Luke Construction Company, Inc.

602 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Luke Construction Company, Inc. and Baton Rouge Building and Construction Trades Council, AFL-CIO and Allied Federation of Unions, Local No. 101, Party to the Contract. Case 15-CA-4901 June 14, 1974 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS On January 30, 1974, Administrative Law Judge Samuel Ross issued the attached Decision in this proceeding. Thereafter, the Charging Party and General Counsel filed exceptions and supporting briefs. Respondent filed 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 attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge 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 Administrative Law Judge and hereby orders that Respondent, Luke Construction Company, Inc., Houma, Louisiana, its officers, agents, successors, and assigns , shall take the action set forth in the said recommended Order. DECISION STATEMENT OF THE CASE SAMUEL Ross, Administrative Law Judge: This case was tried before me in Houma, Louisiana, on November 6, 1973. The charge in this case was filed on July 12, 1973, and a complaint based thereon issued on August 30, 1973, against the above-named Company (herein called Respon- dent) which alleges that the Respondent engaged in unfair labor practices within the meaning of Section 8(a)(2) and (1) and Section 2(6) and (7) of the Act. The Respondent filed an answer which denied the substantive allegations of the complaint and the commission of unfair labor practices. Upon the entire record, and my observation of the witnesses and their demeanor, and after due consideration of the briefs filed by the General Counsel and the Respondent, I make the following: 211 NLRB No. 91 FINDINGS OF FACT 1. COMMERCE Respondent is a Louisiana corporation whose principal office and place of business is located in Houma, Louisiana, where it is engaged as a contractor in the construction industry. During the past year, a representa- tive period, the Respondent admittedly purchased materi- als and supplies valued in excess of $50,000 which were transported to it in Louisiana directly from places outside the State of Louisiana. Based on the foregoing, I find that the Respondent is engaged in commerce and in operations affecting commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATIONS INVOLVED It is undisputed and I find that Baton Rouge Building and Construction Trades Council, AFL-CIO (herein called Building Trades Council), and Allied Federation of Unions, Local No. 101 (herein called Local 101), are labor organizations within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The Issue Presented for Determination The complaint alleges that the Respondent violated Section 8(a)(2) and (1) of the Act by soliciting its employees to execute "dual purpose" membership and dues-checkoff authorization cards for Local 101, by advancing and paying to Local 101 , before collecting it, the initiation fee required from its employees for membership therein, and by thereafter deducting from the wages of said employees the initiation fees thus advanced and their membership dues in Local 101. The testimony adduced at the hearing is for the most part undisputed . The Respon- dent admitted that it engaged in the conduct charged herein as unfair labor practices , albeit without knowledge of its illegality. The Respondent also presented uncontro- verted testimony regarding steps which it voluntarily took to remedy its conduct after it was apprised by the Board's Regional Office of its illegality. Thus, there is presented here primarily the question of the nature of the order required to remedy the Respondent's admittedly unlawful conduct. As to this issue, there is considerable disagree- ment by the parties, the nature of which will be explicated and considered infra. B. The Conduct Upon Which the Complaint is Based The Respondent is a contractor in the construction industry. Prior to the events upon which the instant complaint is based, it had no history of collective bargaining with any union, and its employees were not LUKE CONSTRUCTION CO. 603 represented by any labor organization. On an undisclosed date on or before May 1973,1 the Respondent entered into a contract with Shell Oil Company, Pipeline Division (Houston, Texas), to construct a pipeline for Shell at its St. James, Louisiana, terminal. On May 1, before any employees had been hired for or transferred to this job, the Respondent entered into a collective-bargaining agreement with Local 101 limited to the terms and conditions of employment of the employees who would work for it at the Shell jobsite at the St. James terminal. The said agreement contained a union-security provision requiring employees to become, members of Local 101 on or within 5 days after the seventh day following the effective date of the contract or the beginning of their employment . The said agreement also contained a provision by which the Respondent agreed to deduct from its employees' wages and to transmit to Local 101 membership dues, initiation fees , and lawful assessments "in accordance with the terms of a signed voluntary authorization to do so." 2 On June 4, the Respondent commenced work on the Shell Pipeline contract at St . James with five to seven employees who had been transferred from its other jobs. This staff was augmented by new hires and additional transferees as work on the Shell contract progressed. When the charge in this case was investigated by the Board's Regional