Local 60, Int'l Assn. of Bridge, Structural, Etc.

316 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 5. By unilaterally ordering the transfer of, and by transferring , from its Detroit plant to its Grand Haven plant work that was formerly performed by employees in the aforesaid appropriate unit without first giving the Union an opportunity to bargain with respect thereto, Respondent has violated Section 8 (a) (5) of the Act. 6. By the foregoing conduct, Respondent has interfered with , restrained, and coerced its employees in the exercise of rights guaranteed by Section 7 of the Act and has thereby violated Section 8 (a)(1) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices within the meaning of Section 2(6) and (7) of the Act. [Recommended Order omitted from publication.] Local 60, International Association of Bridge, Structural and Ornamental Iron Workers, AFL-CIO [ Gouverneur Iron Works, Inc.] and Edward O. Schrader. Case No. 3-CB-764. October 29, 1964 1 DECISION AND ORDER On August 3, 1964, Trial Examiner Thomas F. Maher issued his Decision in the above-entitled proceeding, finding that the Respond- ent had engaged in and was engaging in certain unfair labor prac- tices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Decision. Thereafter, the Respondent filed exceptions to the Decision and a supporting brief. Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with this case to a three-mein- ber panel [Members Leedom, Fanning, and Brown]. 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 Decision, the exceptions and brief, and the entire record in this case, and finds merit in the Respondent's exceptions. The Trial Examiner found that by refusing to clear Edward O. Schrader for employment with Gouverneur Iron Works, Inc., Re- spondent caused Gouverneur to discriminate against Schrader in vio- lation of Section 8(a) (3) of the Act, and that by such conduct the Respondent violated Section 8(b) (2) and (1) (A) of the Act. Specifically, the Trial Examiner found that Gouverneur's job sup- erintendent, McAllister, refused to hire Schrader because he was be- hind in his dues payments to Respondent Local. As Schrader testi- fied, McAllister stated to Schrader that he was told by Respondent's business agent, Kaulbeck, in the course of a telephone conversation, that Schrader was "five months behind in your union dues and I can't put you to work." Schrader further testified that when he (Schrader) telephoned Kaulbeck and asked him why he could not have the job, Kaulbeck replied that Schrader was 5 months behind 149 NLRB No. 29. LOCAL 60, INT'L ASSN. OF BRIDGE, STRUCTURAL, ETC. 317 in his dues and that there were paid-up men in the union hall await- ing assignments. Neither McAllister nor Kaulbeck was called as a witness and neither testified at the hearing. On the foregoing testi- mony the Trial Examiner concluded that, while it had not been shown that the Respondent and Employer were in'any way contrac- tually related nor was there evidence of the existence of a hiring ar- rangement or practice of referral, Respondent had unlawfully im- posed its will on the Employer so as to prevent it from hiring a qualified employee. We cannot accept Schrader's testimony as to McAllister's statement as competent evidence of a threat by Kaulbeck to take economic ac- tion against Gouverneur if Schrader, a member in bad standing, was hired. As indicated, neither McAllister nor Kaulbeck testified, and Schrader's testimony as to what McAllister said about his conversa- tion with Kaulbeck is, as to Respondent, pure hearsay and is, in any event, insufficient to establish such a threat of economic action. Fur- thermore, although the Trial Examiner found that the Union "im- posed" its will on the Employer, he specifically stated he could not find that there was, in fact, an agreement or "tacit understanding" that the Employer shall not employ anyone without prior clearance by the Union. It is well established that "[n]either employer nor union can be held accountable for the unilateral actions of the other. Neither is bound to police the other nor can it be inferred that an unfair labor practice indulged in by one is caused by the undisclosed activity of the other or through the tacit understanding of both. -Evidence of such activity or understanding is necessary." 