Metropolitan District Council, Carpenters

METROPOLITAN DISTRICT COUNCIL, CARPENTERS Metropolitan District Council, United Brotherhood of Carpenters and Joiners of Philadelphia and Vicinity and George H. Stump, James W. Stump and John C. Stump. Case 4-CB-1798 November 11, 1971 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS On July 21, 1971, Trial Examiner Thomas A. Ricci issued the attached Decision in this proceeding. Thereafter, the General Counsel and the Charging Parties filed exceptions and supporting briefs, and the Respondent filed cross-exceptions with a supporting brief and an answering 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 authority in this proceeding to a three-member panel. The Board has considered the record and the Trial Examiner's Decision in light of the exceptions, cross- exceptions, and briefs and has decided to affirm the Trial Examiner's rulings, findings,' and conclusions2 and to adopt his recommended Order. 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 complaint be dismissed in its entirety. 1 The General Counsel has excepted to certain credibility findings made by the Trial Examiner. It is the Board's established policy not to overrule a Trial Examiner's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions were incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544, enfd. 188 F.2d 362 (C.A. 3). We have carefully examined the record and find no basis for reversing his findings. 2 We agree with the Trial Examiner's conclusion that Respondent did not violate Sec. 8(b)(2) and (1)(A) in requiring monthly permit fees from the Stumps to work; however, our reason for so finding is that General Counsel failed to establish by a preponderance of the evidence that the fees had no relation to services performed by Respondent. As to whether Respondent violated Sec 8(b)(2) and (1)(A) by causing the Stumps' discharges because of nonmembership, we do not agree with the Trial Examiner that the question of legality or illegality of Respondent's conduct cannot turn on the use of one word or another. Indeed, the words used by Respondent's agent could be crucial in determining whether Respondent was legally motivated by the Stumps' residence outside the local geographical area or illegally motivated by their lack of membership in Respondent or one of its affiliated local unions. We find, however, on the basis of the record before us, that the General Counsel failed to prove by a preponderance of the evidence that Respondent was motivated by the latter considerations, and therefore we adopt the Trial Examiner's recommendation that the complaint be dismissed. 159 TRIAL EXAMINER'S DECISION THOMAS A. Ricci, Trial Examiner: The charge in this case was filed by three individuals on January 26, 1971, and a hearing was held on May 24, at Philadelphia, Pennsylva- nia. The General Counsel's complaint, issued on March 11, 1971, charges that the Respondent, Metropolitan District Council, United Brotherhood of Carpenters and Joiners of Philadelphia and Vicinity, here also called the Council, or the Philadelphia Union, caused the three Charging Parties to be dismissed from their employment at a hospital construction project in the city of Philadelphia, that it was motivated by an unlawful objective, and that therefore its conduct constituted a violation of Section 8(b)(2) of the Act. The Respondent insists it was a matter of geography, the men who now complain were from out of town, and local carpenters who were out of work were entitled to preference. Briefs were filed by the General Counsel and by the Respondent. Upon the entire record, and from my observation of the witnesses, I make the following: FINDINGS OF FACT There is no question concerning commerce or the Board's jurisdiction. Jamestown Hospital Equipment, Inc., and Jamestown Metal Products Company, are subsidiaries or divisions of AVM Corporation; together here called Jamestown Metal, the group sells and installs metal cabinets all over the country. In the fall of 1970 it started a job in A new hospital in Philadelphia. It does a minimum of $50,000 of business across state lines annually. I find that the Company is engaged in commerce within the meaning of the Act and that it will effectuate the policies of the Act to exercise jurisdiction herein. I also find that the Philadelphia District Council is a labor organization within the meaning of Section 2(5) of the Act. There is also no serious question as to the critical underlying facts about the alleged unlawful discharges. The three Stumps live in Reading, Pennsylvania, and have long been members in good standing of the AFL-CIO Carpenters Local No. 492 in that city. In 1970 they worked for the Jamestown Company in the area of Reading and within the territorial jurisdiction of Local 492 on an earlier job of the Company. Lawrence Arpin, roving superintend- ent for Jamestown, was their boss there, and he brought them with him to work on his next job in Philadelphia. The three carpenters worked from October 13 to the end of the month, with work permits issued by the Council. On November 2, 1970, Edward Kane , Business Agent of the Council, came to the Stumps and told Arpin he wanted all three of the Stumps off the job or else he would pull all other carpenters off on strike. Arpin then had three local men working for him and there were other union carpenters employed by other contractors on the project. That Kane in fact said he would pull the entire job unless the Reading carpenters were dismissed is established by the testimony of Arpin and George Stump. The