Pile Drivers Union Local 2375

314 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Pile` Drivers Union Local 2375, United Brotherhood of Carpenters & Joiners of America, AFL-CIO and "Frank Thomas Dennison, Jr. Case 21-CB-3730 July 29, 1971 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS BROWN AND JENKINS On April, 23, 1971, Trial Examiner James R. Webster issued his Decision in the above-entitled proceeding, 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.' 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 brief in support thereof, and the entire record in the case, and hereby adopts the findings, conclusions,2 and recom- mendations 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, Pile Drivers Union Local 2375, United Brotherhood of Carpenters & Joiners of America, AFL-CIO, its officers, agents, and repre- sentatives, shall take the action set forth in the Trial Examiner's recommended Order. Y In the absence of any newly discovered evidence, the Respondent's request that the case be remanded to the Trial Examiner for further testimony concerning the signatures on the out-of work list is hereby denied. 2 We do not adopt the Trial Examiner's comments appearing in his Decision with respect to the imposition of hiring hall fees on applicants for referral. It is well established that a reasonable hiring hail fee may be imposed upon applicants for referral as long as such fees are imposed in a nondiscriminatory manner. In the instant case, however, it is clear that Dennison was denied referral solely because of his failure to pay the union initiation fee. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE JAMES R. WEBSTER, Trial Examiner: This case, with all parties represented, was.heard in Los Angeles, California, on January 5 and 6, 1,971, on complaint of the= General Counsel and answer of, Pile Drivers, Union Local 2375, United Brotherhood of Carpenters & Joiners of America, AFL-CIO, herein called Respondent or Union. The complaint was issued on September 10, 1970, on charges filed August 12, 1970. The complaint, alleges that Respon- dent refused to refer Frank Thomas Dennison, Jr., the Charging Party, to available employment because of his lack of membership and good standing in Respondent, and that Respondent has thereby engaged in a violation of Section 8(b)(1)(A) and (2) of the National Labor Relations Act, herein called the Act. The General Counsel and the Respondent have filed briefs herein and these have been carefully considered. Upon the entire record and my observation of the witnesses, I hereby make the following: FINDINGS OF FACT 1. THE BUSINESSES OF THE EMPLOYERS INVOLVED Associated General Contractors of California, Inc., herein called AGC; Engineering and Grading Contractors Association, Inc., herein called EGCA; and Building Industry Association of California, Inc., herein called BIA, are, and at all times material herein have been, associations comprised of various employers and exist for and do engage in collective bargaining on behalf of themselves and their respective employer-members with various labor organizations, including Respondent. The employer-members of AGC, EGCA, and BIA which participate in multiassociation bargaining are engaged in business in Southern California as contractors in the building and construction industry, have their principal offices and places of business in the State of California, and, in the aggregate, annually purchase and receive supplies valued in excess of $50,000 which come to them directly from points outside the State of California and furnish services valued in excess of $50,000 to customers in the State of California, each of which, in turn, purchases and receives goods valued in excess of $50,000 directly from points located outside the State of California. AGC, EGCA, and BIA and their employer-members are and each of them is an employer engaged in commerce and in a business affecting commerce within the meaning of Section 2(6) and (7) of the Act. IL THE LABOR ORGANIZATION INVOLVED Pile Drivers Union Local 2375, United Brotherhood of Carpenters & Joiners of America, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 192 NLRB No. 44 PILE DRIVERS UNION LOCAL 2375 315 III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Issues 1. Whether Respondent refused to refer Dennison to employment through its hiring hall unless he paid $75 on his initiation fee. 2.' Whether Respondent could require a $75 fee as a prerequisite to use of its hiring hall services. B. Statement of Facts Since on or about May 1, 1965, the United Brotherhood of Carpenters, on behalf of its affiliated district councils and local unions in Southern California , including Respondent, and AGC, EGCA, and BIA, on behalf of their employer-members, and other employers of employees doing work within