Carpenters District Council of Denver and Vicinity

CARPENTERS DISTRICT COUNCIL OF DENVER AND VICINITY 551 Carpenters District Council of Denver and Vicinity (Hensel Phelps Construction Co.) and Michael D. Radke. Case 27-CB-906 Upon the entire record in this case, the Board makes the following: FINDINGS OF FACT January 23, 1976 DECISION AND ORDER By MEMBERS FANNING, JENKINS, AND PENELLO Upon charges filed by Michael D. Radke, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 27, on May 14, 1975, issued a complaint against Respon- dent Carpenters District Council of Denver and Vi- cinity. Copies of the original charge filed on January 20, 1975, and the amended charge filed on May 2, 1975, and the complaint and notice of hearing before an Administrative Law Judge were duly served on the Respondent and the Charging Party. In sub- stance, the complaint alleges that Respondent violat- ed Section 8(b)(1)(A) and 8(b)(2) of the National La- bor Relations Act, as amended, by refusing to refer the Charging Party for work with Hensel Phelps Construction Co., hereinafter called Hensel Phelps, unless and until Radke transferred membership from Carpenters Local No. 5^ into Carpenters Local No. 1391. On or about September 23, 1975, the Charging Party, the Acting General Counsel, hereinafter called General Counsel, and Respondent entered into a Stipulation of Facts and of the Record. The parties agreed that the charge, amended charge, complaint, notice of hearing, orders rescheduling hearing, affi- davits of service of said documents, Respondent's answer, and the stipulation of facts and exhibits at- tached thereto shall constitute the entire record in the case and that no'oral testimony was necessary or de- sired by any of the parties. The parties waived a hearing, the making of findings of fact and conclu- sions of law, and the issuance of a decision by an Administrative Law Judge, and submitted the case for findings of fact and conclusions of law and an order directly to the Board, and requested that the case be transferred to the Board. On September 26, 1975, the Board ordered that the stipulation be ap- proved and made part of the record and ordered the proceedings transferred to the Board. Thereafter, the General Counsel and the Respondent filed briefs which have been duly considered by the Board. 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. 1. THE BUSINESS OF RESPONDENT The parties stipulated and we find that Hensel Phelps Construction Co. is now, and at all times ma- terial herein has been, an employer engaged in com- merce within the meaning of Section 2(2), (6), and (7) of the Act. We further find that it will effectuate the purposes of the Act to assert jurisdiction in this pro- ceeding. II. THE LABOR ORGANIZATION INVOLVED The parties stipulated and we find that the Re- spondent and Local No. 55 and Local No. 1391 are each now, and have been at all times material herein, labor organizations within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES The parties stipulated the following facts to be true: At all times material herein, Hensel Phelps Con- struction Co. and the Respondent have been parties to the May 1, 1972-April 30, 1975, "'BUILDING CON- STRUCTION AGREEMENT--CARPENTERS DISTRICT COUNCIL OF DENVER AND VICINITY." On or about January 7, 1975, Hensel Phelps employed Michael D. 'Radke as a journeyman carpenter. The wages, hours, and working conditions of such employment were gov- erned by the aforementioned agreement. At all times material herein prior to January, 23, 1975, Radke was a member of Local 55 and, since January 23, 1975, Radke has been a member of Local 1391, his mem- bership having been transferred by Respondent with- out consultation with him. By letter dated September 13, 1974, William Sidell, general president of the United Brotherhood of Car- penters and Joiners of America, extended the work jurisdiction of Local 1391 to include, that work juris- diction set forth in a Carpenter Drywall Specialties Agreement between the United Brotherhood of Car- penters and Joiners of America and the Gypsum Drywall Contractors International, and further pro- vided that such jurisdiction would extend over the entire State of Colorado. Local 1391 was by said let- ter given the responsibility for dispatching or refer- ring for employment all individuals performing work coming within its work jurisdiction., As a conse- quence, the District Council designated Local' 1391 as a dispatch or referral point for individuals per- -222 NLRB No. 86 552 DECISIONS OF NATIONAL LABOR RELATIONS BOARD forming work under Local 1391's jurisdiction to be performed under the Building Construction Agree- ment. At all times material herein, Michael Radke