assertion, in the Respon- dent's brief, that the men quit voluntarily, is in no way supported by the evidence. According to Stump, when the 194 NLRB No. 28 160 DECISIONS O1 NATIONAL superintendent asked Kane what would happen if he, Arpin, refused to release the three men, the business agent answered: "Well, then I'll shut the job down." As Arpin recalled: "Mr. Kane said that he would close the job down if they continued to work." Kane was called as a witness but did not contradict either Stump or Arpin. Robert Gray, secretary-treasurer of the District Council, as a defense witness said Arpin called him on the phone 2 days later and that he, Gray, then told him he was free to hire all three Stumps. Arpin denied Gray said this; I do not credit Gray. He may have spoken to Arpin, but in the total circumstances of the case he was not a reliable witness. Gray also would have it that when the three out-of-town men appealed to him personally to accept a transfer of their membership from the Reading local to the Philadelphia Council, all he told them was they would have to take a minor qualifying test, and that they refused to do so. All three of the Stumps denied any such talk by Gray. Desirous of working on this job, and attempting to get around the Council's objections by clearing into the Philadelphia Union, had they really been told all that was required was a minor test, the last thing George Stump and his brother John would have done was refuse; John has been an AFL carpenter 23 years and John 12 years. I find it unbelievable that a union agent of Gray's experience would require a qualifying examination from such longstanding members of his own international. More significant, Gray's story conflicts with that of his assistant, Gray, who said nothing about expert qualification, but gave a totally unrelated reason for preventing these men from working in the area. That the Respondent Union "caused" Jamestown, the employer, to discriminate against the three carpenters, is clear. The heart question of the case, however, turns on the motivation of the Council in causing the discharges. If its objective was one not prescribed by the Act, there can be no unfair labor practice finding. Radio Officers'v. N.L.R.B., 347 U.S. 17. I find that the reason why the Respondent did what it did was to gain employment for carpenters living and working in the Philadelphia area, what is called the Five County area. This is the geographical delineation of the contract coverage of the Respondent's contract with employers in the area, this is the geographical coverage of the contract which Jamestown signed with the Council long before the events, and this is the contract that was in effect when the discrimination was brought about. The best proof of the true motivation came from Arpin himself, the principal witness for the General Counsel. Arpin admitted Kane "said local men needed work." "And naturally, I wanted to know why-and he [Kane } said it was because he had local men available for the job." "Q: When Mr. Kane told you, on November 2, that he had local men or local members out of work, whatever it was-what did you understand him to mean by that? A: That the members of his local were unemployed." "Q: And that's when Mr. Kane told you you'd have to lay them off because he had unemployed local men-otherwise, he'd shut the job down? A: That's correct. Q: And that was the only reason that he gave you-that he had local men unemployed, isn't that correct, Sir? A: That's correct." What had Kane told the Respondent's steward on the job? ". . . he said that he had men available and he could not issue a permit for out-of- towners, as long as he had men available." LABOR RELATIONS BOARD The following is from the testimony of Kane: "... i said that we wouldn't issue-I wouldn't issue any permits because we have men out of work from this area and men were calling me on the phone, in particular, about that particular job down there." ". . . I said that `we have men that are out of work from different locals that have called over the weekend.' " Despite Arpin's statement at the hearing that he had difficulty finding carpenters in that area at that time, and even that Kane told him, some weeks earlier, that "at that particular time he didn't have any available," there are objective facts supporting a finding that a desire to give employment to local area men was in fact the Respondent's motivation. On Monday morning, November 2, Arpin had six carpenters at work. With the discharge of the three Stumps during the morning he was down to three. But that very morning he also discharged another, one Pete Monihan, because, as Arpin testified, the man refused to work Fridays. His need for men at the time, and consequently the alleged scarcity of workmen, could not have been very great. More important, during that very week carpenters came off the street looking for work and he hired them. There is indication from Arpm's testimony that by the end of the week he was up to 10 carpenters, all also members of the area local union. Kane must have been telling the truth that there were carpenters in Philadelphia needing work. I find very unpersuasive the argument in the General Counsel's brief that maybe the many persons who just showed up at the jobsite themselves came from far away, somewhere outside the Five County area. It is not unlawful for a union to insist upon a geographical preference in the hiring of workmen. Local Union No. 337 (Townsend and Bottum), 147 NLRB 929: "As we have held, the Act does not prohibit a union from trying to ease