United Construction Co.

United Construction Company and United Brother- hood of Carpenters and Joiners of America, Local Union No. 171, AFL-CIO and Manuel Encinas, an Individual. Cases 8-CA-4635 and 8-CB-1145 January 5, 1968 DECISION AND ORDER By CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND ZAGORIA On September 22, 1967, Trial Examiner Paul E. Weil issued his Decision in the above-entitled proceeding, finding that the Respondent Employer 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 attached Trial Examiner's Deci- sion. He further found that the Respondent Union had not engaged in unfair labor practices and recommended that the complaint in Case 8-CB-1145 be dismissed. Thereafter, the Respond- ent Employer filed exceptions to the Trial Ex- aminer's Decision, and a supporting 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, the exceptions, the brief, 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 Recom- mended Order of the Trial Examiner and hereby,or- ders that the Respondent, United Construction Company, Youngstown, Ohio, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order.2 IT IS FURTHER ORDERED that the complaint in Case 8-CB-1 145 be, and it hereby is, dismissed. ' The Respondent Employer has excepted to the credibility findings made by the Trial Examiner. It is the Board's established policy not to overrule a Trial Examiner's resolutions with respect to credibility unless the clear preponderance of all the relevant evidence convinces us that the resolutions were incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544, enfd 188 F.2d 362 (C.A. 3) We find no such basis for disturbing the Trial Examiner's credibilty findings in this case. 2 The address and telephone number for Region 8, appearing at the bot- tom of the notice attached to the Trial Examiner's Decision, is amended to read- Federal Office Building, Room 1695, 1240 East 9th Street, Cleveland, Ohio 44199, Telephone 522-3738. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE PAUL E. WEIL, Trial Examiner: Charges having been filed by Manuel Encinas, an individual, against United Construction Company, hereinafter called Respondent Employer, and United Brotherhood of Carpenters and Joiners of America, Local Union No. 171, AFL-CIO, hereinafter called Respondent Union, the General Coun- sel by the Regional Director for Region 8 issued an order consolidating the cases and a consolidated complaint thereon, alleging that Respondents had engaged in unfair labor practices affecting commerce within the meaning of Sections 8(a)(1) and (3) and 8(b)(1)(A) and (2) and Sec- tion 2(6) and (7) of the National Labor Relations Act, as amended. In their duly filed answers both Respondents conceded certain facts but denied the commission of any unfair labor practices. All parties appeared at the hearing through their attor- neys and the Charging Party in person. All were given full opportunity to examine and cross-examine witnesses, to introduce relevant evidence, to argue orally after present- ing their evidence, and to file briefs. Respondent Union's counsel argued orally. The General Counsel filed a brief. Upon the entire record of the case, including the briefs of counsel, and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT EMPLOYER Respondent Employer, an Ohio corporation operating as a general contractor in Youngstown, Ohio, annually receives construction materials valued in excess of $50,000 directly from points located outside the State of Ohio. Respondent Employer is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Respondent Union is now and has been at all times material a labor organization within the meaning of Sec- tion 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES The facts herein are very simple. Manuel Encinas had been employed prior to October 1966 as a carpenter by Respondent Employer. At that time he quit his employ- ment and went to California, taking a transfer from Respondent Union of which he had been a member. Late in January, Encinas returned to Youngstown and called at the union office. Encinas offered his union book to become a member of the Local again2 and told Busi- ness Representative Moore that he wanted to secure em- ployment in the area. Moore advised him that he could not deposit his book in the Local until the next regularly scheduled meeting, on February 10, to which Encinas agreed but stated that if he secured employment he wanted a work permit. Moore agreed to this.3 All dates hereinafter are in the year 1967 unless otherwise specified 2 He had cleared it from the local union in California upon his departure from California 3 Moore did not deny this conversation but stated that he had no recol- lection of it. 169 NLRB No. 1 1 2 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Encinas then contacted Respondent Employer's Su- perintendent Frazzini for whom he had previously worked and asked for employment as a carpenter. En- cinas