Carpenters District Council of New Orleans

CARPENTERS DISTRICT COUNCIL OF.NEW-ORLEANS 49 The Carpenters District Council , of New Orleans and Vicinity and Carpenters Local Union No. 1846 and Harold E. Picou , An Individual . Case 15-CB-1001 April 21, 1970 DECISION AND ORDER BY MEMBERS FANNING, BROWN, AND J ENKINS On December 11, 1969, Trial Examiner Max Rosen- berg issued his Decision in the above-entitled proceeding, finding that the Respondents had engaged in and were engaging in certain unfair labor practices and recom- mending that they cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision Thereafter, the Respondents filed exceptions to the Trial Examiner's Decision and a supporting brief The General Counsel filed a brief in support of the Trial Examiner's Decision. 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 con- nection with this case to a three-member panel The Board has reviewed the rulings of the Trial Exam- iner 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, 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 Rela- tions Act, as amended, the National Labor Relations Board adopts as its Order the Recommended Order of the Trial Examiner, and hereby orders that the Respondents, The Carpenters District Council of New Orleans and Vicinity and Carpenters Local Union No. 1846, their officers, agents, and representatives, shall take the action set forth in the Trial Examiner's Recom- mended Order trict Council of New Orleans and,Vicinity and Carpenters Local Union No 1846, herein called the Respondents or the Council and the Local, respectively.' The plead- ings raise the issues of whether Respondents violated Section 8(b)(1)(A) and (2) of the National Labor Relations Act, as amended, by certain conduct to be described hereinafter. At the conclusion of the hearing, the parties waived oral argument. Briefs have been received from the General Counsel and the Respondents, which have been duly considered. Upon the entire record made in this proceeding and my observation of the witnesses, including their demean- or while on the stand, I hereby make the following: FINDINGS OF FACT AND CONCLUSIONS I THE BUSINESS OF THE EMPLOYER Carpenter Brothers, Inc., herein called Carpenter, a Texas corporation with its principal office and place of business located in Dallas, Texas, is primarily engaged in the building construction industry. As part of its operations, Carpenter is engaged in the construction of a Sears Roebuck and Company facility in Metairie. Louisiana, and maintains an office in New Orleans, Louisiana, where it performs the administrative duties for that job This site is the only job of Carpenter involved in this proceeding. During the annual period material to this proceeding, Carpenter purchased and caused to be transported direct- ly to its Sears Roebuck and Company jobsite at Metairie, Louisiana, materials and supplies valued in excess of $50,000, which materials and supplies were received directly from points located outside the State of Louisia- na. The contract for the construction of this facility exceeds $2 million. The complaint alleges, the answer admits, and I find that Carpenter is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II THE LABOR ORGANIZATIONS INVOLVED Respondents are labor organizations within the mean- ing of Section 2(5) of the Act. ' In agreeing with the Trial Examiner's ultimate conclusion that Respondents' failure to refer Picou, Foster, and Stewart to the Sears job was discriminatorily motivated and violative of Section 8(b)(2) of the Act, we find it unnecessary to consider the Trial Examiner's alterna- tive finding that even if he accepted Respondents' explanation that the above-named individuals had not timely presented themselves for referral at the hiring table, the subsequent refusal to refer would still have been unlawful TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE MAx ROSENBERG, Trial Examiner: This proceeding, with all parties represented, was heard before me in New Orleans, Louisiana, on October 2, 1969, on com- plaint of the General Counsel of the National Labor Relations Board and an answer of The Carpenters Dis- III THE ALLEGED UNFAIR LABOR PRACTICES In his complaint, the General Counsel alleges that, on or about May 25, 1969,2 Respondents violated Section 8(b)(1)(A) of the Act by the conduct by Davy LaBorde, the executive secretary of the Council and Business Agent of the Local, which consisted of telling an employ- ee-member during a conversation about job referrals that the employee-member should "play ball" with LaBorde in an intraunion election campaign and that LaBorde would accordingly undertake reciprocal action ' The complaint which issued on August 26, 1969, is based upon charges and amended charges which were filed on June 30, 1969, and August 22, 1969, respectively, and served on July I. 1969, and August 25, 1969, respectively Y All dates herein fall in 1969 NLRB No. 11 50 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and, on the same date, threatening said employee-mem- ber with reprisals in his employment because the employ- ee-member had voted against the position which LaBorde had taken at a Local meeting. The complaint further alleges that Respondents offended the provisions of that Section on June 25 and July 3 by the conduct of Lester "Pete" Lewis, a delegate to the Council and the assistant business agent for the Local, in informing employee- members that if the latter "played ball" with Lewis in his bid for reelection to his Local office he would see to it that they received job assignments and, if they did not, they would make it rough on themselves, and in telling an employee-member that by filing unfair labor practice charges against Respondents, the employ- ee-members were making it hard on themselves. Finally, the complaint asserts that Respondents violated Section 8(b)(2) by causing Carpenter, and other employers engaged in commerce, to refuse employment to Harold E. Picou, Marlon K. Foster, and Elmer G. Stewart, by discriminatorily refusing to refer these individuals for work on equal terms with other employees for reasons unconnected with their failure to tender or pay to Respondents the periodic dues and initiation fees uni- formly required as a condition of acquiring or maintaining membership in those labor organizations. For their part, Respondents generally deny the commission of any labor practices banned by the statute It is undisputed and I find that, during the times material herein , Respondents were parties to a labor agreement with the Associated General Contractors to which Carpenter and other employers were bound, and which contained an exclusive hiring hall clause whereby employees were referred for employment with various contractors, including Carpenter, through the Local's union hall. In the operation of the hiring hall, it was the Local's practice to conduct a "Roll Call" every Monday morning at 9 a.m. Pursuant to this procedure, unemployed members were required to appear at the hall each Monday morning to register their names on an "out-of-work" list and to be assigned a referral number or, if already registered, to claim available work. This out-of-work roster was maintained by the Local's officials for making job assignments and the members were allotted priorities on the list depending upon the length of their unemployment. Thus, for example, a member who had been