Local 215, United Brotherhood of Carpenters, Etc.

94 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Local 215, United Brotherhood of Carpenters and Joiners of America, AFL-CIO and Lee Bunnell and Associated Building Contractors of Lafayette, Indiana, and its members Karl H. Kettelhut, Kemmer Construction Co., Inc., and Joseph E. Siegfried, and F. A. Wilhelm Construction Co., Inc., Huck Manufacturing Company, and J. L. Simmons Company, Inc., Parties to the Contract. Case No. 35-CB-260. November 12, 1959 DECISION AND ORDER On July 20, 1959, Trial Examiner C. W. Whittemore issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. He also found that the Re- spondent had not engaged in and was not engaging in the other un- fair labor practices alleged in the complaint and recommended their dismissal. Thereafter, the Respondent filed exceptions to the Inter- mediate Report. 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 Inter- mediate Report, the exceptions,' and the entire record in this case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner. 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. 215, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, its officers, representatives, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Maintaining in its collective-bargaining agreements with Asso- ciated Building Contractors of Lafayette, Indiana, or with any other employer within its territorial jurisdiction over whom the Board would assert jurisdiction, any provision which requires membership '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 Rodgers, Jenkins, and Fanning]. I In the absence of exceptions thereto, we adopt pro forme the Trial Examiner's recom- mended dismissal of the allegations in the complaint regarding the Respondent's conduct which relates to employers other than those who are members of the Associated Building Contractors of Lafayette, Indiana. 125 NLRB No. 9. LOCAL 215, UNITED BROTHERHOOD OF CARPENTERS , ETC. 95 in, or clearance from, the Respondent as a condition of employment, or which requires that preference in employment be given to members of the Respondent, except as authorized in Section 8 (a) (3) of the Act. (b) In any other manner restraining or coercing employees or applicants for employment in the exercise of the rights guaranteed in Section 7 of the Act, except to the extent that such rights may be affected by an agreement requiring membership in a labor organiza- tion as a condition of employment as authorized in Section 8(a) (3). 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Reimburse all. employees of members of Associated Building Contractors of Lafayette, Indiana, for moneys illegally exacted from them, in the manner and to the extent set forth in the section of the Intermediate Report entitled "The Remedy." (b) Preserve and make available to the Board and its agents upon request, for examination and copying, all membership, dues, permit, and other records necessary to compute the moneys illegally exacted from employees of members of the said Association. (c) Post at its offices in conspicuous places, including all places where notices to members are customarily posted, copies of the notice attached to the Intermediate Report marked "Appendix." 3 Copies of said notice, to be furnished by the Regional Director for the Ninth Region, shall, after being duly signed by the Respondent's representa- tive, be posted immediately upon receipt thereof and be maintained by the Respondent for 60 consecutive 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. (d) Mail to the Regional Director for the Ninth Region signed copies of said notice for posting by members of the Association, if willing. Copies of said notice, to be furnished by the Regional Di- rector, shall, after being signed by Respondent's representative, be forthwith returned to the Regional Director for such posting. (e) Notify the Regional Director for the Ninth Region in writing, within 10 days from the date of this Order, what steps it has taken to comply herewith. IT IS FURTHER ORDERED that the complaint, insofar as it alleges that the Respondent violated the Act by its conduct in relation to em- ployers other than those who are members of the Associated Build- ing Contractors of Lafayette, Indiana, be, and it hereby is, dismissed. 3 This notice shall be amended by substituting for the words "The Recommendations of a Trial Examiner" the words "A Decision and Order ." 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." 96 DECISIONS OF NATIONAL LABOR RELATIONS BOARD INTERMEDIATE REPORT STATEMENT OF THE CASE Charges having been filed and duly 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 filed by the above-named Re- spondent Union, a hearing involving allegations of unfair labor pracices in violation of Section 8(b)(1)(A ) and (2 ) of the National Labor Relations Act, as amended, was held in Lafayette, Indiana, on May 11, 12, and 13, 1959, before the duly designated Trial Examiner. General Counsel and the Respondent were represented at the hearing; both parties were afforded full opportunity to present evidence pertinent to the issues, to examine and cross-examine witnesses, to argue orally, and to file briefs. A brief has been received from General Counsel. Ruling was reserved at the close of the hearing upon the Respondent's motion to dismiss the complaint . Said motion is disposed of by the following findings, con- clusions, and recommendations. 