Local 13, Plumbers

LOCAL 13, PLUMBERS 477 Local Union No. 13, an Affiliate of the United Associa- tion of Journeymen and Apprentices of the Plumb- ing and Pipe Fitting Industry of the United States and Canada (Mechanical Contractors Association of Rochester, Inc., and Association of Plumbing, Heat- ing and Cooling Contractors of Rochester , Inc.) and Alfred Winter. Case 3-CB-2140 Apprentices of the Plumbing and Pipe Fitting Indus- try of the United States and Canada, Rochester, New York, its officers, agents, and representatives, shall take the action set forth in the said recommended Order. DECISION July 18, 1974 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS JENKINS AND KENNEDY On April 11, 1974, Administrative Law Judge John M. Dyer issued the attached Decision in this proceed- ing. Thereafter, Respondent and the General Counsel each filed exceptions and supporting briefs. 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 at- tached 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 Rela- tions Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that Respondent , Local Union No. 13, an Af- filiate of the United Association of Journeymen and 1 We find without merit Respondent's allegations of bias and prejudice on the part of the Administrative Law Judge We have fully considered the entire record and the Administrative Law Judge's Decision. and perceive no basis for finding that he prejudged this case, made prejudicial rulings, or demonstrated bias in his analysis or discussion of the evidence Accordingly. we reject these contentions The Respondent has excepted to the pretrial denial of Respondent's de- mand for a bill of particulars with regard to the General Counsel's complaint We find that the denial of Respondent's motion was proper inasmuch as the complaint met the requirements of specificity contained in Sec 102 15 of the Board's Rules and Regulations 2 The General Counsel has excepted to the Administrative Law Judge's failure to find that the Respondent refused and failed to refer Alfred Winter to jobs because (I) he worked for a nonunion contractor, and (2) he was not a member of the Respondent The record supports a finding that Winter was not referred for both of the foregoing reasons and we so find The Respondent has excepted to certain credibility findings made by the Administrative Law Judge It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect Standard Dry Wall Products, Inc, 91 NLRB 544 (1950), enfd 188 F 2d 362 (C A 3, 1951) We have carefully examined the record and find no basis for reversing his findings - STATEMENT OF THE CASE JOHN M. DYER, Administrative Law Judge: Alfred Winter became a journeyman member of Toronto, Canada, Local 46, herein called Local 46, of the United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, AFL- CIO, herein called the International, on March 24, 1971.On August 27, 1973, Winter filed a charge against Rochester, New York, Local 13, affiliated with the International, here- in called Local 13, or Respondent, and amended such charge on February 19, 1974 On that date, the Regional Director of Region 3 of the National Labor Relations Board issued a complaint against Local 13, alleging that it had violated Section 8(b)(1)(A) of the Act by refusing to refer Winter for work to employer-members of the Mechanical Contractors Association of Rochester, Inc., herein called Mechanical Contractors, and the Association of Plumbing, Heating and Cooling Contractors of Rochester, Inc., herein called Heating and Cooling, and both herein called the Associations. It is further alleged that Section 8(b)(1)(A) was violated by the action of Local 13's business manager and agent, Christopher Farrell, III, in bringing charges against Winter because he had filed NLRB charges against Respondent. Local 13's answer denied that it violated the Act in any way, admitted that it was a labor organization within the meaning of the Act, and that Christopher Farrell, III, was its business manager and agent within the meaning of the Act. In the trial of this matter held on March 15, 1974, in Rochester, New York, Respondent admitted the filing and service of the charges and the commerce allegations. The critical factor in this case is whether or not a conver- sation took place between Alfred Winter and Christopher Farrell on or about April 16, 1973. Winter testified that he had four conversations with Farrell, while Farrell stated there was only one conversation which took place in Octo- ber 1971. There is no question that charges were filed by Farrell against Winter, but according to Respondent these charges were withdrawn because they were technically de- fective, although Winter at the time of the trial had not received any notice of such a withdrawal. In considering all the evidence, I have decided to credit Winter and find that Respondent has violated the Act as alleged. General Counsel and Respondent presented oral arguments at the trial in this matter and no briefs have been filed. On the entire, record in this case, including my evaluation of the reliability of the witnesses, based on the evidence received, my observation of witness demeanor, and the na- ture and manner in which responses were made, I make the following: 212 NLRB No. 73 478 DECISIONS OF NATIONAL LABOR RELATIONS BOARD FINDINGS OF FACT I COMMERCE FINDINGS AND UNION STATUS went to work for a company