1 In our opinion, the evidence set forth above is insufficient to warrant the conclusion that the Employer was at any time bound by an under- standing with the Respondent to use only union members in good standing. So far as the record shows, although the Employer re- fused to hire Schrader without prior clearance by the Respondent, the Employer could have, if it desired, employed ironworkers with- out reference as to whether they were union members or in good or bad standing with the Union.2 Accordingly, as the record fails to establish that Gouverneur's refusal to hire Schrader was caused by the Respondent, we shall dismiss the complaint. [The Board dismissed the complaint.] 1 See Local 626, United Brotherhood of Carpenters and Joiners of America , AFL-CIO (Food Fair Stores, Inc.), 142 NLRB 1238, citing Brotherhood of Painters, Decorators & Paperhangers of America, etc. (Spoon Tile Co.), 242 F. 2d 477 (CA. 10). Ibid. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE Upon a charge filed on April 10, 1964, by Edward O. Schrader, the Acting Regional Director for Region 3 of the National Labor Relations Board, herein 318 DECISIONS OF NATIONAL LABOR RELATIONS BOARD called the Board, issued a complaint on behalf of the General Counsel of the Board on May 12, 1964, against Local 60, International Association of Bridge, Structural and Ornamental Iron Workers , AFL-CIO, Respondent herein, alleging violations of Section 8(b)(1) (A) and (2) of the National Labor Relations Act, as amended (29 U S.C , Sec 151, et seq.), herein called the Act. In its duly filed answer Respondent, while admitting certain allegations of the complaint, denied the com- mission of any unfair labor practice. Pursuant to notice a hearing was held before Trial Examiner Thomas F. Maher on July 1, 1964, in Syracuse, New York. All parties were represented by counsel and afforded full opportunity to be heard, to present oral argument, and to file briefs with me. Upon submission of oral argument the filing of briefs was waived. Upon consideration of the entire record of this case and upon my observation of each witness appearing before me, I make the following: FINDINGS OF FACT AND CONCLUSIONS OF LAW I. THE BUSINESS OF THE EMPLOYER Gouverneur Iron Works, Inc., the Employer of the employee' filing the instant charge, is a New York corporation with its principal office and place of business located at Gouverneur, New York, where it is engaged in the fabrication, manu- facturing, sale, and distribution of structural steel and other metal products. In addition, Gouverneur has been, or is engaged, at various worksites throughout the State of New York, in supplying the services of the erection and installation of structural steel and miscellaneous metal and metal products . In addition, in the year 1963, including but not limited to the work engaged by Gouverneur, it was engaged in work at the Fonda Container plant in St. Albans, Vermont, where it delivered steel and erected same. This steel was- purchased by Gouverneur from a point outside the State of Vermont and ordered into the State of Vermont and delivered there. Gouverneur received for the sale and installation of such steel from Fonda, an amount in excess of $100,000. During 1964 Gouverneur engaged in the sale and delivery of steel to F. W. Woolworth Co. at the Burlington, Vermont, seat. This steel was purchased by Gouverneur and delivered to a point outside of the State of New York. Gouver- neur received in excess of $80,000 for the sale and delivery of such steel to Woolworth. Upon the foregoing stipulated facts I conclude and find that Gouverneur Iron Works, Inc. is an employer engaged in commerce within the meaning of the Act. II. THE STATUS OF THE RESPONDENT Local 60, International Association of Bridge, Structural and Ornamental Iron Workers, AFL-CIO, is a labor organization within the meaning of the Act and I so conclude and find. III. THE UNFAIR LABOR PRACTICES A. Sequence of events .Edward O. Schrader was a member of 15 years' standing of Local 60 and a qualified ironworker. On the morning of March 26, 1964, he appeared at the construction site of the Papertronics plant in Oswego, New York, in search of employment He first approached the superintendent of the prime contractor, Northeast Construction, who, upon learning of Schrader's ironworker qualifications introduced him to Lee McAllister, Gouverneur's foreman on the Papertronics job.2 Schrader thereupon asked McAllister for a job as an ironworker with Gou- verneur. McAllister first inquired of Schrader if he was a union member and if he 1 It is well settled that applicants for employment, In this case Edward 0 Schrader, are considered employees for the purposes of the Act. Phelps Dodge Corp. v. N.L R B , 313 U S 177, 191-192 ; Local No. 636 of the United Association of Journeymen and Apprentices of the " Plumbing and Pipe Fitting Industry of the United States and Canada, AFL-CIO, et at. ( The Detroit Edison Company and Westinghouse Electric Corporation), 123 NLRB 225, 232 2 The facts herein are based upon the credited , undenied testimony of Schrader, cor- roborated in substantial part by Dean Parshley , a Gouverneur employee who was present during the events related herein LOCAL 60, INT'L ASSN. OF BRIDGE, STRUCTURAL, ETC. 319 carried an Iron Workers book. Upon learning that Schrader was thus qualified McAllister replied, "You can go to work if it's all right with your business agent." He also stated to Schrader, "I will clear you in when I clear myself in." 3 At this point McAllister telephoned William Kaulbeck, Local 60's business agent. McAllister's end of the telephone conversation was to the effect that he wanted to clear in himself and a fellow member of Local 440-Parshley. He then told Business Agent Kaulbeck that he had a man from Local 60, Schrader, whom he would put to work if it was all right with him. After an extensive reply by Kaulbeck, McAllister turned to Schrader and said, "He says that you are five months behind in your Union dues and I can't possibly put you to work." Schra- der then asked to talk to Kaulbeck who replied that he did not wish to talk to him. When Schrader reached the telephone Kaulbeck had already hung up. Shortly thereafter Schrader resolved to call back Kaulbeck. When he did so he protested to Kaulbeck that he had not had a full week's work since Thanksgiving and asked why he could not have this particular job. Kaulbeck replied that Schrader was 5 months behind in his dues and that there were paid-up men in the union hall awaiting assignments Upon the completion of the telephone call McAllister refused Schrader the job at the Papertronics site, stating that "he couldn't fight the Business Agent." Schrad- er has not since been employed by Gouverneur. B. The Employer's relationship with Local 60 When asked on cross-examination if he knew whether Gouverneur Iron Works had a contract with the Union, Schrader replied that he did not know, nor had he inquired of Foreman McAllister if the Company did have such a contract. Fur- thermore, there is nothing in the record to suggest that any collective-bargaining agreement, arrangement, or practice between Local 60 and Gouverneur is or ever has been in force and effect, or that there is or has been a general practice or arrangement to such effect. In this state of the record I conclude and find that no collective agreement, practice, or arrangement between the Employer, and Local 60 is or ever has been in existence. C. Analysis and conclusions There is no evidence whatever here of any contract, arrangement, understand- ing, or practice, valid or otherwise, whereby Local 60 represents Gouverneur's employees and whereby Gouverneur's applicants for employment must be cleared by Local 60 as a condition of hiring and continued employment. While it may be surmised that Gouverneur would hire only employees referred or cleared by Re- spondent simply because, from McAllister's remarks about clearance, it appears to have agreed to do so, such speculations are no substitute for proof of the existence of an agreement.4 Suffice it to say that had there been an arrangement or agree- ment it would have found its way into the record. What we have here, then, is a labor organization which is not shown to be contractually related in any way to an employer, but upon whom it has effectively imposed its will so as to prevent it from hiring a qualified employee. If there be no contractual relation, then, between the two parties, or no agree- ment, practice, or arrangement relating to the hiring only of union members, then it becomes irrelevant whether the employee is or ever was a member of that union. Hence it is not only irrelevant here that Schrader was shown to be delin- quent in his union dues, but it is equally irrelevant whether he is or is not even a member of Local 60. In The Radio Officers' Union of the Commercial Telegraphers Union, AFL (A. H. Bull Steamship Company) v. N.L R B, 347 U.S 17, 42, the Supreme Court held that