Sheet Metal Workers Local 20

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Sheet Metal Workers International Association, Local Union No. 20, AFL-CIO and William Kish and The Employers Association of Sheet Metal Work- ers and Associated Roofers of Middlesex County, N.J. Case 22-CB-3296 November 22, 1977 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS PENELLO AND MURPHY On February 23, 1977, Administrative Law Judge Thomas D. Johnston issued the attached Decision in this proceeding. Thereafter, General Counsel filed exceptions and a supporting brief, and Respondent filed a memorandum in support of the Administra- tive Law Judge's Decision. 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 brief 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 the complaint be, and it hereby is, dismissed in its entirety. DECISION STATEMENT OF THE CASE THOMAS D. JOHNSTON, Administrative Law Judge: This case was heard at Newark, New Jersey, on December 6 and 7, 1976,1 pursuant to a first amended charge filed on September 20,2 by William Kish, an individual, and a complaint issued on September 24. The complaint alleges that Sheet Metal Workers Interna- tional Association, Local Union No. 20, AFL-CIO (herein referred to as the Respondent), violated Section 8(b)(1)(A) and (2) of the National Labor Relations Act, as amended (herein referred to as the Act), by continuously since on or about February 23, and specifically on or about June 7, June 21, July 20, August 5, and an unknown date in August refusing to refer William Kish for employment through its I All dates referred to are in 1976 unless otherwise stated. 2 The original charge was riled on August 5. 3 The "other activity" as defined by the General Counsel includes Kish's being outspoken at union meetings and raising issues with the Respondent's officials and by bringing charges against Robert DeBartolo in 1970 for violating the union constitution. 233 NLRB No. 109 exclusive referral system with The Employers Association of Sheet Metal Workers and Associated Roofers of Middlesex County, N.J. (herein referred to as the Associa- tion) thereby attempting to cause and causing its employer- members to discriminate against Kish in his employment because in June 1970 and June 1973 Kish ran for the position of business representative against the present incumbent, Robert DeBartolo, and planned to run against him in the June 1976 election; between 1970 and 1973 Kish opposed Robert DeBartolo and Business Manager Arthur Brown with regard to financial affairs of the Respondent; and Kish engaged in other activity protected by the Act. 3 The Respondent in its answer filed on October 6 denies having violated the Act. The issue involved is whether the Respondent violated Section 8(b)(1)(A) and (2) of the Act by discriminatorily refusing to refer Kish for employment under its exclusive referral system thereby attempting to cause and causing employer-members of the Association to refuse to hire Kish. Upon the entire record in this case, and from my observations of the witnesses and after due consideration of the briefs filed by the General Counsel and the Respondent, I hereby make the following: 4 FINDINGS OF FACT 1. THE BUSINESS OF THE EMPLOYERS The Association, a New Jersey corporation, located in the State of New Jersey is an association comprised of employers, including, among others, Universal Sheet Metal, Inc. (herein referred to as Universal), which are engaged in the sheet metal industry in the State of New Jersey and other States of the United States, and on behalf of its employer-members negotiates and administers a collective-bargaining agreement with the Respondent. During the 12-month period preceding September 24, a representative period, employer-members of the Associa- tion which have their principal offices located in the State of New Jersey, in the course of their operations, produced and performed sheet metal work valued in excess of $50,000, of which sheet metal work valued in excess of $50,000 was produced and performed within States of the United States other than the State of New Jersey. The Association and its employer-members, including Universal, are employers engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Sheet Metal Workers International Association, Local Union No. 20, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 4 Unless otherwise indicated, the findings are based upon the pleadings. admissions, stipulations, and undisputed evidence contained in the record, which I credit. 