named Bahsco doing heating and air conditioning work. On or about May 5, 1972, Winter went back to Toronto and obtained a travel card and on or about May 7, 1972, went to Local 13's headquarters and in Farrell' s absence gave the travel card to an office girl asking her to give it to Farrell, saying he would return within a week. When Winter returned, Farrell saw him in the office and asked what he was doing. Winter replied that he was working for another contractor Farrell told him he was working for Bahsco, which was not union, and it was not good for the Union and contrary to the constitution. Farrell refused to accept Winter's travel card Winter left. He worked for Bahsco for a while until switching to the Civic Development Corpora- tion Around October 12, 1972, Winter returned to Toronto and procured another travel card which he brought to Local 13's headquarters around October 13, 1972, and again he saw Farrell. Farrell said he would not accept Winter's or any travel cards at that time and that the local residents had preference over travellers Winter told Farrell he would have to get help from either the international or the Labor Board. Farrell told him to go ahead but to expect trouble if he did so, and that Winter would not be able to hold a job at any of the associations if he did so. According to Winter, he was unemployed from October 1972 until on or about January 8, 1973, and at the time of the trial in this matter he was employed by Lincoln First in the maintenance department. On Friday, April 13, 1973, Winter returned to Toronto, Canada, and procured another travel card from Local 46. Winter's testimony was a bit confused as to the exact date on which he went to the union hall and saw Farrell in April 1973; first testifying that it occurred around April 13, but, after being reminded that he had to procure the card in person, he testified it was probably Monday, April 16, 1973, when he went to the union hall According to his testimony, he was at the union hall somewhere around 2 p.m. when he saw Farrell and a young lady employed by the Union drive up in a car. This same young lady was present with Farrell at the trial. Winter went into the union hall with them, and after the young lady went into her office he told Farrell that a vice president of Bethlehem Service Corporation had sent him down for a referral slip and he offered his travel card. Farrell asked who he was working for and Winter replied another contractor. Farrell said he was probably working nonunion and that was enough for him to say no. Winter said he would ask help from the International or the NLRB. Farrell told him to go ahead, and refused to accept his travel card or to issue a referral slip. In an attempt to contradict the testimony of Winter, Re- spondent procured employment records of contractor James M. Craib, Inc., for the weeks ending April 15 and April 22, 1973, and the testimony showed that Winter was off work on Friday, April 13, and had 4 hours off on Mon- day, April 16. This evidence makes it feasible that Winter did proceed as he testified As stated above, Business Manager Farrell denies meet- ing Winter after the October 1971 meeting and says he could not have met Winter on Monday, April 16, 1973, in Rochester because on Sunday, April 15, he left Rochester The Mechanical Contractors Association of Rochester, Inc., and the Association of Plumbing, Heating and Cooling Contractors of Rochester, Inc., are each New York corpora- tions and multiemployer associations which are designated and authorized by their employer-members to engage in collective bargaining in the negotiation of contracts on be- half of such employer-members. During the past year, these two associations and/or their members received gross revenues in excess of $50,000 and during the same period of time purchased and received goods and materials valued in excess of $50,000, which originated from points located directly outside of New York State. Respondent agrees, and I find, that the Mechanical Con- tractors Association of Rochester, Inc., and the Association of Plumbing, Heating and Cooling Contractors of Roches- ter, Inc , and their employer-members are engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. Respondent admits, and I find, that Local 13 is a labor organization within the meaning of Section 2(5) of the Act. 11 THE UNFAIR LABOR PRACTICES A. Background and Facts Alfred Winter was accepted as a journeyman and initiat- ed on March 24, 1971, by Toronto Local 46. Later that same year, he and his wife decided to move to the Rochester area and, in order to get a visa, contacted an employer in Roch- ester who gave him a written job offer. When he came into the United States, he was told by the prospective employer that he would have to see Mr Farrell at Local 13 and give him a travel card. After visiting in Florida, Winter returned to Toronto, Canada, and received a travel card from Local 46 on October 6, 1971. Around October 8, 1971, Winter saw Farrell at Local 13's headquarters and spoke to him about his job offer and handed him the travel card. Farrell told him that the travel card was no good since he had not been a journeyman member of the Union for 1 year. There is a union requirement that a person be a member for a year before he obtains a travel card. When travel cards are received they must be presented to the local where the