a union, in the absence of a valid union-security contract, caused the employer to discriminate against a union member by procuring the employer to reduce his seniority, with consequent loss of employment, when he fell behind in his dues, since the union conduct encouraged employees to remain in good standing. I perceive no difference between such a situation and the instant one where Schrader 3 aicAllister, it appears from Schrader's and Parshley's testimony, was a member of the neighboring Iron Workers Local 440, as was Parshley. As the jobsite was located within the geographical jurisdiction of Local 60, McAllister appears to have been planning his own clearance in accordance with the Union's internal rules 4 Cf. N.L R B v. Ford Radio & Mica Corporation, 258 P 2d 457, 461-462 (C A 2) ; Morrison-Knudsen Company, Inc. v. N.L.R B., 276 F. 2d 63 (C A. 9). - 320 DECISIONS OF NATIONAL LABOR RELATIONS BOARD was deprived of his employment by the whim of Local 60. Indeed, absent evidence of existence of a legal hiring arrangement or practice, Local 60, it would seem, has no more claim to control whom this employer would hire than would some fraternal organization or the local chamber of commerce. Upon all the foregoing, therefore, I conclude and find that by Foreman McAl- lister's refusal to hire Schrader because he would not be cleared by Local 60, Gouverneur thereby discriminated against him in what would be a violation of Section 8 (a) (3) of the Act, had Gouverneur's action been properly before me. Nor is it essential that Gouverneur be a party to this proceeding. Here no charge was filed against the Employer , hence no complaint issued against it. As Section 8(b)(2) requires only a showing that the union caused or attempted to cause the employer to commit conduct which , if or when committed, would violate 8(a)(3); and as, in the absence of a charge against an employer the General Counsel has no authority to issue a complaint against such an employer , the fact that no such complaint has been issued does not preclude a finding that the union against whom a complaint was filed had , in fact, violated Section 8(b)(2).5 Under all the circumstances , therefore, I conclude and find that because Local 60's refusal to clear Schrader for employment with Gouverneur was the direct cause of Gouverneur's discrimination against him by its refusal to hire him , Local 60 there- by violated Section 8(a) (2) of the Act, and by the same conduct thereby re- strained and coerced Schrader and its other employees in violation of Section 8(b)(1)(A). IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III above , occurring in connec- tion with the operations of the Company 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 obstructing commerce and the free flow thereof. V. THE REMEDY Having found and concluded that Respondent , Local 60, has unlawfully caused Gouverneur to discriminate against Edward O . Schrader, I shall recommend that it cease and desist therefrom as to Schrader and any other applicant for employment or employee, and take certain affirmative action designed to effectuate the policies of the Act. By its refusal to clear Edward O. Schrader for employment, Local 60 thereby deprived Schrader of gainful employment to which he would have been entitled as a qualified ironworker in a vacancy shown to have existed when he applied for and was refused employment. In view of the monetary loss thus occasioned by Local 60's unlawful conduct, I shall recommend that Local 60 be required to reimburse Schrader for the wages lost by its action ,7 computation being accomplished in the customary manner 8 with interest assessed at the rate of six percent per annum from March 26, 1964, the date upon which he was refused employment.9 [Recommended Order omitted from publication.] 5 The Radio Officers' Union etc. v. N.L.R.B., supra, at 53-54. 8 The Radio Officers' Union etc. v. N.L.R.B., supra, at 26-27, 42. 7 The Radio Officers' Union etc. v. N.L.R.B., supra, at 54. 8 F. W. Woolworth Company, 90 NLRB 289; Crossett Lumber Company, 8 NLRB 440. 8 Isis Plumbing & Heating Co., 138 NLRB 716. Seneca Plastics, Incorporated and Glass Bottle Blowers Asso- ciation of the United States and Canada , AFL-CIO. Case No. 8-CA-34920. October 30, 1964 DECISION AND ORDER On July 9, 1964, Trial Examiner Frederick U. Reel issued his De- cision in the above-entitled proceeding, finding that the Respondent 149 NLRB No. 34.