Loc. # 42 (Catalytic Construction Co.)

916 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Local # 42 of the International Association of Heat and Frost Insulators and Asbestos Workers, AFL-CIO (Catalytic Construction Company) and Marshall Persinger, An Individual. Case 4-CB-1243 May 23, 1967 DECISION AND ORDER BY MEMBERS BROWN, JENKINS, AND ZAGORIA On December 19, 1966, Trial Examiner Frederick U. Reel issued his Decision in the above-entitled proceeding, finding that Respondent had not engaged in the unfair labor practices alleged in the complaint 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 and a supporting brief, and Respondent filed a brief in rebuttal. 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. The Board has reviewed the rulings of the Trial Examiner 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 briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations 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 Recommended Order of the Trial Examiner and hereby orders that the complaint herein be, and it hereby is, dismissed in its entirety. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE FREDERICK U. REEL, Trial Examiner: This proceeding, heard at Wilmington, Delaware, on October 17, 1966, pursuant to a charge filed the preceding March 16, and a complaint issued July 29, presents questions as to whether the Respondent, herein called the Union, has violated Section 8(b)(1)(A) and (2) of the National Labor Relations Act, as amended, in administering contracts providing for an exclusive hiring hall. Upon the entire record, and after due consideration of the briefs filed by General Counsel and by the Union, I make the following: FINDINGS OF FACT I. THE LABOR ORGANIZATION AND THE EMPLOYERS INVOLVED The Union, a labor organization within the meaning of 164 NLRB No. 123 Section 2(5) of the Act, represents asbestos workers in the construction industry in the State of Delaware , and has contracts with a number of construction companies in the area, at least one of whom , Catalytic Construction Company, a Delaware corporation , performs services valued in excess of $50,000 outside the State , and is an employer engaged in commerce within the meaning of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES A. The Hiring Procedures Set Forth in the Contracts The Union's contracts with the various construction companies provide that the employer shall obtain employees through the Union, and shall not hire directly unless the Union has failed to refer the required number of employees within 48 hours after the employer requested them. The employers reserve the right to reject any applicant for employment. The contracts further provide that union members hired thereunder shall retain their membership while employed, but contain no other provision requiring union membership. The hiring procedures, set forth in sections 3 and 4 of article VII of the contracts, read as follows: 3. The Union shall select and refer applicants for employment without discrimination against such applicants by reason of membership or non- membership in the Union and such selection and referral shall not be affected in any way by rules, regulations, by-laws, constitutional provisions or any other aspect or obligation of Union membership policies or requirements. All such selection and referral shall be in accordance with the following procedure. 4. The Union shall maintain a register of applicants for employment established on the basis of the groups listed below. Each applicant for employment shall be registered in the highest priority group for which he qualified. GROUP A. All applicants for employment who have four or more years' experience in the trade, are residents of the geographical area falling within the jurisdiction of the Union and who have passed a journeyman's examination given by Local 42. GROUP B. All applicants for employment, who have four or more years' experience in the trade, are residents of the geographical area falling within the jurisdiction of the Union and who have passed a journeyman's examination given by any duly constituted Local Union of the International Association of Heat, Frost and Asbestos Workers and who have been employed for a period of at least one year in the last four years under a collective bargaining agreement between the parties to this addendum. GROUP C. All applicants for employment who have four or more years' experience in the trade and who have passed a, journeyman's examination given by a duly constituted Local Union of the International Association` of Heat, Frost and Asbestos Workers. GROUP/6 All applicants for employment who have worked at the trade for more than four years. GROUP E. All applicants for employment as LOC.# 42 (CATALYTIC CONSTRUCTION CO.) 917 Improvers and who are residents of the geographical area falling within the jurisdiction of Local 42. GROUP F. All other applicants for employment as improvers. B. The Practical Operation of the Hiring Provisions The hiring hall and classification system, described above, has been in effect since 1963, and is administered by the Union's business agent. The present business agent, Theodore W. Ryan, testified that all applicants for employment must sign the registration book at his office, and do so anew each time they are out of work. He in turn maintains lists of applicants by classification (group A, group B, etc.) and these lists, together with the hiring provisions quoted above, are posted in the hall outside his office. When Ryan receives a request for employees, he fills it, if possible, from the class A men registered and unemployed, and if that category is exhausted from class B men, or in other words from residents in the area who have passed either this Union's or another local's journeyman examination. After those classes are exhausted, Ryan will telephone to business agents of other locals in cities such as Baltimore, Philadelphia, Washington, and other cities in the area to advise them of the openings for class C men. He testified that if any of the class D men are present in the hiring hall he will refer them to jobs before calling his fellow business agents, but that he does not normally look up class D men unless they are actually in the hall at the strategic moment. According to Ryan, of the 80 class D men in his registration book, only about 5 left telephone numbers. He remembered calling two such men in February 1965, but none since. The class C men report to the union hiring hall before being sent to the jobsite, and normally sign the registration book, but on occasion to save time Ryan will print their names in the book after they have left the hall and are en route to the job. The class A men are all members of the Union. This membership consists of approximately 95 mechanics or journeymen and approximately 20 improvers. An improver becomes a journeyman by passing the Union's examination after serving 4 years as an improver. The examination is authorized in each individual cafe at a union meeting on motion duly made and seconded and passed by the members attending. An examining board is thereupon created which goes to the place where the improver is employed (or, if the job has terminated, to where he was last employed), inspects his work, confers with the employer, and determines whether the improver is qualified to be a journeyman. Since 1963, when this system went into effect, the Union has examined 15 improvers and found them satisfactory; no one has "failed" the "examination." The class B men are all members of other locals of the Union's International, and are "travellers," men who have obtained cards from their locals attesting their membership and authorizing them to work outside their locals' jurisdiction. The class C men are also members of other locals with the exception of one Kelly, who was placed in class C without being required to pass an examination as the result of a settlement of a charge brought by Kelly against the Union. No class D man has ever taken an examination, and hence no one has moved from class D to a higher classification. According to Ryan, if a class D man asked for an examination at an appropriate time, the Union "would have to give it to him." The only class D man ever to request such an examination was the Charging Party, Marshall Persinger, under circumstances described below. C. Persinger's Efforts to Obtain Employment Persinger, until February 1965, had enjoyed intermittent employment as an asbestos worker on union jobs in the Wilmington area for several years, and neither he nor the Union's business agent had ever heard any criticism of his work. He was not a member of the Union or of any other local of the Union's International , and had not as of the fall of 1965 taken or passed any "examination" at the hands of the Union or any of its sister locals, but the Union on several occasions had given him referral slips, pursuant to which he was hired . In February 1965, Persinger was laid off by the Catalytic Construction Company, and he went to the hiring hall where he signed the registration book. He received no further job referrals , despite his repeated inquiries at the hiring hall, although , during this period of Persinger's unemployment , Ryan had on several occasions called business agents of other locals to furnish him with class C men. Persinger was carried on the hiring hall lists as a class D man. He testified , however, that he was totally unaware of the classification system until in August 1965 on one of his visits to the hall Ryan told him that there was no work for men in Persinger's "class." Persinger then inquired of his brother, a union member and a class A man , and learned about the system . Persinger then wrote the Philadelphia office of the National Labor Relations Board, and at the suggestion of that office requested the Union to give him an examination so that he could qualify for class A. This, according to Persinger , was the first time he had heard of such an examination . The Union did not reply to his request for an examination. Ryan testified that the matter was discussed at the union meeting , and the members decided not to authorize examination as Persinger was not "even working with our local or through our local"; he had not been so engaged for several months. Ryan also testified that Persinger was unemployed at the time, and Persinger testified that he had not worked as a pipe coverer in Delaware since February 1965. After several more months of waiting for work , Persinger moved out of the area. According to his testimony he left his Delaware telephone number with Ryan ; Ryan denied this, but I credit Persinger , who further testified that he had left word with the people at his Delaware number as to where he could be reached. D. Concluding Findings To establish a violation in the case, General Counsel must show by a preponderance of evidence that the Union discriminated in favor of union members in the operation of its hiring hall. Local 357, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (Los Angeles-Seattle Motor Express) v. N.L.R.B., 365 U.S. 667. This burden, moreover, is not discharged by showing that the Union administers an examination before conferring a preferred referral status. Section 8(f)(4); Local 367, IBEW (National Electrical Contractors Assn.), 134 NLRB 132, 135. General Counsel urges that two facts in this case establish that the Union discriminated in favor of union members. 918 DECISIONS OF NATIONAL LABOR RELATIONS BOARD First, General Counsel suggests that when class A and B men are unavailable (presumably because already employed) the Union's business agent when faced with an employer's request for men should meet this request by using people already registered in the hiring hall and should not attempt to locate class C employees by telephoning union business agents in other communities. Although this contention has a substantial equitable appeal, its practical effect would be to reverse the class C and class D groupings in the contract. Once it is conceded, however, that the "examination" criterion is permissible (see Local 367, IBEW, supra), there can be nothing inherently illegal in the Union's seeking to find class C men who have passed the examination before referring out class D men who have not. The class D men have the "protection" afforded by the requirement that the Union meet an employer's requests for men within 48 hours, but if within that period the Union is able to locate class C men and have them register at the hiring hall, I find no proof of unlawful discrimination in the Union's doing so. I cannot avoid harboring the suspicion that if a class D man were a union member, the Union would call him in preference to seeking class C men from other localities, but this suspicion is nothing more than that which the Supreme Court held insufficient to justify a finding of discrimination in Local 357, Teamsters, supra. Second, General Counsel urges that the Union has discriminated in not permitting Persinger to take the examination . It is probable that he could pass the examination , as his experience exceeds that of the "improvers," none of whom failed to pass. But I can find nothing inherently improper or discriminatory in the Union's requirement that the "examination" consist of inspection of a man's actual performance on a job. This requirement has been applied, it is true, to permit such inspection even after a man has left the job being inspected, but apparently the requests for inspection are made at a time when the work is in progress . The system under which the "examination" is authorized by a vote at a union meeting may be questioned, but the testimony in the record affirmatively establishes that the Union would have permitted Persinger to take the examination if he had made a timely request. A class D man can only make such a request when employed, and the operation of the system limits his employment, but on this record Persinger had employment from time to time and has only himself to blame for not being aware of the classification and examination system, which was the subject of lists and contracts posted at the hiring hall which Persinger visited on several occasions. In this connection it should be noted that the record suggests that the Union would not have been willing to "examine" Persinger based on work not done pursuant to union contracts. But the record does not establish that Persinger had worked on nonunion jobs, and indeed suggests the opposite. A showing that the Union refused to examine a man based on work performed on nonunion jobs might well warrant a finding that the Union was using the "examination" as a device to keep out nonunion men rather than as a legitimate test of competence. But on this record, I cannot find that General Counsel has carried his burden of proof in his respect. CONCLUSION OF LAW The Union has not engaged in the unfair labor practices alleged in the complaint. RECOMMENDED ORDER The complaint herein should be, and hereby is, dismissed.