out of work for the longest period of time would be placed at the top of the roster with a low referral number and be accorded the first opportunity to bid on any available job opening. The Local officers would then announce the work opportuni- ties and call out the name of each man on the roster in order of out-of-work seniority until all of the available jobs were exhausted. The bidders thereupon proceeded' to a table located at the front of the hall for presentation of their membership cards to an official conducting the "Roll Call," after which the official would transcribe their names on a sheet of paper together with the work assignments which they had claimed. The procedure was completed when the transcribing officer provided the bidders with a work order to present to the employ- er's foreman or steward upon reporting for duty at the project . In the event that a member "passed" or declined to bid on the job openings available that day, either because he wished to jockey for a better position on the roster or sought to await a particular job in the future , he nevertheless would retain his out-of- work seniority on the list as well as his priority right to select a job at subsequent "Roll Calls." If a member accepted a referral , or failed to appear at a "Roll Call" without justifiable excuse , his name would be stricken from the roster. In addition to the ' Monday morning "Roll Call," the Local also scheduled out-of-work list calls on Monday afternoons and twice daily during the balance of the work week . The purpose for these "calls" was grounded in the circumstance that contractors frequently tele- phoned the hall for carpenters during the week. The men who frequented the hall during these periods would be permitted to bid for an assignment , again based upon their ranking on the out-of-work roster. So far as appears , no member suffered a reduction in out- of-work seniority for failing to seek a referral in the course of these "calls." It is uncontroverted and I find that , pursuant to Respondents ' constitution and bylaws , the Local is man- dated to conduct an election every 3 years to select its officers . Such an election was scheduled for June 14, and the incumbents who sought their return to major office were Davy LaBorde , business agent , Pete Lewis, assistant business agent, and Ray Sanchez, assistant business agent . A Local member named Gerald (Jerry) Palmisano provided LaBorde ' s opposition , and Palmisa- no's candidacy drew the open and notorious support of members Picou, Foster, and Stewart .' Sometime prior to the election , LaBorde had arranged for a political rally to enlist the membership's support of his "team" or slate. Because he was unable to obtain suitable quar- ters for this outing , LaBorde decided to poll the members at a regular, monthly meeting set for June 9 to acquire permission to utilize the Local' s hall in furtherance of his political campaign. Picou had been referred out of the Local 's hiring hall for approximately 3 years . On May 19, he was laid off from a construction job and he visited the hall to seek other employment At the hall, he learned that additional carpenters were needed at that site and he requested LaBorde to inquire of the contractor wheth- er he could return to work . When this inquiry proved unsuccessful , LaBorde referred Picou , along with Stew- art, to another project , a referral which these men accepted on May 26 . However , Picou and Stewart quit this job on May 28 or 29 , and both returned to the hall to register their names on the out -of-work list and receive a new referral number. On Monday morning, June 9 , Picou appeared for the "Roll Call" as well as the afternoon "call" without 3 Picou and Foster had been nominated for the office of delegate to the council at a regular Local meeting held on May 12 The election to these seats, as hereinafter noted, took place in mid-July However, Picou was disqualified from running because he had not been a member of the Local for a sufficient length of time Foster was defeated in the balloting CARPENTERS DISTRICT COUNCIL OF NEW ORLEANS successfully obtaining a referral Picou testified that about an hour prior to the Local meeting scheduled for that evening , he encountered a friend at the hall who asked whether the former was gainfully employed When Picou replied in the negative , the friend suggested that he speak to LaBorde about openings for carpenters on a floor covering job in the area Whereupon the two men proceeded to LaBorde ' s office and Picou quer- ied his business agent as to whether this flooring work was available LaBorde acknowledged that jobs existed and inquired if Picou was interested in such employment Picou answered that he was According to Picou, LaBorde then remarked , " I see you are getting pretty friendly with Palmisano and his boys," a reference to LaBorde 's opponent in the impending election, and asked, "What about that9" Picou rejoined that "them guys are my friends Now I don 't think it has anything to do with me going to work , does 0" LaBorde com- mented, "you ought to play ball with us an we will play ball with you " adding , "Tell you what Come back and see me in the morning " Picou agreed to do so and the discussion ended Following this conversation , Picou attended the Local's scheduled meeting Picou testified that, at the outset of the session , LaBorde conducted a voice vote of the membership to ascertain whether he should be permitted to use the hall for electioneering purposes This vote proved inclusive and, as a result, a standing vote was conducted When the "nays" were polled, Picou and Foster, who were also in the attendance stood up and voted against allowing LaBorde to utilize the hall It is Picou ' s further testimony that when LaBorde, who assisted in making the headcount, noticed Picou on his feet expressing his opposition to the out- standing proposition , LaBorde pointed his finger at Picou and remarked , "I will see about you in the morning " After hearing this admonition , Picou failed to appear at the hiring hall on the following day Foster testified that shortly before he was nominated for the post of delegate to the council on May 12, he had a conversation with Assistant Business Agent Lewis Lewis asked Foster why he had chosen to run for delegate to the Council in opposition to the incumbent slate Foster replied that he was disenchanted with the Local's officialdom because the officers had proved ineffective in carrying out their responsibilities Lewis retorted , "Well, you know, we are in there , and you ought to come along with us and help us " When Foster stated that he did not feel so inclined , Lewis remarked, "You all don't have a chance of winning Jerry [Palmisa- no] is not going to win " Foster further testified that he attended the Local meeting of June 9 Sitting next to Picou in the front row, he observed LaBorde conduct a standing vote on the issue as to whether the latter should be allowed to hold his rally in the hall While he and Picou stood in opposition to granting LaBorde this permit, he was nudged by Picou to look toward the rostrum where he noticed LaBorde pointing at Picou and overheard LaBorde mention something about "tomorrow " 51 The election for Local officers was run as scheduled on June 14 LaBorde and his slate , which included Lewis and Sanchez, were successful in the balloting by a margin of 3 to I Due to a