732 SHEET METAL WORKERS, LOCAL 20 III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background and the Referral Procedures Respondent has an office located at North Brunswick, New Jersey. Included among its officials are Business Manager Arthur Brown and Business Representative Robert DeBartolo. Both Brown and DeBartolo have held these positions since at least 1970 and are agents of the Respondent within the meaning of the Act. The Respondent and the Association are parties to a collective-bargaining agreement covering employees per- forming sheet metal work for the employer-members of the Association. This agreement provides, in pertinent part, that the Respondent maintain and operate on behalf of the employer-members an exclusive job referral system where- by all sheet metal employees in order to be employed by the employer-members must be referred to them by the Respondent. Under this exclusive referral system, employ- ees are referred out, with certain exceptions, in the order their names appear on an out-of-work list which the employees sign and is maintained by the Respondent. These exceptions include the right of local contractors to request employees by name who are then referred out regardless of their positions on the list; 5 on jobs of only 1 or 2 days' duration employees can be referred out regardless of their positions on the list; and for those jobs lasting less than 30 days the employees retain their positions on the list. The referrals are made by both Brown and DeBartolo. Whenever employees are referred, the word "out" is recorded by their names, and the word "days" preceded by a number refers to the last job the employee had before signing the list and shows he worked less than 30 days. B. The Alleged Unlawful Refusal To Refer William Kish William Kish, the alleged discriminatee, has been a journeyman sheet metal worker and a member of the Respondent since 1946. On February 23, after completing a job to which he had been referred by the Respondent that lasted from about January 7 to February 23, Kish registered on the out-of- work list. Between that date and the hearing held on December 6 and 7, Kish has not been referred to any jobs by the Respondent although he has been available for work. The out-of-work list reflects that approximately 53 employees 6 who registered on the list after Kish, and had not worked less than 30 days on their previous jobs, have been referred out. The list also reflects that approximately 19 other employees who registered ahead of Kish, some as early as March 5, 1975, have not been referred out, as well as numerous other employees who registered after him. Kish did not question either Brown or DeBartolo concerning why he has not been referred during this period. Based upon figures given to employees at union s These requests are not required to be in wnting nor are they reflected on the out-of-work list. a The General Counsel only contends that those 53 employees were discriminatorily referred ahead of Kish. meetings, out of approximately 500 union members, a monthly average for the past year of between 125 and 175 members have been out of work. The General Counsel submitted the following evidence which it contends was the Respondent's reasons for not referring Kish tojobs since February 23. Kish unsuccessfully ran for the position of business representative in the union elections held in 1962, 1964, 1970,7 1973, and 1976. During the 1970, 1973, and 1976 elections he opposed Robert DeBartolo who won those elections. Kish also ran for a position on the executive board in the 1967 and 1970 elections and was elected in 1970. Although Kish was not nominated as a candidate for business representative in the 1976 election until May, he began his campaign in early December 1975 by distrib- uting literature, talking to employees during break periods on his job in January and February, and solicited union members for votes before and after the monthly union meetings. Kish acknowledged neither Brown nor DeBartolo made any comments to him about his campaigning or interfered with him. At a union meeting held on April 17, 1970, when Kish took the floor to defend himself after another member had called him a liar, DeBartolo kept interrupting his speech and threatened to punch him in the mouth if he did not keep it shut. Kish filed charges with the Respondent against DeBartolo, serving him with a copy, alleging that he had violated certain provisions of their constitution. However, prior to the scheduled trial, Kish dropped the charges after his witness, Arthur Brown, refused to testify on the grounds he was the recording secretary of the trial and did not want to be biased. About August 1970 after the newly elected officers took office, it was discovered that a check was missing from the checkbook belonging to the Respondent's social club. Kish, who had been elected as a member of the executive board, requested Business Manager Brown to bring those persons responsible up on charges, whereupon Brown informed him the Respondent's attorney would handle it. Kish also gave self-contradictory testimony, which I discredit, concerning whether he made any accusations against DeBartolo concerning this matter at the executive board meetings. Several months later the Respondent's attorney wrote letters exonerating several union members, including DeBartolo, and following Business Manager Brown's report to the executive board of the results of the investigation, they voted, contrary to Kish's vote, not to inform the union membership about those letters. Kish, who was not satisfied with the results of the investigation, wrote a letter, dated November 1, 1972, to the International Union, asking for an interpretation of certain articles of the constitutions as they related to fraud, embezzlement, misappropriation, or appropriating to one's own use money, property, or things of value belonging to the association, local union, or council. The letter further I Dunng the 1970 election Kish and Arthur Brown, a candidate for business manager, ran on the same slate. 