Twin City Carpenters District Council, Etc.

TWIN CITY CARPENTERS DISTRICT COUNCIL, ETC. 887 for Region 3, in writing, whether or not it will refrain from forcing or requiring Capital Electrotype Company, Inc., by means proscribed by Section 8(b) (4) (D), to assign the wort: in dispute to electrotypers rather than to printing pressmen. Twin City Carpenters District Council of the United Brotherhood of Carpenters and Joiners of America , AFL-CIO [August Cederstrand Company] and Archie L. Anderson. Case No. 18-CB-230. May 26,1965 DECISION X D ORDER On March 15, 1965, Trial Examiner Frederick U. Reel issued his Decision in the above-entitled proceeding, finding, that the Respond- ent had not engaged in unfair labor practices as alleged in the com- plaint and recommending that the complaint be dismissed in its entirety, as set forth in the attached Trial Examiner's Decision. Thereafter, the General Counsel filed exceptions to the Trial Exam- iner's Decision and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three- member panel [Members Fanning, Brown, and Jenkins]. 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 the brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner) ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby adopts as its Order the Order recommended by the Trial Examiner, and orders that the complaint herein be, and it hereby is, dismissed in its entirety. 'We adopt the Trial Examiner 's conclusion that the complaint herein should be dis- missed. In our opinion , the evidence on the record falls short of establishing that Williams was in fact acting in his capacity as steward when he engendered the "unrest" among the employees leading to Anderson 's discharge. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE This case, heard in Minneapolis , Minnesota, on January 25 and 26, 1965,1 before Trial Examiner Frederick U. Reel, pursuant to a charge filed the preceding October 7 'All other dates herein refer to the year 1964 , unless otherwise noted 152 NLRB No. 102. 888 DECISIONS OF, NATIONAL LABOR RELATIONS BOARD and a complaint issued November 17, presents the question whether Twin City Carpenters District Counsel of the United Brotherhood of Carpenters and Joiners of America, AFL-CIO, herein called the Union , caused or attempted to cause August Cederstrand Company, herein called the Company , to discharge the Charging Party, Archie L. Anderson , because of Anderson 's lack of union membership . Upon the entire record in the case, including my observation of the demeanor of the witnesses, and after due consideration of the contentions expressed by General Counsel in his brief and by Respondent's counsel in oral argument , I make the following: FINDINGS OF FACT 1. THE EMPLOYER AND THE LABOR ORGANIZATION INVOLVED The Company, a Minnesota corporation engaged as a general construction con- tractor, annually obtains in excess of $50,000 worth of materials from outside the State, and during the year preceding the hearing furnished services valued in excess of $100,000 each to such large interstate concerns as Chrysler Corporation and General Mills. I find that the Company is engaged in activities affecting commerce within the meaning of Section 2(6) and (7) of the Act. The Union is admittedly a labor organization within the meaning of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICE Archie Anderson, a carpenter who was expelled from the Union and is denied membership therein for reasons unrelated to the payment of dues or initiation fees, was hired by the Company on Wednesday , September 30, for work on a school con- struction job at Savage, Minnesota , a suburb of Minneapolis . Anderson reported for work the next day, Thursday, October 1 . He worked that day and also on Octo- ber 2, but he was discharged late on October 2 . The record is clear that the Company discharged Anderson because of difficulties arising out of his lack of union member- ship. The critical question in this case , however, is whether the Union or its agents engaged in activity which caused the Company to take this action . Determination of this issue requires a fairly detailed statement of the events of October 1 and 2. When Anderson arrived at the job on October 1, he showed to both Harry Williams, the job steward for the Union , and to Lowell Zube, the Company 's job superintendent, a copy of an affidavit which the Union had filed in Federal district court in connection with Anderson's suit to set aside his expulsion from the Union . This affidavit, dated March 3 , 1963, and signed by Herbert Kortz, then secretary of the Union, recited inter alia that the Union's rules prohibiting union carpenters from working with nonmembers had been modified by the National Labor Relations Act, and that "offi- cers and agents of the [Union] have been effectively informed not to in any way attempt to prevent Archie Anderson from working on any carpenter job ...... The affidavit also goes into several other matters apparently germane to the proceeding in which it was filed; it covers six legal-size pages, double-spaced . Zube quite understandably did not accept Anderson's proffer of the affidavit, but Harry Williams, the union steward, looked at the affidavit although he did not read its entire contents. Williams promptly telephoned Peter Woida, who had succeeded Kortz as secretary of the Union , and advised Woida