misinterpretation of the Local's rules, and on advice of the International, the election of delegates to the Council was rescheduled for the middle of July Gerald "Jerry' Palmisano testified that, about a week following the June 14 election , Lewis called him into an office at the Local' s hall and asked whether Palmisano planned to contest a delegate 's seat in the vote set for July Palmisano opined that he probably would not be a candidate Lewis then observed that it would be beneficial for the Local if the incumbent Local officers also served as delegates to the Council due to their familiarity with the Local' s problems Palmisano readily agreed At this juncture , Lewis queried whether any of Palmisano ' s supporters in the previous election intend- ed to challenge the incumbents ' for the delegate seats and the latter responded that he "could not answer for them " Lewis went on to state that "he'd appreciate it if the men did not run due to the fact that it would be for the good of the Union, that it would be good if the members election should be on the District Council, and that he would appreciate it if I would talk to them and save the Union the expense of having the election " Palmisano replied that "I will be glad to talk to them," at which point , and according to Palmisa- no's testimony , Lewis stated, "You know, if we get in for three years, we've got to get along for the next few years, the election's over , let's cut the flighting out and get along together, and we will be one big happy family, if we play ball with each other, and we play ball with each other " Palmisano further recount- ed that, during the conversation , Lewis "was kind of stressing the point actually [he] would like for me to talk to my men not to run for District Council, and considered helping us out if we would not run, see that we would get jobs " When questioned again as to whether Lewis promised that Palmisano ' s faction would receive more work referrals if those members did not stand for the election as delegate, Palmisano replied, "He did not come out and say, you know, he would see that we all would be working , there was a lot of men complaining about being out of work for quite a long time " Approximately a week later, Lewis again approached Palmisano to inquire whether he had polled his men about their possible candidacies for the post of delegate Palmisano reported that he had done so and that it was his opinion that "none of them is going to run " Continuing the narrative , and as chronicled herein- after , Picou, Foster, and Stewart filed unfair labor prac- tice charges against Respondents on June 30, alleging that they had been discriminatorily denied job referrals to a Carpenter project on that date in preference to men whose names appeared below theirs on the out- of-work list It is Palmisano ' s testimony that, after that date , he learned from Picou of the men 's litigious actions A week following the acquisition of this intelligence, Palmisano visited the union hall in search of employment 52 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and there he met Lewis . Lewis , summoned Palmisano to the office and asked whether the latter was ^ aware that this triumverate had lodged charges against Respond- ents and whether he knew anything about them . Palmisa- no feigned ignorance about this happenstance , whereup- on Lewis questioned whether Palmisano "can talk them out of it." Palmisano replied that he would "be glad to help you out and talk to them about it," after which Lewis' advised Palmisano that "they're making it hard on me because I gave those jobs out that morning, and they ' are hurting the Local Union by filing charges against the Union the way it is, and they are making it tough on themselves ." Palmisano assured Lewis that 'he would speak with the men in an attempt . "to get them to drop the charges ." With this, the conversation terminated. During his visit to the stand , Lewis acknowledged that he engaged in a discussion with Palmisano about whether Palmisano or any of the, latter' s supporters were gearing themselves to run for the office of delegate to the council , and that Palmisano promised to. "speak to his boys and see if he could get them to withdraw from the election ." However , Lewis could not recall the content of any other aspect of this conversation. When queried on cross-examination as to whether.he had spoken with Palmisano concerning the charges which had been filed against the Respondents , the witness again asserted a lack of recollection but, after being pressed on the issue , he finally, admitted that "It's possible that could have been mentioned ."4 Finally, Lewis conceded that he informed his electoral opponents that his slate rather than his challengers ' would prevail in the election conducted on June 14. I do not credit the testimony of Lewis, not only because Palmisano impressed me as a sincere ' and trust- worthy witness, but also because Lewis,, although remembering certain elements of his conversations with Palmisano , failed to deny the latter ' s testimony at its salient junctures. Accordingly , I find that , on 'or about June 21 , Lewis promised Palmisano that Respondents would provide job referrals 'to him and his supporters if they "played ball" with the incumbent Local officials and dropped out of the race for elective office . Moreover, I deem the negative inference reasonable and I find that , by the foregoing statements , Lewis also thereby uttered the veiled threat that Palmisano and his cohorts would suffer the loss of job opportunities if they chal- lenged the LaBorde -Lewis-Sanchez , ticket. Finally, I credit the testimony of Palmisano and, find that, on or about July 7, Lewis threatened Palmisano and his supporters , namely, Picou , Foster , and Stewart, with job reprisals unless they withdrew the unfair labor prac- tice charges which they had lodged against Respondents Stewart testified that, approximately 2 weeks after the unfair labor practice charges had been filed, he, Picou and Foster were called into Lewis' office where they were collectively offered referrals to a project in Oklahoma by Lewis with the assurance that, if they accepted this employment , their names would, continue to appear on the out-of-work roster in their respective positions until the job was completed Lewis then remarked that we should drop the charges, that we didn't have a chance, we we ain't got a chance to win it " on June 30. By this conduct, not only standing alone, but also when' particularly-viewed against the backdrop of the -other illegal acts and conduct found herein, I conclude that the Respondents offended the provisions of Section 8(b) (1) (A) of the Act.5 In his testimony, LaBorde recited that he was aware that Picou, Foster, and Stewart were opposed to his 'candidacy for business agent of the Local and delegate to the Council, and 'he recalled that a meeting had been held on the evening of June 9 to poll the membership in order to learn whether 'they favored his use of the hall for a compaign rally, 'but he claimed he could not, remember whether a voice or standing vote was taken. When asked 'whether he had any conversation with Picou in his office immediately prior to the meeting regarding a referral to a flooring job'on the following morning, LaBorde, denied that any such conversation occurred that night. According to him, he conducted the usual "Roll' Call" on the morning of June 9 and announced that floor time men were needed on a project in the New Orleans area. Picou made it known that he was an experienced floor,man and LaBorde offered him the job. Immediately following this proffer, Picou declined the assignment because of the press of other business and, did, not . return to another "Roll Call" until a few weeks later when he again refused a referral to that work. During his examination , LaBorde was asked whether he had accused Picou that evening of `getting friendly with Palmisano and his boys," and whether he had invited Picou "to come see me in the morning-about the' [floor tile] job, and if you play ball with me, I will play ball with you." To this inquiry, LaBorde replied,' "No, sir, that is not true, because I never said that to anyone. I don't intend to play that way. People get their jobs off the list when their names are called. It is called in front of everyone. They get the same crack at the job as anybody else." At the outset of his testimony regarding the meeting of June 9, LaBorde stoutly denied that he had fingered 'Picou when the latter arose to express opposition to the use of the hall by LaBorde and his fellow candidates, exclaiming that "In fact, I don't know if he voted 'or not." On his recall to the stand, LaBorde repeated that he knew of Picou's, Foster's, and Stewart' s alle- giance to Palmisano. 'He was again asked whether he pointed at Picou and warned the latter that "I will take care of you in the morning." This time , LaBorde altered his original stance and allowed as how "I might have swung my hand, I might have swung my hand around; but as. far'as pointing to anyone and saying that' we would take care of them, this is not true, sir, because if it was true I'm sure that the records would show it." Despite his reference to "records," an apparent allusion to possible minutes of the meeting, no such documents were produced in this proceeding to support LaBorde' s testimonial denials or to explain 3 See International Union of Operating Engineers , Local Union No 150, AFL-CIO (Builders Association of Chicago), 165 NLRB 159, Local 872, International Longshoremen's Association , AFL-CIO (Atlantic & Gulf Stevedores. Inc ), 163 NLRB 586, 591 CARPENTERS DISTRICT COUNCIL OF NEW ORLEANS 53 the vagaries of his utterances . In short, I am not con- vinced that LaBorde ' s evasive and vague testimony, when contrasted with the straightforward testimony of Picou and Foster and their persuasive demeanor, was candidly rendered, and I credit Picou and Foster in this regard. Based upon the above-credited testimony, I am con- vinced and find that , on June 9 , LaBorde offered a job referral to Picou on the following day if the latter "played ball" with LaBorde by supporting the incumbent election slate ' in preference to Palmisano ' s, and that LaBorde threatened Picou with job reprisals for having voted against granting the business agent permission to use the Local's hall for a campaign ,meeting . I therefore conclude that , by this conduct , Respondents violated 'Section 8(b) (1) (A) of the Act.' I turn next to a consideration of the General Counsel's contention that Respondents practiced statutory discrimi- nation against Picou , Foster , and, Stewart on June 30 by, refusing them to a project which Carpenter was constructing for Sears Roebuck and Company. As noted elsewhere , Picou and Stewart had been dispatched from the Local hall on May 26 to a job which they abandoned within a few days and ,, on May 28 or 29, they returned to the hall where they registered their names on the out-of -work list and were assigned numbers 6,513 and 6,514, respectively . Foster , who had appended, his name to the roster in early May, was carried on the roll as number 6,081. At 9 a.m. on the morning of June 30, Picou, Foster, and Stewart, being unemployed , appeared at the hall for the Monday "Roll Call ." It is undisputed and, I - find that these men reside in the vicinity of each other and, whenever possible , they attempt to claim, jobs at the same project in order to carpool together.' Picou testified that during the "'Roll Call " on June 30 he was seated next to Foster , and Stewart occupied a chair across the aisle from them . Assistant Business Agent Lewis proceeded to read off the names of the contractors which were in need of help . During this process, Lewis announced that Carpenter , which was constructing a Sears Roebuck and Company facility in the area, had placed a call for 12 men for that day. Upon hearing this, Foster turned to Picou and suggested that they, as well as Stewart , should jointly claim the work if the opportunity presented itself for the dual reason that the three men could drive to work together and that the job afforded overtime. Foster communicated this plan of action to Stewart and the latter heartily concurred . At this juncture , Lewis com- menced to call the roll of registered members in the order of 'their out-of-work seniority . Foster , whose name was highly placed on the roster , decided to remain mute when it was called in the hope that , by the time ti Ibid - ' This practice was neither an unusual nor an untoward occurrence within this Local , as evidenced by the fact that Picou and Stewart were jointly referred to jobs on May 26, and by ,the further circumstance that, as Lewis testimonially admitted, Foster rejected a job on which he had bid at a Shamberg project in early July because he could not share his transportation costs wth Picou and Stewart the names of Picou and Stewart were reached, three openings with Carpenter would be available for claim. Picou further testified that, when Lewis read the names of Picou and Stewart, they, along with Foster, immediately walked to a desk in front of 'the hall which was occupied by Assistant Business Agent Ray Sanchez whose task , in accordance ' with the hall ' s procedures, was to inspect the membership cards of the job claimants and place their names on a sheet of paper, together with the jobs claimed, for referral to a site . According to Picou, when he and his cohorts approached the table he told Sanchez, "Ray , I would like to' go to the Sears job. I want the Sears job." Sanchez looked up and remarked , "This job 'is all filled up " Picou protested that the jobs were ` indeed available , pointing out that "I didn't count but eight men taking the job and there's four more openings ." Sanchez repeated that the Sears' complement had already been filled . Picou , Foster, and Stewart walked over to Palmisano , who was standing nearby, and Picou commented that "You know these dirty things turned-us down -for this job over at Sears." Palmisano counseled the men to return to Sanchez's table and demand the' work . Acting as spokesman for the three , and responding to Palmisano 's advice, Picou returned to the table and said, "Ray , I am demanding this job. Now I want to go to Sears. The job is open I know it is." Once more , Sanchez informed Picou that there were no vacancies and,' after the "Roll Call" was concluded, the former proceeded to his office where he began compiling' the work orders for the successful job 'bidders . Picou , Foster, ' and Stewart persisted in their quest and followed Sanchez into the office. Picou placed his membership card on the desk and again unsuccessfully sought a referral to Carpenter. He then told Sanchez , "If there is any men going out