testified that Frazzini told him that he had no work at the moment but that a job was opening up on February 6, and Frazzini promised him employment at that time and advised him to get clearance from the Union.4 Encinas returned to the union hall and asked Moore for a work permit. Moore declined to give him a work permit, stating that he had 170 men out of work and advised En- cinas to wait until he was cleared into the Union on the first meeting of the month. A day or two later Encinas went to Frazzini and told him that he could not get a clearance from the Union. Frazzini told Encinas that he would call the union hall and talk to the business agent and straighten the matter out. On February 6 Encinas reported to the jobsite in his work clothes with his tools in the car. He spoke to Fraz- zini who asked him if he had gotten straightened out at the union hall. Encinas said that he had not, whereupon Fraz- zini told him that when he did get straightened out with the Union he should come straight to work. Encinas talked to the shop steward, Jack White, and asked him why he wasn't allowed to go to work. White denied knowledge and told Encinas that Business Representa- tive Moore had previously told him that he would have a little surprise coming on that day. On February 10 Encinas went to the union meeting and attempted to deposit his book. However, Moore in- formed him that, because two members of the executive committee were absent, the Union would be unable to consider his request to deposit his book and advised him to return at the next regularly scheduled meeting 2 weeks thereafter. On February 24 Encinas again came to the union meeting and attempted to hand his book to Moore. Moore told him to give it to the union president and En- cinas attempted to do so. The union president then ad- vised him to give his book to Moore. Encinas went back to Moore and told him that the president said to give Moore the book. At this time Moore said that he could not take the book because although this was a regularly scheduled meeting it had been called as a special meeting to enact some special business . Encinas then departed.5 In the meantime Encinas returned to the jobsite on several occasions. On each such occasion he talked to Frazzini who asked him if he had been cleared by the Union yet. Frazzini told him that anytime his book was straightened out Encinas should come straight to work.6 Richard Habeger who was Respondent Employer's working foreman was called by the General Counsel to corroborate Encinas' testimony. He was obviously a reluctant witness and I permitted the General Counsel to question him from an affidavit which Habeger admitted that he had signed and testified was true and correct to 4 Frazzini denied that he promised employment to Encinas on February 6, but admitted on cross-examination that he told Encinas to get clearance from the Union . I do not credit Frazzini 's denial. His demeanor on the witness stand was such that I find it difficult to credit any of his testimony that is not corroborated by otherwise credible testimony. He was argu- mentative and evasive on cross-examination. His testimony was at times self-contradictory and at times contradicted by an affidavit which he ad- mittedly had given to an agent of the National Labor Relations Board in the investigative stage of this matter. 5 Moore testified that he also told Encinas that he should wait until after the special meeting ended and the Union would have its regular meeting and he could be admitted. I do not credit him. I feel that it is improbable that Encinas would have waited almost 4 weeks to deposit his book in the the best of his knowledge and belief at the time he signed it. He testified that the Company had just started work on the King's Department Store project when Encinas came to the job and told him that he had talked to Frazzini and that he had a job on the project. Encinas told him that he was supposed to go to the Union to get clearance and come back to work the next day. But the next day he came back to work and said he hadn't been able to get clearance. Habeger testified that although he said in his statement, "Dino Frazzini, the superintendent, told me that Encinas had a job as soon as he had received clearance from the Union, the same day that I talked to Manuel," this statement was untrue and he had tried to reach the Examiner the same day that he gave the state- ment to tell him to change it but did not reach him. He made no further attempts thereafter. He testified that his affidavit was true in stating "I kept on asking Frazzini if Encinas had received his clearance and Frazzini had said that Manuel had not." Conclusions Although an employer and a union may enter into an agreement, practice, or arrangement under which all em- ployees are to be hired through a union hiring hall under certain circumstances,7 in the absence of such an agree- ment an employer may not