member is intending to work within 30 days of the date of issuance of the travel card. Travel cards also must be pro- cured in person from the local union issuing them Local 13 Business Manager Christopher Farrell confirms that in 1971 Winter presented him with a travel card, and he told Winter it was no good since he had not been in the Union for a year. He also told Winter to be careful about working for a nonunion contractor, that if he did so he would be liable to union charges. Farrell testified that after this first meeting with Winter he never saw Winter thereaf- ter until the date of the trial. The description of three more Winter-Farrell meetings which Winter described (infra) are thus denied by Farrell. Winter testified that thereafter he LOCAL 13, PLUMBERS 479 by plane, for a meeting of the Building Trades Legislative Conference in Washington, D.C., stating that he remained in Washington until Friday, April 20, and did not return to Local 13's office on that day, although he did return to Rochester. To confirm this testimony Respondent put in evidence what it called a photocopy of the airline ticket that Farrell used for a flight from Rochester to Washington and from Washington back to Rochester Close examination of the exhibit reveals that it is a copy of a flight coupon #2, which, if used, would have had to have been surrendered to the airline for the flight from Washington, D.C., to Roches- ter, New York. On April 26, 1973, Winter wrote a letter to international Representative Thomas Kehoe, regarding a telephone con- versation he had had with Kehoe on Tuesday, April 24, 1973, concerning his problems with Farrell. In the letter he recounts his first encounter with Farrell, and that his travel cards have been refused by Local 13 for 2 years, enclosing a copy of his April 13, 1973, travel card from Local 46. Farrell acknowledged that a month or two later he did have a conversation with Kehoe concerning Winter, but testified that in this conversation he only said that Winter did not have a valid card from Toronto, apparently refer- ring solely to the October 1971 conversation General Counsel raised some contentions as to whether the Union ran an exclusive hiring hall There is nothing in the contracts between the two associations and Local 13 which establishes an exclusive referral system. The testimo- ny given by two employers indicated that they did use the Union to refer people, but also hired union personnel who sought work with them, although usually clearing it with the Union There is insufficient evidence present in this case for me to find that the arrangement between the two associa- tions and Local 13 is that of an exclusive hiring hall or referral system. B. Analysis and Conclusions Respondent states that the whole case rests on credibility as to whether it is believed that Farrell saw Winter only once, was not present in Rochester on April 16-20, 1973, and denied seeing him between 1971 and the trial in this case. In attacking Winter's credibility, Respondent states that Winter first testified that the meeting took place on April 13, 1973, and then when shown by the date on the travel card that he could not have been in Rochester on that date switched it to Monday, April 16, 1973. I find the testimony of Winter more credible than the denials of Farrell. Winter testified to getting four travel cards from Toronto Local 46 in his desire to work in the Rochester area. It is inconceivable to me that having jour- neyed the 150 or so miles to Toronto to get a travel card Winter would not have gone to Local 13's office to deposit such travel card and to try to get referral work. Winter testified to receiving less money for doing practically the same work because he was employed part of the time by a nonunion contractor. It stands to reason that having gone to the trouble of getting the travel cards Winter certainly would have tried to use them in the area where he desired to live. From the evidence recited above, it is probable that Win- ter saw or attempted to see Farrell on April 16, 1973. The testimony offered by Respondent is not conclusive that Far- rell was not present in Rochester on April 16 The young lady, apparently a secretary of Local 13, who was identified by Winter as accompanying Farrell on the particular day in April 1973 when he saw and talked to Farrell, was present in the courtroom and was not called to testify to corroborate Farrell's testimony. The copy of the airline ticket offered as evidence does not show anything except that it is a return ticket from Washington to Rochester. If it had been used, it would not have been in Respondent's possession. The exhibit only shows that a ticket was issued and a reservation made but not that a particular flight on a particular day was taken. The ticket to Washington could have been used for other flights on other days Respondent counsel's statements that Respondent was unable to prepare its defense appeais inaccurate in view of the testimony offered and in view of what Respondent did not offer I find and conclude that Winter did see Farrell and had the conversation to which Winter testified on April 16, 1973, or certainly no later than Monday, April 23. Farrell's absolute denial of any conversation after October 1971 1 find not credible in the circumstances The testimony offered by Farrell regarding a telephone conversation with