United Derrickmen & Riggers Assn.

58 DECISIONS OF NATIONAL LABOR RELATIONS BOARD United Derrickmen & Riggers Association, Local 197 of New York, All Long Island and Vicinity (Domestic Stone Erectors , Inc.) and Thomas Mur- ray. Case 2-CB-5279 July 26, 1973 DECISION AND ORDER By CHAIRMAN MILLER AND MEMBERS FANNING AND PENELLO On May 17, 1973, Administrative Law Judge Frank H. Itkin issued the attached Decision in this proceed- ing. 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 Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the Ad- ministrative Law Judge's Decision in light of the ex- ceptions and brief and has decided to affirm the Administrative Law Judge'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 Rela- tions Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that Respondent, United Derrickmen & Rig- gers Association, Local 197 of New York, All Long Island and Vicinity, New York, New York, its offi- cers, agents, and representatives, shall take the action set forth in said recommended Order. DECISION FRANK H. ITKIN, Administrative Law Judge: This case was tried before me at New York, New York, on April 12 and 25, 1973. The unfair labor practice charge was filed on January 17 and the complaint issued on February 23, 1973. The issue presented is whether Respondent Union violated Section 8(b)(2) and 8(b)(1)(A) of the National Labor Rela- tions Act by causing Domestic Stone Erectors, Inc. (the Company) to refuse employment to Thomas Murray be- cause he was not a member of the Union. Upon the entire record, including my observation of the witnesses, and after due consideration of the briefs filed by counsel for General Counsel and Respondent, I make the following: FINDINGS OF FACT I JURISDICTION The complaint alleges, the answer as amended at the hearing admits, and I find that the Company, a New York corporation, maintains its office and place of business in New York, New York, where it is and has been engaged in the installation of stone and marble in commercial build- ings, and that during the past year the Company, in the course and conduct of its business, purchased and caused to be transported to its place of business stone and marble and other goods and materials valued in excess of $50,000, which goods and materials were transported directly from outside the State of New York. I find and conclude that the Company is and has been at all times material an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. In addition, the complaint alleges, the answer admits, and I find and conclude that Respon- dent Union is and has been at all times material a labor organization within the meaning of Section 2(5) of the Act. II THE UNFAIR LABOR PRACTICE The complaint alleges, the answer admits, and I find and conclude that George Moran is and has been at all times material the business agent of Respondent Union, acting on its behalf as its agent; that Respondent Union has been at all times material a party to a collective-bargaining agree- ment with the Contracting Stonesetters Association, Inc. (the Association); and that the Company has been at all times material a member of the Association and has recog- nized Respondent Union as the collective-bargaining repre- sentative of its employees. Thomas Murray testified without contradiction that he is presently employed by the Company as a welder and der- rickman; that he has worked for the Company periodically since 1966; and that, up to December 26, 1972, he worked for the Company continuously for 18 months except for a 2-week period during August 1972. Murray testified that he is not a member of Respondent Union.' Murray testified that for 18 months prior to December 26, 1972, he worked for the Company at the Celanese Building site in New York City; that he "had to obtain a permit to go to work" for the Company; that he had "to get a permit every Monday morning" at the Union's hall and that each permit is "good from Monday until Sunday"; that Union Business Agent Moran issues the permits at a weekly charge of $2.50. Mur- ray testified that during the past 5 years he has worked for other employers within the jurisdiction of Respondent; that on each occasion he was similarly required to obtain a per- mit; and that he has never been allowed to go directly to such a jobsite without first getting a permit. Murray testified that on Tuesday, December 26, 1972, he went to the Union's office at the Broadway Central Hotel "to obtain my permit so I could work that week"; that he "went to the window and Mr. Moran was sitting at the desk 1 Murray explained that on several occasions he spoke with Union Busi- ness Agent Moran about joining the Union, but was unsuccessful in his attempts to become a member of the Union 205 NLRB No. 17 UNITED DERRICKMEN & RIGGERS ASSN. and the secretary was sitting there"; and that Moran said to Murray: "No permit today." Murray explained: He [Moran] asked me where I was working and I told him on the Celanese Building at 6th Avenue and he said to [Henry] Brian [who] was sitting across from him to go to the Celanese Building and take my place. Murray identified Brian as a rigger and welder who is a member of Respondent Union. Murray testified that he then went to the Celanesejobsite and there he spoke with John Kelley, the Company's vice president. Murray, as he testified, told Kelly "that the Union . . . is sending somebody else in [his] place and they weren't letting [him] come to work." Murray explained: I said: "Mr. Kelley, I won't be able to work today because the Union refused me my work permit and they are sending Hank Brian in my place. Kelley then stated: "I am going to call Mr. Moran and find out about it." Murray noted that Brian had worked for the Company a few weeks prior to this incident "and he quit the job he was working on, so this is why [Kelley] was a little bit annoyed about it." 2 Murray added: "I have to get a permit to go to work. . . . I get on the job . . . I have to show the shop steward the permit and if I don't have the permit on a Monday morning, I can't go to work until I go down and obtain one." John Kelley testified without contradiction that he is vice president of the Company; he is in charge of, inter aka, hiring and firing on construction jobs; and the Company is bound by a collective-bargaining agreement with the Union. Kelley, in describing the Company's practice in se- curing "a worker who is not a Local 197 member," testified: ... for me to hire a man who is not a local bookman [member], *** he would have to be sent from the Union hall. *** the Union issues him a permit. Kelley recalled that this practice has existed since 1949. Kelley explained that he "cannot hire" a person who does not have a permit from the Union. Kelley testified that there has never been an occasion when his Company has hired a nonunion member who did not have a permit. Kelley testified that on December 26, 1972, Mr. Murray came to me that morning on the job .. . and told me that the Union didn 't issue him his permit and that I was getting a replacement man in his place, a man named Bryant [also appearing in the record as Brian]. * * * * Well, when Murray told me that Mr. Moran or the Union was sending up a replacement man, a fellow 2 Murray also related that during August 1972 he went to the union hall for a permit and was similarly "refused a permit to go to work" for the same employer 59 named Bryant, I went to the phone to call Moran... . I told Mr. Moran, what was the idea of sending me Mr. Bryant in replacement of Murray, seeing that Bryant quit me two weeks before claiming that the work was too hard. Mr. Moran then told me that he had quite a few bookmen out of work and that is what he had to do. Kelley explained that Murray had worked for the Company prior to December 26 and "he was to continue to work." Kelley permitted Bryant to work as a replacement for Mur- ray that day and then determined that the Company "could do without one man" after checking the job. Kelley added that Murray would have continued working after December 26 because, ... he [Murray] was with me for a year and a half and he does more thanjust normal derrickman' s duties . . he can do normal derrickman' s duties plus welding.3 I credit the foregoing uncontradicted testimony of Mur- ray and Kelley which is in large part mutually corrobora- tive. Counsel for Respondent called no witnesses. III DISCUSSION Under settled principles a union violates Section 8(b)(2) and (1)(A) of the Act if, acting under an agreement or arrangement with an employer requiring exclusive referral of all employees through a hiring hall, it refuses to refer an applicant for employment because of his lack of union membership. Cf. Tryco Steel Corporation, 192 NLRB 97 (1971), enfd. 81 LRRM 2479 (C.A.D.C., 1972); Internation- al Association of Ironworkers, Local No 10 (Guy F. Atkinson Co.), 196 NLRB 712 (1972); N.L.R.B. v. International Union of Operating Engineers Little Rock, Local 382-382A [Armco Drainage & Metal Products], 279 F.2d 951, 955 (C.A. 8, 1960). Consequently, if a union work permit is required as condition of hire pursuant to such an agreement or arrange- ment, the union's refusal to issue the permit to an applicant because he is not a union member is violative of Section 8(b)(2) and (1)(A) of the Act. Cf. Tryco Steel Corporation, supra; International Association of Ironworkers, Local No. 10, supra. Such an agreement or arrangement may be estab- lished by evidence of an oral understanding or course of conduct between the parties. Cf. Tryco Steel Corporation, 3 On cross-examination, Kelley testified that he did not discharge Murray on December 26; that neither Moran nor any other union representative instructed him to discharge Murray on December 26, and that the require- ment of hiring "only men who had permits" is "in the trade agreement " Kelley acknowledged that "no individual has ever told [him] that"-that is, that he could only hire men who were not members of the Union if they had union permits However, Kelley explained that he has "never hired anyone without Union