the jurisdiction of the United Brother- hood of Carpenters, within the counties of Los Angeles, Inyo, Mono, Orange, Riverside, San Bernardino, Imperial, Ventura, Santa Barbara, San Luis Obispo, and Kern, California, have maintained in effect and have enforced a collective-bargaining agreement, designated Master Labor Agreement, relating to hire, tenure, and terms and conditions of employment of employees employed in said Counties by the employer parties thereto . This agreement contains, inter alia, a clause which provides that an employer seeking to hire employees covered by the agreement, with limited exceptions, must hire them exclusively through the hiring hall of the local union having geographical jurisdiction. The 'Charging `Party, Frank Thomas Dennison, Jr., first became 'a member of Respondent in January 1966 and was regularly dispatched through the Union's hiring hall to'obs as a journeyman piledriver, until the spring of 1967 when he withdrew his union book ' and left the State of ,California. He worked out of unions' in Missouri, Kansas, and Texas and in the fall of 1967 returned to San Francisco, California, transferring his union book to Local 34 of the Pile Drivers Union in that city. Being unable to find employment in San Francisco, he returned to the Los Angeles area, leaving his union book with Local 34 in San Francisco. He registered on the out-of-work list at Respondent's hiring hall and was dispatched by Respon- dent to several jobs until January 1968. In February 1968, Dennison entered college as a full-time student and discontinued paying union dues. He attended school for 2 years until February 1970. On May 26, 1970, Dennison visited Respondent's office for the purpose of reestablishing his membership with that Union. He talked with Business Representative Winston Glidden and filled out an application for membership. Glidden told him that there was plenty of work in the area and that there should ,be no difficulty in obtaining a job. He told Dennison that he had 8 working days to pay $75 as the initial payment on his initiation fee, and an additional 30 days in which to pay the balance of the initiation fee. Dennison signed the out-of-work list and did' so each week thereafter, except for possibly 1 week, until the week of August 14-21 , when hereceived a referral to a job. Respondent's hiring hall'procedure is as follows: Between 7:30 and 9 each morning and from 3:30 to 5 each afternoon men on the out-of-work list are called regarding available positions. They are called in rotation in accordance with their position on the list. If a man is not in the hall,' then he is called on the telephone. If he is not reached personally, an "N.A.," standing `for not available or no answer, is placed after his name. If he is offered employment and turns it down, then a "T.D.," meaning turned down, is placed after his name. Respondent's weekly out-of-work lists for the period of May 22 to August 21 show the following positions and notations as to Dennison:, I Week Positions May 22-29 L/ #114 May 29-June 5 #71 June 5-12 #46 June 12-19 #37 June 19-26 #29 June 26-July 3 #22 July 3-10 '#18 July 10-17 #12 July 17-24 #87 July 24-31 #58 July 31 to [No out-of- Aug. 7 work list submitted for this week] Aug. 7-14 #22 Aug. 14-21 #19 Notations None None N.A. 6-7 N.A. 6-12-70 No tools [a notation of N.A. has been rubbed through] N.A. [a date has been scratched through] N.A. 7-9 N.A. 7-14; N.A. 7-14 None N.A. 7-28 N.A. 8-13-70 N.A. 8-14-70; N.A. 8-17-70, 3:45 p.m.; disp. 1 Registration on the out-of-work list begins on Friday of each week. 316 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The records of Respondent as quoted above show numerous efforts to contactDennison. On three occasions prior to -his, being -dispatched:' to a job on August 18, Dennison was reached by telephone. The first was during' the" week beginning Friday; June 19, when "Union Representative- Robert Schaeffer, called Dennison about a job., He told, Dennison that he could' not be dispatched unless he was able to come up with $75, toward his initiation fee or_reinstatement"fee. Dennison told Schaeffer he did not have it, and then -Schaeffer told him he could not be dispatched .2 During the month of July, 1970, Union Representative Davis ,handled the calls to, employees regarding referrals., Dennison testified that in , the early party of July (or ^ the latter part ,of June) he received a call from Davis notifying him ofa johand inquiring if he wanted it. Dennison, replied that he ,did.r.Davis told him that Dennison would have;to pay- $75 toward the reinstatement fee.;"Dennisonxreplied that he did not have it and inquired if he could talk to Davis about it. a Davis stated that he, had a directive from the, District Council saying that-,,it would be necessary=to have $75' towards membership, and that Denison -could come over to the office and read the notice if he wanted to,do so.3_ On the next , day, Dennison went to the union hall .,and observed a letter posted on the',bulletin; board dated June IT i.970, from the secretary-treasurer of the Los Angeles County District Council of Carpenters and addressed,to all construction local unions<affiliated" with it. The letter is quoted as follows: - It has been called to my attention that applications" are being`taken for much less than the $75.00 down. It has been further culled 'to my attention that in some instances temporary working cards are being issued to applicants without payment of any monies and further in many'instances applications' are, allowed to remain on "file for indefinite periods. Apparently other bulletins of a similar nature"have been ignored, however, in the event the above practice does not cease, I will be forced to take action'against-any Secretary who sees fit to ignore this directive. Dennison was next contacted in the early part of August by Union Representative Glidden who told him of a job at 2 Dennison testified that his first call from the Union was 'in June and that it was from Union Representative Davis ,or Glidden. He did-not know Schaeffer ; but Schaeffer testified that he,called Dennison in Junesdurmg the week of June 19-26. I do not credit Schaeffer's version ` of the conversation. He testified that Dennison told ' hiin he had no, tools. Dennison testified that when he returned to California in the fall of 1968 he brought a full set of tools, which he had in his possession in the spring and summer of 1970. The principal reason I do not credit Schaeffer's testimony and particularly his denial about demanding $75 payment prior to dispatch is the fact that Respondent had under date of June 17, 7970, received a letter from the Los Angeles County District Council of Carpenters explicitly stating that Respondent was not to issue temporary working cards without payment of any money and that it should not be less than $75 . The letter from the District Council is set forth hereinafter in this decision. 3 Davis testified that he called Dennison in July, not about a job but about his initiation fee, and told him that he must get some money down Port Hueneme, California, -. and inquired if Dennison wanted the job. Dennison replied that he did. Glidden then stated that he had been instructed by Financial Secretary Davis that he could not dispatch Dennison unless he came up with $75. Dennison replied that he did not have it and had been trying to contact the Union about it. He'inquired if something could not be worked out. Glidden' told" Dennison to come' into the office the next day and talk to Davis.4 The next day, Dennison went to the union hall but no union representative `was there. He went back again that week and again no one was there. On August 10, he went by the union hall to sign the out-of-work" list and met Davis. In the presence of two other union members, Mo uris' He'nager and,Kon'Kinkade, Davis " told Dennison that , he would ell- unable to `dispatch" Dennison unless he paid $75. He told" Dennison that it was not up to him but that it was upto the District Council; that he did not make the rules but just had to godly them and there was nothing he could do about the matter.5 On 'Wednesday, August 12, 1970, Dennison filed the charge herein. A copy was received by_ Respondent on August13. On Monday, August 17, 1970, , at 3; ,,5_ p.m. Dennison received I a call from, Union Representative - Glidden regarding employment with the Connolly-Pacific Compa- ny. Dennison stated that he would takethe job. He also told Glidden that he did not have any money toward ,the reinstatement cost. Glidden] said that he would take the responsibility for it and would dispatch Dennison anyway. Dennison picked up his work order and reported to the job on' the next,. morning, Tuesday, August 18. He. worked, throughout that week but became ill "over the weekend. He reported his-illness , to the Company, on Mondayand again on Wednesday, August 26, On they latter date he was told" that the Company had some , men , coming down from, Ventura; California, and that he would no longer be needed and could pick up his check the next day.,Dennison made no further effort to seek employment through the union hiring hall. On September 14, 1970, he.started to school. Shortly after -Dennison -had , been away from his employment with the Connolly-Pacific' Company, he on his application and- Dennison replied that he did Cot have it. I discredit Davis' denial that anything was said about not dispatching Dennison until he paid $75 on his initiation fee. The letter from the District Council to which Dennison was referred explicitly required a $75 payment prior to dispatch. 