Local No. 96, Sheet Metal Workers

756 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Local No. 96, Sheet Metal Workers International As- sociation, AFL-CIO (Roland M. Cotton, Inc.) and Richard Stephen Cowe. Case 25-CB-2259 February 5, 1976 DECISION AND ORDER By MEMBERS FANNING, PENELLO, AND WALTHER On September 22, 1975, Administrative Law Judge Michael O. Miller issued the attached Decision in this proceeding. Thereafter, General Counsel filed exceptions and a supporting brief, and Respondent filed a brief in answer to General Counsel's excep- tions. 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 Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the complaint herein be, and it hereby is, dismissed in its entirety. DECISION STATEMENT OF THE CASE MICHAEL O. MILLER, Administrative Law Judge: This case was heard by me in Evansville, Indiana, on August 5, 1975, based upon a charge filed by Richard Stephen Cowe, an individual, herein called Cowe, on April 16, 1975, and a complaint issued by the Regional Director for Region 25 of the National Labor Relations Board on June 27, 1975. The complaint alleges that Local No. 96, Sheet Metal Workers International Association, AFL-CIO, herein the Respon- dent, violated Section 8(b)(1)(A) and (2) of the National Labor Relations Act, as amended, by attempting to cause and causing Roland M. Cotton, Inc., herein the Employer, to discharge Cowe and thereafter refusing to refer Cowe to employment with this employer because he did not possess a referral from the Respondent and did not seek prior per- mission from the Respondent before seeking employment with the Employer. Respondent has denied the substantive allegations of the complaint. On the entire record in this case, including my observa- tion of the witnesses and their demeanor, and after due consideration given to the briefs and memoranda of law submitted by counsel for the General Counsel and Respon- dent, respectively, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT AND THE LABOR ORGANIZATION INVOLVED The Employer is an Indiana corporation with its princi- pal office and place of business at Indianapolis, Indiana. It has jobsites throughout the State of Indiana, including the jobsite at Petersburg, Indiana, its only site involved in the proceedings herein. At all times material herein, the Em- ployer has been engaged as a mechanical contractor in the construction industry, performing plumbing, heating, sheet metal, and related construction. During the past year, a representative period, the Employer, in the course and con- duct of its business operations, purchased, transferred, and delivered to its various Indiana jobsites goods and materi- als valued in excess of $50,000, which were transported to said jobsites directly from States other than the State of Indiana. During the same period of time, the Employer's gross revenues from the operation of its business exceeded $500,000. The complaint alleges, Respondent admits, and I find that the Employer is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. The complaint alleges, Respondent admits, and I find that it is a labor organization within the meaning of Sec- tion 2(5) of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES Respondent has a collective-bargaining relationship with the Sheet Metal Contractors Association of Evansville, In- diana, in an area encompassing 14 counties in Indiana and Kentucky. Contained in that agreement is the following provision regarding the referral of employees to employ- ment with the members of the association: ARTICLE IV Section 1. The Union agrees to furnish upon request by the Employer, duly qualified journeymen and ap- prentice sheet metal workers in sufficient numbers as may be necessary to properly execute work contracted for by the Employer in the manner and under the con- ditions specified in this Agreement. As discussed more fully, infra, pursuant to this provision, Respondent maintained a system for referral of sheet metal workers, upon request. The system operated essentially on a first-in, first-out basis and was run by Arthur Parady, Respondent's business manager. The Employer involved herein is not located within the Respondent's geographical area and is not directly a party to the agreement between the Evansville Sheet Metal Con- tractors Association and Respondent. The Employer, how- ever, is party to a contract with Local 41 of the Sheet Metal Workers International Association, AFL-CIO (through the Sheet Metal Contractors Association of Central Indi- 222 NLRB No. 125 LOCAL NO. 96, SHEET METAL WORKERS ana, Inc.), which contract provides as follows: SECTION 6. When the Employer has any work speci- fied in Article I of this Agreement to be performed outside of the area covered by this Agreement and within the area covered by another Agreement with another Union affiliated with the Sheet Metal Work- ers' International Association, and qualified sheet metal workers are available in such area, he may send no more than two (2) sheet metal workers per job into such area to perform.any work which the Employer deems necessary, both of whom shall be from the employer's home jurisdiction. All additional sheet metal workers shall come from the area in which the work is to be performed. Journeymen sheet metal workers covered by this Agreement who are sent out- side of the area covered by this Agreement shall be paid at least the established minimum wage scale spec- ified in Section 1 of this Article but in no case less than the established wage scale of the local Agreement covering the territory in which such work is performed or supervised, plus all necessary transportation, travel time, board and expenses while employed in that area, and the Employer shall be otherwise governed by the established working conditions of that local Agree- ment. If employees are sent into an area where there is no local Agreement of the-Sheet Metal Workers' Inter- national Association covering the area then the mini- mum, conditions of the home local union shall apply. Parady testified credibly and without contradiction that contractors located within Respondent's geographical area and signatory to its agreement with the Evansville