Millwrights Local 2232

MILLWRIGHTS LOCAL 2232 849 Millwrights Local 2232, affiliated with the United Brotherhood of Carpenters and Joiners of Amer- ica, AFL-CIO (M. W. Kellogg Company)' and Russell J. Harrington. 23-CB-675 July 26, 1967 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND BROWN This proceeding, with the General Counsel and the Respondent represented, was heard by Trial Examiner John F. Funke, at Houston, Texas, on November 9, 1966, and at the conclusion of the hearing the parties were given the opportunity to file briefs. Briefs were receivedJanuary 13,1967. Upon the entire record in this case and from my obser- vation of the demeanor of the witnesses while testifying, I make the following: FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF THE EMPLOYER On January 27, 1967, Trial Examiner John F. Funke issued his Decision in the above-entitled proceeding, finding that the Respondent had not en- gaged in certain unfair labor practices, and recom- mending that the complaint be dismissed, as set forth in the attached Trial Examiner's Decision. Thereafter, the General Counsel filed exceptions to the Trial Examiner's Decision and a supporting brief, and the Respondent filed a reply brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional 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 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 and the entire record in this case, including the exceptions and briefs, 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 orders that the complaint herein be, and it hereby is, dismissed in its entirety. 1 The caption of this case is corrected to include the name of the Em- ployer. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE JOHN F . FUNKE, Trial Examiner: Upon a charge filed May 5, by Russell J . Harrington, as Individual, against Millwrights Local 2232, affiliated with the United Brotherhood of Carpenters and Joiners of America, AFL-CIO, herein the Millwrights or the Respondent, the General Counsel issued complaint alleging Respondent violated Section 8(b)(1)(A) and (2) of the Act. Respondent's answer denied the commission of any un- fair labor practices. 1 Unless otherwise noted all dates refer to 1966. 2 See Article IV, Section 3, of the agreement dated July 19, 1965, ex- pinng July 1, 1968 (G.C. Exh 4). The Millwrights' agreement with the 166 NLRB No. 102 M.W. Kellogg Company, herein the Employer, is a Delaware corporation having its principal place of busi- ness at Wilmington, Delaware, and is engaged in industri- al construction throughout the United States. The con- struction project involved in this proceeding is being per- formed for Sinclair-Koppers at Pasadena, Texas. During the calendar year 1965 the Employer had purchased goods and materials valued in excess of $50,000 from companies located outside the State of Texas which goods and materials were shipped directly to Pasadena from points outside the State of Texas. The Employer is engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED The Millwrights is a labor organization within the meaning of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Facts In April 1966,1 construction at Sinclair-Koppers had reached the point where it was necessary to hire mill- wrights. At this time there was in effect an agreement between the Employer and the Millwrights which per- mitted open hiring.2 Under that section of the agreement entitled "Working Conditions" (incorporated as a part of the agreement) was a Section 9, subsection (a), which read: The Millwrights Business Agent shall appoint stewards and shall notify the Contractor of such ap- pointments. The bylaws of the Carpenters District Council of Houston and Vicinity, of which the Millwrights was a member, which were binding upon its members provided under "Stewards Authority and Duties," Section 39, (J): No member shall be allowed to work on any job without a steward. On or about April 18 Woodrow (Red) Legg was hired as foreman of the millwrights to be employed on the job by H.P. Goodman, resident construction manager for the Employer. Shortly after this hiring, Goodman was visited by Jack O. Fountain, business agent of the Millwrights, who was told that Legg had already been hired as Construction Employer's Association of Texas is set forth commencing at page 37 of G.C. Exh. 4 850 DECISIONS OF NATIONAL LABOR RELATIONS BOARD foreman. Fountain commented that Legg would hire all his own men but voiced no opposition to nor enthusiasm for the appointment. Fountain did state he wanted to send his own man out as steward. (This is Goodman's testimony, substantially uncontradicted.) About April 20 or 21, according to Russell Harrington, he received a call from Legg offering him employment as did his brother, Richard, Forrest Ratcliff, and Sam Griffen 3 On April 25 the four dropped by the union hall to pick up their referral slips which were made out by Fountain who told them