4 Glidden testified that he told Dennison he could be dispatched without paying $75 on his initiation fee, but be also testified that this conversation could have occurred when he called-Dennison on August 17. I find that these remarks were made to Dennison on August 17 and that in their conversation regarding the Port Huenemejob; Glidden passed on to Dennison the instructions from Davis as set forth"above. 5 1 do not credit Davis' denial as to crucial aspects of this conversation. He testified,,"It's about as he [Dennison] said, except that I am trying to indicate to him that he has a responsibility and I have a responsibility also, and certainly he can be 'dispatched; but I don't believe at any time did I say that he could not be dispatched." PILE DRIVERS UNION LOCAL 2375 317 received a call from Davis, advising him that his job was available if he wanted to go back to-it: Dennison told Davis that he`did not care-to return to the job. In a letter from-,the Connolly-Pacific Company, dated September 28,'1970, Dennison was advised as follows: This company has previously advised you that we are willing to put you back to work. However, you advised us that since your illness that you did not want to come back to work for this company. We are again advising you, that if you wish, the Company is willing to rehire you immediately upon your requesting and reporting to work. C. Conclusions Respondent urges that-by the application form signed by Dennison; he was required to pay the total initiation fee within 30 days from the date of the application irrespective of whether or not he was 'referred to employment; and further that since this 30-day period lapsed prior to referral, Dennison was not entitled to the usual 8 days following employment within which to Join and pay his fee as specified in'Section8(f) of the Act. I conclude to the contrary„however, Section 8(a)(3) of the Act authorizing agreements requiring membership on or after the thirtieth day, of employment and Section 8(f) authorizing in the building and construction industry an agreement requiring membership after the seventh day following. the beginning of employment (on effective date of the agreement if such date is later) both contemplate grace periods of 30 and 8 days for payment of fees for use of exclusive hiring hall services. By Dennison's failure to pay his initiation fee within 30 days of his application, the Union could consider him a delinquent member, but in operating a nondiscriminatory hiring hall it could not refuse him the use of its hiring hall services based on this consideration. A fee representing the cost of operating the hiring hall can be charged to nonmembers or to delinquent members as an alternative to returning to good standing; but such fee is not collectible until the;eighth day, following employment s . By- the letter, from the District Council dated June 17, 1970, Respondent was. instructed (1) that it was not to take less than $75 down on initiation fees; (2) that it was not -to issue any temporary working cards without payment of any monies; and (3) that it was not to allow applications to remain on file for indefinite periods. Schaeffer's call to Dennison in the latter part of June, Davis' telephone conversation with Dennison in July, his face-to-face conversation with him on August 10, and Glidden's first telephone conversation with Dennison in August show that Respondent was endeavoring to follow the District Council's directive. In so doing, as to item (2) above, I find that Respondent did attempt to cause and did cause employers to discriminate against Dennison in violation of Section 8(a)(3) of the Act, and thereby did engage in an unfair labor practice within the meaning of Section 8(b)(2) 6 Local Union # 1842, IBEW, 124 NLRB 794; Boilermakers, Local 338, 166 NLRB 874. Also see J J Hagerty, Inc, 153 NLRB 1375. Board decision in the IBEW case was enforced by 283 F.2d 112 (C.A. 6); and the Boilermakers case by 409 F.2d 922 (CA. 10). 7 In the event no exceptions are filed as provided by Section 102.46 of of the Act. By this conduct I find that Respondent also did restrain and coerce employees in the exercise of rights guaranteed in Section 7of the Act and has thereby, engaged in an unfair labor practice within,the meaning of Section 8(b)(1) of the Act. IV. THE EFFECT OF THE. UNFAIR LABOR PRACTICE UPON, COMMERCE Those 'activities of Respondent, set forth in section III, found to constitute unfair labor practices, occurring in connection with the businesses of the, Employers, as set forth in section I, 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 commerce and the free:flow of, commerce. Upon the basis of the foregoing findings of fact andupon the entire record in this case, I make-the following: , CONCLUSIONS OF LAW 1. The employers, involved herein are