Office, the Respondent had about 37 employees on this job, 17 to 20 of whom were new hires, and the rest transferees from Respondent's other jobs. As of the date of the hearing in this case, the Respondent had about 75 employees on this job, which is estimated for completion in April 1974. It is undisputed that all new hires for and transferees to this job, before starting to work thereon, were required by the Respondent to sign, and signed, cards which "request- [ed] and accept[ed]" membership in Local 101, and which authorized Respondent to deduct from their wages and pay to Local 101 "the amounts provided in the applicable agreement" with the Respondent. Signatures to these membership applications, called "dual purpose" cards by the General Counsel, were solicited at the time of hire or transfer by Respondent's office manager, Albert J. Laper- ous, pursuant to the instructions of Respondent's vice president, Vernon Helms, Jr., and construction superin- tendent, Jimmy Osburn. Helms admitted that, "as a person was hired" or transferreds "they signed it [the card] or didn't go to work." The Respondent thereafter deducted from the wages of its employees at the Shell St. James terminal pipeline job the monthly dues of $5 and the $50 initiation fee in installments. On July 21, the Respondent sent to Local 101 a check in excess of $2,000 for the June and July dues and the initiation fees of all employees who worked at this jobsite. The said check admittedly included sums which had not yet been deducted from employees' paychecks "at that time." Mark Bishop, Jr., admittedly is a construction foreman employed by the Respondent and its supervisor within the I All dates hereinafter will refer to 1973 unless otherwise noted. 2 G. C. Exh. 2, p. 6. The contract does not specify the amounts which were to be deducted. However, the initiation fee was $50 and the monthly dues were $5. meaning of Section 2(11) of the Act. It is undisputed that Bishop also served as the job steward of Local 101 at Respondent's Shell job at St. James from about June 7 until about August 1. C. Analysis of the Respondent's Conduct As previously noted, the Respondent is a contractor in the building and construction industry. Insofar as the record discloses, Local 101 is a labor organization in which building and construction employees are members. Ac- cordingly, under Section 8(f) of the Act, the Respondent is and was qualified to enter into a lawful prehire agreement with Local 101, and to provide in that agreement as a condition of employment that its employees at the Shell jobsite would be required to become and remain members of Local 101 after the seventh day following the beginning of such employment or the effective date of the agreement, whichever came later.3 I note in this regard that there is no allegation in the complaint which charges that the Respondent rendered unlawful assistance to Local 101, either by entering into the May 1 prehire agreement with it, or by the inclusion in the said prehire agreement of the previously described union-security clause. However, the validity of the said prehire contract between Respondent and Local 101 did not justify the Respondent's subsequent conduct. Under Section 10(f) of the Act, employees in the building and construction industry cannot lawfully be required as a condition of employment to join a labor organization until after 7 days following the commencement of such employment. The Respondent's prehire contract with Local 101 provided that employees hired for the Shell job had 12 days after hire before they were required to join that Union. Nevertheless, the Respondent admittedly required all applicants for employment at and transferees to the Shell job at St. James to sign applications for membership in Local 101 before the commencement of their employment, and thus deprived said employees of the grace period allowed them by both the Act and the prehire contract. The Respondent thereby clearly rendered unlawful assist- ance and support to Local 101 and engaged in unfair labor practices within the meaning of Section 8(a)(2) and (1) of the Act 4 Notwithstanding the validity of the union-security provision of the contract between Respondent and Local 101 which required union membership after 12 days of employment at the Shell job, the Respondent's employees had a right under the Act to refrain from executing dues checkoff authorizations for Local 101.5 However, as found above, they were required, as a condition of employment at the job, to sign a dual purpose card, which was not only an application for union membership, but also an authoriza- tion to deduct union dues and assessments from their pay, and to transmit it to Local 101. By thus requiring its employees as a condition of employment to execute the said dual purpose cards which, inter alia, authorized the checkoff from their pay of union dues and assessments, the 3 Zidell Explorations, Inc., 175 NLRB 887, 888. 4 Parker Brothers and Company, Inc., 101 NLRB 872, 874. 5 American Screw Company, 122 NLRB 485, 489. 