below me on the List . . . There is going to , be trouble. Now I know some men come behind ' me that 's taking these jobs. I know the job was open when I come up." Sanchez repeated his earlier reply that no positions were available. As Sanchez continued his chore of writing work refer- rals for the job claimants, Picou stationed himself behind Sanchez with pencil and paper in hand and memorialized the names of the members who received referrals to the Sears' site which appeared below his and Stewart's on the out-of-work list . According to Picou , these num- bered three : Armed with this-information, Picou ' decided to visit the Regional Office of the National Labor Rela- tions Board in New Orleans to file unfair" labor practice charges. As he prepared to leave the hall, Lewis emerged from his office and approached Picou. ' It is Picou's testimony that Lewis told him 'that "I understand you want to go to the Sears job." When Picou replied in the affirmative , Lewis remarked that he believed that another carpenter who was already employed on the Sears' site by Carpenter had been improperly referred to the project , and Lewis stated that he intended to investigate the situation : with a view toward obtaining this, work for ' Picou . ,Picou observed that, while this arrangement might be beneficial to him , it would be of little comfort to Foster and Stewart , and he added, 54 DECISIONS OF NATIONAL LABOR RELATIONS BOARD "Look , I went up and tried to get the job. You saw me put my card on the table and Ray [Sanchez] told me the job was, filled . Man, three or four men went out behind me. What about that ? How does this go?" Hearing this , Lewis shrugged his shoulders and walked away. After leaving the hall , Picou called at the Regional Office where he filed charges alleging that the Council had discriminatorily refused to refer him , Foster, and Stewart to the Sears project .' During his interview with the Board agent , Picou and the agent proceeded to draft an affidavit recording the events which transpired that morning . Because of Picou 's uncertainty as to the exact number and proper names of the men who had lesser referral seniority than he and Stewart, and who had been dispatched to the Sears ' site earlier in the day, Picou returned to the hall to check the out-of- work list at the request of the Board agent. When he arrived , Assistant Business ?Agent Andry Highson was in the process of drawing up a new out -of-work list, for the following . week Picou asked Highson for the list which had been utilized that morning and this was turned over to Picou . He thereupon verified that the names of the carpenters which he had copied from Sanchez' work referral orders that, morning and which appeared below ' the names of Picou and Stewart on the roster . These individuals , with their referral numbers, were F. J. Bourgeoise (6561), Nolton Bergeron,' Jr. (6564), and A . C. LeBlanc (6579).' The testimony of Foster and Stewart regarding the events which ocurred at the morning "Roll Call" on June 30 parallels and corroborates that of Picou. Respondent 's sole defense to the charges of statutory discrimination launched against them for their failure to refer Picou , Foster , and Stewart to the Sears ' project is that no such jobs were available for them when they made their claim for referrals . I find this defense severely lacking in plausibility and credible support., Assistant Business Agent Sanchez testified that, at the "Roll Call" on the morning of June 30 , his colleague Lewis instructed the assembled members that, when he called out their names, they were to proceed to Sanchez' table which was located at the front of the Local hall, present their membership cards to the latter, and indicate the jobs which they wished to claim. San- chez thereupon wrote their names on a piece of paper and, when the job quotas were filled , he brought this to the attention of Lewis, who in turn so informed the men . On direct examination , Sanchez could not recollect how many jobs were available at Sears' site on that morning . When pressed on cross-examination regarding this subject Sanchez answered , "I wouldn't give a number . I don't know exactly how many. I couldn 't say, I would say around eight or nine roughly." Respondents ' "Roll Call " roster which was employed ' On August 22, these charges were amended to add the Local as a Respondent s During his testimony , Picou pronounced this individual ' s name as Tipalore However , it is clear from Respondent 's June 30 out-of-work list that he had reference to LeBlanc on the morning of June 30, and which was introduced into evidence , discloses that seven carpenters with great- er out-of-work seniority than Picou , Foster , and Stewart, were called and claimed Sears' jobs. That document also shows that three additional carpenters , namely, Bourgeoise , Bergeron , and LeBlanc were referred to the project despite the fact that their names appear between 14 and 18 notches below those of Picou and Stewart , thus making , a total of 10 referrals to the Carpenter-Sears project for that morning. It is therefore patently clear and I find that , in spite of Sanchez' assertion that only eight or nine openings existed, a sufficient number of Sears' jobs were available for Picou, Foster , and Stewart , as evidenced by Respondents' own records, if they deigned to claim them. Sanchez further testified that the "Roll Call" proceed- ed in an orderly fashion that morning with no carpenter blocking his view at the table and, when it was concluded, he repaired to an inner office to write out the work orders for the men who had claimed referrals. When questioned on direct' examination as 'to whether the three alleged discriminatees walked to his table during "Roll Call " and deposited their membership cards with him in order to claim a Sears' job, Sanchez initially replied, "Not to my knowledge , no sir." When the query was repeated , Sanchez stated that he neither saw nor heard them while he was at his table in the hall, and that he did not speak with them In Sanchez' words, "It [the claims 'for Sears ' jobs] did not happen, as far as 'I am concerned ." According to Sanchez, he .was first approached by 'Picou and his two cohorts when he retired to his inner office to execute the work referrals for jobs already claimed by others . It is his testimony that Picou and another member entered the office and that Picou placed his card on Sanchez' table which the latter took into his hands . He further related that Picou "was doing all the talking , and he wanted me to take and move these other fellows back because he had a number that was lower than theirs." Sanchez then "told [Picou] the job was filled , that I could not do that . I didn 't know how in the world I could do anything like that. I told him the job was filled" because Picou "did not come forward and bring his card up at the time . . . when his name was called." On cross-examination, when questioned as to whether Picou, Foster , and Stewart did in fact approach his table in the hall and claim the Sears' assignments, San- chez at first replied " I did not say-well , to my knowl- edge I did.not see them ." Finally, Sanchez acknowledged that it was possible that the three men might have ventured to his table to claim the work but that he was too busy to notice them. During his examination , Lewis was asked whether he observed Picou , Foster, and Hall proff er their mem- bership cards to Sanchez after Lewis had called out their names. Lewis replied, "No sir . Well, I am looking at the list." He then positively proclaimed that he had made no such observation. Finally, he reported that he could not recall how many members had been referred to Carpenter on the morning of June 30 , and could not recall having any conversations with the alleged CARPENTERS DISTRICT COUNCIL OF NEW ORLEANS discriminatees on that day, although he did not specifical- ly deny telling Picou as the latter was about to leave for the Board Regional Office that Lewis would attempt to obtain a job for him with Carpenter. Clarence Arabie, a 4-year member of the Local, attended the "Roll Call" on the morning of June 30. Summoned as a witness on behalf of Respondents, he testified on direct examination that Lewis called out the names of the men on the out-of-work list and Sanchez sat at t a desk in the hall and received the claims for the available jobs When the call was conclud- ed, Sanchez retreated to an inner office where he embarked upon the chore of writing out referrals for the men who had bid for the work. Despite the fact that Arabie' s name was not on the "Roll Call" roster that morning and that he therefore could not have received a referral from Sanchez, for some unexplained reason he nevertheless found his way into Sanchez' inner sanctum where he observed Picou, Foster, and Stewart arguing with Sanchez. Picou and Foster threw their membership cards on the table in front of Sanchez and "said that they wanted the job, their names were on the list." Sanchez remarked that the Sears' jobs had been filled, to which Picou responded, "my name is up on the list." Sanchez repeated that the assignments had already been made and that Picou and Foster should have claimed the jobs during the call of the roster, whereupon Picou, Foster, and Stewart left the hall. On cross-examination, Arabie stated that the men in the hall were very "boisterous" during the call. and were acting like "a bunch of hogs." When asked whether he saw Picou, Foster, and Stewart approach Sanchez' table in the hall and place their cards upon it, Arabie replied that he "didn't notice" this activity. He then admitted that he could not positively report that these men did not present their cards to Sanchez during the call, simply relating, "I didn't notice them " I credit Picou, Foster, and Stewart and accept their testimonial version of the events which occurred on the morning of June 30.10 These men concededly appeared for the "Roll Call" and thus qualified them- selves for job placement according to their position on the existing out-of-work list. Although Arabie depict- 10 In a posthearing motion , Respondents ' counsel urged that the Trial Examiner reopen the record for the reception of certain medical records relating to the physical condition of Picou during the times material to this proceeding which , according to counsel, would make Picou's claim that he sought a referral to the Sears ' project on June 30, a sham Counsel appended to his motion a series of medical notations from a physician which related that, between May 6 and August 4, Picou suffered from an "Acute Lumbar Saccral Strain" for which he collected hospital and other compensation I fail to perceive how these documents , which are not urged as newly found , could adversely affect the credible nature of Picou's testimony. It is undisputed, and I have found , that Picou was referred out of the Local 's hiring hall in early May and was laid off on May 19 He again received a referral on May 26 by Respondents ' officers Moreover , it is uncontroverted and I have found that Picou was offered a job referral by Lewis to a project in Oklahoma approximately, 2• weeks after he filed the unfair labor practice charges on June 30 which triggered this proceeding While Ptcou may have suffered from a physical disability between May 6 and August 4, it obviously did not reach the proportions of incapacity Nor, do I find, did it affect his credibility I therefore deny Respondents motion 55 ed the scene as "boisterous," Sanchez confessed that the proceeding was orderly and that he had a clear view of all job claimants. However, Sanchez then admit- ted that the men might have come to his table in the hall without noticing them because of his detachment with other business, and he was unable to bring himself to deny that they had done so Nor could Arabie or Lewis. I Sanchez' testimony presents another anomoly. While he estimated that eight or nine referrals were made to the Sears' project on the morning of June 30, Respond- ents own "Roll Call" list which he maintained that day unequivocally demonstrates that there were ten positions available on the roster. That document further shows that three jobs were available at the site when Picou, Foster, and Stewart came within reach of claiming them. At the hearing, Respondents emphasized that once an eligible bidder makes his claim for a job at Sanchez' table, that, job thereafter becomes closed to more senior members because of the administrative difficulties encountered in recalling men who have already been sent to the projects. I am willing to accept Respondents' explanation and persuance of this protocol. However, assuming, as Respondents apparently would have me believe, that Picou, Foster, and Stewart were derelict in their task of claiming the three assignments by failing timely to approach Sanchez' table in the hall, I fail to perceive how, Respondents' procedures would have been offended or how the three men could have disentitled themselves for employment on this occa- sion. It is undisputed that, following the "Roll Call," Picou, Foster, and Stewart followed Sanchez into his office to protest their failure to obtain referrals at the very time when Sanchez was in the act' of writing out his referral work orders. These totaled approximately 32 various employers, including Carpenter-Sears, and there is no probative evidence advanced by Respondents on this record to buoy any contention that Bourgeoise, Bergeron, or LeBlanc, whose names were read long after those of the alleged discriminatees, had already begun their trek to the Sears' construction project. More- over, there is nothing in the record which even remotely suggests that, when Respondents' officials, such as San- chez, failed to record a rightful job-claim because of their inattention or the tumult in' the hiring hall, the claimant is thereafter foreclosed from pressing his claim prior to the dispatch of a more junior man' to a work assignment. Picou, Foster, and Stewart were not playing strange games on Respondents ' ballfield on the morning of June 30. Respondents' witnesses acknowledged that carpen- ter-members frequently made it a practice as shapeups to lay in wait for jobs which promised lengthy employ- ment and car-pool opportunities. The three men had been unemployed for several weeks. The Sears' project was laden with these 'possibilities. In my opinion, it strains credulity to believe that, with this chance await- ing, these men would have eschewed it through lack of diligence. I find that, on June 30, Picou, Foster, and Stewart made "Roll Call" at the appointed time and decided 56 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to bid for three jobs at 'the Sears' project operated by Carpenter. Foster, who possessed a high-priority position