the impact of local unemployment by excluding workers holding outside jobs, or by attempting to cause employers to limit work opportunities to strictly local applicants." See, also, International Union of Operating Engineers, Local 98 (Consolidated Gas and Service Co.), 155 NLRB 850, where the preference enforced was in favor of "Boston men" and against "Greenfield men." The Board has also held that the fact the people who live in the area are also members of the union that functions there, of itself is insufficient to prove that the objective in the local union's demand is to gain preferred treatment for members of one union instead of members of another. A very comparable situation was presented in Bricklayers, Masons and Plasterers, etc. Union No. 28 (Plaza Builders), 134 NLRB 751, where also the workmen from one area were members of one union and those from the separate area members of the Respondent Union. The Board there agreed that merely because "the criterion of residence in the area could only be met by members of the Respondent" was not sufficient to prove that the Respondent Union's motivation in causing the discrimination was membership in one union instead of the other. Nor can the major question of legality or illegality turn upon the use of one word or another. Unfair labor practices are proved by a preponderance of the substantial evidence on the record as a whole, or not at all. Glenn Raven Silk METROPOLITAN DISTRICT COUNCIL, CARPENTERS 161 Mills, Inc. v. N.L.R.B., 203 F.2d 946 (C.A. 4). Most of the carpenters who live in the Five County area are, through 27 local unions, members of the District Council, and it stood to reason that the local officials should at times refer to ,'them also as members of the local or locals. Pressed by the General Counsel, at one point Kane conceded that when demanding dismissal of the Stumps he said " `Men' or 'members'-I don't know which it could have been. I could have used `members' as far as that's concerned. It was either `men' or `members.' " Arpin could not recall Kane's exact words either: "No, I'm not positive-`men' or `local men' or `members. " As an afterthought to the original complaint the General Counsel modified it to allege that Arpin, Jamestown's roving superintendent, was also an agent of the Union, and that therefore his act in discharging the men, entirely apart from what may or may not have otherwise been proved against the Respondent, constituted the illegal "causing" in this case. The theory is expanded in the brief by arguing that even though Arpin was told by Kane that geography was the Union's concern, he, Arpin, believed the real reason to be membership in the Council, and therefore, the mistaken intent of the agent becomes the illegal intent chargeable to the Respondent. Were the proof of legitimate intent less clear and direct, were it at least out of the mouth of some other witness, there might be some persuasion in this devious approach. But the record evidence, in critical part, consists of Arpin's own testimony. For him to say later, at the hearing, that in his opinion the Respondent was seeking to accomplish a hidden purpose, is no different than the fundamental allegation stated in the complaint itself. Judgment must rest upon the evidence as to what transpired at the time of the events, and it is not for Arpin to make. There are a number of additional theories of illegality and arguments, not all clearly articulated in the General Counsel's brief, but none of which are persuasive. It is said that there existed a closed shop here, created, it would appear, all in Arpin's mind, because in the dual capacity as both superintendent and union agent he ran the business that way. It is simultaneously conceded, however, that the contract did not provide for a hiring hall, exclusive or otherwise, and at some points Arpin himself said he was free to hire off the street and did so. The complaint alleges that the Union acted illegally in requiring the Stumps to pay for work permits on the Philadelphia hospital project. The case was not tried on this theory at all; the Stumps in fact worked for more than 2 weeks before they had any permits, and what was stressed at the hearing as the real vice in the case was the Respondent's refusal to accept the employees' offer to pay for work permits. It will be recalled that on the very morning that Business Agent Kane told Arpin to dismiss the Stumps, Monihan, one of the local area carpenters, was discharged for other reasons. Kane quarreled with Arpin about Monihan also. There simply is no evidence worthy of note that Kane's objections to the Stumps was retaliation against the Company for releasing Monihan, and the General Coun- sel's assertion to that effect seems to be pure speculation. And finally, when a union "causes," as the Act reads, an employer to discriminate against an employee, the legality of its conduct cannot depend upon the manner in which it chooses to make its desire effective. The brief says that if Kane had invited Arpin "to voluntarily and freely" send the men home, the complaint might be dismissed, but because he resorted to "naked economic power" and used "duress" the finding must be otherwise. I find no support for this distinction in the cited cases. I find that the record as a whole does not contain sufficient evidence to prove the essential allegations of the complaint, and shall therefore recommend dismissal of the complaint. RECOMMENDED ORDER On the basis of the record in its entirety I hereby recommend that the complaint be, and it hereby is dismissed.