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 EMPLOYERS INVOLVED As to certain of the employers named in the title of this proceeding , and in lieu of taking testimony, the parties entered into the following stipulation: If the following persons were called to testify at the hearing in the above matter, they would testify as follows: 1. F. A. Wilhelm, President of F. A . Wilhelm Construction Co., Inc. (herein called Wilhelm ), of Indianapolis, Indiana, would testify that Wilhelm, an Indiana corporation, having its principal office and place of business at Indian- apolis, Indiana , is now, and at all times material herein has been , engaged in the building and construction industry as a general contractor . In the course and conduct of its business operations during the calendar year 1957, it pur- chased from suppliers located in said State , materials and supplies which originated outside of said State , valued in excess of $500,000.00 . At all times material herein, Wilhelm was engaged, as a general contractor , in the construc- tion of a new veterinary science building at Purdue University, in West Lafayette , Indiana. 2. Richard F. Huck, Treasurer, Huck Manufacturing Company (herein called Huck ), of Quincy, Illinois, would testify that Huck, an Illinois corporation, having its principal office and place of business at Quincy , Illinois, is now, and at all times material herein has been, engaged in the business of manufacturing and installing store fixtures . In the course and conduct of its business opera- tions during the calendar year 1957, it sold and shipped materials and supplies of a value in excess of $500,000.00 to customers located outside of said State. At all times material herein , Huck was engaged in manufacturing and installing fixtures in a building which was being erected for the S. S. Kresge Company at the Market Square Shopping Center in Lafayette , Indiana. 3. E. L. Simmons, Chairman of the Board and Chief Executive Officer, J. L. Simmons Company, Inc. (herein called Simmons), of Chicago , Illinois, would testify that Simmons , a Delaware corporation, having its principal office and place of business located at Chicago, Illinois , is now and at all times mate- rial herein has been, engaged in the building and construction industry as a general contractor. In the course and conduct of its business operations dur- ing the calendar year 1957 , it performed services for customers located outside the State of Illinois , of a value in excess of $ 100,000 .00. At all times material herein, Simmons was engaged in the construction of certain buildings at Purdue University, at West Lafayette , Indiana. On the basis of the foregoing stipulation , it is found that the three employers named are engaged in commerce within the meaning of the Act. Associated Building Contractors of Lafayette , Indiana, is an association of em- ployers including Kemmer Construction Co., Inc., Karl H. Kettelhut, and Joseph E. Siegfried . Said Association exists and functions for the purpose , among others, of representing its members in collective bargaining with the Respondent Union and other labor organizations. LOCAL 215, UNITED BROTHERHOOD OF CARPENTERS, ETC. 97 Kemmer is an Indiana corporation, having its principal office and place of busi- ness in Lafayete, Indiana, and is engaged as a general contractor in the building and construction industry. Kettelhut is also a general contractor with office and place of business in Lafayette. Each of these two construction concerns, during the year 1957, purchased materials and supplies valued at more than $50,000 which were shipped directly to them from points outside Indiana. On the basis of the out-of- State purchases of Kemmer and Kettelhut it is concluded and found, in view of the joint nature of their collective-bargaining practice, that the Association is an em- ployer as defined in Section 2(2) of the Act, and is engaged in commerce within the meaning of the Act. II. THE RESPONDENT LABOR ORGANIZATION Local 215, United Brotherhood of Carpenters and Joiners of America , AFL-CIO, is a labor organization within the meaning of the Act . Phillip Eylens is a business representative of Local 215 and an agent of said labor organization. III. THE UNFAIR LABOR PRACTICES A. Setting and issues This case has to do with the hiring of carpenters in the Lafayette area. In sub- stance it is General Counsel's claim that during material times (1) there existed between the Association and Local 215 a contract containing illegal hiring provi- sions, and (2) in this area illegal preferential hiring conditions were maintained either pursuant to the contract, in the case of the three members of the Association, or to "an arrangement or understanding" between the Respondent and Wilhelm, Huck, and Simmons, employers not members of the Association. B. The contract In April 1957, the Respondent Union and the Association entered into a 5-year agreement which contained, among others, the following pertinent provisions: I 1. Both parties agree that they will operate all projects on a union shop basis, under the following conditions. 