on the out-of-work list, counselled with Picou and Stewart, and the men entered into a verbal compact to file a joint 'claim for work assignments to the Sears' installation because it offered attractive compensations I further find that Foster, in pursuit of the collective goal, temporarily' waived his right to bid for a Sears' job and that, when Lewis tolled 'the names of Picou and Stewart, who were saddled on the list, all 'three members advanced to the table which Sanchez occupied in the hall and deposited their membership cards, pur- suant to Respondents prescribed hiring hall rules, and made claim to.three available referrals to Sears. I also find that, although vacancies existed for these men, Sanchez refused to assign them to these positions, well knowing that they desired and were administratively deserving of these allocations. I also find that, when Sanchez rejected their bids, the men pursued Sanchez to his office where they repeated their plea of entitlement to referrals to the Carpenter assignment, which again was denied to them. It is now horn-book law that a labor organization which operates an exclusive hiring hall by prearrange- ment with contracting or acquiescent employers must do so in such a manner as to insure that all members (and, of course, nonmembers) are treated equally, fairly, and impartially when they search for work through that establishment." Pique suffered by union officers due to a challenge by dissident members to unseat the incumbents from their official thrones affords no license for retribution in the selection of members for available work assignments or, as otherwise phrased, for the "curtailment of job rights."12 I have heretofore found that Respondents' officers knew that Picou, Foster, and Stewart openly espoused the candidacy of Palmisano, for, business agent of the Local in opposition to Davy LaBorde in the election which was conducted on June 14. I have also found that LaBorde, at a Local meeting held on June 9, first promised Picou a job referral on the following day. if he "played ball" with the incumbent slate in the forthcoming election, and then informed his constituent that the well of work had run dry when LaBorde became aware of Picou's, as well as, Foster's and Stewart's, opposition to his use of the Local hall for intraunion political purposes. LaBorde and his slate of candidates further knew, prior to June 30, that Picou and Foster had thrown their their hats into the ring for the office of delegate to the Council, a gesture which LaBorde and Lewis sought to forestall by soliciting Palmisano's aid in an attempt to dissuade these men from running for that post in the election scheduled for the middle of July. While Palmisano assured Lewi's that he would make every effort to curb the political tendencies of his supporters in the July balloting for delegate positions, " Local 357, Teamsters [Los-Angeles Seattle Motor Express] v NLRB,365US 667 " A Cestone Company, 118 NLRB 669, enfd 254 F 2d 216 (C A 8) that assurance had not reached fruition on June 30, as demonstrated by the fact that Foster actually stood for election and Picou was disqualified. Moreover, and as I have heretofore found, Respondents' motivation in depriving Picou, Foster, and Stewart of job referrals to the Sears' project' is' further portrayed by Lewis' statement to Palmisano after the June 14 election, but prior to June 30, that Respondents' officers would give preferential treatment to Palmisano's backers if he stayed their hands in the delegate contest. After a thoughtful assessment of all the facts spread upon the record in this proceeding, I am convinced and find that Picou, Foster, and Stewart were denied referrals by Respondents to the Carpenter-Sears project on June 30, not because they had been lax in making a timely bid for that work, but because Respondents sought to punish them for pursuing a course in opposition to the intraunion political ambitions of the incumbent officers This conduct most assuredly intruded upon the rights of these members guaranteed by the statute, and I conclude that Respondents thereby offended the provisions of Section 8(b)(2) 13 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondents set forth in section III, above, occurring in connection with the operations of the Employer described in section 1, 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 com- merce and the free flow thereof. V THE REMEDY Having found that Respondents have engaged in cer- tain unfair labor practices, I shall recommend that they cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. 13 At the hearing, Respondent Council claimed that it was not properly joined as a party to this proceeding because it bore no direct responsibility for the conduct of LaBorde, Lewis, or Sanchez in their dealings with, Picou, Foster, Stewart, and Palmisano It therefore moved for severance of its name from the pleadings in this case I deny this motion One of the prime causes for the job discrimination which Picou, Foster, and Stewart received was bottomed on the fact that they chose to stand in opposition to the incumbent leadership who not only occupied official positions in the Local, but who were also delegates to the Council (in' LaBorde's case, he was also executive secretary of that body) Furthermore, the Council negotiated and signed the agreement with the Associated General Contractors which was creative of the exclusive hiring hall arrangement pursuant to which the political challeng- ers sought and were denied job referrals Moreover, the Council, under said contract, maintains a tight reign over its member Locals by virtue' of its control over such matters as the administration of trust funds, apprentice and training funds , and the health and welfare plan Addition- ally, the contract recites that nothing therein "shall be construed as releasing the Council from any joint liability that it may have with any affiliated Local Union " Based upon the foregoing, I am convinced and find that there is legal warrant for the conclusion that the Council should be held jointly and severally liable with the Local for the unfair labor practices committed herein See Local Union No 26, Sheet Metal Workers' (Reno Employers Council), 168 NLRB 893 CARPENTERS DISTRICT COUNCIL OF NEW ORLEANS I have found that Respondents attempted to and did cause Carpenter to refuse to employ Harold E Picou Marlon K Foster, and Elmer G Stewart, by discrimina- torily declining to refer them for jobs with said employer on equal terms with other employees by reason of their political opposition to incumbent Local officials or because they otherwise engaged in concerted, protect activities, all in violation of Section 8(a)(3) of the Act To right this wrong, I shall order Respondents to notify Carpenter, in writing, that they have no objections to the employment of these individuals, with a copy of such notice provided to Picou, Foster, and Stewart I shall also order Respondents to make Picou, Foster, and Stewart whole for any loss of pay which they may have suffered by reason of the discrimination prac- ticed against them Loss of earnings shall be computed in the manner established by the Board in F W Wool- worth Co , 90 NLRB 289, with interest to be accorded in the manner set forth in Isis Plumbing & Heating Co , 138 NLRB 716 Upon the basis of the foregoing findings of fact and conclusions, and upon the entire