Laborers, Local 1177

LABORERS, LOCAL 1177 1063 Laborers International Union of North America , TRIAL EXAMINER'S DECISION Local 1177 (Nichols Construction Corporation) and Sylvester Lavigne and Leroy Henderson. Cases 15-CB-1023-1 and 15-CB-1023-2 June 24, 1970 DECISION AND ORDER BY MEMBERS MCCULLOCH, BROWN , AND JENKINS On March 24, 1970, Trial Examiner William J. Brown issued his Decision in the above-entitled case, finding that the Respondent 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 Decision. Thereafter, the Respondent filed exceptions to the Trial Examiner's Decision and a supporting brief, and the General Counsel filed an answering 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 briefs, and the entire record in the case, and hereby adopts the findings,' conclusions,2 and recommen- dations. 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 orders that Respondent, Laborers International Union of North America, Local 1177, Baton Rouge, Louisiana, its officers, agents, and repre- sentatives, shall take the action set forth in the Trial Examiner's Recommended Order. ' These findings are based, in part , upon credibility determinations of the Trial Examiner to which the Respondent has excepted After careful review of the record, we conclude that these credibility findings are not contrary to the clear preponderance of all relevant evidence Accordingly, we find no basis for disturbing these findings Standard Dry Wall Products, Inc , 91 NLRB 544, enfd 188 F 2d 362 (C A 3) ' We agree with the Trial Examiner that the entire sequence of events supports the inference that Business Agent Joseph , in the course of his Au- gust 29 conversation with Job Superintendent Elrod, interfered with the hiring of Henderson and Lavigne Moreover , in adopting the 8 (b)( I )(A) and (2) findings , we also rely on the testimony of Elrod, as corroborated by Shop Steward Johnson, that Joseph informed Elrod that all persons hired had to have a referral. WILLIAM J. BROWN, Trial Examiner: This proceeding under Section 10(b) of the National Labor Relations Act, as amended, hereinafter referred to as the Act, came on to be heard at Baton Rouge, Louisiana, on January 22, 1970. The underlying charges of unfair labor practices were filed September 3, 1969,' by the above-indicated Charging Parties, hereinafter referred to as Hender- son and Lavigne, and the complaint herein was is- sued November 13 by the General Counsel of the National Labor Relations Board acting through the Board's Regional Director for Region 15. It alleged, and the duly filed answer of the above-indicated Respondent, hereinafter referred to as the Union, denied, the commission of unfair labor practices defined in Section 8(b)(1)(A) and (2) of the Act. At the hearing the parties appeared and par- ticipated, as noted above, with full opportunity to present evidence and argument on the issues. Sub- sequent to the close of the hearing, the General Counsel and the Union filed briefs which have been fully considered. On the entire record herein and on the basis of my observation of the witnesses, I make the follow- ing: FINDINGS OF FACT 1. THE BUSINESS OF THE EMPLOYER I find, in accordance with the pleadings and evidence, that Nichols Construction Corporation, hereinafter referred to as Nichols, is a Louisiana corporation with its principal office at Baton Rouge, Louisiana. During the 12-month period preceding issuance of the complaint herein, a representative period, Nichols performed services within the State of Louisiana valued in excess of $50,000 for employers each of whom purchased and received goods valued in excess of $50,000 and delivered directly to such employers in Louisiana from points outside the State of Louisiana. At all material times Nichols has been engaged in per- forming construction services on the Georgia Pacific Company facility in Plaquemine, Louisiana, in the course of which it purchased and recieved goods valued in excess of $50,000 and shipped directly to Nichols at such facility from points out- side the State of Louisiana. I find, as the parties agree , that Nichols is an employer engaged in com- merce within the meaning of Section 2(6) and (7) of the Act and that assertion of Board jurisdiction is warranted. II. THE STATUS OF RESPONDENT The pleadings and evidence establish and I find that the Union is a labor organization within the purview of Section 2(5) of the Act. ' Dates hereinafter , unless otherwise noted, relate to the calendar year 1969 183 NLRB No. I 1 1 1064 DECISIONS OF NATIONAL LABOR RELATIONS BOARD III. THE UNFAIR LABOR PRACTICES that they were going to work on the Georgia Pacific job the following morning and Joseph replied that that was up to them but that he would be on the job the following morning. On the following morning, that of August 29, Henderson and Lavigne were among the early ar- rivals at the worksite where they first met Albert Johnson, the union steward on the job, who asked them if they had referrals; they replied that they did not but that Elrod had told them to report in any event. Soon thereafter Elrod came and commenced to sign them up, then decided to check with Steward Johnson, who in turn stated that he could not accept them on the job without referrals unless the matter were cleared with Joseph at the business office. The matter was held in abeyance pending the expected arrival of Joseph on the job. On Joseph's arrival he talked with his steward and Elrod, according to his testimony and that of Johnson and Elrod, only about the matter of the Company transferring men on the payroll and not specifically about Henderson and Lavigne. I find