that Anderson was at work on the job. Woida replied that he could do nothing about it. That morning both Williams and Anderson went to work. During the morning of October 1, Williams worked with another carpenter , Harvey English . Williams observed that he might not be on the job very long. When Eng- lish asked the reason, Williams replied that either he or Anderson would have to go, as Anderson did not have a union card . During that morning Williams also men- tioned to employees in other crafts that a man was on the job who was not a union member. During the lunch period that noon Williams asked Anderson to let him see the affidavit again . Anderson replied : "I showed it to you once ; I am not telling you anything more . You go and do as the District Council tells you to do, and I am not telling you anything." Williams angrily replied that he was leaving the job and that he would not work with a nonunion man. Repeating these statements in a loud voice, Williams walked toward his car, but Zube , who came up at that time, called after him, "Why are you leaving? You have to have a reason . Stick around , stay around." Williams came back about 15 minutes later and worked the rest of the day, as well as the following day, near the end of which , as noted above , the Company discharged Anderson. TWIN CITY CARPENTERS DISTRICT COUNCIL, ETC. 889 During the 2 days of Anderson's employment , his presence on the job resulted in considerable discussion and unrest among the employees , and a consequent loss of efficiency and of production . Job Superintendent Zube reported this matter by tele- phone on two occasions to one Reuben Swanson, an estimator, at the company office. On Thursday he advised Swanson that one of the men was threatening to walk off the job because of Anderson, and on Friday he told Swanson that he feared some of the plumbers might "take a vacation" because of Anderson . Swanson passed Zube's reports on to Allen Cederstrand , a company officer, and after some discussion they decided to discharge Anderson . According to Cederstrand, he feared that the employees of the subcontractors , such as the plumbers and electricians , would not work if Anderson remained on the job. The foregoing facts, stripped to their essentials , establish that Anderson lost his job because the Company feared labor trouble with various crafts would result from the continued employment of a nonmember of the Union. Aside from the actions of Union Shop Steward Williams no persons connected in anyway with the Union said or did anything to cause Anderson's discharge. Williams, although he did not ask any carpenter or any other employee to walk off the job, did make the fact widely known among the employees on the job that Anderson was not a union member and that Williams would not work with him. The question is whether the Union is responsible for Williams' actions, for it is clear that Williams caused or attempted to cause the unrest which led to the discharge , and it is also clear that Williams was motivated by Anderson's lack of union membership. On this record, however, I cannot find that the Union was responsible for Williams' actions. He acquired his position as shop steward on this job because he was the first carpenter hired for it. Had he quit the job another steward would have been named. He did not rely on his position as steward in voicing his displeasure over Anderson's employment. He did not urge any other employee to leave the job, except as such urging may have been implicit in his publicizing the fact of Anderson's nonmember- ship . Williams did not threaten any carpenter with a fine or with any other action of any sort for working on the job with Anderson. The Union was, of course, liable for acts done by Willaims in his capacity as steward. But it is not liable for actions of Williams which he committed in an individual capacity rather than as shop steward. See Building and Construction Trades Council of Tampa and Vicinity, AFL-CIO; et al. (Tampa Sand and Material Co.), 132 NLRB 1564, 1568-1569. In that case the Board found no union liability for the conduct of Shop Steward Edwards, who walked off the job rather than handle nonunion products, but the Board held the union liable for the conduct of Shop Steward Reed, who threatened a construction superintendent that the carpenters would walk off if nonunion goods were used. In the instant case, in my view, Williams' conduct more closely resembles that of Edwards than that of Reed. General Counsel relies on Harry Paul Tiner, d/b/a Seago Construction Company, 141 NLRB 872, but in that case and in the other Board cases cited therein the steward, for whose conduct the union was held liable, took action in his capacity as steward, either in threatening a walkout or demanding a discharge . In this case Williams uttered no threats or demands except to indicate that , like Edwards in the Tampa case, he would not work under nonunion conditions. To be sure, Williams made no secret of his views, but this again is comparable to Edwards who "told some of the other carpenters that he was leaving but he did not ask them to go with him, and none of the other carpenters stopped work" ( 132 NLRB at 1369). Of course, in Tampa the violation alleged was inducing or encouraging a strike, whereas here the alleged violation is causing or attempting to cause a discharge . But in this case as in that, "To hold that a steward may not walk off the job because of his own unwilling- ness to handle nonunion products [or work with a nonunion man] without fixing a responsibility for an unfair labor practice upon his union is to foreclose the steward, simply by reason of his office, from all individual freedom of action ." Tampa Sand and Material Co., supra. In this case Williams not only walked off the job, but he also publicized Anderson 's lack of union membership . This, too, however, he did in his individual capacity ; indeed, from my observation of Williams and from his testimony, I have no doubt that he would have been just as vocal and forthright in this matter had he not been the union steward , a post he filled on this job solely because of job seniority. Nothing in the Union's rules directs or authorizes a steward to spread the word among other employees that a nonmember is employed . His duty under those rules is to make reports to the District Council. 890 DECISIONS OF NATIONAL LABOR RELATIONS BOARD General Counsel relies on provisions in the Union's rules under which members who work with nonmembers are subject to fines. The Union represents that it no longer enforces any such rules which contravene the Act. Nothing in this record suggests that Williams threatened to invoke that rule; on the contrary, English although he testified "there was a chance of being fined for being there" also testified that Williams did not threaten him with a fine or ask him to leave the job. General Counsel relies on certain other episodes as establishing that the Union "actively fomented action against Anderson." Some 2 or 3 years before the events with which we are primarily concerned, the Union removed certain stewards who had circulated petitions protesting Anderson's expulsion from the Union. This establishes ,animosity to Anderson, which the Union does not deny, but sheds no light on whether Williams' 1964 conduct should be considered as performed in his capacity as steward. After Anderson's discharge by the Company he obtained employment on a job run by the Antler Company. While he was at work there, a business representative of the Union remarked to him: "I suppose I will get shot for talking to you. They got everyone so scared they are afraid to talk to you. They told me about the affidavit Kortz had signed." While Anderson was at work on that job, one Blanda, a "roving superintendent" for Antler, asked if he had a union card, observed that "All of a sudden we are having a lot of union troubles," and asked Anderson to speak to the company estimator, one Jurek. The latter told Anderson that he was to be dis- charged because of his nonmembership in the Union . Anderson thereupon stated his position under the law , and after a conference between Anderson and the Com- pany's president, Anderson continued to work until he left the Antler job in normal course. Nothing in this sequence of events suggests any illegal action by the Union. The record does reveal that at this time a number of business agents for various crafts, including the carpenters, checked the cards of employees at another Antler project at Hastings, Minnesota, and in the course of so doing mentioned that Antler had hired a nonunion carpenter, Anderson, at another job. The carpenter foreman at Hastings mentioned this matter to Blanda, thereby setting in motion the train of events described above. There is no showing in the record that any union representative expressed to any Antler representative any intention to interfere with Anderson's employment. Finally, General Counsel relies on testimony that at a steward 's meeting nearly 2 months after Anderson's discharge from the Company, and while he was working at the Antler job, a union official responded to a steward inquiry as to what to do about Anderson by admonishing the stewards to treat Anderson as they would any man without a card. The testimony is sharply contradicted. As the event followed long after the discharge which gave rise to the sole unfair labor practice alleged in this proceeding, I find it unnecessary to resolve the credibility issue. Even if made, the remark would shed no light on whether Williams was acting in his private capacity or as a steward when he spread the word 2 months earlier that Anderson was a non- member. In the event Anderson' has further difficulties on the job of the type reflected here, however, the question whether the stewards were advised as alleged above may become material. In short, I find on this record that although the Company discharged Anderson because of curtailed production arising out of disaffection among the employees because of his want of union membership, and although Union Shop Steward Harry Williams played a substantial role in advising the employees of Anderson's employ- ment and his nonmembership, Williams did so in an individual capacity, and not in the exercise of his duties as shop steward. It follows that the Union is not liable for the acts of Williams which led to the discharge. CONCLUSIONS OF LAW 1. The Company is engaged in activities affecting commerce within the meaning of the Act. 2. The Union is a labor organization within the meaning of the Act. 3. The Union has not engaged in the unfair labor practices alleged in of the complaint. RECOMMENDED ORDER The complaint herein should be, and hereby is, dismissed