International Representative Kehoe does not respond fully to that which was placed in issue by Winter's letter to International Representative Kehoe. The Winter letter recites the problems he experienced with Far- rell, starting with his arrival in 1971, continuing through the other travel cards being refused, and enclosing a copy of the refused April 1973 travel card. If Kehoe investigated this matter and Farrell testified that he did call him and question him about it, Farrell's response geared only to what oc- curred in 1971 would not have been an adequate answer. Apparently the International did not pursue Winter's inqui- ry and in August he filed charges with the Board. Accordingly, I find that Winter did have a conversation with Farrell in April 1973, as he testified, and that Farrell refused to honor the travel card or to give him a referral slip to the employer who had sent him to seek one, either be- cause Winter was not a member of Local 13, or because Farrell assumed Winter had worked for a nonunion con- tractor. As stated above, I do not find sufficient evidence present in this case to conclude that Local 13's arrangement with the associations was an exclusive hiring hall arrange- ment. However, as a nonexclusive hiring hall Respondent owed a duty of fair and impartial representation to those who seek to use its services. This duty was violated on or about April 16, 1973, by Business Manager Farrell' s refusal to accept Winter's travel card and refusal to give him a referral slip to an employer. Such action by Respondent violated Section 8(b)(1)(A) of the Act. See Houston Mari- time Association, Inc. and Its Member Companies, 168 NLRB 615 (1967). Respondent further aggravated the situation when Busi- ness Manager Farrell on October 28, 1973, filed union charges against Winter, alleging that Winter was working for a nonunion contractor in violation of sections 220, A and B, of the Union's constitution, and that Winter by filing NLRB charges against Local 13 violated the constitution's section 235. Counsel for Respondent stated that these 480 DECISIONS OF NATIONAL LABOR RELATIONS BOARD charges had been withdrawn as technically defective What this means, more than likely, is that section 213, A and B, should have been cited instead of section 220, A and B, and that section 230 should have been alleged in place of section 235. In any event, Business Manager Farrell's actions were in retaliation for Winter's filing charges with the NLRB and as such are violative of Section 8(b)(I)(A) of the Act, since such actions were intended to restrict access to the Board and were inhibitory of the statutorily protected Section 7 rights. See Operative Plasterers' and Cement Masons' Interna- tional Association of the United States and Canada and Local Union No 521 (Arthur G. McKee & Company), 189 NLRB 553, 558 (1971).1 III THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent, as set forth in section II, above, and therein found to constitute unfair labor practices in violation of Section 8(b)(1)(A) of the Act, occurring in connection with the business operations of the associations and their employer-members, as set forth in section 1, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstruct- ing commerce and the free flow of commerce. CONCLUSIONS OF LAW 1. Respondent is a labor organization within the meaning of Section 2(5) of the Act. 2. The associations and their employer-members are em- ployers within the meaning of Section 2(2) of the Act. 3 The associations and their employer-members are en- gaged in commerce within the meaning of Section 2(6) and (7) of the Act. 4. By discriminatorily refusing to refer Alfred Winter for employment on and after April 16, 1973, Respondent violat- ed Section 8(b)(1)(A) of the Act. 5. By filing and threatening to file union charges against Alfred Winter because he filed charges against Respondent with the National Labor Relations Board without exhaust- ing his internal union remedies, Respondent violated Sec- tion 8(b)(1)(A) of the Act by attempting to coerce and threaten International and Respondent members to restrict their access to National Labor Relations Board processes. 6. The aforesaid unfair labor practices are unfair labor 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 con- clusions of law and the entire record in this case , I issue the following recommended: IV THE REMEDY Having found that Respondent violated Section 8(b)(1)(A) of the Act, I shall recommend that it cease and desist therefrom. Accordingly, since I have found that Re- spondent denied referrals for employment to Alfred Winter on or about April 16, 1973, when work was available, it will be ordered that Respondent make him whole for any loss of earnings suffered by him from and after April 16, 1973, as a result of the discrimination practiced against him. Such payment shall be equal to the amount of wages he would have earned as wages but for the aforesaid discrimination. His backpay shall be computed in the manner set forth in F. W Woolworth Company, 90 NLRB 289 (1950), together with interest at the rate of 6 percent per annum as provided in Isis Plumbing & Heating Co, 138 NLRB 716 (1962) Respondent shall also notify both associations and Beth- lehem Service Corporation in writing, and furnish Winter a copy, that it has no objection to his employment and that he will have full use of the