, Local 92, 119 NLRB 1605, enfd.
259 F.2d 957 (C.A.D.C.)), since Local 357, Team-
sters v. N.L.R.B., 365 U.S. 667, the Board has
recognized that unions may lawfully insist on
preferences for employees in a certain geographic
area without violating that Section. See, e.g., Inter-
national Union of Operating Engineers, Local No.
98,,AFL-CIO (Consolidated Gas,and Service Co.),
155 NLRB 850, 852; Bricklayers, Masons and
Plasterers' International Union of America, etc.,
Local 28 (Plaza Builders, Inc.), 134 NLRB 751;
Bricklayers, etc. (Wilputte Coke Oven Division, Al-
lied Chemical Corporation), 135 NLRB 323.
In the contract in this case the Employer agreed
to give preference to employees from certain coun-
ties. Under the cases just cited, union insistence on
compliance with this provision would not have vio-
lated the Act. But Massillon and, Canton are in the
same county, and the contract gave no preference
to men living in the municipality where the work
was performed over men living in other municipali-
748 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ties within the, four named counties. This perhaps
does not settle the matter either, for Meyers and
Surbey could conceivably have been motivated by a
fierce civic pride or by other nonunion considera-
tions in insisting that Massillon men be laid off and
Canton men retained . Also, so far as this record
shows, Meyers was ready to refer nonunion as well
as union Canton carpenters, and it is accordingly
theoretically possible that the Canton men retained
on the job when Wiles and Gifford were discharged
were not union members.
Considering all these factors, however, I think it
reasonable to conclude that where as here a union
contracts for a certain geographical preference, any
further or narrower "geographical" claim advanced
by the Union in seeking job preference is spurious,
and is not founded on legitimate geographical con-
siderations, but on the statutorily impermissible
ground of preference for members of, or persons
referred by, the Union over members of another lo-
cal. Cf. Shattuck Denn Mining Corporation v.
N.L.R.B., 362 F.2d 466, 470 (C.A. 9). I find there-
fore that the Union in causing the discharge of
Wiles and Gifford did so because of their nonmem-
bership in the Union, and hence violated Section
8(b)(2) and (1)(A) of the Act.'
CONCLUSION OF LAW
The Union, by causing the discharge of Wiles and
Gifford, engaged in an unfair labor practice affect-
ing commerce within the meaning of Section
8(b)(2) and (1)(A) and Section 2(6) and (7) of
the Act.
THE REMEDY ,
As the construction project has been completed'
I shall recommend that the Union cease and desist
from similar conduct in the future, that it make
Wiles and Gifford whole for losses suffered as a
result of the Union's unlawful conduct, and that it
post appropriate notices . Backpay due under this
Recommended Order should be computed in ac-
cordance with the formulas set forth in Crosset
Lumber Ca., 8 NLRB 440 (see fn. 2, supra), and
Isis Plumbing & Heating Co., 138-NLRB 716.
Upon the foregoing findings and conclusions and
upon the entire record in the case,_I recommend is-
suance of the following:
ORDER
Respondent, United Brotherhood of Carpenters
and Joiners of America, Local No. 143, AFL-CIO,
its officers,, agents, and representatives, shall:
1. Cease and desist from:
(a) Causing or attempting to cause any employer
to discriminate against an employee because the
employee is not a member of, or was not referred
for employment by, said Local 143.
(b) Restraining or coercing employees in the ex-
ercise of their rights -under Section 7 of the Act by
causing or attempting to cause their discharge
because of their nonmembership or nonreferral by
said Local 143, or by failing to represent fairly and
in accordance with its contracts all members of bar-
gaining units in which it acts as the statutory bar-
gaining representative.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act:
(a) Reimburse Robert Wiles and Arthur Gifford,
in the manner set forth in the portion of the Trial
Examiner's Decision entitled "The Remedy," for
loss of earnings between December 30, 1966, and
the date each would have been terminated by the
Helm Construction Company at the Canton project
for lawful reasons.
(b) Post, in conspicuous places, in Respondent's
meeting halls and other places where it customarily
posts notices to its members copies of the attached
notice marked "Appendix."' Copies of said notice,
on forms provided by the Regional Director for Re-
gion 8, after being duly signed by the authorized
representative of 'Respondent, shall be posted by
the Respondent, as aforesaid, immediately upon
receipt thereof, and be maintained for 60 consecu-
tive days thereafter. Reasonable steps shall be
taken by the Respondent to insure that said notices
are not altered, defaced, or covered by any other
material.
(c) Notify the Regional Director for Region 8, in
writing, within 20 days from the receipt of this
Decision, what steps the Respondent has, taken to
comply herewith.' -
' The violation of Section 8(b)(1)(A) is also established by the Union's
failure to represent fairly the Massillon employees Under the contract,
which it administers in the Canton area for the District Council , the Union
could not, consistent with its statutory duty of fair representation, urge dis-
crimination on the basis of geography among residents of the four counties
named in the contract See Local Union No 12, Rubber Workers v
N.L.R B., 368 F.2d 12, 17 (C A 5)
' The men were discharged Friday, December 30, 1966 . The project was
completed while Webb was still working for Helm, whose employ he left
the first part of March 1967, i e , during the next calendar quarter
3 In the event that this Recommended Order is adopted by the Board, the
words "a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner" in the notice In the further
event that the Board's Order is enforced by a decree of a United States
Court of Appeals, the words "a Decree of the United States Court of Ap-
peals Enforcing an Order" shall be substituted for the words "a Decision
and Order"
' In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read : " Notify said Regional Director, in
writing, within 10 days from the date of this Order , what steps Respondent
has taken to comply herewith."
UNITED BROTHERHOOD OF CARPENTERS , LOCAL 143
APPENDIX
NOTICE TO ALL MEMBERS OF UNITED BROTHERHOOD
OF CARPENTERS AND JOINERS OF AMERICA, LOCAL
No. 143
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board
and in order to effectuate the policies of the Na-
tional Labor Relations Act, as amended, we hereby
notify you that:
WE WILL NOT urge any employer to
discharge any employee because the employee
is not a member of this Local, or was not
referred by this Local.
WE WILL represent fairly and equally all em-
ployees employed under contracts covering
Stark, Wayne, Carroll, and Tuscarawas Coun-
ties.
WE WILL pay Robert J. Wiles and Arthur
Gifford for wage losses they suffered resulting
749
from their discharge on December 30, 1966.
UNITED BROTHERHOOD OF
CARPENTERS AND JOINERS
OF AMERICA , LOCAL 143,
AFL-CIO
(Labor Organization)
Dated By
(Representative ) (Title)
This notice must remain posted for 60 consecu-
tive days from the date of posting and must not be
altered, defaced, or covered by anyother material.
If members have any question concerning this
notice or compliance with its provisions, they may
communicate directly with the Board's Regional
Office, 720 Bulkley Building, 1501 Euclid Avenue,
Cleveland, Ohio 44115, Telephone 621-4465.