there was no steward on the job. All four were aware of Section 39(J) of the bylaws, above. Nevertheless they proceeded to the jobsite where they met Goodman. Goodman told them they could not go to work because there was no steward on the job and said Fountain had told him he would have to put up a picket line if they went to work.4 They returned to the jobsite again on April 26, filled out the necessary employment forms but, since no steward had yet been appointed, they left On May 3, Harrington received a message from Goodman through Ratcliff to call Fountain. Fountain told him that he was appointing him temporary steward at Sinclair-Koppers until another millwright was hired. The Harringtons and Ratcliff5 reported to work the next day and they were still working and Russell Harrington was still acting as steward at the time of the hearing So much for the employees directly involved Returning to the parties and dispute between the Em- ployer and the Millwrights, Fountain testified that after the men left the hall with their referral slips on April 25 he called Goodman and told him he was in violation of the contract and that he would be subject to a work stoppage. (The only dispute in this proceeding was that over the ap- pointment of the steward.) Goodman told Fountain that he did not agree and that he (Fountain) was in violation of the contract On April 26 Goodman sent Fountain a tele- gram (G.C Exh. 2) which read: We again this date insist you appoint a steward on this project which we are building for Sinclair-Koppers-the steward to be appointed from the men you have previously given referral to this job in accordance to section 9, paragraph A, page 48, as called for in the local contract. No immediate reply was made to this telegram. Fountain testified that some time later in the week (April 25 was a Monday ) he received a call from Finley C. Allen, vice president of the International, who had received in turn a call from Leo Walsh, representing the Employer in labor relations. Allen suggested that Foun- tain call Goodman and suggest to him that he (Fountain) appoint a temporary steward from among the four mill- wrights hired, and that the next man hired would be a steward appointed by Fountain. On the next day (identified as Friday, April 29) J.O. Mack of the Interna- tional Executive Board arrived in Houston, and he and Fountain discussed the suggestion with Goodman. Good- man reserved, but Fountain testified that on May 3 Goodman called him to say the Employer was agreeable6 and Fountain on the same day replied by a letter (G C. Exh. 5), which stated: In reference to our telephone conversation, Mr. Rus- sell Harrington, will be Temporary Steward on your job until the next Millwright is hired then a Steward will be placed and appointed on your job by the Mill- wright Local by the Business Representative as agreed. This terminated the dispute.7 B. Conclusions The initial task is to divorce the issue which was tried herein, i.e., the construction of Section 9(a) of the con- tract, from the issue raised by the pleadings, i.e., were the union members threatened and discriminated against in violation of Section 8(b)(I)(A) and (2) of the Act. Two aspects of the issue involved are self-evident. First, there was nothing unlawful in Section 9(a) of the contract between the Employer and the Millwrights. It is a prevalent practice in the construction industry for unions to insist upon contractual agreement with the em- ployers relating to the appointment of master mechanics, foremen, and stewards. The nature of the industry, which requires work at various jobsites often remote from the situs of the union, requires such clauses for effective po- licing of the contracts. Secondarily there was nothing un- lawful in the provision of the bylaws requiring that mem- bers shall not work unless a steward has been appointed. Corollary to this requirement, which would be a nullity without some authority for enforcement, is the right to fine or otherwise discipline union members for diso- bedience." This right was expressly reserved to labor or- ganizations by the proviso to Section 8(b)(l)(A).5 It is only when the Union seeks to engraft upon this exception by seeking to affect the member's status as an employee 3 Griffen does not appear in the complaint He obtained another job referral shortly after April 25 ° Goodman did not recall making this statement but testified that Foun- tain told him he might have to put up a picket line Goodman also testified that work was available if the men wanted to work S The record refers to Ratcliff as F A Adler when Ratcliff was called a witness There is no mention of any F A Adler in this proceeding and the testimony clearly indicates that it was Ratchff who was testifying The record is accordingly corrected to change the name Adler to Ratcliff rc Goodman testified that to the best of his recollection Fountain called him to tell him he was appointing Harrington steward and that Fountain confirmed this in a letter (see below) The implication from Goodman's testimony is that there was no agreement on the appointment of a steward when more millwnghts were hired It is a fact that at one time at least 12 mtllwnghts were working on the job but Harrington remained as tempo- rary steward 7 In testimony totally irrelevant to the issue, the General Counsel at- tempted to show, through Fred W Lucas, former secretary-treasurer of the District Council, that the Millwrights had attempted to secure the sub- stitition of the language of its bylaws, as amended, which gave the busi- ness representative the authority to "appoint and place all stewards on job" for the language of Section 9(a) of the contract The contractors refused Apart from this, all that was established by the testimony of Lucas was that he and Fountain were bitter political enemies, which may provide the clue, otherwise missing, as to why the charge herein was filed " The contention that the right of a union to punish its members for disregarding a working rule was restricted to explosion and did not include the right to impose fines was rejected by the Board in Local 283, UAW (Wisconsin Motor Corp), 145 NLRB 1097 Section 8(b)(I ((A) provides (b) It shall be an unfair labor practice for a labor organization or its agents- (1) to restrain or coerce (A) employees in the exercise of the rights guaranteed by section 7 Provided, That this paragraph shall not im- pair the right of a labor organization to prescribe its own rules with respect to the acquisition or retention of membership therein MILLWRIGHTS LOCAL 2232 851 that it exceeds the permissive limitations of the proviso.'0 Herc there was no such attempt. Despite the contrary contention of the General Counsel there is no evidence that the members were not permitted to work. They were issued referral or introductory cards and sent to the jobsite where, according to Goodman,-work was availa- ble and where they could have gone to work. It was made clear that they would be subject to discipline for violating the bylaws. This was lawful under the proviso above set forth. (See Automobile Workers, UAW, supra, for full dissertation.) As to violation of Section 8(b)(2) there is no evidence to support the complaint. There was no request made to the Employer to refuse to hire the union members for the purpose of encouraging or discouraging union member- ship. Assuming that there was a threat of the establish- ment of a picket line, that threat was not directed to the employment of the members but to the failure on the part of the Employer to live up to what the Millwrights be- lieved were the terms of the contract with respect to the appointment of a steward." The four members referred to the Employer were members in good standing and when the contract dispute was resolved they were em- ployed so it cannot be said that the Millwrights were dis- criminating against them as individuals. Had the Mill- wrights called a strike over its contract dispute the strike would likewise have resulted in unemployment for the members had they joined it. To accept the General Coun- sel's argument, would reduce the authority of a union to enforce its rights under a contract, whether putative or no, to the exercise of moral persuasion upon its mem- bers.12 In conflicts stemming from the often bitter disputes between labor and management a sterner discipline is required to equalize the combat. Further discourse on so rudimentary a principle of law runs only the risk of reaching the confusion as to the theory of the case which characterized the hearing. Since no more needs to be said, no more will be. RECOMMENDED ORDER It is recommended that the complaint be dismissed in its entirety. 10 A second exception, not germane to the instant case, occurs when a member resorts to Board processes to complain of union infringement of his statutory rights (the right to file a charge) Local 138, Operating En- gineers (Charles S Skura), 148 NLRB 679. Cf Tawas Tube Products, Inc, 151 NLRB46. 1} Fountain's reasons for insisting on this right were not empty ones. He wanted a "strong steward" who would insist that the jurisdictional claims of the Millwrights would be protected against encroachment by other craft unions. The history of jurisdictional disputes in the construction industry offers proof that his fears were not chimerical 12 The General Counsel apparently argues that Fountain was in error in his interpretation of the contract , an issue again totally immaterial. It must be assumed that in any dispute over the terms of a contract one party or the other will eventually be found to be in error but this hardly precludes the parties from employing the usual economic sanctions in their efforts to prevail. The Employer, it might be noted, did not seek arbitration, file charges under Section 8(b)(3), nor seek damages under Section 301