permission", "without a Union permit , I have never hired anyone " Kelley explained I have sent men down to the Union who have not been Union people when the workload was very big and the Union couldn't supply men Men have come up and asked me for ajob, I have told them "Go down and get cleared with the Union," and I would hire them Kelley also stated that he would not have laid off Murray had he been working on December 26 instead of Bryant Further Kelley recalled that in March 1973, he "called the Union hall for welders and we were told there were no welders around We suggested Murray who was still out of work" and the Union said, "Yes " 60 DECISIONS OF NATIONAL LABOR RELATIONS BOARD supra, N.L.R.B. v. Local 568, Hotel Employees [Warwick Hotel Inc.], 334 F.2d 723, 726-727 (C.A. 3, 1964); N. L.R.B v. St. Joe Paper Co, 319 F.2d 819, 820-821 (C.A. 2, 1963); International Association of Ironworkers, Local No. 11, supra; International Union of Operating Engineers, supra. And, as the Board noted in International Association of Ironworkers, Local No. 10, supra . . was [the employer's] consistent practice to hire only those [applicants] who were cleared or referred by [the union ]. This, without more, however, merely shows a unilateral practice on [the employer's] part so to act and does not show the union's participation therein In International Association of Ironworkers, Local No. 10, supra, the Board also noted that the "union's knowledge of and participation in this relationship is demonstrated in the record evidence involving a phone call that [the union] made " Applying these principles to the uncontradicted credited testimony stated above, I find and conclude that, at all times material, there was in existence an oral understanding be- tween the parties whereby the Company agreed to hire only applicants referred to it by Respondent Union who were either members of the Union or nonmembers with Union permits. I find and conclude that on December 26, 1972, Respondent Union refused to issue such a permit to Murray because he was not a member of the Union. Murray had been employed by the Company at its Celanese jobsite for some 18 continuous months prior to December 26. And, in accordance with the understanding between the parties, Murray had obtained weekly work permits from the Union. Murray understood from his years of experience that he could not work for the Company or other employers simi- larly within the jurisdiction of Respondent without such a weekly permit. Kelley, the Company's vice president, also understood from his 20 or more years of experience that he could not allow an applicant like Murray to work for the employer if the applicant was not a union member and did not have a permit. Neither Murray nor Kelley could cite an occasion when the Company or any other employer simi- larly within Respondent's jurisdiction had hired a nonmem- ber of the Union without such a permit. In addition, when Kelley was first apprised by Murray on December 26 that Murray could not continue working for him because he had been denied such a permit and union member, Bryant, had been sent over by the Union as a "replacement," Murray protested to Business Agent Moran because Bryant had "quit" the job previously claiming "that the work was too hard." However, Moran informed Kelley that "he had quite a few bookmen out of work and that is what he had to do." Counsel for Respondent argues in his brief that "the evi- dence does not establish the existence of an agreement be- tween Domestic and the Union requiring union clearance as a condition of employment" and, further, that the Union "did not cause the discharge of Murray in violation of Sec- tion 8(b)(2) of the Act " However, I find and conclude on this record that there was in fact such an understanding and practice between the parties and that the Union had knowl- edge of and participated in this relationship As the court stated in N L.R B v. International Union of Operating Engi- neers, supra, 279 F.2d at 955: .. . all of these circumstances belie the bald assertion that there was no such agreement and, to the contrary, impel the conclusion that [the union] and [the employ- er] had in some way agreed that non-members of the union could not perform this work unless cleared by the union. Accordingly, I find and conclude that Respondent violated Section 8(b)(2) and (1)(A) when it caused the Company to refuse to hire Murray and by giving preference in referrals to members of Respondent Union over all other applicants including permit holders CONCLUSIONS OF LAW 1. Domestic Stone Erectors, Inc., is an employer within the meaning of Section 2(2), (6), and (7) of the Act. 2. Respondent Union is a labor organization within the meaning of Section 2(5) of the Act. 3. Respondent Union has violated Section 8(b)(2) and (l)(A) of the Act by attempting to cause and causing Do- mestic Stone Erectors, Inc., to disciiminate against Thomas Murray in violation of Section 8(a)(3) of the Act, and by giving preference in referrals to individuals who were mem- bers of Respondent Union over all other applicants for employment. 4. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that the Respondent Union engaged in unfair labor practices proscribed by Section 8(b)(2) and (1)(A) of the Act, it will be ordered that the Respondent cease and desist from such conduct and take certain affir- mative action designed to effectuate the policies of the Act. The Union discriminated against Thomas Murray by causing Domestic Stone Erectors, Inc , to refuse to hire him. Therefore, it will be ordered that the Respondent make whole Murray for any loss of earnings he suffered by reason of the discrimination practiced against him, by paying him a sum of money equal to the wages he would have earned absent such discrimination, less his net earnings elsewhere during said period. Such loss of earnings with interest there- on at the rate of 6 percent per annum shall be computed in the manner set forth in F. W Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716. Further, since the record indicates that Respondent's hiring arrangement was not confined to Domestic, it will be ordered that Respondent cease and desist from maintain- ing, enforcing, or otherwise giving effect to such an arrange- ment or practice with any other employer. UNITED DERRICKMEN & RIGGERS ASSN. 61 ORDER4 Pursuant to Section 10(c) of the National Labor Rela- tions Act, as amended, Respondent, United Derrickmen & Riggers Association, Local 197 of New York, All Long Island and Vicinity, its officers, agents, and representatives shall: 1. Cease and desist from: (a) Causing or attempting to cause Domestic Stone Erec- tors, Inc., or any other employer, to discriminate against Thomas Murray, or any other employee, in violation of Section 8(a)(3) of the Act, because of his lack of member- ship in the Union. (b) Maintaining, enforcing, or otherwise giving effect to a discriminatory exclusive hiring arrangement or practice with Domestic Stone Erectors, Inc., or any other employer. (c) In any like or related manner restraining or coercing employees or applicants for employment in the exercise of rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action necessary to ef- fectuate the purposes of the Act: (a) Make whole Thomas Murray for any loss of pay he may have suffered by reason of the discrimination practiced against him, in the manner set forth in this Decision. (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all re- cords, reports, work lists, and other documents necessary to analyze the amount of backpay due under the terms of this Order. (c) Notify Domestic Stone Erectors, Inc., and Murray, in writing, that there is no objection to the hiring or employ- ment of Thomas Murray. (d) Post at all places where notices to employees, appli- cants for referral, and members are posted, copies of the attached notice marked "Appendix." s Copies of said no- tice, on forms provided by the Regional Director for Region 2, after being duly signed by the Union's representatives, shall be posted by the Union 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 posted. Reasonable steps shall be taken by the Union to insure that said notices are not al- tered, defaced, or covered by any other material. (e) Notify the Director of Region 2, in writing, within 20 days from the receipt of this Decision, what steps the Re- spondent has taken to comply herewith. 4 In the event no exceptions are filed as provided by Sec 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided by 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 5 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 " APPENDIX NOTICE TO MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a trial in which both sides had the opportunity to present their evidence, the National Labor Relations Board has found that we violated the National Labor Relations Act and orders us to post this notice and abide by its terms. WE WILL NOT cause or attempt to cause Domestic Stone Erectors, Inc., or any other employer, to discrim- inate against Thomas Murray, or any other employee, in violation of Section 8(a)(3) of the Act because of his lack of membership in our Union. WE WILL NOT maintain, enforce, or otherwise give ef- fect to a discriminatory exclusive hiring arrangement or practice with Domestic Stone Erectors, or any other employer. WE WILL NOT in any like or related manner restrain or coerce employees or applicants for employment in the exercise of rights guaranteed in Section 7 of the Act. WE WILL make whole Thomas Murray for any loss of pay suffered by reason of the discrimination practiced against him. WE WILL notify Domestic Stone Erectors, Inc., and Thomas Murray, in writing, that there is no objection to the hiring or employment of Thomas Murray. UNITED DERRICKMEN & RIG- GERS ASSOCIATION, LOCAL 197 OF NEW YORK, ALL LONG IS- LAND AND VICINITY (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 direct- ed to the Board's Office, 36th Floor Federal Building, 26 Federal Plaza, New York, New York 10007, Telephone 212 -264-0306.