Metal Lathers, Local 57

978 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Wood, Wire and Metal Lathers Union, Local 57, AFL-CIO (Mancini and Klimchuck Company, Inc.) and James D. Barnes. Case 3-CB-1779 August 18, 1972 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS JENKINS AND KENNEDY On April 19, 1972, Trial Examiner Sidney Sherman issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions 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 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 and brief and has decided to affirm the Trial Examiner's rulings, findings, and conclusions 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 Respondent, Wood, Wire and Metal Lathers Union, Local 57, AFL-CIO, its officers, agents, and representatives, shall take the action set forth in the Trial Examiner's recommended Order. CHAIRMAN MILLER, dissenting in part: Save in one respect, I concur in the decision of my colleagues. I disagree only with their conclusion that the complaint, as litigated, adequately tendered as an issue the question of whether Respondent, with the Employer's acquiescence, used its exclusive referral rights-lawfully granted it by a bargaining contract -to discriminate against nonunion job applicants as a class. I do not therefore join my colleagues in their approval of that part of the Trial Examiner's Decision which finds an unlawful oral arrangement or agreement between Respondent and the Employer in fact existed and which provides for its discontin- uance in the remedial order. Concededly, the complaint's specific terms do not allege an unlawful oral agreement with respect to referrals. When the damaging testimony of Respon- dent's business agent suggested the possible existence of such unlawful arrangement, General Counsel was explicitly asked if his complaint went beyond the limited claim that employee Barnes lost his job as a result of Respondent's request that he be displaced by a union member. General- Counsel's answer indicated that no more than the alleged discriminato- ry union conduct involving Barnes was being attacked. Pointing to this exchange of counsel, Respondent's exceptions state that Respondent "could not have been expected to introduce evidence in support of its position with respect to this matter," and it did not do so. In the above procedural context, I am unwilling to indulge in any speculation that Respondent had no evidence to present to counteract the damaging testimony of its business representative on the matter. TRIAL EXAMINER'S DECISION SIDNEY SHERMAN , Trial Examiner : The charge herein was served on Respondent on November 30, 1971, the complaint issued on January 12 , 1972, and the case was heard on March 7, 1972.1 The issues litigated related to alleged violations of Section 8(b)(2) and (1)(A) through discrimination in referrals. After the hearing, briefs were filed by Respondent and the General Counsel. Upon the entire record,2 including observation of the witnesses' demeanor, the following findings and recom- mendations are made: I. THE BOARD'S JURISDICTION Mancini and Klimchuck Company, Inc., hereinafter called the Employer, is a corporation under the laws of New York State and is engaged in the construction business as a contractor, maintaining its principal office at Endicott, New York. During the 12 months immediately preceding the issuance of the complaint, the Employer received, from out-of-state sources, goods valued in excess of $50,000 and had gross revenues of more than $500,000. The Board's jurisdictional standards are met here. II. THE RESPONDENT Wood, Wire and Metal Lathers Union, Local 57, herein called Respondent, is a labor organization under the Act. III. THE MERITS A. Issue The complaint alleged, and the answer denied, that Respondent violated Section 8(b)(2) and (1)(A) of the Act by causing the Employer to refuse to employ Barnes because he was not a member of Respondent. B. Sequence of Events On June 1, 1969, Respondent and Associated Building 1 For corrections of the transcript and other matters, see the show cause orders of April 3 and 4, 1972 No response to those orders having been received, they became final on April 10 2 The General Counsel's unopposed motion to correct the record, submitted with his brief on March 30, 1972, is hereby granted 198 NLRB No. 136 METAL LATHERS, LOCAL 57 979 Contractors of The Triple Cities, Inc., entered into a contract for a term ending May 31, 1972. There is no dispute that, as Respondent's answer avers, the Employer is bound by this contract, which recognizes Respondent as the exclusive representative of the Employer's lathers. Articel III of that contract provides: All employers recognize the Union as the source of qualified workmen and will call upon the Union for such men as he [sic] shall, from time to time, need and the Union shall furnish to the Employer [sic] the required number of qualified and competent workers. Said workmen shall be made available by the Union from an out-of-work registration list maintained for such purposes by the Union. Said list shall be the sole responsibility of the Union and shall be open and non- discriminatory . . . . The employer shall also have the right to request the availability of particular employees. Article VIII, section 14, of the foregoing contract provides: The Employer shall employ at least one (1) journeyman lather over fifty (50) years of age for every five (5) men