this testimony incredible in view of the obvious im- portance of their employment both in the minds of Elrod and Joseph, particularly in the light of the events of the preceding day, and in the light of El- rod's admission that he told Henderson and Lavigne that he would have put them to work but for the fact that they did not have referrals, notwithstand- ing his previous promise of employment with or without referral. In any event, it is clear that, after the discussion between Joseph and Elrod, the latter informed Henderson and Lavigne that, although he wanted to hire them he could not do so without a referral and that Joseph would not let them work. Following the events at the jobsite on the morn- ing of August 29, Henderson and Lavigne met with Joseph at a nearby grocery store. Joseph testified that he told them at that occasion that if Nichols wanted them they should either call the hall or give them a letter. He also testified that Henderson and Lavigne claimed some prior right to the Georgia Pacific project because it was a bond issue job and located in their home parish, Iberville. Henderson's account of this meeting, essentially corroborated by Lavigne, is that Joseph expressed regret at having to deny them referrals due to his desire to curtail the permitted practice of company transfer from job to job of men already on the payroll. I credit the accounts of Henderson and Lavigne. On that afternoon Henderson went again to the union office and spoke to Joseph, who denied refusing him a referral and claimed that he did no more than explain the procedures. He told Joseph that only within the last 2 months he had shopped his own job and secured a referral later (G. C. Exh. 3, referral dated July 8, 1969). I find the evidence to indicate that the normal practice of the Union in cases where a man has shopped his own job is to issue him a referral in cases where the employer either calls in or writes asking clearance for the particular employee and that this is confirmed by Nichols' work on the Georgia Pacific project in Plaquemine commenced sometime about August 15. Before the commencement of work on that job there had been a campaign for election of union of- ficers resulting in the election on or shortly prior to July 3, of David Joseph as business agent of the Union. In the campaign preceding the election, Henderson and Lavigne had openly supported Joseph's opponent, Joseph Stone Joseph ultimately conceded, though initially denying, knowledge of Lavigne's campaign activity on behalf of Stone; furthermore, although Joseph denied knowledge of Henderson's sympathy in the election, I credit Hen- derson's testimony that he told Joseph that he was supporting Stone and actively campaigned for Joseph's opponent in Joseph's presence. I conclude that at material times Joseph knew of Henderson's and Lavigne's active support of his opponent in the July election. Terms and conditions of employment of Nichols' workmen on the Georgia Pacific project are governed by the provisions of a written agreement between the Union and the Baton Rouge Chapter, The Associated General Contractors of America, Inc., (G. C. Exh. 2) which contains maintenance of membership and 8-day union-shop clauses. It also provides that the member employers shall use the Union as a source of manpower when in need of employees, the Union agreeing to furnish qualified men in sufficient numbers to meet em- ployer requirements. The agreement also permits the employer to transfer its employees from job to job within the Union's territorial jurisdiction as long as they remain on the employer's payroll. Sometime prior to August 28, Henderson, who had been out of work for a considerable period, vistied Austin Elrod, Nichols' general superinten- dent on the Georgia Pacific project, and was promised a job on the project when the weather cleared. By August 28 the weather had cleared and Henderson and Lavigne went to the jobsite. Ac- cording to Henderson's account, he and Lavigne asked Elrod for work, telling Elrod, in response to his question, that they were union members; they were told by Elrod that he wanted them to get referral slips but if they did not he would hire them anyway, and that they should report for work the following day Lavigne's testimony corroborated that of Henderson on this point. Elrod's account es- sentially confirms their account of the events at the jobsite on August 28. Following their talk with Elrod, Henderson and Lavigne proceeded to the union office at Baton Rouge where they first spoke with Dispatcher Earl Little and later with Joseph and received what can only be regarded as a runaround ultimately ter- minating in Little's refusal, in Joseph's presence, of referrals. At the conclusion of this conversation at the union hall, Henderson and Lavigne told Joseph LABORERS , LOCAL 1177 Joseph's own testimony. In the instant case, it is clear to me that on the morning of August 29 Elrod asked for clearance for Henderson and Lavigne. There is no question as to the paid up and good standing status of Henderson and Lavigne, and it must be concluded that the refusal of Joseph to clear them on the morning in question had some basis other than their dues and membership stand- ing in the Union, conceivably though not necessari- ly, based on their known and substantial opposition to Joseph's recent successful campaign for the of- fice of business agent . I conclude that Joseph's refusal of assent to their employment on the Geor- gia Pacific project of Nichols constituted an unfair labor practice within the scope of Section 8(b)(1)(A) and (2) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent labor organiza- tion set forth in section III, above, occurring in con- nection with the operations described in section I, above, have a close, intimate, and substantial rela- tionship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof. V. THE REMEDY In view of the finding set forth above to the effect that the Respondent labor organization has engaged in certain unfair labor practices affecting commerce it will be recommended that it be required to cease and desist therefrom and from like or related unfair labor practices and take such affirmative action as appears necessary and appropriate to effectuate the policies of the Act, including the posting of notices at the union hall and the making of Henderson and Lavigne whole for loss of earnings2 due to its refusal to permit them to work on the Georgia Pacific project as outlined above. On the basis of the foregoing findings of fact and upon the entire record in this case, I make the fol- lowing: CONCLUSIONS OF LAW 1. Nichols is an employer engaged in commerce within the meaning of Section 2 (6) and (7) of the Act. 2. The Union is a labor organization within the purview of Section 2(5) of the Act. 3 Backpay shall be computed in accordance with the principles of F W Wool% orth Company, 90 NLRB 289, and Isis Plumbing & Heating Co, 138 NLRB 716 ' 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 1065 3. By refusing on August 28 and thereafter to issue job referrals or otherwise assent to the em- ployment of Henderson and Lavigne on the Geor- gia Pacific project of Nichols Construction Cor- poration on a basis other than their failure to pay or tender the uniform dues and fees required as a con- dition of acquiring or retaining membership in the Union, thereby causing Nichols to discriminate against them in violation of Section 8(a)(3) of the Act, the Union has engaged in unfair labor prac- tices defined in Section 8(b)(1)(A) and (2) of the Act. 4. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. RECOMMENDED ORDER On the basis of the foregoing findings of fact and upon the entire record in this case, it is recom- mended that the Union, its officers, agents, and representatives, shall: 1. Cease and desist from: (a) Causing or attempting to cause Nichols or any other employer to discriminate against Hender- son and Lavigne in violation of Section 8(a)(3) of the Act. (b) In any like or related manner restraining or coercing employees in the exercise of the rights guaranteed them in Section 7 of the Act, except to the extent that such rights may be affected by an agreement lawfully entered into pursuant to the proviso to Section 8(a)(3) of the Act. 2. Take the following affirmative action which appears necessary and appropriate to effectuate the policies of the Act. (a) Make Henderson and Lavigne whole for loss of earnings suffered as a result of the discrimination against them in the manner set forth in the section above entitled "The Remedy." (b) Notify Henderson, Lavigne, and Nichols, in writing, that it has no objections to employment of Henderson and Lavigne on the Georgia Pacific or any other job. (c) Post at its business office copies of the at- tached notice marked "Appendix."3 Copies of said notice, on forms provided by the Regional Dirgctor for Region 15, after being duly signed by the Union's president and business agent, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken by it to in- 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 Na- tional 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 Labor Relations Board - 1066 DECISIONS OF NATIONAL sure that said notices are not altered, defaced, or covered by any other material. (d) Forward to the Regional Director for trans- mittal to and posting by Nichols at its Georgia Pacific jobsite, if Nichols is willing to so post, signed copies of the attached notice marked "Appendix." (e) Notify the Regional Director for Region 15, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith.' ' Iii the event that this Recommended Order is adopted by the Board, this provision shall be modified to read "Notify the Regional Director for Region 15, in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith " APPENDIX NOTICE POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government To Members of local 1177, Laborers Interna- tional Union of North America, AFL-CIO, and to applicants for laborers' jobs at the Georgia Pacific job: WE WILL NOT cause or attempt to cause Nichols Construction Corporation to refuse to hire or to discharge or in any other manner dis- criminate against Sylvester Lavigne and/or Leroy Henderson, or any other employee or LABOR RELATIONS BOARD applicant for employment , in violation of Sec- tion 8 ( a)(3) of the Act. WE WILL NOT in any like or related manner restrain or coerce employees in the exercise of rights guaranteed under the Act. WE WILL reimburse and make Sylvester Lavigne and Leroy Henderson whole for loss of pay suffered as a consequence of our having caused Nichols Construction Corporation to refuse to hire them. WE WILL notify Nichols Construction Cor- poration, in writing, that we have no objection to the employment of Sylvester Lavigne and/or Leroy Henderson on the Geougia Pacific pro- ject. Dated By LOCAL 1177, LABORERS INTERNATIONAL UNION OF NORTH AMERICA, AFL-CIO (Labor Organization) (Representative ) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecu- tive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or com- pliance with its provisions may be directed to the Board's Office, T 6024 Federal Building (Loyola), 701 Loyola Avenue, New Orleans, Louisiana 70113, Telephone 504-527-6361.