record in the case, I make the following CONCLUSIONS OF LAW 1 The Employer is engaged in commerce within the meaning of Section 2(6) and (7) of the Act 2 The Carpenters District Council of New Orleans and Vicinity and Carpenters Local Union No 1846 are labor organizations within the meaning of Section 2(5) of the Act ' 3 By promising job referrals to employee-members in the event said employee-members supported the candi- dacy of Respondents' incumbent officials in an intra- union election, threatening employee-members with loss of job opportunities if they challenged the incumbent officials at the polls in such an election, threatening employee-members with job reprisals for assuming posi- tions on intraunion matters in opposition to those shared by the incumbent officials, and, threatening employee- members with the loss of work assignment unless they withdrew unfair labor practice charges filed against Respondents, the Respondents have restrained and coerced employee-members in the exercise of rights guaranteed in Section 7 of the Act and thereby violated Section 8(b)(1)(A) 4 By causing and attempting to cause the Employer to refuse employment to Harold E Picou, Marlon K Foster, and Elmer G Stewart, by discriminatorily refus ing to refer these men for work on equal terms with other employees for reasons unrelated to their failure to tender or pay to Respondents the periodic dues and initiation fees uniformly required as a condition of acquir- ing or maintaining membership in those labor organiza- tions, the Respondents have engaged in and are engaging in unfair labor practices within the meaning of Section 8(b)(2) of the Act 5 The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act RECOMMENDED ORDER 57 Upon the foregoing fipdings of fact and conclusions of law and the entire record in this case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, I recommend that Respondent, The Carpen- ters District Council of New Orleans and Vicinity, and Respondent, Carpenters Local Union No 1846, of New Orleans, Louisiana, their officers, representatives, and agents, shall I Cease and desist from (a) Promising job referrals to employee-members pro- vided the employee-members support the candidacy of Respondents' incumbent officials in intraunion elections (b) Threatening employee-members with loss of job opportunities if they challenge incumbent officials in intraunion elections (c) Threatening employee-members with job reprisals for taking positions on intraunion matters contrary to those shared by incumbent officials (d) Threatening employee-members with loss of work assignments unless they withdraw unfair labor practice charges filed against Respondents (e) Causing or attempting to cause Carpenter Broth- ers, Inc , or any other employer engaged in commerce, to refuse to employ Harold E Picou, Marlon K Foster, and Elmer G Stewart, by discriminatorily declining to refer said employee-members on equal terms with other employees because of their political opposition to Respondents' incumbent officials or for otherwise engaging in concerted, protected activities in violation of Section 8(a)(3) of the Act s (f) In any other manner restraining or coercing employees in the exercise of rights guaranteed in Section 7 of the Act 2 Take the following affirmative action which I find is necessary to effectuate the policies of the Act (a) Post at their offices and meeting halls, in conspicu- ous places, where notices to members are customarily posted, copies of the attached notice marked "Appen- dix "14 Copies of said notice, to be furnished by the Regional Director for Region 15, after being duly signed by Respondents' officer and representative, Davy P LaBorde, shall be posted immediately upon receipt there- of and thaintained for a period of 60 consecutive days thereafter Reasonable steps shall be taken to insure that said notices are not altbred, defaced or coveied by any other material (b) Make whole Harold E Picou, Marlon K Foster, and Elmer G Stewart for any loss of pay which they 14 In the event no exceptions are filed as provided by Section 102 46 of the Rules and Regulations of the National Labor Relations Board the findings conclusions recommendations and Recommended Order herein shall as provided in Section 102 48 of the Rules and Regulations be adopted by the Board and become its findings conclusions and order and all objections thereto shall be deemed waived for all purposes In the event that the Board s Order is enforced by a judgment of a United States Court of Appeals the words in the notice reading Posted by Order of the National Labor Relations Board shall be changed to read Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National I abor Relations Board 58 DECISIO\S OF NATIONAL LABOR RELATIONS BOARD may have suffered by reason of the discrimination prac- ticed against them Loss of earnings shall be computed in the manner set forth in the section of the Decision entitled "The Remedy " (c) Notify Carpenter Brothers, Inc , in writing, that Respondents have no objections to the employment of Picou, Foster, and Stewart, with copies of said notices to be provided to these individuals (d) Notify the Regional Director for Region 15, in writing, within 20 days from the date of receipt of this Decision, what steps the Respondents have taken to comply therewith 11 15 In the event that this Recommended Order be adopted by the Board this provision shall be modified to read Notify the Regional Director in writing within 10 days from the date of this Order what steps the Respondents have taken to comply herewith APPENDIX NOTICE TO MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT promise job referrals to our mem- bers in order to get them to support our incumbent officials as candidates in our elections WE WILL NOT threaten our members with loss of job opportunities if they oppose our incumbent officers in our elections WE WILL NOT threaten our members with job reprisals if they take a position against our officials in intraunion matters WE WILL NOT threaten our members with loss of job referrals unless they withdraw unfair labor practice charges filed with the National Labor Rela- tions Board against us WE WILL NOT cause or attempt to cause Carpenter Brothers, Inc , or any other employer, to refuse to hire Harold E Picou, Marlon K Foster, or Elmer G Stewart, by discriminatorily refusing to refer them on equal terms with other members because of their political opposition to our incum bent officers or for engaging in activities protected by the National Labor Relations Act WE WILL pay Harold E Picou, Marlon K Foster, and Elmer G Stewart, and wages which they may have lost because we refused to refer them to the Carpenter Brothers, Inc project WE WILL notify Carpenter Brothers, Inc , in writ- ing, that we have no objections to the employment of Harold E Picou, Marlon K Foster, and Elmer G Stewart, and WE WILL provide copies of this notice to them Dated By THE CARPENTERS DISTRICT COUNCIL OF NEW ORLEANS AND VICINITY AND CARPENTERS LOCAL UNION No 1846 (Labor Organization) (Representative) (Title) This is an official notice and must not be defaced by anyone 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 Any questions concerning this Notice or compliance with its provisions, may be directed to the Board's Office, T6024 Federal Building (Loyola), 701 Loyola Avenue, New Orleans, Louisiana 70113, Telephone 527-6391