employed on any one job, provided they are available at the time of employment. It is clear that the net effect of the foregoing language is to establish Respondent as the exclusive source of lathers, and the record shows that all such employees are in fact obtained from that source alone. Moreover, despite Respondent's above-quoted renunciation of any discrimi- nation in referrals,3 it was agreed at the hearing that Respondent and the area contractors, including the Employer, have been parties to the following arrangement: While it will refer nonmembers to jobs as lathers, provided that they have paid it a $4 weekly fee for a work permit,4 Respondent gives preference in referrals to its own members. Thus, nonmembers (or "permit men") are referred to a job only when no members are available to man that job and, if a member becomes unemployed and a "permit man" is currently working, Respondent will simply refuse to renew his weekly permit at the end of that week,5 and request the Employer to hire the unemployed member .6 With respect to the charging party, Barnes, the record shows that, while working as a permit man under the foregoing arrangement, he was laid off by the Employer on October 8 and November 26, at a time when Braman, a member of Respondent, who was over 50 years of age, was unemployed. There was no substantial dispute that, on the first occasion such layoff occurred, Union Agent Ulrich demanded that Mancini, a coowner of the Employer, hire Braman, serving notice at the same time upon Mancini 3 Such renunciation of discrimination is amplified in sec 3 of art III of the contract as follows: Journeyman lathers and Apprentices shall be referred by the Local Union to jobs on a non-discriminatory basis and such referral shall not be based on, or in any way be affected by Local Union membership, by-laws, rules, regulations, constitutional provisions or any other aspect or obligations of Local Union membership, policies or requirements Nonmembers working under such an arrangement are referred to in the record as "permit men " 5 The work permits are good only for the current week and must be renewed each week by payment of the weekly fee 6 While the contract required lathers to become members of Respondent after the 7-day statutory grace period, it is evident from the record that this that Barnes' work permit, which was to expire on October 8, would not be renewed.? Mancini retorted that he would not hire Braman because of his limited climbing ability, and he was not hired. However, Barnes was laid off on October 8. The next week both Braman and Barnes were referred by Respondent to jobs with other employers. On November 8, Barnes returned to work for the Employer as a journeyman lather. Within the next 10 days, Braman again became unemployed and on November 18, Respon- dent notified the Employer that it had some unemployed members and demanded that it lay off Barnes. On November 19, he was taken off lathing and assigned to carpentry. When, on November 26, that work ran out, he was again laid off and has not since been rehired by the Employer. C. Discussion The General Counsel contends that the removal of Barnes on October 8 and November 19 from lathing work should be found to have been caused by Respondent for discriminatory reasons and, therefore, violative of Section 8(b)(2) and (1)(A). Respondent contends, inter alia, that it was only seeking here to enforce the contractual require- ment quoted above for the hiring of journeymen over 50 years of age when there are five men on the job. It was stipulated that at all times here relevant there were eight lathers on the job and Respondent points to Ulrich's testimony that, when he called Mancini early in October,8 he stated that Braman was unemployed and that there was no one on the job over 50 years of age and demanded that Braman be hired. However, Ulrich admitted that in this conversation he specified that Braman be hired as a replacement for a "permit man,"9 warning Mancini that he would not renew Barnes' permit after October 8. More- over, although Ulrich professed ignorance of the matter, Respondent's secretary-treasurer conceded at the hearing that Youket, Respondent's job steward on the instant job, was well over 50 years of age and the record shows that he was employed on that job as a lather throughout the period here under consideration. Accordingly, it is clear that the Employer was not in violation of the over- age clause either on October 8 or November 19. Respondent, nevertheless, contends that Ulrich in good faith believed that there was such a violation and that his motivation, which is the controlling consideration here, should therefore be found to have been lawful. However, one would have to be naive to credit Ulrich's disclaimer of any knowledge of the approximate age of his own job steward, particularly as it was admitted that such informa- tion appeared on Respondent's records. Moreover, it is requirement was not enforced , Respondent apparently preferring to allow nonmembers to work on a weekly permit basis, as they were needed, subject to displacement by unemployed members. 