7. All members are prohibited from working with non-union carpenters or members in arrears or for openshop contractors, unless such contractors have squared up their shop, and non-union carpenters have made application with full initiation fee, or such members who are in arrears have paid all arrears. 8. The By-laws of Local Union No. 215, United Brotherhood of Carpenters and Joiners of America, as approved December 14, 1955, are hereby by refer- ence made a part of this agreement. Pertinent provisions of the said bylaws are as follows: Sec. 18(c) Members of this Local Union shall be required to pay the first month's dues of the Quarter and take out a working card not later than the first meeting night of the Quarter, and will not be permitted to work without a card. Sec. 18(d) Permits shall be good for the month of issue only, and the charge shall be $4.25 plus any assessments legally levied and approved by the General Office. Sec. 26(a) All members are prohibited from working with non-union car- penters or members in arrears or for open shop contractors (unless such con- tractors have squared up their shop) and their non-union carpenters have made application with full initiation fee, or such members as are in arrears have paid all arrears. ...2 I In his brief General Counsel calls attention to a number of provisions pertinent to the issue of a preferential hiring agreement, such as those covering requirements for stewards and foremen, which for the purpose of this report the Trial Examiner considers un- necessary to quote, in the interest of brevity and since, as found hereinafter, the allega- tion of an illegal contract is fully supported by the provisions herein quoted. 2 For reasons similar to those noted in the footnote above, the Trial Examiner does not quote all provisions in the bylaws cited by General Counsel in his brief, although all are clearly relevant and bear upon the issue. '98 DECISIONS OF NATIONAL LABOR RELATIONS BOARD According to the undisputed testimony of a union official, which the Trial Examiner accepts as true, sometime in the fall of 1958, after charges had been filed in this case, changes in the aforesaid contract were recommended by a Board agent, and the respondent union and association representatives drafted and eventu- ally executed a superseding agreement incorporating such recommendations. Al- though it appears that certain of the objectionable provisions in the original agree- ment are omitted in the new document, which is in evidence, as General Counsel points out there still remains the following provision: 1. Both parties agree that they will operate all projects on a union shop basis. . . . The new agreement fails to include any reference to the 30-day grace period re- quired in the proviso to Section 8(a) (3) of the Act. Furthermore, according to the union official's own testimony, the new agreement has not been publicized. In reply to a question by General Counsel, he said, "Nobody got a copy of it but me and the contractors, and you've got one, and Mr. McGowan (counsel for the Respondent Union) got one. It has never been given out to no one." The amended agreement, according to its terms, "shall be in full force and effect from the 1st day of April, 1957 and shall continue in force for a minimum period of five years. . . The Trial Examiner concludes and finds that whatever may have been the intent of the parties, the plainly illegal provisions of the original contract are still in existence and being maintained so far as employees and prospective employees are concerned. The coercive effect is not purged by merely preparing a new document which omits certain provisions, without making such fact known to members, em- ployees, and prospective employees. It is further concluded and found, as urged by General Counsel, that both agreements are tainted with illegality since the "union shop" provision fails to provide for the 30-day grace period. And the original contract, at no time openly disavowed or withdrawn, establishes preferential hiring conditions within the Respondent Union's jurisdiction for employer members of the Association, for the reason that the contract and incorporated bylaws restrict those working as carpenters to members of the Respondent Union in good standing.3 As the Board found, in Jandel Furs (100 NLRB 1390, at 1391), the "mere existence" of such coercive provisions "acts as a threat to the rights of employees guaranteed in Section 7 of the Act." Furthermore, in a more recent case, the Board has found