hiring hall facilities without discrimination in connection with referrals for employment. Further, I shall recommend that Respondent cease and desist from filing charges and threatening to file charges against its members, or members of the International or its locals, if they file charges with the National Labor Relations Board without exhausting internal union remedies. On the basis of the foregoing findings and the record herein, I make the following: 1 It is questionable whether any such charges can be brought under sec 230 of the constitution, which talks of court proceedings of any description It is more than likely that a charge filed with the National Labor Relations Board would not fit under this section of the Union 's constitution ORDER2 Respondent, Local Union No. 13, an affiliate of the Ap- prentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, Rochester, New York, its offi- cers, agents, and representatives, shall: I Cease and desist from: (a) Discriminating in the hire and tenure of Alfred Win- ter, by failing and refusing to refer him to work because of his nonmembership in Respondent. (b) Refusing to give fair representation and equal treat- ment to all applicants for referral to employment. (c) Threatening or coercing members of the Internation- al and locals in their access to the National Labor Relations Board by informing them that charges could be brought against them and by bringing charges against them for filing charges with the National Labor Relations Board without exhausting internal union remedies. (d) In any similar manner restraining or coercing Inter- national and local members in the exercise of their rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action which is neces- sary to effectuate the policies of the Act' (a) Notify the associations and Bethlehem Service Cor- poration in writing, with a copy to Alfred Winter, that it has no objection to his employment and that he will have full use of the hiring hall facilities without discrimination in connection with referrals for employment. 2 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 LOCAL 13, PLUMBERS 481 (b) Make Alfred Winter whole for any loss of pay or other loss, such as seniority, which he suffered as a result of the discrimination against him as set forth in the section of this Decision entitled "The Remedy." (c) Post at its business office, union hall, and any other place where it customarily posts notices to members copies of the attached notice marked "Appendix." 3 Copies of the notice shall also be posted at the associations' offices and at the offices of Bethlehem Service Corporation if they are willing. Notices on forms provided by the Regional Director for Region 3, after being signed by an authorized repre- sentative of the Respondent, shall be posted by the Re- spondent immediately upon receipt thereof in the manner provided above. Notices are to be posted for 60 consecu- tive days in conspicuous places, including all places where notices to members are customarily posted . Reasonable steps shall be taken by Respondent and by the associations and Bethlehem Service Corporation to insure that said no- tices are not altered, defaced, or covered by any other ma- terial. (d) 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. 3 1n 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 MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government pay he suffered as a result of the discrimination prac- ticed against him. WE WILL refer Alfred Winter for employment in a nondiscriminatory manner. WE WILL notify the Mechanical Contractors Associa- tion and the Association of Plumbing, Heating and Cooling Contractors and Bethlehem Service Corpora- tion that we have no objection to their hiring Alfred Winter, and that he will have full use of our referral service without discrimination based on his lack of membership in Local 13. WE WILL NOT try to keep union members from filing charges against Local 13 with the National Labor Rela- tions Board by suggesting to or telling employee mem- bers that union charges could be brought against members for not exhausting internal union remedies. Our members and all International members are free to file charges with the National Labor Relations Board against Local 13 without fear of any union charges being brought against them for not exhausting internal union rem- edies. WE WILL NOT, in any similar manner, restrain or coerce employees in their legal right to join, or-if they choose-not to join the Union LOCAL UNION No 13, AN AF. FILIATE OF THE UNITED ASSOCIA- TION OF JOURNEYMEN AND APPRENTICES OF THE PLUMBING AND PIPE FITTING INDUSTRY OF THE UNITED STATES AND CANA. DA, AFL-CIO (Labor Organization) Dated By Following a trial in which the Union and the General Coun- sel of the National Labor Relations Board participated and offered evidence, it has been found that we violated the Act. We have been ordered to post this notice and we intend to carry out the order of the Board and abide by the following- WE WILL NOT discriminate in the hire and tenure of Alfred Winter by failing and refusing to refer him to work because of his lack of membership in Local 13. WE WILL make Alfred Winter whole for any loss of (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, Ninth Floor, Federal Building, I l l West Huron Street, Buffalo, New York 14202, Telephone 716-842-3100.