7 See In 5, above 8 Ulrich vacillated at first as to whether this conversation occurred several days before Barnes' first or second layoff, but finally related it to the first layoff. As found below, Ulrich also called Mancini a day or so before the second layoff The contents of that conversation are discussed below 9 According to Ulrich there were then three "permit men" on the job and two members of a sister local of Respondent Since it was stipulated that there were all together eight lathers on the job at all relevant times, it is inferred that the remaining three lathers at work on October 8 were members of Respondent 980 DECISIONS OF NATIONAL LABOR RELATIONS BOARD significant that Ulrich did not simply demand that the Employer hire Braman but also insisted that it make room for him by laying off one of the "permit men," pointedly warning the Employer at the same time that the weekly permit of one of those men, Barnes, would not be renewed. Since, under the existing arrangement between the parties, Barnes could not continue to work for Respondent unless his permit was renewed, Ulrich's remarks were tantamount to a demand that Barnes be laid off and Braman hired to replace him. Thus, even if one were to find that the demand that Braman be hired was not improperly motivated, that circumstance would not excuse Ulrich's designation of Barnes as the one to be laid off, which designation, so far as the record shows, was based solely on the fact that Barnes was not a member of Respondent but a permit man. Respondent urges that, in any event, there is insufficient evidence that the Employer laid off Barnes on October 8 as a result of Ulrich's foregoing conversation with Mancini. Respondent points to the testimony of Holobosky, the Employer's job superintendent, that there was a decline in the volume of lathing work, which necessitated the layoff of three lathers on October 8. However, Holobosky also testified that Barnes was selected for layoff, after consulta- tion between the witness and Mancini, solely because he was a permit man and that, if he had been a member of Respondent, he would have been retained. Since it appears from the foregoing testimony, which was not contradicted, that Mancini participated in the selection of Barnes for layoff on October 8, such testimony suffices to establish a nexus between such selection and Ulnch's warning to Mancini that Barnes' permit would not be renewed. To sum up, it is found that the existing arrangement between the Employer and Respondent required that Barnes be laid off upon the expiration of his weekly work permit, that the Employer was forced to lay him off on October 8, by Respondent's warning that his work permit would not be renewed beyond that date,10 and that, in insisting on the removal of Barnes from the job, Respon- dent acted for discriminatory reasons. It follows that it thereby violated Section 8(b)(2) and (1)(A). As to the November 19 incident, Barnes was on that date again working for the Employer, having returned to the job on November 8. Mancini testified, without any substantial contradiction, and it is found, that on November 18, Ulrich called him, stated, in effect, that he had some members out of work,li and insisted that Barnes "had to go"; and that to placate Ulrich the witness transferred Barnes on November 19, to work as a carpenter's helper, without, however, hiring any replacement for him on the lathing work. While the Employer, as a result, had to operate with less than the optimum number of lathers, it is clear from the record that Mancini regarded that as preferable to 10 While it is clear that it had no intention of complying with Respondent's request that Braman be hired, the Employer had no alternative but to lay off Barnes upon the expiration of his work permit. (Although such permit was in fact renewed during the following week, this was presumably because Respondent had in the interim succeeded in finding anotherjob for Braman ) 11 One of such unemployed members was Braman 12 While the complaint does not allege the maintenance of such arrangement as a separate violation, the issue was adequately litigated See Tonn and Blank, Inc, 182 NLRB 233 giving Respondent an occasion for referring Braman to the job. Thus, it is found that as of October 8 the Employer was forced to dispense with the services of Barnes in order to avoid violating the preferential hiring arrangement, which did not allow it to retain a permit man so long as members of Respondent were available , and that Ulrich's reason for again designating Barnes as the one to be laid off was solely his lack of membership in Respondent. It follows that, by causing Barnes to be taken off lathing work on November 19, Respondent again violated Section 8(b)(2) and (1)(A). It is further found that, by maintaining an arrangement or understanding with the Employer requiring that members of Respondent be given preference in hiring, Respondent additionally violated Section 8(b)(2) and (1)(A) of the Act.12 IV. THE REMEDY It having been found that Respondent violated Section 8(b)(2) and (1)(A) of the Act, it will be recommended that it be required to cease and desist therefrom and take appropriate affirmative action. Such action shall include indemnifying Barnes for any loss of earnings suffered by reason of the discrimination against him. Backpay shall be computed in accordance with the formula prescribed in F. W. Woolworth Company, 90 NLRB 289; interest shall be added to backpay at the rate of 6 percent per annum (Isis Plumbing & Heating Co., 138 NLRB 716).13 It will be further recommended that Respondent notify the Employer, in writing, with a copy to Barnes, that it has no objection to his employment on any job within