associa- tion used the Respondent's referral system, or not, as they wished. Some sheet metal workers were hired directly by such employers or, where their qualifications were known to the employer, were requested by name through the refer- ral system. Out-of-town contractors, such as the Employer herein, while not -required by written agreement to do so, relied upon Respondent's referral service as their exclusive source of manpower, except for the first two sheet metal workers, whom they could bring in from the Employer's home jurisdiction. It was pursuant to these practices and contractual provisions that the Employer herein staffed its work force at the Petersburg jobsite. Its job'supermtendent, Clifford R. Sweeney, came to the jobsite from the Employer's home location. He was a member of Sheet Metal Workers, Local-41. The Employer's project was ini- tially staffed by Sweeney and one other employee from Indianapolis. Herbert W. Lehman, the first Local 96 mem- ber referred to the job, was the foreman (it was not con- tended that he possessed the statutory attributes of a super- visor) and Elbert Harper, the second referral, was the steward. On or about Thursday, March 13, 1975,1 Sweeney concluded that he needed an additional man on the job. He told Lehman to call the business manager for another referral, specifying only that he needed a man young enough to do some climbing. He indicated no preference for any specific potential employee. Lehman called Parady and told him that another man All dates herein are 1975. 757 was needed for Monday, March 17. He asked Parady whether he would be sending one of two named individuals and was told that neither would be sent as both were al- ready working. Parady told Lehman-that he did not know who would be referred. 'Lehman then contacted Cowe and suggested 'that Cowe ask Parady for a referral to this jobsite. Cowe, who has been a union member for-12 years, went to the'umon hall on the following day and asked Parady to refer him to this job. Parady refused. -Lehman had met Cowe at the hall and both Cowe and Lehman went up to Parady's office and again asked Parady to refer Cowe to the job. Parady again refused, stating that the contractor was not going'to pick his own man. When Cowe and Lehman confronted Parady with an allegation that he selected men out of order from his out-of-work list, Parady told them that he was running the local. - Cowe, who had only worked two small jobs totaling I I days since the beginning of the year, reviewed the Union's constitution and its contract and decided to his own satis- faction that nothing in either document precluded a mem- ber from securing employment on his own. He determined that he would try to get the job at the Petersburg jobsite. .Meanwhile, however, Parady had given this referral to Earl V. Pauthier, another union member, pursuant to Parady's procedure for such referrals? Parady maintained an out-of-work list, listing the unemployed sheet metal workers in the-order they indicated their availability for work. The out-of-work list also reflected any restrictions on employment placed by the job seeker.-It was Parady's un- contradicted and credible testimony that he made referrals upon request pursuant to the order of the names on the list. Pauthier was ahead of Cowe on the referral list. In fact, there were approximately 13 applicants ahead of Cowe, at least 8 of whom were actively seeking employment. On Saturday, March 15, Lehman told Parady that Cowe was going on the Petersburg job. Parady stated that, if Cowe did, a charge would be filed. On Monday, March 17, Cowe, Lehman, Harper, and Pauthier met prior to reporting to the Petersburg jobsite. Pauthier was told that Lehman 'had hired Cowe and that Cowe was going to the job. Pauthier, a union member since only December 1974, not wishing to be caught in the mid- dle, decided that the job was too much trouble and did not go to the jobsite. However, he immediately informed Para- dy of what had happened and was told by Parady that he should have gone to the jobsite and run Cowe off as he, not Cowe, had the referral. Lehman, Harper, and Cowe reported Jo the jobsite. Sweeney was told that Cowe was the new man but that Cowe did not have a referral from the business manager. Sweeney indicated that he would straighten it out with the business manager and told the men to go to work.3 After receiving- instructions, from his own superiors, Sweeney called Parady. Parady as a result-of his conversation with Pauthier was simultaneously trying to reach Sweeney. Par- 2 General Counsel does not contend that the referral of Pauthier ahead of Cowe in any way violated the Act 3 There is a dispute as to whether or not Cowe was told to begin work He did in fact begin performing work and executed a w-4 form but has never been paid for any work on that day 758 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ady asked Sweeney what he was,doing hiring a man with- out a referral and told Sweeney that he had sent a man down with a referral. Shortly thereafter Harper called and spoke to- Parady.- Harper was told, rather abruptly, that Cowe should not be on the job and that Harper should get him off the job, Harper instructed Cowe to go back to the union hall and not return until he had the matter straight- ened out with the Union. (In this, whatever his status gen- erally, Harper was clearly Respondent's agent.) Cowe then left the jobsite accompanied by Lehman. Cowe and Lehman went to the union hall and asked Parady why he wouldn't refer Cowe to the job. Parady's answer was that he was running the local. Sweeney testified that but for the lack of a referral he would have hired Cowe. Subsequent to March 17, Parady referred approximately nine sheet metal workers to the Petersburg jobsite; Cowe was not among those so referred. General Counsel con- tended that Respondent's failure to so refer -him was dis- criminatory. The record reflects that two men, were re- ferred on March 18 and 20, respectively. In view of Cowe's position- on the list as of March 17, it was improbable that he would have reached the top of the list by March 18 or 20. On April- 1, Cowe was offered a referral to Triangle Leahy, which he