8 The constitution was not offered in evidence. 733 DECISIONS OF NATIONAL LABOR RELATIONS BOARD inquired whether charges could be levied concerning money taken from sources other than the general fund. Kish received a reply, dated December 4, 1972, from the International Union9 informing him it was not their policy to answer such letters from individual members of the local union and suggested if the matter was of interest to the local union it could make its own inquiry to the Interna- tional Union. Following receipt of this letter from the International Union, Kish had a conversation with Busi- ness Manager Brown who called Kish names, questioned his right to go over his head and inform the International Union about the Respondent's affairs, and told him he had no right to go beyond his duties as a member of the executive board and take it upon himself to inform the International Union. Kish responded by laughing and walking out. The latter part of August 1975 the subject of a dues increase was brought up at a union meeting. After Business Manager Brown, Business Representative DeBartolo, and President Rocco Catanese, elected delegates who had attended the last general convention which voted to increase the dues, made their report on the floor concern- ing the dues increase, Kish questioned Catanese about whether under the old constitution an increase in monthly dues had to be voted by secret ballot, and by two-thirds of the body for approval. Catanese's response was they had to abide by the new constitution. Neither Brown nor DeBartolo made any response. During a union meeting held in the spring of 1976, after the polls had closed, Kish asked why Business Manager Brown and Business Representative DeBartolo, who were present, were allowed to attend executive board meetings which he contended was against the constitution.' Presi- dent Catanese informed Kish if he was not satisfied with their being there he could bring charges against them with the International Union, however, no charges were ever filed. While Kish first stated neither Brown nor DeBartolo made any response, he subsequently stated he believed they said they were entitled to be there. According to both Kish and Robert Rainey, Jr., Kish attended most of the union meetings and was outspoken concerning those issues on which he disagreed. With the exceptions of those incidents discussed supra, there was no evidence of any other incidents involving either Business Manager Brown or Business Representative DeBartolo and Kish. C. Analysis and Conclusions The General Counsel asserts, while the Respondent denies, that the Respondent violated Section 8(bXI)(A) and (2) of the Act by discriminatorily refusing to refer Kish for employment through its exclusive referral system thereby attempting to cause and causing employer-mem- bers of the Association to refuse to hire Kish. Section 8(b)(1)(A) of the Act prohibits a union from restraining or coercing employees in the exercise of their rights guaranteed in Section 7 of the Act. Section 8(b)(2) of the Act prohibits a union from causing or attempting to 9 The reply indicated a copy was sent to Business Manager Brown. '0 According to Kish, prior to September 1970 before the constitution cause an employer to discriminate against an employee in violation of Section 8(aX3) of the Act. The legality of union-operated hiring halls through which employees are referred for employment under collective- bargaining agreements with employers is well established. Local 357, International Brotherhood of Teamsters, Chauff- eurs, Warehousemen and Helpers of America [Los Angeles Seattle Motor Express] v. N.LRB., 365 U.S. 667 (1961). An employee's request for employment must be consid- ered in a lawful nondiscriminatory manner and is not dependent upon the availability of a job when such application is made. Master Stevedores Association of Texas, Houston Maritime Association, Inc., 156 NLRB 1032, 1034(1966). The findings supra establish an exclusive referral system exists between the Respondent and the Association whereby employees, with certain exceptions, are referred to jobs with employer-members of the Association by the Respondent in the order they sign an out-of-work list maintained by the Respondent. These exceptions include the right of local contractors to request employees by name; for jobs of only I or 2 days' duration, employees can be referred out regardless of their positions on the list; and for jobs lasting less than 30 days employees retain their positions on the list. Although Kish, a member of the Respondent, was registered on the out-of-work list, approximately 53 other employees, who registered after him, were referred out for jobs by the Respondent, while Kish was not referred. With respect to those reasons asserted by the General Counsel for the Respondent's refusal to refer Kish, the findings supra establish Kish unsuccessfully opposed Business Representative DeBartolo for the position