lawfully condition employ- ment on the approval of the Union." The General Coun- sel complains in the alternative that Respondent Em- ployer here discharged or refused to hire Encinas because either he was refused a clearance for discriminatory reasons under a lawful hiring arrangement or, absent such an arrangement, he was refused hire by the employer because of his lack of clearance. I find no evidence on this record of a hiring arrangement between the Respondent Employer and the Respondent Union. While it is clear that Respondent's superintendent, who did all the hiring, was himself a union member and acted in accordance with the Union's constitution in requiring union members whom he hired to take their membership into the Local Union or get a permit therefrom,9 there is no showing that the Respondent Union called upon him to enforce the constitution in this regard or called upon him specifically to refuse to hire Encinas because he had not cleared through the Union. I cannot deduce an unlawful agree- ment, arrangement, or practice from the single incident of Encinas,10 and no evidence of any other incident appears. Accordingly, by requiring that Encinas secure union clearance and refusing to put him to work on his failure to do so, Respondent Employer discriminated against him in violation of Section 8(a)(3) and (1) of the Act. How- ever, I find that the General Counsel has failed to sustain the burden of proof that the action of Respondent Em- ployer in refusing to put Encinas to work was in any way caused by Respondent Union. Local and then would not have waited through the meeting to have it deposited if he had been so advised by Moore. 6 I do not credit Frazzini's denial. T National Union of Marine Cook and Stewards, 90 NLRB 1099. 8 Harper Terminal Co., 126 NLRB 659; Pinkerton's National Detec- tiveAgency, Inc., 90 NLRB 205. 1 Business Agent Moore testified that members of the Carpenters Inter- national were required under their constitution and bylaws to do one or the other. Note Local 626, Carpenters (Food Fair), 142 NLRB 1238, 1239, in this regard. 11 Local Union No. 592, Carpenters (Brunswick Corporation), 135 N LRB 999; Local 626, Carpenters (Food Fair), supra. UNITED CONSTRUCTION COMPANY In the absence of a compulsory hiring hall, the granting or withholding of clearances or work permits is an inter- nal union matter protected by the proviso to Section 8(b)(1)(A) which preserves the right of a labor organiza- tion to prescribe its own rules with respect to the acquisi- tion or retention of union membership 11 There is no evidence that Moore took any action with regard to Encinas' employment other than to refuse to issue him a work permit. The only evidence of any con- tact between the Employer and the Union herein was En- cinas' testimony that Frazzini promised to call the union, and that testimony has no probative value as evidence that Frazzini did so. Nor can I rely on Encinas' testimony that he saw a memo at the Unemployment Compensation office in which an employee of the local Bureau of Unem- ployment Compensation recounted a statement of Fraz- zini's which in turn attributed a refusal by Shop Steward White to permit Encinas to work. Such fourthhand hear- say proves nothing. I shall recommend therefore that the complaint insofar as it alleges a violation by Respondent Union be dismissed. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent Employer set forth in section I111, above, occurring in connection with the ac- tivities of Respondent Employer described in section I, above, have a close; intimate, and substantial relationship 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 Respondent Employer engaged in unfair labor practices, I will recommend that it cease and desist therefrom and take certain affirmative action in order to effectuate the policies of the Act. Having found that Respondent Employer discharged or refused to hire12 employee Manuel Encinas because of his lack of membership in Respondent Union's organization, I shall recommend that Respondent Employer offer Manuel En- cinas immediate employment on one of its jobs and that it make him whole for any loss of earnings he may have suffered by reason of the discrimination against him by payment to him of a sum of money equal to that which he would have earned in the employ of Respondent Em- ployer, from the date of the discrimination against him until his employment would have terminated for lawful reasons or until such reinstatement. The loss of earnings shall be computed in accordance with the formula set forth in F W. Woolworth Company, 90 NLRB 289, with interest thereon as computed under the formula approved in Isis Plumbing & Heating Co., 138 NLRB 716. CONCLUSIONS OF LAW 1. United Construction Company is and at all times material has been an employer within the meaning of Sec- tion 2(2) of the Act engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 11 Kaiser Gypsum Company, Inc., 118 NLRB 1576, 1581, and cases there cited 12 I see no distinction in the law under the circumstances of this case. 13 In the event that this Recommended Order is adopted by the Board, the words "a Decision and Order" shall be substituted for the words "the 3 2. Respondent Union, United Brotherhood of Carpen- ters and Joiners of America, Local Union No. 171, AFL-CIO, is and at all times material hereto has been a labor organization within the meaning of Section 2(5) of the Act. 3. By discriminating against Manuel Encinas because he was not a member of Respondent Union and in order to encourage membership in said labor organization Respondent Employer has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. 