Respondent's jurisdiction, regardless of the availability of its members to fill the same job.14 In view of the nature of the violations found herein, a threat of future violations exists which warrants a broad cease-and-desist provision. V. CONCLUSIONS OF LAW 1. Respondent is a labor organization under the Act. 2. By maintaining an arrangement or understanding with the Employer requiring that preference in hiring be given to its members, and by causing the Employer to lay Barnes off on October 8, and to take him off lathing work on November 19 because of his lack of union membership, Respondent violated Section 8(b)(2) and (])(A) of the Act. 3. The foregoing unfair labor practices affect com- merce within the meaning of the Act., Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, there is issued the following recommended: 15 13 While the record shows that the project on which Barnes was employed on October 8 and November 19 has been completed, it also appears that, in various capacities, Barnes has worked for the Employer over a period of 3 years It may be, therefore, that, if Barnes had been retained as a lather until the completion of the instant project, he would have been transferred to another project. This circumstance should be taken into account in computing Barnes' backpay See J A Ferguson Construction Company, 172 NLRB 165, cf Tonn and Blank, Inc, 182 NLRB 233, 241 14 See Tonn and Blank, Inc, supra at page 241. 15 In the event no exceptions are filed as provided by Sec 102.46 of the METAL LATHERS, LOCAL 57 981 ORDER Respondent, Wood, Wire and Metal Lathers Union, Local 57, AFL-CIO, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Causing or attempting to cause employers to discriminate against James Barnes or any other employee with regard to his hire, tenure, or any other term or condition of employment, because he is not a member of Respondent. (b) Maintaining any arrangement or understanding with Mancini and Klimchuck Company, Inc., or any other employer requiring that preference in hiring be given to members of Respondent. (c) In any other manner coercing employees in the exercise of rights guaranteed in Section 7 of the Act, except to the extent that such rights are modified by the proviso in Section 8(a)(3) of the Act. 2. Take the following affirmative action, which is deemed necessary to effectuate the policies of the Act. (a) Make James Barnes whole, in the manner prescribed in the Remedy section of the Trial Examiner's Decision, for any loss of earnings he may have suffered as a result of the discriminatory actions of October 8 and November 19, 1971. (b) Promptly notify Mancini and Klimchuck Company, Inc., that it has no objection to the employment of James Barnes as a journeyman lather on any job within Respondent's territorial jurisdiction, regardless of the availability of its members to fill the same job, and at the same time serve a copy of such notice on James Barnes. (c) Post at its office and meeting hall and at the job sites of Mancini and Klimchuck Company, Inc., within Respon- dent's jurisdiction, if the former is willing, copies of the attached notice marked "Appendix." 16 Copies of said notice, on forms provided by the Regional Director for Region 3, after being duly signed by an authorized representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, includ- ing 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 3, in writing, within 20 days from the receipt of this Order, what steps have been taken to comply herewith.17 Rules and Regulations of the National Labor Relations Board , the findings, conclusions, and recommended Order herein shall, as provided in Sec 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 16 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 read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 17 In the event that this recommended Order is adopted by the Board after exceptions have been filed , this provision shall be modified to read- "Notify the Regional Director for Region 3, in writing , within 20 days from the date of this Order, what steps have been taken to comply herewith " APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT maintain any arrangement or under- standing with Mancini and Klimchuck Company, Inc., or any other employer requiring that preference in hiring be given to our members. WE WILL NOT cause or attempt to cause Mancini and Khmchuck Company, Inc., or any other employer to discriminate against James Barnes or any other employee because he is not a member of our union. WE WILL NOT in any other manner restrain or coerce employees in the exercise of the rights guaranteed by Section 7 of the aforenamed Act, except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized by Section 8(a)(3) of the Act. WE WILL make James Barnes whole for any loss of pay he may have suffered as a result of the discrimina- tion against him on October 8 and November 19, 1971. WE WILL notify Mancini and Klimchuck Company, Inc., that we have no objection to the employment of James Barnes as a journeyman lather on any job within our jurisdiction, whether or not one of our members is available to fill the same job, and we will serve James Barnes with a copy of that notice. WOOD, WIRE AND METAL LATHERS UNION LOCAL 57, 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, 9th Floor, Federal Building, 111 West Huron Street, Buffalo, New York 14202, Telephone 716-842-3100.