that merely by "being parties" to a "preferential shop, and exclusive hiring hall under- standing, arrangement or practice" a labor organization violates Section 8(b)(2) and (1) (A) of the Act.4 Accordingly, the Trial Examiner concludes and finds that by maintaining in existence the aforesaid agreements between the Respondent Union and the Association, the Respondent Union's conduct in this regard violated Section 8(b)(1)(A) and (2) of the Act. C. Enforcement of contract General Counsel urges that the illegal provisions of the above-cited agreement between the Respondent Union and the Association have been enforced. First, as to the question of fact: Does the preponderance of evidence establish that "pursuant to the terms of a written contract" . . ... preferential hiring condi- tions" have been and are being "maintained and enforced" in the "territorial jurisdic- tion of the Respondent." (Quotations are from the allegations in the complaint.) For the purpose of this section, consideration will be limited to the three employer members of the Association, a party to the contract in question. The Trial Examiner believes the record contains insufficient evidence to sustain this allegation of fact. As to Kettelhut, Superintendent Richard Heide testified concerning the hiring practice. In substance and effect he said that: (1) He had the authority to and did hire for this employer; (2) without his records (which he was not asked to produce) he could not estimate accurately how many carpenters he had hired in 1957 and 1958; (3) while he knew personally most of the men hired, he did not know whether they were members of Local 215 or not; (4) he knew of none of the carpenters working for him in 1958 who were on a work-permit basis from Local 215; and (5) when he needed men he first contacted Kettelhut to see if there were men avail- able on his other jobs or whom he wanted especially to rehire, and that next, because 3 See Millwrights' Local 2232, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, et at. (Farnsworth & Chambers, Inc.), 122 NLRB 300. 4 Nassau and Suffolk Contractors' Association, Inc., and its members, 123 NLRB 1393. LOCAL 215, UNITED BROTHERHOOD OF CARPENTERS, ETC. . 99 he knew most of the carpenters in the area he would "contact" them "in different ways." "It depends," said the superintendent, "on conditions and there is no set way that we actually hire them or that I actually hire a man." As to Kemmer, two superintendents who did hiring were witnesses for General Counsel, Roger Newhart and L. D. Travilia. In substance the former said that he used three methods of obtaining needed carpenters: (1) by calling Business Agent Eylens of Local 215 for available men; (2) by hiring men who called up by tele- phone or applied at the jobsite; and (3) sometimes at a tavern. He said he had no knowledge whether the men he hired were required to "clear" through the Local after hiring, and denied that Eylens had ever told him he must call him for car- penters. And the substance of Travilia's testimony is to the effect: (1) That while he hired some employees in 1958 he did not know how many, and (2) that he hired some who had previously worked for the Company, some whom he obtained by calling his company office for surplus men on other Kemmer jobs, and if none were available elsewhere he would call Eylens. He had never been instructed by Kemmer, he said, where he should get his men. As to Joseph E. Siegfried, the third member of the Association, although he was called as a witness for General Counsel on other matters, he was not questioned as to his actual hiring practices. In short, the Trial Examiner is unable to find, upon review of the record, that a preponderance of the evidence supports the allegation that the employer members of the Association actually enforced the illegal hiring provisions of the contract, or that the Respondent Union caused them to enforce such provisions and, in the language of the complaint, caused them to "hire . . . exclusively through the hiring hall of the Respondent only employees, as carpenters, who are members of or who are approved for hiring by the Respondent." D. Union conduct relating to employers not members of the Association The complaint also alleges that three employers not members of the Association, Wilhelm, Huck, and Simmons, whose businesses are described in section I, above, "pursuant to . an arrangement or understanding" between them and the Re- spondent Union "are caused" by the Union "to hire and do hire exclusively through the hiring hall of the Respondent. As to this issue, also, in the opinion of the Trial Examiner, General Counsel ad- duced insufficient evidence to sustain the allegations either as to "arrangement or understanding" or "exclusive hiring." As to Huck, Superintendent Hellhake, as a witness for General Counsel, denied that "any arrangement" was "made" between him and Eylens for securing carpenters through him. From the same witness General Counsel elicited the testimony that until the time of the