of business representative in the union elections held in 1970, 1973, and 1976; about April 1970, he filed union charges, which he later dropped, against DeBartolo for threatening him at a union meeting; about August 1970, while a member of the executive board, he requested Business Manager Brown to bring those persons responsible for misappropriating funds of the Respondent's social club up on charges and subsequently voted against a motion which allowed letters exonerating DeBartolo and other union officials to be concealed from the union membership; in November 1972 in furtherance of the misappropriated funds issue he contacted the International Union regarding the interpretation of certain provisions of the constitution whereby Business Manager Brown subsequently called him names and questioned his actions; about August 1975 at a union meeting he questioned the International Union's method used to increase monthly dues; and in the spring of 1976 at a union meeting he questioned the right of Brown and DeBartolo to attend executive board meetings. Except for these incidents there is no evidence to show that the Respondent or its officers, including Business Manager Brown and Business Representative DeBartolo, ever interfered with or threatened Kish concerning his activities as a member of the Respondent. An examination of these reasons discloses that with the exceptions of Kish running for business representative in was changed the business manager and business representative were members of the executive board and attended executive board meetings. 734 SHEET METAL WORKERS, LOCAL 20 the 1976 election and his raising issues at union meetings held in August 1975 about the procedure for increasing monthly dues and in the spring of 1976 about the right of Brown and DeBartolo to attend the executive board meetings the remaining incidents relied upon, all occurred approximately 3 to 6 years previous, which I find, absent other evidence as here, were too remote to infer a discriminatory motive in refusing to refer Kish. Regarding the most recent incidents, the evidence establishes Kish has been a perennial candidate for union office including two prior unsuccessful campaigns against DeBartolo and he has apparently always been outspoken at union meetings. Further, although both Business Manager Brown and Business Representative DeBartolo, who are responsible for operating the exclusive referral procedure, have been in office during the 6-year period when these incidents occurred, there is no evidence of any prior discrimination by them against Kish. Therefore I do not find sufficient evidence has been established upon which to infer a discriminatory motive for a refusal by the Respondent to refer Kish for employment. With respect to the exclusive referral system procedure, the General Counsel has not proffered any probative evidence to show the procedure itself was violated by referring other employees ahead of Kish. The procedure allows exceptions for referring employees out of the order in which their names appear on the list. Having failed to present sufficient evidence to show that any employees were referred ahead of Kish contrary to the provisions of the exclusive referral system, the General Counsel by contending that the Respondent has the burden of showing the employees referred ahead of Kish fell within those exceptions not only misconstrues its own burden of proof" iI The Board has defined a primafacie case as: "Such as will suffice until contradicted and overcome by other evidence. A case which has proceeded upon sufficient proof to that stage where it will support lal finding if evidence to [the I contrary is disregarded . . .a primafacie case, then, is one which is established by sufficient evidence, and can be overthrown only by rebutting evidence adduced on the other side." See Avon Convalescent Center, 209 NLRB 937, 938 (1974); and Black's Law Dictionary, p. 1353 (4th Ed., West Publishing Company. 1951). but seeks to ignore those recognized exceptions in the exclusive referral system. Having failed to establish a discriminatory motive for refusing to refer Kish, or that any other employees were discriminatorily referred ahead of Kish contrary to provi- sions of the exclusive referral system, I find that the General Counsel has failed to prove that the Respondent violated Section 8(b)(1)(A) and (2) of the Act by refusing to refer Kish, as alleged. CONCLUSIONS OF LAW 1. The Employers Association of Sheet Metal Workers and Associated Roofers of Middlesex County, N.J., and its employer-members including Universal Sheet Metal, Inc., are employers engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Sheet Metal Workers International Association, Local Union No. 20, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. The Respondent has not engaged in unfair labor practices within the meaning of Section 8(b)(IXA) and (2) of the Act by refusing to refer William Kish for employ- ment as alleged. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER '2 It is hereby ordered that the complaint herein be, and it hereby is, dismissed in its entirety. 12 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. 735