Local 58, Plumbers

152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Local Union No. 58, of the United Association of Journeymen and Apprentices of the Plumbing & Pipe Fitting Industry, AFL-CIO (Heyse Sheet Metal) and Bob Quillin. Case 27-CB-555 December 11, 1970 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS On July 7, 1970, Trial Examiner Paul E. Weil issued his Decision in the above-entitled proceeding, finding that the Respondent had engaged 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; the General Counsel filed a brief in answer to the Respondent's exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel. The Board has reviewed the rulings of the Trial Examiner 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 and briefs, and the entire record in the case and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recommend- ed Order of the Trial Examiner and hereby orders that the Respondent, Local Union No. 58, of the United Association of Journeymen and Apprentices of the Plumbing & Pipe Fitting Industry, AFL-CIO, its officers, agents, and representatives , shall take the action set forth in the Trial Examiner's Recommend- ed Order. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE PAUL E. WEIL, Trial Examiner: On January 22, 1970, Bob Quillin, an individual, filed a charge against Local Union No. 58, of the United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry, AFL-CIO, hereinafter called Respondent, alleging that Respondent had caused Heyse Sheet Metal, hereinafter called Heyse, to terminate the Charging Party for unlawful reasons. The General Counsel, by the Regional Director for Region 27 (Denver, Colorado), on March 6, 1970, issued a complaint and notice of hearing against Respondent alleging that the Respondent had caused Heyse to discharge Bob Quillin because he was not a member and because membership was denied him on grounds other than his failure to tender periodic dues and initiation fees uniformly required as a condition of acquiring or retaining membership. By its timely filed answer Respondent denied the jurisdictional facts, admitted the Union was a labor organization, but denied the commission of any unfair labor practices. On the issues thus joined a hearing was held before me at Colorado Springs, Colorado, on May 7, 1970. Respondent and the General Counsel were represented by counsel. All parties had an opportunity to appear and to adduce evidence, to call witnesses, to examine and cross-examine them, to argue on the record at the end of the hearing, and to file briefs. Briefs were filed by the General Counsel and by Respondent. Upon the entire record in the matter, from my observation of the witnesses and in consideration of the briefs, I make the following: FINDINGS OF FACT I. THE BUSINESS OF THE COMPANY The Employer, the full name of which is Heyse Sheet Metal and Roofing Company, operates in Colorado Springs as a contractor doing roofing, sheetmetal, heating, ventilating, air conditioning, and refrigeration for its customers in the State of Colorado. It employs some 60 employees. Seventy percent of Heyse's work is commercial, the rest being industrial and residential. The Employer annually purchases from $150,000 to $200,000 worth of goods of which 90 percent is shipped directly from outside the State of Colorado to the Employer's place of business in Colorado Springs. Heyse is and at all times material herein has been an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Respondent is now and has been at all times material a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICE ALLEGED Late in October 1969 Robert Quillen, en route to Denver from his home outside the State of Colorado, stopped in Colorado Springs and determined to move his family there if he could find employment. He contacted Harold Heyse, president of Heyse, who told him that if he moved to Colorado he was sure that Quillin could find employment there. In late November Quillen arrived in Colorado Springs and in the first week in December went to work for Heyse, who suggested first that Quillin go to the union hall to be approved by the Union. Quillen went to Respondent's hall 187 NLRB No. 22 LOCAL 58, PLUMBERS 153 on December 8 or 9 and obtained an application form and blank affidavits of former employment to be filled out, telling George Dragosh, the business agent, that he wanted to become a member of the Union. A few days later he returned to the hall with one of the affidavits and his filled- out application. Quillin gave them to Dragosh telling him that he would like to work as soon as possible and asking if it were permissible for him to go to work if he found employment.' Dragosh told him that this was not the union rule but if he found a job he would not tell him to work or not to. Dragosh also told him that the Union's executive board would review his application and affidavits on a later occasion and he would inform Quillin when this would take place. Quillin returned to the union hall about December 15 or 16 taking two more affidavits of former employment and leaving them with the Union's secretarial employee. On January 12 Quillin met with the Union's executive board.2 The executive board consisted of Dragosh, the business agent, and five or six members of the Union. Quillin met with the executive board for a period from 45 minutes to an hour during the course of which they looked over his application and affidavits and asked a few questions concerning his prior experience. During the conversation Quillin stated that he was employed by Heyse and it appears that all or most of the executive board members warned him against going to work for Heyse on the ground that he could not expect employment to be of a permanent nature. It appears that the Union had furnished at least three other employees to Heyse over the past years, none of whom continued in his employment after a short period. According to Heyse he discharged two of them and the third quit. According to testimony of Dragosh, Heyse discharged two of them apparently on a mistaken belief that they were incompetent and the third quit because Heyse was working him only part time. During the course of the meeting the executive board explained to Quillen that the initiation fee was $200 and that he would have to pay an additional $25 to take a competency examination in his specialty, refrigeration. Quillin testified that he offered to pay the $225 at that time but that the executive board told him that they would have to take his application before the membership before they could