604 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent rendered further assistance and support to Local 101, and further violated Section 8(a)(2) and (1) of the Act.6 It also is quite obvious, as the Respondent readily concedes, that Respondent further rendered unlawful assistance and support by advancing and paying to Local 101 the initiation fees and union dues of its Shell job employees before actually deducting the said sums from the employees' paychecks, and by permitting Construction Foreman Mark Bishop, Jr., an admitted supervisor, to serve as Local 101's fob steward at the Shell job. D. The Steps Taken to Remedy the Unlawful Conduct As previously noted, the charge against the Respondent in the instant case was filed with the Board by the Building Trades Council on July 12.7 In the course of the investigation of that charge, Respondent's vice president, Helms, was interviewed on or about August 2 by an agent of the Board's Regional Office. Following that interview, and advice from the Regional Office that its conduct had violated the Act, the Respondent refunded to all its employees the initiation fees which it previously had deducted from their pay pursuant to the dual purpose cards they had executed, and it also ceased deducting Local 101 dues from employees' pay. In addition, on an undisclosed date in August, Construction Foreman Mark Bishop, Jr., ceased serving as Local 101 job steward and the Union subsequently designated Anthony Sigur, a field clerk employed by the Respondent at the Shell job, to be its job steward. Thereafter, during the month of October, Sigur solicited and obtained the signatures of all 51 of Respondent's employees at the Shell job to new member- ship cards and checkoff authorizations.8 The solicitation of these cards admittedly was engaged in by Sigur at the Shell project on company time with the knowledge and consent of the Respondent. According to Sigur's uncontroverted and credited testimony, he "explained" to all the employ- ees before they signed, that the cards were applications "for membership in Local 101," "that they would be assessed a $50 initiation fee once and then $5 a month thereafter as dues and that the [initiation] fee would be collected in probably two to three installments on (sic) their paychecks." Sigur admittedly also told the employees before they signed that there was "a contract with the union" and that "this was ... a union shop job." E. Contentions as to Remedy and Conclusion The General Counsel contends that the Respondent's unfair labor practices call for "the standard remedy" of requiring it to cease recognizing Local 101, and to cease giving effect to the collective-bargaining agreement with Local 101, "until such time as Local 101 has been certified by the Board" as the representative of the Respondent's employees at the Shell project. In support of this contention, the General Counsel argues that the steps taken by the Respondent after the Board's investigation of 6 American Screw Company, supra; International Union of District 50, United Mine Workers of America (Ruberoid Company), 173 NLRB 87 7 The record does not disclose the interest, if any, of the Building Trades the charge in this case not only do not remedy its prior unlawful conduct, but also constitute a continuation of its "illegal activity [and] enunciates the need for an election." In this regard, the General Counsel urges that the Respondent rendered continued unlawful assistance and support to Local 101 because: (1) Sigur, the Respondent's field clerk, who replaced Foreman Bishop as the Union's job steward, is not "a member of the appropriate unit"; (2) Sigur was "allowed to solicit membership applications and checkoff authoriza- tions" for Local 101 on company time for which he was "being paid by the Respondent"; (3) the membership applications and the checkoff authorizations which Sigur solicited in October "are identical to the original [dual purpose] cards"; and (4) "employees have not been given an opportunity to decide whether or not they wish to pay dues through a means other than checkoff."9 I find no merit in the General Counsel's contention that the Respondent's conduct after the investigation of the charge herein constituted a continuation of unlawful assistance to Local 101, and none in his proposed order to remedy the unfair labor practices found herein. I know of no requirement that job stewards must be employees in the unit in which they serve as stewards, and the General Counsel cites no authority for the proposition that the utilization of a nonunit employee as job steward constitutes unlawful assistance by the steward's employer. To the contrary, I take official notice that in the construction industry job stewards frequently act as the Union's agent, not only in respect to the employees of their own employer, but also in respect to employees in the same craft employed by other employers. Sigur, unlike Bishop who proceeded him as job steward, was not a supervisor of the Respondent. I therefore find that his appointment by Local 101 to the position of job steward did not constitute illegal assistance or support of that Union by Respondent. Contrary to the General Counsel's contention, the membership applications and checkoff authorizations to which Sigur solicited signatures are not "identical" to the "dual purpose" cards whose use were found above to constitute unlawful assistance and support of Local 101. The new membership applications and checkoff authoriza- tions are physically located on a single piece of paper or card (see Union Exh. 1), but they appear on separate parts of the paper or card, they are severable from each other by a perforation, and they require separate signatures for the membership application and the checkoff authorization. The General Counsel has adduced no testimony (and he had the burden of proof) that employees were required to sign both as a condition of employment by Respondent at the Shell job. I therefore find that