Glazier's Local 1075

388 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Glazier's Local Union No. 1075, Brotherhood of Paint- ers, Decorators and Paperhangers of America, AFL-CIO (Carr Glass and Paint Company, et al.) and William R. Cannon . Case 18-CB-375 Upon the entire record,' including my observation of the witnesses, and after due consideration of the briefs filed by General Counsel and by the Union, I make the following: FINDINGS OF FACT May 18, 1971 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND BROWN On January 28, 1971, Trial Examiner Frederick U. Reel issued his Decision in the above-entitled proceed- ing, finding that Respondent had not engaged in the unfair labor practices alleged in the complaint and recommending that the complaint be dismissed in its entirety, as set forth in the attached Trial Examiner's Decision. Thereafter, General Counsel filed exceptions to the Decision and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its powers in connection with this case to a three-member panel. The Board has reviewed the rulings of the Trial Ex- aminer made at the hearing and finds that no prejudi- cial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Ex- aminer's Decision, the exceptions and brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner. ORDER Pursuant to Section 10(c) of the National Labor Re- lations Act, as amended, the National Labor Relations Board adopts as its Order the recommended Order of the Trial Examiner, and hereby orders that the com- plaint herein be, and it hereby is, dismissed in its en- tirety. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE FREDERICK U. REEL, Trial Examiner: This proceeding, heard at Des Moines, Iowa, on December 8, 1970,1pursuant to a charge filed the preceding September 15 and a complaint issued October 29, presents primarily the question whether Respondent, herein called the Union, violated Section 8(b)(1)(A) and 8(b)(2) of the Act when on May 16 it caused Carr Glass and Paint Company, herein called Carr, to dis- charge the Charging Party, herein called Cannon. I THE BUSINESS OF THE EMPLOYERS AND THE UNION INVOLVED The pleadings, as amended, establish, and I find, that both Carr and Forman-Ford & Company of Iowa, herein called Forman-Ford, are Iowa corporations engaged in Des Moines in the wholesale and retail sale of glass and related items, that the annual sales of each exceed $500,000, and that each annu- ally sells products and services valued in excess of $50,000 to points outside the State. Both Carr and Forman-Ford are employers engaged in commerce within the meaning of Sec- tion 2(6) and (7) of the Act. The Union is a labor organization within the meaning of Section 2(5) of the Act. II THE ALLEGED UNFAIR LABOR PRACTICES A. Cannon Loses Membership in the Union but Acquires it in a Sister Local Cannon, a competent and experienced glazier, had been a member of the Union, or of sister locals of the same Interna- tional, for a number of years when, early in 1970, he opened his own business in Pleasantville, Iowa, a short distance from Des Moines. In Pleasantville, Cannon helped operate a res- taurant, served as town marshal, and also operated a small paint and glass shop, in which he had no employees, but in which he did such work as a glazier as his small operation entailed. Early in February, the Union, whose headquarters is in Des Moines, learned that Cannon was engaged in some self-employed work as a glazier, and Business Agent Rich- ards went to Pleasantville to see Cannon. Richards told Can- non that under the union rules Cannon was subject to a fine if he operated as a contractor and had no employees of his own. At Richard's suggestion, Cannon resigned from the Union after obtaining Richards' assurance that Cannon could reacquire membership at any time by paying the required fee. I credit Cannon's testimony that at this meeting Richards said nothing about Cannon's being ineligible to work for one year in the area served by the Union. Some weeks later Cannon abandoned his Pleasantville op- eration as unprofitable and returned to Des Moines, where he promptly sought readmission to the Union. When he first approached Leo McGeough, secretary of the Union, on this subject, the latter explained that the matter would have to be taken up at a union meeting, that the next regular meeting would be the first Thursday in May, and that a special meet- ing could be called on presentation of a proper request signed by five members. After Cannon went to the trouble of obtain- ing the necessary request for a special meeting, the union president told him the matter was too inconsequential and would have to await the regular meeting. At the regular meeting on May 7, the union members present decided not to readmit Cannon to membership. This decision was reached after oral discussion of the matter, which never came to a formal vote The predominant consid- eration in withholding membership was the fact that under the Union's contracts with the Local employers (Carr, For- man-Ford, and one other), Cannon would be ineligible for employment by those employers until one year from the time he commenced his independent operation as a contractor in I Except where otherwise indicated, all dates herein refer to the year ' The record is hereby corrected to show that the last question on page 1970 25 was asked by Mr Hansing and answered by the Trial Examiner 190 NLRB No. 82 GLAZIER'S LOCAL 1075 389 Pleasantville. (The text of this provision of the contract and its meaning are discussed more fully below.) Richards informed Cannon of the refusal of the members to approve Cannon's readmission to the Union, and advised him to seek work elsewhere. A few days later Cannon learned of a possible job opening June 1 within the jurisdiction of the Union's sister local, Number 581, in Rock Island. Cannon promptly acquired membership in that local, obtained his union card, and returned to Des Moines in mid-May, to await the start of the June job. B. Cannon Obtains Des Moines Employment and the Union Causes his Discharge On May 15 Cannon applied for work at his former em- ployer, Carr. Ron Lilly, in charge of hiring there, had need of glaziers. He had heard something of Cannon's difficulty with the Union, and tried to reach Business Agent Richards but was unsuccessful. Lilly then had Cannon "clear" with the local shop steward, Merlin Moon. Moon had been at the union meeting at which Cannon's application for readmission had been rejected. However, Moon looked at Cannon's card in Local 581, found it in order, and indicated to Lilly that Cannon could work. Lilly put Cannon to work at once, but that night telephoned Richards to report, as Lilly always did in such cases, that he had hired an out-of-town man. Rich- ards voiced no objection to this until he learned the identity of the new employee. When Lilly said that the new man was Cannon, Richards immediately stated that Cannon could not work for Carr. In so stating, Richards was relying on the provisions