hearing this superintendent had never seen the contract be- tween the Respondent Union and the Association. As to Wilhelm, although the testimony of both Superintendent Green and General Foreman Borgert is to the effect that when starting their construction project at Purdue University they approached Eylens as a source for available carpenters, and that thereafter they did call the union hall for employees, it is Green's testimony (as a witness for General Counsel) that at no time did Eylens even "request" that he call him when and if he needed carpenters. Borgert's testimony is to the effect, also, that no definite arrangement was made with Eylens concerning the hiring of men, and it is undisputed that he did hire a number of men for this job without "calling the hall." General Counsel also elicited from Borgert the fact that he did not know whether any of the carpenters on the job were working under Local 215 permits. Under these circumstances, the Trial Examiner will recommend that the allega- tions of the complaint be dismissed as to any union conduct relating to these three employers. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE Certain of the activities of the Respondent set forth in section III, above, occur- ring in connection with operations of employers concerned as set forth in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstruct- ing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent Union has engaged in certain illegal conduct, the Trial Examiner will recommend that it cease and desist therefrom and take certain action designed to effectuate the policies of the Act. 100 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Trial Examiner considers himself bound by a recent decision of the Board, Nassau and Suffolk Contractors' Association, Inc. and its members (123 NLRB 1393), to recommend in this case the application of the Brown-Olds remedy. There the Board said: "In our opinion, the existence of an unlawful contract is sufficient in and of itself to establish the element of coercion in the payment of moneys by employees pursuant to the requirements of such a contract. Accordingly, the above remedy is applicable to all closed shop and exclusive hiring hall agreements, which do not provide the safeguards set forth in the Mountain Pacific decision, 119 NLRB 883, 893, whether or not proof of actual exaction of payments is established. In cases in which the Union alone is named respondent party to an exclusive hiring hall or closed shop contract, the Union shall be liable for all sums paid by em- ployees of all employers covered under such contract found unlawful by the Board." The Respondent Union's liability for reimbursement shall include the period be- ginning 6 months prior to the filing and service of the original charge against it, and shall extend to all such moneys thereafter collected until the Respondent Union by complying with the other terms of these recommendations effectively remedies the unfair labor practices found herein. Upon the basis of the foregoing findings of fact, and upon the entire record in this proceeding, the Trial Examiner makes the following: CONCLUSIONS OF LAW 1. Local 215, United Brotherhood of Carpenters and Joiners of America, AFL- CIO, is a labor organization within the meaning of Section 2(5) of the Act. 2. By being parties to a preferential shop, and exclusive hiring hall agreement, the Respondent Union has violated Section 8(b) (2) and (1) (A) of the Act. 3. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. [Recommendations omitted from publication.] APPENDIX NOTICE TO ALL MEMBERS OF LOCAL 215, UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, AFL-CIO, AND TO ALL EMPLOYEES OF MEMBERS OF ASSOCIATED BUILDING CONTRACTORS OF LAFAYETTE, INDIANA 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 maintain in our collective-bargaining agreements with Asso- ciated Building Contractors of Lafayette, Indiana, or any other employer within our territorial jurisdiction over whom the Board would assert jurisdiction, any provision which requires membership in, or clearance from, our Union as a condition of employment, or which requires that preference in employment be given to members of our Union, except as authorized in Section 8(a)(3) of the Act. WE WILL NOT in any other manner restrain or coerce employees or appli- cants for employment in the exercise of rights guaranteed in Section 7 of the Act, except to the extent that such rights may be affected by an agreement re- quiring membership in a labor organization as a condition of employment as authorized in Section 8(a)(3) of the Act. WE WILL reimburse all employees of the said Association for the initiation fees, dues, permit fees, assessments, and other moneys they were unlawfully required to pay our Union as the result of the unlawful hiring provisions in our contracts with the aforementioned members of the said Association. LOCAL 215, UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, 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.