the General Counsel has failed to prove by the required preponderance of the testimony that the use of the new form of membership application and checkoff authorization deprived employees of their right to refrain from paying union dues and assessments by means other than checkoff. This leaves for consideration the General Counsel's final contention that the Respondent rendered additional Council in the representation of Respondent 's employees at the Shell job 8 See Union Exh 1 9 G.C. br , pp. 2-3 LUKE CONSTRUCTION CO. assistance and support to Local 101 because it "allowed [Sigur] to solicit" membership applications and checkoff authorizations "for Local 101 on company time." I likewise regard this contention as without merit. As found above, the prehire collective-bargaining agreement which the Respondent and Local 101 entered into in May 1973 is specifically permitted by Section 8(f) of the Act. The said agreement contained a valid union-security provision authorized by Section 8(f) which required membership in Local 101 after 12 days of employment at the job. There is no evidence that the Building Trades Council or any other union was attempting to organize the employees covered by the said collective-bargaining contract at the time the said agreement was executed or at anytime thereafter. Under these circumstances, and especially in the light of the lawful prehire contract which contained a valid union- security provision, I can perceive no rational basis for equating the cooperation of the Respondent with Local 101 in permitting the solicitation of new union membership applications and checkoff authorizations with the rendition of unlawful assistance and support. Moreover, inasmuch as the Respondent committed no unfair labor practices either by its prehire recognition of Local 101 for the Shell job employees, or by entering into the collective-bargaining contract with Local 101, and since under Section 8(f) of the Act, such a prehire contract is not a bar to a petition filed pursuant to Section 9(c) or 9(e) of the Act, there is no valid basis or justification for the order proposed by the General Counsel which would require Respondent to cease recognizing Local 101 or giving effect to the contract with it until such time as Local 101 has been certified by the Board as the representative of Respondent's Shell job employees.10 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with the operations of the Respondent described in section I, above, 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. V. THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices, I will recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. The Respondent will be required to reimburse those employees at its Shell job at St. James, Louisiana, who, after the execution of the prehire contract by the Respondent and Local 101, were required to become members of Local 101 before the expiration of 12 days of employment at the job, for the monies paid by the said employees to Local 101, or that were deducted from their 605 pay for Local 101, for initiation fees, dues, and/or assessments, during the said first 12-day period of their employment at the said job, and which have not heretofore been refunded to them. However, employees who have worked on the project for more than 12 days shall only be reimbursed for union dues which were deducted for the first 12 days of their employment, and which have not heretofore been refunded to them. Interest on such monies at 6 percent per annum is to be paid in accordance with the Board's decisions in Isis Plumbing & Heating Co., 138 NLRB 716. Excluded from this remedial provision are those employees who already were members of Local 101 when hired by the Respondent. To facilitate the computation of the monies which may be due to employees by the terms of this Order, I will also recommend that the Respondent preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze and determine the said amounts. Upon the basis of the foregoing findings of fact and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Baton Rouge Building and Construction Trades Council, AFL-CIO, and Allied Federation of Unions, Local No. 101, are labor organizations within the meaning of Section 2(5) of the Act. 2. Luke Construction Company, Inc., is an employer engaged in commerce and in operations affecting com- merce within the meaning of Section 2(6) and (7) of the Act. 3. By directing and requiring employees, as a condition of employment, to join Allied Federation of Unions, Local No. 101, prior to the time permitted by Section 8(f) of the Act and by the collective-bargaining agreement between Respondent Luke Construction Company, Inc., and Allied Federation of Unions, Local No. 101, by directing and requiring employees to sign checkoff authorizations for union fees and dues, by deducting such fees and dues from employees' wages prior to the 13th day following the beginning of the employees' employment, by advancing and paying to the said Union the initiation fees and union dues for its employees before actually collecting the said monies from its employees, and by permitting a supervisor to serve as the job steward of Allied Federation of Unions, Local No. 101, the Respondent has contributed financial and other support to the said Union and thereby has engaged in unfair labor practices within the meaning of Section 8(a)(2) of the Act. 4. By the foregoing conduct, the Respondent also has interfered with, restrained, and coerced employees in the exercise of rights guaranteed by Section 7 of the Act, and thereby has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 5. The aforesaid unfair labor practices are unfair labor 10 Zidell Explorations, Inc., 175 NLRB 887. 