refused. Cowe offered various reasons for rejecting this referral: that it was for a short-term job, that it was too far away, and that he was annoyed at having been run off the- Peters- burg job. He never determined just how far away the job was (and the contract provided extra pay for commuting); neither did he inquire as to the job's duration. Thus, it appears that the April 1 referral was rejected out of pique. On April 4, Cowe refused a referral because he was doing some work on his own home. His employment record, maintained by Respondent, noted his unavailability and his status as available was not indicated until at least April 23, when Respondent's president, sitting in for Parady, re- ferred him to another job in Petersburg (to which, accord- ing to the employment record, Cowe reported but found no one on the job). Thus, when two men were referred to the Petersburg jobsite on April 8, (one of whom quit immedi- ately) and when three men were referred on April 14, Cowe's record showed him as unavailable for referral. Par- ady did not offer referrals to men he knew to be unavail- able. Cowe rejected six referrals in May because he under- stood them to be for short-term jobs. He testified that he did not want to go to the bottom of the referral list by taking a short-term job. However, Parady testified credibly that it was his practice, when referring a man to a job of less than 2 weeks' duration, not to move him to the bottom of the out-of-work list, and to so inform a man being given a short-term referral. Cowe acknowledged that Parady had so instructed him on at least one occasion within the last year. He was never told that he would go to the bottom of the list if he accepted one of these referrals and did not ask Parady if that would be the effect of accepting such a refer- ral. One man was referred to the Petersburg jobsite on May 30 and another on June 2. Both positions lasted only until June 11. Thus, even if Cowe were available, it appears that he would have rejected these referrals if he acted in a man- ner consistent with his rejections in May. Moreover, on June 2, Cowe refused a referral because he was going on vacation and was therefore unavailable . He accepted a re- ferral on or about July 21. Analysis and Conclusion The foregoing facts are relatively clear and do not re- quire resort to complex legal principles for resolution. Even assuming, as contended by General Counsel, that Respondent's hiring hall was nonexclusive, such that an individual's private search for employment and an employer's hiring of such an employee would be privileged, and, assuming further that Cowe was actually hired by the employer, 4 I would find no violation herein. The essence of this case is that the Employer, whether voluntarily or otherwise, sought to avail itself of the Union's referral sys- tem; it invoked the system's procedures with a request to Parady and, pursuant to its request, a sheet metal worker was referred to it to commence employment. At no time did the Employer authorize Lehman to hire anyone. The Charging Party, desiring this particular job and knowing that he was not entitled to the referral herein pursuant to the Union's nondiscriminatory procedures sought to cir- cumvent those procedures and take the job for himself even after learning that a, fellow union member had-been referred to the job. Union Business Manager Parady's ob- jection to this interference withthe orderly use of the refer- ral procedure was justified. Since the Employer had in- voked the use of the hall and a referral had in fact been made, Respondent's direction that Cowe be removed from the jobsitewas not an unlawful causation of his discharge. Marquette Cement Manufacturing Company, 213 NLRB 182 (1974), fn. 2; Construction and General Laborer's Local Union No. 596 (Lee J. Hood Mason Contractors, Inc.), 216 NLRB No. 142 (1975). Moreover, as contended by Respondent, it would appear that an exclusive hiring hall arrangement arose by the course of conduct followed by the Employer herein and similarly situated out-of-town contractors, in always resort- ing to the Union's referral system as their sole source of manpower when working within Respondent's jurisdiction. Accordingly, for this additional reason, Respondent's di- rection that Cowe be removed from the job did not violate the Act. See Hoisting and Portable Engineers, Local 302 (West Coast Steel Works), 144 NLRB 1449 (1963); Ron- dicken, Inc., 198 NLRB 100 (1972). It is the uniformity in the course of conduct followed by Respondent and the out-of-town employees herein which distinguishes this case from the cases cited by General Counsel: Iron Workers, Local 577 (Triangle State Steel Erectors, Inc.), 199 NLRB 37 (1972) (employers "generally" followed the practice of calling the union because they recognized that the union was virtually the sole source of competent men); Teamsters Local Union No. 676 (Tellepsen Petro-Chemical Company), 4 This contention is not well supported by the record. At the time Cowe commenced work, it was obvious that the Employer knew that he was not the employee referred to the job pursuant to its request and was seeking to determine what course of action to take. While Cowe picked up the tools of the trade, and executed the required tax form, he was never paid for his time on, or traveling to, that job LOCAL NO. 96, SHEET METAL WORKERS 172 NLRB 948 (1968) (employer's "general procedure" was to call the union to fill vacancies). Additionally, while the record reflects that Cowe was not referred to such openings at the Petersburg jobsite as oc- curred after March 17, the evidence was insufficient to es- tablish that any refusal to so refer him was unlawfully dis- criminatory. The referrals were all made at times when Cowe was either not entitled to them or unavailable for them, or were for durations similar to those which he had been rejecting. Accordingly, I shall recommend that the complaint be dismissed in its entirety. 759 Upon the foregoing findings of fact and conclusions of law, upon the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDERS The complaint is dismissed in its entirety. 5 In the event 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."