accept his check .3 During the course of the meeting Quillin was informed that the Union had three men at that time out of work who were employed in neighboring cities on traveler cards. According to Quillin he was told that it would be out of order for the Union to give him a card when they had men actually seeking employment who were out of work. He testified that they returned the affidavits to him but retained his application. He understood from this that his application was being rejected and departed after thanking them sardonically because he was in the process of buying a home and was glad they had decided it was the thing for them to do to put him out of work. The testimony of all Respondent's witnesses had quite a different cast. According to them on their explanation of the possibility that Quillin would not be permanently employed by Heyse and the difficulty he might find in getting other employment in Colorado Springs, he with- drew his application stating that he intended to go on to Denver and find work there and that at the time he thanked them for helping him avoid the error of paying $225 for membership for a job that he would not be able to hold. In the light of the subsequent developments recited below I do not credit all the members of the executive board and Mr. Dragosh but credit Quillin that he did not ask them to withdraw his application but, rather, hoped that they would approve him for membership in the Local. The next morning Quillin went back to Heyse and informed him of what had taken place at the union meeting the night before. He asked Heyse to write a letter to the Union stating that he was an acceptable employee and that Heyse had work for him. Heyse did this and Quillin worked through the 13th. On the 14th after having a report from his superintendent that there was unrest on the job because he was working a nonunion man Heyse discharged Quillin. The next day Quillin returned to Heyse and asked if he had heard from Dragosh with regard to his application after Heyse's letter was received. He also called Dragosh by telephone and asked what kind of progress was being made on his being accepted by the Union so he could go back to work. Dragosh said he did not know it was going to be done and that he did not like people coming in from out of town telling him how to run his business.4 After the charges were filed in the instant case Dragosh called Quillen and asked him if he had gone back to work for Heyse. Quillin said he had not and Dragosh told him he could go back to work. Quillin asked whether he could have a work permit or a union card and Dragosh said that he did not have one for him. Quillin asked for return of money that had been deducted from his pay for health and welfare benefits and vacation benefits and Dragosh said that the money was not Quillin's. Quillin rejoined that until the Union accepts or declines his application it is his money because he paid taxes and had it taken out of his check. Quillin then called Heyse and asked if he could come back to work. Heyse told him without a union card he could not use him and said that the Union was trying to put Heyse in the meddle and make him the goat. Quillin told Heyse on this occasion of his telephone call from Dragosh. It appears that another refrigeration man who had been in business for himself but had worked for Heyse for a period of 14 years in the past went out of business and went back to work for Heyse on January 12, the morning on which Quillin met with the executive board. Immediately after Quillin left the executive board this other employee, Bernie Miller, was approved by the executive board for readmission to the Union. Under the circumstances of the activities taken by Quillin, Heyse, and Dragosh after the executive board 1 It appears that at this time Quillin was already employed by Heyse 2 The executive board was identified by Quillin as the Union's "board of review " It is clear from the record however that the executive board and the board of review were the same. 3 All of the executive board members testified that Quillin at no time offered to pay any moneys on that occasion and some of them testified that he made no statement with relation to the initiation fee. However Dragosh on cross-examination, after being refreshed with his pretrial affidavit, testified that Quillin indicated that he could pay the initiation fee without making arrangements for paying it over a period of time. 4 Dragosh's testimony is not quite consistent with Quillin's in this regard. I credit Quillin 154 DECISIONS OF NATIONAL LABOR RELATIONS BOARD meeting, it appears quite clear to me and I find that Quillin did not withdraw his application from the executive board but rather was told that it would not be considered at that time. He obviously thought that the reason therefor was that the executive board did not consider that he would have a job with Heyse for very long, which occasioned his asking Heyse to write a letter stating to the contrary. He then called Dragosh to ascertain whether Heyse's letter had made a difference in the Union's posture and found that it had not. It was not until after his filing of the charge that Dragosh took the step of informing Heyse and Quillin that the Union withdrew its objection to Quillin. The Union relies primarily on the defense that Quillin did not become a member of the Union because he voluntarily withdrew his application but contends that in any event the Union did not cause or attempt to cause Heyse to discharge Quillen. Heyse's testimony in this regard, although appar- ently unwillingly given, was that, after he discharged Quillen, Quillin asked him a number of times if he had heard anything from the Union relative to his going to work and that he called Dragosh and asked whether the Union would give clearance to his employment of Quillin and on each occasion was told that Quillin had not been cleared by the executive board, that the Union had men on the bench, that they were working in Denver and Dragosh would see whether he could send them to him. Dragosh testified that he was unable to supply men to Heyse because of the three men who were refrigeration specialists two were unacceptable to Heyse and the third refused to work for him. Af r the General Counsel repeatedly refreshed his recollection Heyse testified that, as he had stated in his affidavit taken during the investigation of the matter, he called Dragosh on the morning of January 13 after the executive board meeting "and asked him what I was supposed to do now or asked him if he [Quillin ] didn't