employers engaged in commerce and in operations affecting com- merce within the meaning of Section 2(6)-and-(7) of the Act. 2. Respondent, is a labor organization within the meaning of Section 2(5) of the Act. 3. ,By Respondent's refusal to refer Dennison when he was reached by telephone during the week of, June 19-26, 1970, and thereafter until August 17, 1970, because he was not a member of Respondent in good standing, Respondent has thereby engaged, in an unfair labor practice , in_violation of Section,8(b)(1)(A) and (2) of the Act. 4. The aforesaid unfair,labor practice is an unfair labor practice affecting commerce within the meaning of .Section 2(6) and (7) of the Act. THE REMEDY I shall recommend that Respondent cease and desist from' the unfair labor practice found 'to have been committed and that it make its exclusive hiring hall available to Frank Thomas, Dennison, Jr., and other qualified persons, irrespective -of, his or their lack of membership or good standing in Respondent. I ,shall also recommend that Respondent make Dennison whole for loss of wages suffered by him because of its unfair labor practice by paying him a sum of money equal to that which he normally would have earned as wages from the week of June 19-26, 1970, until his referral on August 17, 1970, less net earnings during such period in accordance with the Board's formula set forth in F. W. Woolworth Company, 90 NLRB 289, together with interest thereon at the rate of 6 percent per annum as prescribed in Isis Plumbing & Heating Co., 138 NLRB 716. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: 7 the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, 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. 318 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ORDER-^ Respondent, Pile Drivers Union Local 2375, United Brotherhood of 'Carpenters & Joiners of America, AFL-CIO, its officers, agents, and representatives shall' 1. Cease and desist from refusing to refer Frank Thomas Dennison, Jr., or any other qualified person, to employment through its exclusive hiring hall procedure because of lack of membership or good standing in said Union. -' 2. -' Take the following affirmative action designed to effectuate the policies of 'the Act` - (a) ' Upon request, ° make Respondent's hiring hall procedures available to Frank Thomas Dennison, Jr., and in accordance therewith refer him to available employment. (b) Make Dennison whole for any loss of wages suffered by him-by reason of Respondent's refusal to refer in the manner set forth in the section' of this decision entitled "The Remedy." (c) Post in conspicuous places at its business office and meeting hall, including all places where notices to its members are customarily posted, copies of the attached notice marked "Appendix." S Copies of- said notice, to be furnished by the 'Regional Director for Region 21, shall, after being duly signed by an authorized representative of Respondent, be posted by it immediately upon receipt thereof and be maintained by it for 60 consecutive days. Reasonable steps shall be taken by Respondent to insure that such notices are not altered, defaced, or covered by any other material. (d) Deliver or-mail signed copies of said notice to the Regional Director for-Region 21 for the information of and posting by, if willing; the Associated General Contractors of California, Inc., Engineering and Grading Contractors Association, Inc., and the Building Industry Association of California, Inc. (e) Notify the Regional Director for Region 21, in writing, within 20 days from the receipt by Respondent of a copy' of this Decision, what steps it has taken to comply herewith.9' 9 In the event that the Boards 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." , 9 In the event that this recommended'Order is adopted by.the .Board after exceptions have been filed, this provision,shall bbe modified to read: "Notify the Regional Director for- Region- 21, in writing,-within `20 days from the date of this Order, what steps the Respondent has' 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 refuse to refer to employment Frank Thomas Dennison, Jr., or any, other qualified person, because of . his or their lack of membership or. good standing in this Union.. WE WILL, upon-request,, place Dennison"s name on our out-of-work list and. in, accordance with our hiring hall procedure refer him to available employment, and we will make him whole for any:loss of wages suffered by him by reason of our, refusal- to refer him to employment in June to August 1970. PILE DRivERs UNION LocAL 2375, UNITED BROTHERHOOD OF CARPENTERS & JOINERS OF AMERICA, 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 B'oard's Office, Eastern Columbia Building, ,849 South Broadway, Los Angeles, California 90014, Telephone 688-5229.