606 DECISIONS OF NATIONAL LABOR RELATIONS BOARD practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in this case, I hereby issue the following recommended: be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 15, in writing, within 20 days from the date of the receipt of this 'Decision, what steps have been taken to comply herewith. ORDER" Respondent, Luke Construction Company, Inc., Houma, Louisiana, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Assisting and encouraging membership in Allied Federation of Unions, Local No. 101, or any other labor organization, by directing or requiring employees, as a condition of employment, to join the labor organization prior to the time permitted by Section 8(f) of the Act; by directing and requiring employees to sign checkoff authori- zations for union fees and dues ; by deducting such fees and dues prior to the time permitted by Section 8(f) of the Act or by a valid collective-bargaining agreement entered into pursuant to Section 8(f) of the Act, whichever is later; by advancing and paying to the labor organization union fees and dues prior to collecting the same from employees; and/or by permitting any supervisor as defined in Section 2(11) of the Act to serve as a job steward for the labor organization. (b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of their rights to self-organization, to form labor organizations, to join or assist Allied Federation of Unions, Local No. 101, or any other labor organization to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from engaging in such activities, except to the extent permitted by Section 8(aX3) and Section 8(f) of the Act. 2. Take the following affirmative action to effectuate the policies of the Act: (a) Reimburse its employees for monies illegally exacted from them in the manner and to the extent set forth in the section of this Decision entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary or useful in analyzing the amounts, if any, due under the terms of this Order. (c) Post at its office in Houma , Louisiana, and at its project at the Shell plant in St. James, Louisiana, copies of the notice marked "Appendix." 12 Copies of said notice, on forms provided by the Regional Director for Region 15, after being duly signed by Respondent , shall be posted by it for a period of 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall 11 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 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. 12 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." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a trial at which all sides had the opportunity to present their evidence, an Administrative Law Judge of the National Labor Relations Board has found that we violated the National Labor Relations Act, and has ordered us to post this notice and we intend to carry out the order of the Board. The Act gives all employees these rights: To engage in self-organization To form, join, or help unions To bargain collectively through a representa- tive of their own choosing To act together for collective bargaining or other mutual aid or protection To refrain from any and all these things. WE WILL NOT do anything that interferes with these rights. More specifically, WE WILL NOT assist or encourage membership in Allied Federation of Unions, Local No. 101, or any other labor organization, by requiring our employees, as a condition of employment, to join the labor organization before the time they may be required to do so by virtue of an agreement permitted by Section 8(f) of the Act, and WE WILL NOT require our employees, as a condition of employment, to sign checkoff authorizations for union fees and dues. WE WILL NOT deduct union fees and dues prior to the time permitted by Section 8(f) of the Act, and also WE WILL NOT advance initiation fees and dues to any labor organization before collecting the same from our employees. WE WILL reimburse our employees , to the extent we have not already done so, for the monies which we unlawfully exacted them by requiring them to join Allied Federation of Unions, Local No. 101, before the time permitted by Section 8(f) of the Act. WE WILL NOT allow any supervisor to act as a job steward for any labor organization. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of their rights to self-organization, to form labor organizations, to join or assist Allied Federation of Unions, Local No. 101, or any other labor organiza- tion, to bargain collectively through representatives of their own choosing, and to engage in other concerted LUKE CONSTRUCTION CO. 607 activities for the purpose of collective bargaining or This is an official notice and must not be defaced by other mutual aid or protection, and to refrain from any anyone. or all such activities, except to the extent permitted by This notice must remain posted for 60 consecutive days Sections 8(a)(3) and 8(f) of the Act. from the date of posting and must not be altered, defaced, or covered by any other material. LUKE CONSTRUCTION Any questions concerning this notice or compliance with COMPANY, INC. its provisions may be directed to the Board's Office, Plaza (Employer) Tower, Suite 2700, 1001 Howard Avenue, New Orleans, Louisiana 70113, Telephone 504-527-6361. Dated By (Representative) (Title)