performed work falling within the work jurisdiction of Local 1391. On or about January 6, 1975, Radke received a telephone call from one of his former employers in- forming Radke that Hensel Phelps wished to have Radke and a carpenter apprentice named Victor Manuel report to work-for Hensel Phelps on the fol- lowing day. On or about January 7, 1975, Hensel Phelps employed Radke and Manuel to perform work at its First National Bank project located at 17th and California Streets in Denver, Colorado. In hiring Radke and Manuel, Hensel Phelps did not comply with the procedures set forth in Article VII of the Building Construction Agreement. On January 15, 1975, Respondent's president, Edward Rylands, was contacted by a representative of Hensel Phelps, who verbally requested that Radke and Manuel be dispatched to Hensel Phelps' employment at its First National Bank project, in accord with the procedure outlined in the Building Construction Agreement. Rylands informed the Hensel Phelps representative that Radke and Manuel should secure work referrals from Local 1391. On January 16, 1975, Calvin Ran- kin, a general superintendent for Hensel Phelps, in- formed Radke and Manuel that they would have to secure referrals from the Respondent before they could "continue" work on the First National Bank project. Rankin also told them that Hensel Phelps would not accept a Local 1391 referral. Radke and Manuel then went to the offices of Local 55, where they were told by Raymond Olson, a Local 55 em- ployee, that they would have to secure referrals for the Hensel Phelps job from Local 1391. Radke and Manuel then went directly to the Denver offices of Local 1391. There, Radke was informed by Bea Washington, an employee of Local 1391 with respon- sibility for the clerical administration of the hiring hall, and the only employee present in the hiring hall, that Radke could not be issued a referral until he had become a member of Local 1391. Radke had been told that the dues structure of Local 1391 was higher than that of Local 55, of which he was a member, and, because he was not familiar with the people who administered Local 1391, he refused to transfer his membership into Local 1391. He was therefore not issued a referral. Having been told by Hensel Phelps that it would not accept a Local 1391 referral, Radke, as set out in the stipulation, would have refused to accept such a referral had it been offered. On Janu- ary 20, 1975, Radke filed the original charge herein. On January 21, Radke contacted Council President Rylands and informed him that Hensel Phelps would refuse a referral from Local 1391. Rylands requested that Radke secure his-referral from Local 1391 and further stated that he desired witnesses of Hensel Phelps' refusal to accept the Local 1391 referral. On January 22, Phelps refused to accept a Local 1391 referral for Victor Manuel. The dispute resolution procedure of the Building Agreement was therefore invoked by Respondent against Hensel Phelps by telegram dated January 22. On January 23, Victor Manuel reported to the Hensel Phelps jobsite accom- panied by Leslie Prickett, a business representative of Local 55, and again requested that he be placed to work; after some delay the Local 1391 referral was accepted by Hensel Phelps. Hensel Phelps eventually reimbursed Manuel for the loss of wages resulting from its initial refusal to accept the Local 1391 refer- ral. Also on January 23, Radke received a message from Respondent that if he wished to return to work he should go to Local 1391 the following day and secure a referral. Because of his need for work, Rad- ke returned to Local 1391 on January 24 and secured a referral. At Radke's request, the business represen- tative of Local 1391 changed the designation on the referral, crossing out "Drywall Specialties Local 1391," and inserting in its place "Local 55." Radke then returned to work at the Hensel Phelps project on the same day. At all times material herein, Local 1391 was an agent of Respondent acting on its behalf, and an agent within the meaning of Section 2(13) of the Act. Bea Washington was "an employee" of Local 1391 with responsibilities including the clerical adminis- tration of the hiring hall. At all times material on January 16, Washington was the only Local 1391 em- ployee present in the hiring hall. Discussion The General Counsel contends that Respondent violated Section 8(b)(1)(A) and (2) by refusing to is- sue a referral to the Charging Party unless and until he had transferred his membership from Local 55 to Local 1391. On January 7, when Hensel Phelps initially hired Radke, it concededly did not comply with the hiring provisions contained in Article VII of the Building Construction