United Brotherhood of Carpenters and Joiners of America

LOCAL NO 63 2 31 part of the existing unit, and the Regional Director will issue a certification of results of election to such effect. [Text of Direction of Election omitted from publication.]- LOCAL NO. 63, UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, AFL, AND KENNETH PEARL and ELVING. JACOB AND DELVYN SMITH and J. L. WROAN SR. AND J. L. WROAN, JR., d/b/a J. L. WROAN & SON, a partnership , et al., Parties to a Contract . Cases Nos. 13- CB-187 and 13 -CB-191. July 21, 1953 DECISION AND ORDER On April 8, 1953, Trial Examiner Robert L. Piper issued his Intermediate Report in the above-entitled 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 supporting briefs. 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. The Board has considered the Intermediate Report, the exceptions, the briefs , and the entire record in these cases ,' and hereby adopts the findings , conclusions , and recommendations of the Trial Examiner with the following modifications. 1. In accord with the Trial Examiner, we find that the Re- spondents violated Section 8 (b) (2) and 8 (b) (1) (A) of the Act. However , our finding is based solely upon the renewal, en- forcement , and continued existence of a collective-bargaining contract between the Respondent Union and the Contractors of Bloomington-Normal, which contains a provision requiring the Contractors of Bloomington-Normal to employ only mem- bers of, or applicants for membership in , the Respondent Union who secure working cards from it.' 2. The Trial Examiner also found that the Respondents violated Section 8 (b) (2) of the Act by refusing to grant work- ing cards to Smith and Jacob, thereby attempting to cause and causing contractor J. L. Wroan, Sr. and J. L. Wroan, Jr., d/b/a J. L. Wroan & Son, a partnership, et al., hereinafter called Wroan, discriminatorily to refuse to hire them. We disagree. t Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the Board has delegated its powers in connection with these cases to a three- member panel [Members Houston, Murdock, and Peterson]. 2 The Respondents' request for oral argument is hereby denied as the record and the briefs, in our opinion, adequately present the issues and the positions of the parties. 3Philadelphia Iron Works, 103 NLRB 596. 106 NLRB No. 46. 232 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The record shows that in December 1951, Smith and Jacobs, members of another local of United Brotherhood of Carpenters and Joiners of America , AFL, hereinafter called the Carpen- ters , were offered employment by contractor Wroan . They told him that before going to work , they would have to secure work- ing permits from the Respondent Union.4 Wroan replied "get the permit and come back and go to work." Smith and Jacob then contacted Respondent Kenneth Pearl , business agent of the Respondent Union , about Wroan' s offer of employment and asked for permits . Pearl refused to issue permits to them because local union men were out of work. When informed by Smith and Jacob that Pearl would not issue the permits, Wroan stated that there was "nothing more he could do for (them) then." Smith and Jacob were not employed. The Trial Examiner, relying upon a stipulation of the parties, found that Wroan was a member of the Contractors of Bloom- ington-Normal . However , the stipulation does not cover Wroan and the record does not otherwise show that Wroan was a member of the Contractors of Bloomington -Normal or was a party to the unlawful closed-shop contract . Nor does the other evidence in the record warrant a finding either that a dis- criminatory hiring arrangement existed between the Re spondent Union and Wroan , or that the Respondents demanded or requested that Wroan should not employ Smith and Jacob. In the absence of such evidence , we believe and find that the General Counsel has failed to sustain his burden of proving that the Respondents attempted to cause and did cause Wroan to discriminate against Smith and Jacob . Accordingly, we shall dismiss these allegations of the complaint. ORDER Upon the entire record in these cases and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Re- spondent Union , Local No. 63 , United Brotherhood of Car- penters and Joiners of America , AFL, its officers , repre- sentatives , and agents , including Kenneth Pearl , business agent, shall: 1. Cease and desist from: (a) Renewing , continuing in effect , or enforcing the pro- visions of any contract with the Contractors of Bloomington- Normal, which require the Contractors of Bloomington-Normal to employ only members of, and applicants for membership in, the Respondent Union who obtain working cards from the Respondent Union , as a condition of employment , except to the extent that such provisions may be authorized under the proviso to Section 8 (a) (3) of the Act. 4 The rules of the Carpenters requiring that members who desire to work in the jurisdic- tion of another local must "clear" into or secure working permits from the local Smith and Jacob had previously worked for Wroan under permits secured from the Respondent Union LOCAL NO. 63 233 (b) In any like or related manner restraining or coercing employees in the exercise of the rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action: (a) Post immediately , in conspicuous places at the office of the Respondent Union and all places where notices to mem- bers are customarily posted, copies of the notice attached hereto and marked "Appendix A." 5 Copies of said notice, to be furnished by the Regional Director for the Thirteenth Region , shall, after being duly signed by Respondent Pearl and other representatives of the Respondent Union , be posted by Respondents immediately upon receipt thereof and main- tained by them for sixty (60) consecutive days thereafter. Reasonable steps shall be taken by Respondents to insure that such notices are not altered, defaced, or covered by any other material. (b) Mail to the Regional Director for the Thirteenth Region, sufficient signed copies of the notice attached hereto as ap- pendix A, for posting, the Contractors of Bloomington-Normal being willing , at their projects and places of business where notices to employees are posted . Copies of said notice, to be furnished by the Regional Director for the Thirteenth Region, shall , after being signed as provided in the preceding para- graph, be forthwith returned to the said Regional Director for such posting. (c) Notify the Regional Director for the Thirteenth Region in writing, within ten (10) days from the date of this Order, what steps they have taken to comply herewith. IT IS FURTHER ORDERED that the complaint be, and it hereby is , dismissed insofar as it alleges thatthe Respondents attempted to cause and caused Wroan to discriminate against Elvin G. Jacob and Delvyn Smith. 5 In the event that this Order is enforced by 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 " Intermediate Report and Recommended Order STATEMENT OF THE CASE Charges having been duly filed and served, a complaint and notice of hearing thereon having been issued and served by the General counsel of the National Labor Relations Board, and an answer having been duly filed by Local No. 63, United Brotherhood of Carpenters and Joiners of America, AFL (hereinafter called the Union) and Kenneth Pearl, an individual (the Union and Pearl being hereinafter collectively called Respondents), a hearing involving allegations of unfair labor practices in violation of Section 8 (b) (1) (A) and (2) of the National Labor Re- lations Act), 61 Stat. 136, was held in Bloomington, Illinois, on February 26, 1953, before the Trial Examiner. In substance the complaint alleges and the answer denies that Respondents attempted to cause, caused, and are causing J. L.Wroan& Son (hereinafter called the Company) and certain named general contractors of Bloomington and Normal, Illinois (hereinafter collectively referred as the Contractors), to discriminate against employees in violation of Section 8 (a) (3) of the Act by: 2 34 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (a) Renewing and enforcing an agreement between the Union and the Contractors making membership in the Union or the securing of a work permit from the Union a condition of em- ployment. (b) Causing the Company on December 13, 1951, and thereafter to refuse to employ Elvin G. Jacob and Delvyn Smith because they were not members of the Union and had not obtained a work permit from the Union. At the hearing all parties were represented by counsel, were afforded full opportunity to be heard, to examine and cross-examine witnesses, to introduce evidence pertinent to the issues, to argue orally upon the record, and to file briefs and proposed findings of fact and conclu- sions. A brief from Respondents has been received and considered. At the opening of the hearing, the General Counsel's unopposed motion to amend the com- plaint in certain respects, including a change in the dollar amount of services performed by the Company and a substitution of 1952 and 1951 in section 2, and "West Construction Company and Felmley-Dickerson Company" for the "Contractors of Bloomington-Normal" in the second paragraph of section 3, and also in sections 4 and 11, was granted. Upon the entire record in the case, and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY, WEST CONSTRUCTION COMPANY, AND FELMLEY-DICKERSON COMPANY The Company is an Illinois partnership, having its principal office and place of business in Normal, Illinois, where it is engaged in the business of general contracting. During the year 1952 the Company performed services of a value of approximately $ 700,000, of which ap- proximately $275,000 were performed outside the State of Illmois. However, during the year 1951, it performed no services outside the State of Illinois. West Construction Company is an Illinois partnership having its principal office and place of business in Bloomington, Illinois, where it is engaged in the business of general contract- ing. During the year 1952, it performed services of a value of approximately $500,000, of which substantially more than $ 50,000 of such services were performed for concerns engaged in commerce within the meaning of the Act. In addition, it purchased from $280,000 to $300,000 worth of materials which were shipped to it from outside the State of Illinois. Felmley-Dickerson Company is a Delaware corporation with its principal office and place of business in Bloomington, Illinois, where it is engaged in the business of general contract- ing. During each of the years of 1951 and 1952, it performed services of a value substantially in excess of $25,000 outside the State of Illinois and substantially in excess of $50,000 in the State of Illinois for concerns engaged in commerce within the meaning of the Act. The parties stipulated that the foregoing three companies, together with a number of other Bloomington and Normal general contractors specifically set forth in the complaint, compose the Contractors. For more than 6 years the Contractors, in association and by means of a contract-negotiating committee, have negotiated and signed collective-bargaining contracts with the Union. Collectively, the Contractorsduringeachof the years 1951 and 1952 performed services outside the State of Illinois substantially in excess of $25,000, and performed other services substantially in excess of $ 50,000 in Illinois for concerns engaged in commerce within the meaning of the Act. In passing upon the jurisdictional issue herein, the Contractors and the individual members thereof must be regarded as a single enterprise.-' Accordingly, I find that the Company, West Construction Company, and Felmley-Dickerson Company are engaged in commerce within the meaning of the Act. H. THE ORGANIZATION INVOLVED The Union is a labor organization within the meaning of Section 2 (5) of the Act. III. THE UNFAIR LABOR PRACTICES Most of the facts are undisputed. In 1947 the Contractors and the Union entered into a collective-bargaining agreement which has been renewed from time to time by various addenda thereto, the latest such renewal being May 26, 1952, and which agreement is still in full force and effect. It provides, inter aha, that the Contractors may employ only members of the Union and those who "first obtain from the Union the required working card." It may now be con- i Carpenter & Skaer, Inc., 90 NLRB 417; Gottfried Baking Company, Inc., 103 NLRB 227. LOCAL NO 63 235 sidered well settled that the execution , renewal, enforcement , and continued existence of such an agreement by a labor organization violates Section 8 (b) (2) of the Act by causing or attempting to cause an employer to discriminate against employees in violation of Section 8 (a) (3), unless it falls within the permissible area of union security found in the proviso to Section 8 (a) (3), which this does not. Smith and Jacob, both members of another local of the United Brotherhood of Carpenters (hereinafter called the Carpenters), were employed by the Company upon one of its construc- tion jobs in Pontiac, Illinois, until the middle of December 1951, when the project was halted by weather conditions. At that time they spoke to J. L. Wroan, Sr., who offered them a job in Bloomington. They told him it would be necessary for them to secure a permit from the Union , and he said they should secure it, return , and go to work. Both men had previously worked for the Company in Bloomington under permits secured from the Union even though they were members of the Carpenters. After speaking to Wroan, Sr ., the two men contacted Kenneth Pearl, business agent of the Union, told him Wroan had offered them jobs, and asked for a permit to work, or clearance into the Union. Pearl told them he would not give them the permit because he had local men out of work, and would not accept their books for clearance into the Union for the same reason. It is undisputed that Pearl knew both men, knew they were members of the Carpenters, and had previously issued them permits to work in Bloomington. After Pearl's rejection, they returned to one of the Company's projects where they saw both Wroan, Sr., and Jr. Upon being informed of Pearl's statement to the men , Wroan, Sr., told them there was nothing more he could do for them. They were not employed. Pearl denied that the men had asked him for "clearance" into the Union (a procedure whereby under the rules of the Carpenters members of one local have a right to transfer their membership to another local), but in substance admitted that they had asked him for work permits and that he had refused them. He said that he told them there was unemployment in the area and the Union was not issuing work permits . Manifestly , by refusing to issue the permits and by thus enforcing the contract, the Union caused the Company to refuse to employ the men in violation of Section 8 (a) (3). Respondents argue that under the Carpenters' rules the men , as members of another local , had an absolute right to "clear into" the Union, while the issuance of a permit was purely discretionary with the Union . This does not meet the issues. Whatever its reasons , good or bad, the Union caused the Company to discriminate against the men and thus violated the Act. Respondents ' principal defense appears to be that, assuming the facts to be as found, they do not constitute unfair labor practices "affecting commerce" as required by Section 10 (a) of the Act. They base this defense upon the existence of an international agreement between the Carpenters and Felmley-Dickerson Company under the terms of which, according to Re- spondents , no other local of the Carpenters could strike against Felmley-Dickerson because of any labor dispute between Felmley -Dickerson and the Union. They argue, therefore, that any labor dispute between the Union and Felmley would be limited to the Bloomington area, and hence , even though Felmley's overall operations affect interstate commerce , such a dis- pute could not because it would have no effect upon Felmley 's operations outside of Blooming- ton. For several reasons this defense is without merit. Respondents first of all in this situa- tion misconstrue the labor dispute affecting commerce which it is the purpose of the Act to eliminate. The unfair labor practices here would not normally lead to disputes between the Union and Felmley, because they were in agreement in limiting employment to union mem- bers, as is evidenced by their contract. Rather, such unfair labor practices would lead to dis- putes between the employer and employees not covered by the agreement , who are discrimi- nated against as a result of the agreement and its enforcement. Such unfair labor practices could well lead to industrial strife between Felmley and employees not members of the Union, or even members of other unions . In turn, such strife might spread and affect Felmley's entire operations, thus affecting commerce. The existence of an agreement preventing the spreading among the Carpenters of a labor dispute with the Union could have no effect what- soever upon a labor dispute with other employees . Manifestly the unfair labor practice of discriminatorily refusing to employ persons not members of the Union could lead to labor disputes with such employees and other unions affecting commerce. Although unnecessary in view of the foregoing , another reason why Respondents ' defense is untenable is that there is no proof in the record that any of the other members of the Con- tractors , including the Company and West Construction Company , had any such international agreement with the Carpenters , and hence, even if Respondents ' position were sound , it would have no application to labor disputes arising between the other Contractors and their em- ployees , which disputes would therefore not be limited in scope as Respondents urge. While 236 DECISIONS OF NATIONAL LABOR RELATIONS BOARD perhaps incidental, the international agreement relied on by Respondents is executed by a John Felmley Company, and not by Felmley-Dickerson Company. Even assuming arguendo the validity of Respondents ' argument, the terms of the inter- national agreement also defeat their position . Apparently any labor dispute which might arise between the Union and Felmley-Dickerson concerning hiring practices would occur only if Felmley hired persons not cleared by the Union. However, the international contract also requires that Felmley employ only members of the Carpenters. Hence, if he did otherwise, he would also breach the international agreement , and the expressly stated consideration for which the Carpenters agreed not to strike would no longer exist and the contract would be broken. In such an event, the dispute between the Union and Felmley would not, as Respond- ents claim, be limited in scope. Respondents also urge that Section 10 (b) of the Act prohibits a finding that the union security clause of the contract with the Contractors is illegal. because the charges filed in March and April 1952 did not refer to such contract. As previously found, the contract was continued in full force and effect during the 6 months preceding the charge , and was renewed by the parties on May 26 , 1952 , after the charge was filed. Respondents ' contention is without merit, as has frequently been found by the Board. 2 A preponderance of the credible evidence in the entire record convinces me, and I find, that Respondents , by renewing , continuing in effect, and enforcing the contract with the Con- tractors, including the Company, and by causing the Company to refuse to employ Smith and Jacob in the latter part of December 1951 because they were not members of the Union and had not obtained working permits from the Union, attempted to cause and caused the Company and the Contractors to discriminate against employees, including Smith and Jacob, in viola- tion of Section 8 (b) (2) of the Act, and restrained and coerced employees in the exercise of the rights guaranteed them in Section 7 of the Act, in violation of Section 8 (b) (1) (A) of the Act. Upon the basis of the above findings of fact and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. The activities of Respondents set forth in section III, above, occurring in connection with the operations of the Company, West Construction Company, and Felmley-Dickerson Company described in section I, above, have a close, intimate, and substantial relation to trade and com- merce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof. 2. The Union is a labor organization within the meaning of Section 2 (5) of the Act. 3. By renewing, continuing in effect, and enforcing the provisions of the contract with the Contractors, Respondents have engaged in and are engaging in unfair labor practices within the meaning of Section 8 (b) (1) (A) and (2) of the Act. 4. By causing the Company to discriminate against Smith and Jacob in regard to their em- ployment in violation of Section 8 (a) (3) of the Act, Respondents have engaged in and are engaging in unfair labor practices within the meaning of Section 8 (b) (1) (A) and (2) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7 ) of the Act. [Recommendations omitted from publication.] APPENDIX A NOTICE TO ALL MEMBERS OF LOCAL NO. 63, UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, AFL, AND TO ALL EMPLOYEES OF THE CONTRACTORS OF BLOOMINGTON- NORMAL, ILLINOIS Pursuant to the recommendations of a Trial Examiner 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 renew, continue in effect, or enforce, the provisions of any agreement with the Contractors of Bloomington-Normal or with any other employer engaged in 2 Cathey Lumber Company, 86 NLRB 157; Ferro Stamping and Mfg. Co., 93 NLRB 1459. THE PRUDENTIAL INSURANCE COMPANY OF AMERICA 237 interstate commerce which require employees to join, maintain their membership in, or obtain or retain working permits from this Union as a condition of hire or employment, except to the extent that such agreement may be authorized under the proviso to Section 8 (a) (3) of the Act. WE WILL NOT cause or attempt to cause the Contractors of Bloomington-Normal, their officers, agents, successors, or assigns, to discriminate against employees or ap- plicants for employment in violation of Section 8 (a) (3) of the Act. WE WILL NOT in any other manner restrain or coerce employees in the exercise of the rights guaranteed them in Section 7 of the Act. WE WILL immediately notify J. L. Wroan &Son in writing and furnish copies to Delvyn Smith and Elvin G. Jacob, that we do not object to, but on the contrary now request, that company to employ Delvyn Smith and Elvin G. Jacob. WE WILL make Delvyn Smith and Elvin G. Jacob whole for any loss of earnings they may have suffered because of the discrimination against them. LOCAL NO. 63, UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, AFL, Labor Organization. Dated ................ By................................. .....................••.... .. ..................... (Representative) (Title) ........:................................... KENNETH PEARL This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. THE PRUDENTIAL INSURANCE COMPANY OF AMERICA, Petitioner and INSURANCE AGENTS' INTERNATIONAL UNION, LOCAL NO. 10, A.F.L. and ASSOCIATED LIFE INSURANCE AGENTS OF MARYLAND. Case No. 5-RM-244. July 21, 1953 DECISION AND ORDER Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Henry L. Segal, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. 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 [Members Houston,Styles, andPetersonl. Upon the entire record in this case, the Board finds: 1. The Employer is engaged in commerce within the mean- ing of the Act. 2. The labor organizations involved claim to represent certain employees of the Employer. 3. No question affecting commerce exists concerning the representation of employees of the Employer within the meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act for the following reasons: Insurance Agents' International Union, Local No. 10, A.F.L., an intervenor, herein called Local 10, contends that it has a contract with the Employer which bars this proceeding. Asso- 106 NLRB No. 55.