have a union card. He [Dragosh ] said he had other men available on the bench and they didn't feel they needed additional men, and he [Quillin] is a nonunion man so I will have to lay him off." Dragosh denied stating that Heyse would have to lay Quillin off or in any way indicating to Heyse that Quillin could not be employed unless he was cleared by the Union. I discredit his denial. While it is true that Heyse was a very reluctant witness it is clear from the record that he is operating in Colorado Springs as a union employer and he was obviously aware of the fact that he would not exactly gain friends with the Union, from which he drew many of his employees, by his testimony. I have discredited Dragosh above with regard to his conversations with Quillin and with regard to the executive board meeting. I do not credit him in this regard either. I find and I believe that he explicitly informed Heyse that he could not use Quillin without the Union's approval. I find corroboration to this conclusion in the letter written by Heyse to Dragosh on January 15 at the request of Quillin. Heyse commenced the letter with the statement "Af your request, we have terminated Bob Quillin." (Emphasis supplied.) I am not unaware that Heyse attempted on examination by the Trial 5 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 Examiner and by General Counsel to evade the direct question as to the "request" he referred to his in January 15 letter. However, when he was confronted by his affidavit, I believe he testified in accordance with the facts. According- ly I find that Respondent attempted to cause and caused Heyse to discharge Quillin and that this resulted from Respondent's refusal to approve Quillin's application for membership or to permit him to work on a permit basis for Heyse. This action on the part of the Union constitutes a violation of Section 8(b)(2) and 8(b)(1)(A) and I so find. CONCLUSIONS OF LAW 1. The Respondent is a labor organization within the meaning of Section 2(5) of the Act. 2. Heyse is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 3. By causing Heyse to discharge Quillin as found herein, Respondent has engaged in unfair labor practices in violation of Section 8(b)(2) and (1)(A) of the Act and affecting commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent has engaged in unfair labor practices I shall recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. As I found Respondent caused Heyse to discriminatorily terminate the employment of Quillin, I shall recommend that Respondent notify Quillin and Heyse that it withdraws any objection to Quillin's employment by Heyse and advise that Heyse may employ Quillin for any work that is available. I further recommend that Respondent make Quillin whole for any loss of pay suffered by reason of the discrimination against him. In making Quillin whole Respondent shall pay to him a sum of money equal to that which he would have earned as wages from the date of his termination of employment as set forth herein to the date on which Heyse offered Quillen reinstatement and Quillin refused to accept it for personal reasons, less Quillin's net earnings during such period. Backpay is to be computed on a quarterly basis as prescribed in F. W. Woolworth Company, 90 NLRB 289, with interest thereon at 6 percent calculated in the manner set forth in Isis Plumbing & Heating Co., 138 NLRB 716. RECOMMENDED ORDERS Upon the basis of the foregoing findings of fact and conclusions of law and upon the entire record in the case, it is recommended that Respondent, Local Union No. 58 of the United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry, AFL-CIO, its officers, agents, and representatives, shall: 1. Cease and desist from: (a) Causing or attempting to cause Heyse Sheet Metal and Roofing Company to layoff, discharge, or otherwise 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 LOCAL 58, PLUMBERS discriminate against Bob Quillin or any other employee or applicant for employment with Heyse because he is not a member of Respondent for reasons unconnected with the payment of dues and initiation fees regularly required of employees. (b) In any like or related manner restraining or coercing employees in the exercise of rights guaranteed them in Section 7 of the Act except to the extent that such rights may be affected by a collective-bargaining agreement authorized under the Act. 2. Take the following affirmative action designed to effectuate the policies of the Act. (a) Notify Heyse Sheet Metal and Roofing Company and Bob Quillin that Respondent has no objection to Heyse's employment of Quillin for any work which is available. (b) Make whole Bob Quillin for any loss of pay he may have suffered by reason of the discrimination against him in the manner set forth in the section herein entitled "The Remedy." (c) Post at the business offices and meeting halls of the Respondent copies of the attached notice marked "Appendix."6 Copies of said notice, of forms provided by the Regional Director for Region 27, after being duly signed by Respondent's representative, 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 Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 27, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith.? 6 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 LABOR RELATIONS BOARD" 7 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 27, in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith " 155 APPENDIX NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT cause or attempt to cause Heyse Sheet Metal and Roofing Company to layoff, discharge, or otherwise discriminate against Bob Quillin because he is not a member. WE WILL NOT in any like or similar manner restrain or coerce any of you in the exercise of rights guaranteed by the National Labor Relations Act except to the extent that such rights may be affected by a lawful agreement authorized by that law. WE WILL notify in writing Heyse Sheet Metal and Roofing Company that we have no objection to the employment of Bob Quillin by that Company for any work that is available. WE WILL make Bob Quillin whole for any loss of pay he may have suffered by reason of our action which resulted in his losing employment with Heyse Sheet Metal and Roofing Company. LOCAL UNION No. 58 OF THE UNITED ASSOCIATION OF JOURNEYMEN AND APPRENTICES OF THE PLUMBING AND PIPE FITTING INDUSTRY, AFL-CIO (Labor Organization) Dated By (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, New Custom House, Room 260, 721 19th Street, Denver, Colorado 80202, Telephone 303-297-3551.