Agreement with Respondent. However, on January 16, Hensel Phelps did comply with the agreement when it requested by name both Radke and Victor Manuel, later following with written con- firmation of that request. It is clear from the Building Construction Agreement that Hensel Phelps had an exclusive hiring-hall agreement with Respondent.' It 1 Art VII of the Agreement provides in pertinent part CARPENTERS DISTRICT COUNCIL OF DENVER AND VICINITY 553 is also clear that Radke was told that Respondent was conditioning its referral of Radke upon his trans- ferring his union membership to Local 1391, in con- travention of job referral procedure contained in the agreement .2 We find that Respondent's conduct in requiring Radke to loin Local 1391, as a condition of referral under its exclusive hiring hall contract, constitutes a violation of Section 8(b)(1)(A) and (2) of the Act.3 IV. THE EFFECTS OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth above have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to industrial strife burdening and obstructing commerce. V. THE REMEDY Having found that Respondent has engaged in un- fair labor practices violative of Section 8(b)(1)(A) HIRING PROCEDURE (A) The Employer agrees that he will give the Union the first opportu- nity to furnish, and the Union agrees to furnish, all classes of employ- ment that are provided for in this Agreement if workers are available for referral, except as referred to in paragraph (H) in this Article The Employer further agrees that all requests for employees will be placed with the Union dispatching office for a maximum of thirty-six (36) hours prior to the contemplated time of employment of such workmen, excluding Saturdays, and/or holidays (B) Selection of applicants for referral to jobs shall be on a non-dis- criminatory basis and shall not be based on, or in any way affected by. Union membership, bylaws, rules, regulations, constitutional provi- sions, or any other obligation or aspect of Union membership , policies or requirements. In addition, the selection of applicants for referrals to jobs shall in nowise be affected by race, color , age, creed, national origin or sex (H) The Employer signatory to this Agreement shall have the right to request by name any job applicant who is registered with the referral office, who within the past one year immediately preceding the job order, performed work of the type covered by this Agreement, for a period of not less than 30 working days, in the area of the Carpenters District Council of Denver and Vicinity for a contractor signatory to this Agreement. Verification of the request shall be in writing or by telephone. The Union shall give this employee a referral slip to the Employer upon reporting at the Union dispatch office. 2 Respondent contends that it cannot be held to have violated the Act because employee Washington was not its agent As noted above, however. Respondent Council concedes that Local 1391 was its agent, and that em- ployee Washington , who was charged with the responsibility of administer- ing the hiring hall of Local 1391, was in fact the only employee present when Radke sought a referral. Moreover , it is also evident that Local 1391 held Washington out to the public as an agent, with ostensible authority to furnish information on its behalf in regard to referrals , and to dispatch individuals for referral Thus, Respondent's attempt now to disavow Washington's conduct must fail. Construction and General Laborer 's Union. Local 304 Laborers' International Union of North America, AFL-CIO (George D Willis), 191 NLRB 764, 766-768 (1971). 3 International Brotherhood of Electrical Workers, AFL-CIO, Local 648 (Foothill Electrical Corporation), 182 NLRB 66 (1970), Utility and Industrial Construction Company, 214 NLRB No 152 (1974) and (2) of the Act, we shall order that it cease and desist therefrom, and that it take certain affirmative action designed to effectuate the policies of the Act, including making Michael Radke whole for any loss of earnings he may have sustained as an employee of Hensel Phelps Construction Company from January 16 to 21 as a result of Respondent's unlawful con- duct. Backpay shall be computed in the manner set forth in F. W. Woolworth Company, 90 NLRB 289 (1950), with interest added thereto in the manner set forth in Isis Plumbing & Heating Co., 138 NLRB 716 (1962). Radke did not actually return to work at Hensel Phelps until January 24. However, Respondent, through its president, Ed Rylands, asked Radke to secure his referral from Local 1391 on January 21, thus in our view terminating its unlawful refusal to issue him a referral as of that date. Whether Hensel Phelps then would have refused