4. Respondent Union has not engaged in unfair labor practices within the meaning of the Act as alleged in the complaint. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law and the entire record in this case, it is recommended that Respondent , United Construction Company, its officers, agents, successors , and assigns, shall: 1. Cease and desist from: (a) Discharging or refusing to hire employees because they are not members of United Brotherhood of Carpen- ters and Joiners of America, Local Union No. 171, AFL-CIO, or any other labor organization. (b) In any like manner interfering with, restraining, or coercing its employees in the exercise of their right to en- gage in or not to engage in self-organization, except to the extent permitted by the proviso of Section 8(a)(3) of the Act. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Offer to Manuel Encinas reinstatement in ac- cordance with the recommendations set forth in the sec- tion of this Decision entitled "The Remedy." (b) Make whole Manuel Encinas for any loss of pay he may have suffered by reason of Respondent Employer's discrimination against him in accordance with the recom- mendation set forth in the section of this Decision entitled "The Remedy." (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards , personnel records and reports, and all records necessary to analyze the amount of backpay due and the rights of reinstatement of Manuel Encinas under the terms of this Recommended Order. (d) Notify Manuel Encinas if presently serving in the Armed Forces of the United States of his right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Train- ing and Service Act, as amended , after discharge from the Armed Forces. (e) Mail a copy of the attached notice marked "Append- ix" 13 to each employee and post copies at such places where notices are normally posted, both at its plant and on its jobs in and around Youngstown , Ohio. Copies of said notices, on forms provided by the Regional Director for Region 8 (Cleveland, Ohio), after being signed by a responsible representative of Respondent , shall'be posted Recommended Order of a Trial Examiner" in the notice. In the further event that the Board's Order is enforced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Ap- peals Enforcing an Order" shall be substituted for the words "a Decision and Order " 350-212 0-70-2 4 DECISIONS OF NATIONAL LABOR RELATIONS BOARD by it and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted, both at its plant and on its jobs in and around Youngstown, Ohio. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (f) Notify the Regional Director for Region 8, in writ- ing, within 20 days from the date of receipt of this Deci- sion, what steps Respondent Employer has taken to comply herewith.14 IT IS FURTHER RECOMMENDED that the allegations that Respondent Union engaged in unfair labor practices be dismissed. 14 In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read: "Notify the Regional Director for Region 8, in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Ex- aminer of the National Labor Relations Board and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our em- ployees that: WE WILL NOT discharge or refuse to hire em- ployees because they are not members of United Brotherhood of Carpenters and Joiners of America, Local Union No. 171, AFL-CIO, or any other labor organization. WE WILL NOT in any like manner interfere with, restrain, or coerce our employees in the exercise of their right to engage in or not engage in self-organiza- tion, except to the extent permitted by the proviso of Section 8(a)(3) of the Act. WE WILL offer to Manuel Encinas reinstatement in accordance with the recommendations set forth in the section of this Decision entitled "The Remedy." WE WILL make whole Manuel Encinas for any loss of pay he may have suffered by the discrimination against him. Dated By UNITED CONSTRUCTION COMPANY (Employer) (Representative) (Title) Note: We will notify the above-named employee if presently serving in the Armed Forces of the United States of his right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, 720 Bulkley Building, 1501 Euclid Avenue, Cleveland, Ohio 44115, Telephone 621-4465.