of article X, section 2 of the Union's contract with Carr. This clause provides: The Union agrees that a Union member who contracts for work shall be considered a Glazing Contractor for either a period of one(1) year from the date the contract for work is signed or until the termination date of this Agreement whichever occurs first. Later that evening Richards spoke to Moon and explained to Moon that Cannon's membership in Local 581 did not obviate the objection to his employment under the contract quoted above. The next day several Carr employees expressed an unwillingness to submit themselves to possible union fines by working with Cannon. Shop steward Moon discussed the matter with John Carr, Jr., the president of Carr, who agreed under the circumstances to discharge Cannon. At the hearing Mr Carr testified that the clause in question had been in previous contracts and was first inserted many years before at the urging of the employers to discourage "moonlighting." Mr. Carr construed the clause as being lim- ited to employees who engaged in contracting in competition with their regular employer. He testified that he did not consider Cannon's Pleasantville operation as "competition," as the jobs Cannon handled there were too small to interest Carr in Des Moines, some 30 miles away. Mr. Carr further testified, however, that if Cannon's independent operation had been located in Des Moines, Mr. Carr would have re- garded Cannon as ineligible for employment by Carr for 1 year after he started his independent contracting. C Cannon's Subsequent Employment During July Cannon was employed by Forman-Ford on a job in Iowa City. One Stanley Stuart, a glazier employed on that job as job foreman, and a member of the Union, com- plained of Cannon's presence there and made some effort to get him fired. On checking with the Union in Des Moines, however, Stuart learned that the job was within the geo- graphic jurisdiction of Local 581, and that the Union's con- tract with Forman-Ford did not govern it. On this occasion Cannon exchanged harsh words with a union official over the telephone, but his job tenure was undisturbed. D. Concluding Findings The record admits of little doubt that the Union was re- sponsible for Carr's discharging Cannon. If the Union brought this about because of Cannon's nonmembership in the Union, the violation of Section 8(b)(2) and (1)(A) would be patent. The Union argues, however, that it obtained the discharge because Carr's employment of Cannon was in vio- lation of a valid collective-bargaining agreement prohibiting the employment for 1 year of any employee who engaged as a glazier in his own contracting operations . I find merit in this defense., The contractual language in question is hardly a model of clarity. Its history, purpose, and meaning, however, may be gleaned from the testimony of John Carr, a witness called by General Counsel . According to John Carr, the clause origi- nated in the employer's desire to eliminate "moonlighting," a practice under which employees worked for the company by day and then did similar work directly for customers of their own outside working hours. This history probably ex- plains the unusual introductory phrase in article X, section 2, "The Union agrees...... It also explains why John Carr did not view Cannon's Pleasantville operation as affected by the clause, for Cannon was not "moonlighting" and his oper- ation did not cut into Carr's business . I cannot, however, find in the contract the limitations which John Carr's interpreta- tion put on it. If, as John Carr stated , Cannon would have been ineligible for employment under the contract had his shop been located in Des Moines , then he is equally ineligible under the contract because he operated a shop at Pleasant- ville, within the jurisictional limits of the Union. Undoubtedly some of the union members , and possibly Richards himself, equated Cannon's ineligibility for local em- ployment under the contract with ineligibility for member- ship in the Union . I find, however, that it was the contract, not the lack of membership, which prevented his employ- ment. The case is in essence no different from one in which a union succeeds in preventing the employment of a nonmem- ber, relying not on his nonmembership but on his failure to possess the residency requirements of a contract. See, e.g., International Union of Operating Engineers, Local No. 98, AFL-CIO (Consolidated Gas and Service Co.), 155 NLRB 850, 852. See also Los Angeles Paper Handlers' Union No. 3 (Gravure West), 181 NLRB No. 70. To be sure , as General Counsel points out in his brief, the Union's objections to Cannon's employment were phrased in terms of his card 's not being "legal." It is clear from the record, however, that the lack of "legality" to which the Union referred was the fact that Cannon had engaged in independent operations within the year. There is no sugges- tion in the record that the Union sought to prevent other men holding out-of-area cards from working for Carr. I therefore reject General Counsel's contention (p. 3 of his brief) "that the Union unlawfully caused the discharge of Cannon be- cause he was not a member of the Union." I also reject the ingenious, if somewhat inconsistent, con- tention that the Union 's action discouraged membership in itself and hence violated the Act. This contention rests on the wording of the contract which recites that "a union member" who becomes a contractor suffers a 1-year bar to employ- ment . Because the clause so reads, General Counsel argues that the bar is inapplicable to nonmembers of the Union, and therefore operates to discourage membership . Manifestly, the last result this Union desired was to discourage membership in itself. Under General Counsel's reading, a glazier could escape the impact of this clause by resigning his union mem- 390 DECISIONS OF NATIONAL LABOR RELATIONS BOARD bership before becoming a contractor . The conduct of all the parties hereto makes it quite clear that such action would not exempt such a glazier from the bar imposed by the contract. Apparently, potwithstanding the existence of a right-to-work law in Iowa, all glaziers in the Des Moines area employed by signatories to the contract are members of the Union , and the phrase "Union member" in article X of the contract is in- tended to embrace all employees. Finally, General Counsel suggests that the result here is harsh, that the 1-year bar is too long, and that Cannon's only fault was to fail in his own business . These considerations may go to the wisdom of the restriction but not to its legality. Cannon is in no worse position than an out-of-area employee confronted by a valid rule preferring residents. CONCLUSIONS OF LAW Respondent has not engaged in the unfair labor practices alleged in the complaint. Upon the foregoing finding of fact , conclusion of law, and the entire record in the case, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER The complaint is dismissed in its entirety.