to accept a Local 1391 referral for Radke, as it did on the following day for Victor Manuel, is not known. If so, Respon- dent would have been in a position to invoke the Building Agreement's dispute resolution procedure against Hensel Phelps for Radke in the same manner as it did for Manuel, and presumably with the same result. Respondent did not have that opportunity, however, because Radke delayed securing his referral until the day following Respondent's second request that he do so. In these circumstances, we conclude that Respondent should not bear the responsibility for Radke's failure to act between January 21 and January 24. CONCLUSIONS OF LAW 1. Hensel Phelps Construction Co. is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Respondent Carpenters District Council of Denver and Vicinity and its Local No. 55 and Local No. 1391 are each labor organizations within the meaning of Section 2(5) of the Act. 3. By refusing to issue a referral to the Charging Party because of his lack of membership in Local 1391, Respondent has violated Section 8(b)(1)(A) and (2) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board hereby orders that Respondent Car- penters District Council of Denver and Vicinity and its Local 1391, Denver, Colorado, its officers, agents, and representatives, shall: 554 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1. Cease and desist from: (e) Notify the Regional Director for Region 27, in (a) Refusing or declining to issue work-referrals to writing, within 20 days from the date of this Order, individuals because of lack of membership in Local what steps the Respondent has taken to comply here- 1391. with. (b) Causing or attempting to cause Hensel Phelps Construction Co. or any member of the Associated General Contractors, Colorado Building Chapter, Inc., or others signatory to the Building Construction Agreement-Carpenters District Council of Denver and Vicinity, to deny employment in violation of Section 8(a)(3) of the Act. (c) In any other manner interfering with, restrain- ing, or coercing employees or applicants for employ- ment in the exercise of any right guaranteed in Sec- tion 7 of the Act. 2. Take the following affirmative action: (a) Make whole Michael D. Radke for any loss of earnings he may have sustained as an employee of Hensel Phelps Construction Co. because of the dis- crimination against him, in the manner set forth in the section entitled "The Remedy" above. (b) Notify Hensel Phelps Construction Co. as well as the aforementioned parties, in writing, with a copy to Michael D. Radke, that Respondent will not dis- criminate in his referral for employment, or the em- ployment of any other job applicant who is not a member of Respondent or Local 1391. (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all records pertaining to its hiring halls and all other records necessary to analyze the amount of backpay due under the terms of this Order. (d) Post at its offices and hiring hall dispatch points copies of the attached notice marked "Appen- dix." 4 Copies of said notice, on forms provided by the Regional Director for Region 27, after being duly signed by an authorized representative, of the Re- spondent, shall be posted by the Respondent imme- diately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employ- ees, members, and applicants for referral are custom- arily posted. Reasonable steps shall be taken by the Respondent to insure that said Notices are not al- tered, defaced, or covered by any other material. 4In the event that this 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 AND MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT refuse or decline to issue work referrals to individuals because of lack of mem- bership in Local 1391. WE WILL NOT cause or attempt to cause Hensel Phelps Construction Co., or any other employer, to discriminate against any employee in viola- tion of Section 8(a)(3) of the Act. WE WILL NOT discriminate in the referral of individuals for employment in the operation of our exclusive hiring hall agreement with signato- ry employers. WE WILL make whole Michael D. Radke for any loss of earnings he may have suffered from January 16 to January 21, 1975, by the discrimi- natory operation of our hiring hall. WE WILL NOT in any other manner restrain, interfere with, or coerce employees in the exer- cise of the rights guaranteed by Section 7 of the Act, except to the extent that such rights may be effected by an agreement requiring membership in a labor organization as a condition of em- ployment, as authorized by Section 8(a)(3) of the Act. CARPENTERS DISTRICT COUNCIL OF DENVER AND VICINITY LOCAL 1391, UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA