Bricklayers, Local 7

206 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Bricklayers Local No 7, Bricklayers, Masons and Plasterers' International Union of America, AFL- CIO (Masonry Builders, Inc.) and Charles J To- ney Case 20-CB-3436 May 28, 1976 DECISION AND ORDER By CHAIRMAN MURPHY AND MEMBERS FANNING AND PENELLO On January 6, 1976, Administrative Law Judge Henry S Salim issued the attached Decision in this proceeding, finding that Respondent did not violate Section 8(b)(1)(A) and (2) of the Act and recom- mending that the complaint be dismissed in its en- tirety Thereafter, the General Counsel filed excep- tions to the Decision and a supporting brief 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 brief and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge only to the extent consistent herewith The complaint alleges that Respondent violated Section 8(b)(2) and (1) of the Act by causing the Em- ployer to terminate the employment of Charles J To- ney because of Toney's lack of membership in Re- spondent and/or for reasons other than his failure to tender periodic dues and initiation fees The Admin- istrative Law Judge concluded that Respondent's ac- tions in seeking Toney's termination were not inher- ently unreasonable and that General Counsel failed to carry his burden of proof in that he did not pro- duce evidence of improper motivation or discrimina- tory practices in Respondent's decision to treat To- ney as a new employee We do not agree Toney, a member of Respondent's sister local, was hired by Masonry Builders, Inc, in April 1972, under an accepted procedure, when the Respondent was unable to fill the Employer's manpower needs through its exclusive hiring hall Thereafter, Toney worked continuously until September 6, 1974, at which time he requested of the Employer and was granted a vacation leave for 4 to 6 weeks The stew- ard was notified of this and did not protest At the end of the original vacation period, Toney called the Employer to request an extension of his leave be- cause of an automobile breakdown The Employer granted the extension and assured Toney that he would have a job when he returned Respondent ap- parently was not notified of this extension On Fri- day, November 8, 1974, six employees, members of Respondent, were laid off due to lack of work Toney returned to the job on Monday, November I 1 The other bricklayers refused to work while Toney was on the job Respondent's business agent, Pat Cana- van, told the Employer that he had hired a new man (Toney) from "outside the local jurisdiction" and that if Toney was not terminated the job would be shut down The Employer sent Toney home and the bricklayers returned to work The presumptive effect of a union's causing an em- ployee to be discharged is the encouragement of union membership 1 This is so because such action dramatically demonstrates the union's power over the employee and its ability to affect his livelihood Given the presumptive result, the union violates Sec- tion 8(b)(2) and (1)(A) unless the disruption of em- ployment was pursuant to the enforcement of a valid union-security contract provision or was necessary to the performance of the union's representative func- tions Toney's return cannot be viewed as other than an ordinary return from vacation According to the Employer's uncontradicted testimony, several other employees had returned to the job from vacation without incident Although Toney's vacation was rel- atively long, it is not uncommon in the industry for employees to take leaves of 2 months' duration or with no fixed date of return There also is no evi- dence in the instant case of contract provisions or area practice which require that employees go through the hiring hall when they return from vaca- tion leaves Thus, there was no legitimate reason for Respondent's actions in demanding Toney's termina- tion, since Toney's return from vacation did not con- stitute an attempt to bypass the Union's hiring hall and could not be reasonably viewed as such Toney merely took a vacation for a period which is not un- usual in the industry There is nothing in this circum- stance which gave Respondent a legitimate basis for the action it took and no other justification has been presented In the absence thereof Respondent's ac- tions in obtaining the discharge of Toney were un- lawful We would so conclude even though Respon- dent had no intent to encourage union membership by interfering with Toney's employment The exer- cise of control over employment opportunity other i The Radio Officers Union of the Commercial Telegraphers Union AFL [A H Bull Steamship Company] v N L R B 347 U S 17 44-45 (1954) International Union of Operating Engineers, Local 18 AFL-CIO (Ohio Con tractors Association) 204 NLRB 681 (1973), remanded 496 F 2d 1308 (C A 6 1974) 220 NLRB 147 (1975), International Association of Heat & Frost Insulators & Asbestos Workers AFL-CIO Local 22 (Rosendahl, Inc) 212 NLRB 913 915-916 (1974) 224 NLRB No 19 BRICKLAYERS, LOCAL 7 than pursuant to a valid union-security clause or where necessary to the effective performance of its function of representing its constituency necessarily has that effect 2 International Association of Machinists and Aero- space Workers, San Francisco Machinists Lodge No 68 (West Winds, Inc), 205 NLRB 132 (1973), re- versed and remanded sub nom Kai Kling v N L R B, 503 F 2d 1044 (C A 9, 1975), relied on by the Ad- ministrative Law Judge, is distinguishable There the employee, who was a member of the respondent union, was initially granted a 2-month leave of ab- sence so that he could explore personal business op- portunities His leave was extended on two occa- sions, despite the union's protestation, and he was away from the job for a total of 5 months Unlike the situation here, the union in West Winds was legiti- mately concerned about protecting the relative se- niority and job security of unit employees who re- mained on the job during a fellow employee's protracted leave of absence for personal business reasons Also, there the union did not threaten to take any coercive action in seeking a resolution of the problem and did not seek to cause the employee's termination Furthermore, we conclude that Respondent in fact demanded Toney's discharge because he was not a member, in violation of the Act Thus, Respondent demanded Toney's discharge on the Monday follow- ing the Friday layoff of six of its members In taking this action, Respondent's business agent, Pat Cana- van, complained that the Employer had hired a man "from outside the local jurisdiction " The absence of any legitimate reason for Respondent's demand for Toney's termination, the close proximity in time to layoff of Respondent's members,' and the reference to Toney's being outside the jurisdiction established that Respondent would not have taken this action if it had not considered it an effective means of getting rid of an outsider, i e , nonmember, in order to place one of its members on the job For the reasons set forth above, we conclude that Respondent violated Section 8(b)(1)(A) and (2) of the Act when it caused Masonry Builders, Inc, to terminate the employment of Charles J Toney THE REMEDY Having found that Respondent engaged in unfair 2 Radio Officers Union, supra, International Union of Operating Engineers, Local 18, AFL-CIO supra, Rosendahl Inc supra 3 In early 1974, Toney attempted to join Respondent when he was in- formed that if an employee from outside Respondent's jurisdiction was laid off he could not return Respondents business agent confirmed the infor- mation and rejected Toney s attempts to join and to pay dues because Re- spondent did not need any more bricklayers 207 labor practices proscribed by Section 8(b)(1)(A) and (2) of the Act, it will be ordered that Respondent cease and desist from such conduct and take certain affirmative action designed to effectuate the policies of the Act The Respondent discriminated against Toney by causing the Employer to terminate him on November 11, 1975 Therefore, it will be ordered that Respon- dent notify the Employer in writing, and furnish a copy of such notice to Toney, that it has withdrawn its objection to Toney's employment without preju- dice to his seniority and other rights and privileges, and that it recommends such unconditional rein- statement In addition, Respondent shall make To- ney whole for any loss of pay or other benefits he may have suffered by reason of the unlawful discrim- ination against him, by paying to him a sum of mon- ey equal to that which he would have earned from the date of his termination on November 11, 1975, to 5 days after the date Respondent notifies the Em- ployer and Toney, in writing, that it has no objec- tions to the employment of Toney, and that it recom- mends his unconditional reinstatement, less his net earnings elsewhere during said period Such loss of earnings shall be computed with interest in the man- ner set forth in F W Woolworth Company, 90 NLRB 289 (1950), and Isis Plumbing & Heating Co, 138 NLRB 716 (1962) CONCLUSIONS OF LAW I Masonry Builders, Inc, is an employer engaged in commerce and in operations affecting commerce within the meaning of Section 2(6) and (7) of the Act 2 Bricklayers Local No 7, Bricklayers, Masons and Plasterers' International Union of America, AFL-CIO, Respondent herein, is a labor organiza- tion within the meaning of Section 2(5) of the Act 3 By attempting to cause and by causing Mason- ry Builders, Inc , to discriminate against Charles J Toney in violation of Section 8(a)(3) of the Act, Re- spondent has violated Section 8(b)(2) and (1)(A) of the Act 4 The aforesaid unfair labor practices affect com- merce within the meaning of Section 2(6) and (7) 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 the Respondent, Bricklayers Local No 7, Bricklayers, Masons and Plasterers' International Union of America, AFL- CIO, San Francisco, California, its officers, agents, and representatives, shall 208 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1 Cease and desist from (a) Causing or attempting to cause Masonry Builders, Inc, or any other employer, to discriminate against Charles J Toney, or any other employee, in violation of Section 8(a)(3) of the Act because of his membership status in the Union (b) In any other manner restraining or coercing employees or applicants for employment in the exer- cise of rights guaranteed in Section 7 of the Act 2 Take the following affirmative action which the Board finds necessary to effectuate the purposes of the Act (a) Make whole Charles J Toney for any loss of pay he may have suffered by reason of the discrimi- nation practiced against him in the manner set forth in The Remedy section of this Decision (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, work lists, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Or- der (c) Notify Masonry Builders, Inc, in writing, with a copy to Charles J Toney, that it has no objection to the hiring or employment of Toney, and recom- mends that he be unconditionally reinstated to his former job or, if it no longer exists, to a substantially equivalent position without loss of benefits or senior- ity (d) Post conspicuously, at all places where notices to employees, applicants for referral, and members are posted, copies of the attached notice marked "Appendix " 4 Copies of said notice, on forms pro- vided by the Regional Director for Region 20, after being duly signed by the Union's representative, shall be posted by the Union immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to its members are customarily posted Reasonable steps shall be taken by the Union to insure that said notices are not altered, defaced, or covered by any other material (e) Forthwith mail to the Regional Director for Region 20 signed copies of said notices for posting by Masonry Builders, Inc, if it be willing, in places where notices to its employees are customarily post- ed (f) Notify the Regional Director for Region 20, in writing, within 20 days from the date of this Order, 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 " what steps the Respondent has taken to comply here- with APPENDIX NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing in which both sides had the opportu- nity to present their evidence, the National Labor Relations Board has found that we, Bricklayers Lo- cal No 7, Bricklayers, Masons and Plasterers' Inter- national Union of America, AFL-CIO, violated the National Labor Relations Act and has ordered us to post this notice and abide by its terms WE WILL NOT cause or attempt to cause Ma- sonry Builders, Inc, or any other employer, to discriminate against Charles J Toney, or any other employee, in violation of Section 8(a)(3) of the Act because of his membership status in the Union WE WILL NOT in any other manner restrain or coerce employees or applicants for employment in the exercise of rights guaranteed in Section 7 of the Act WE WILL make whole Charles J Toney for any loss of pay, with interest, suffered by him by reason of the discrimination practiced against him WE WILL notify Masonry Builders, Inc, in writing, with a copy to Charles J Toney, that we have no objection to the hiring or employment of Charles J Toney and will recommend his un- conditional reinstatement to his former job or, if it no longer exists, to a substantially equivalent position without loss of benefits or seniority BRICKLAYERS LOCAL No 7, BRICKLAYERS, MASONS AND PLASTERERS' INTERNATIONAL UNION OF AMERICA, AFL-CIO DECISION STATEMENT OF THE CASE HENRY S SAHM, Administrative Law Judge This pro- ceeding was heard at San Francisco, California, on August 5, 1975,1 pursuant to a charge filed on March 19, and a complaint issued May 29 The primary issue is whether the Respondent Union violated Section 8(b)(1)(A) and 8(b)(2) by engaging in a discriminatory practice whereby it is al- 1 Except where otherwise specified all dates herein refer to the year 1975 BRICKLAYERS, LOCAL 7 leged that employee Toney was discharged because he was not a member of Respondent Local 7 The Union denies it violated the Act when it demanded that Masonry Builders, Inc, the employer of Toney, terminate him There are no indications, in this proceeding, of racial overtones against Toney, who is black THE BUSINESS OF THE EMPLOYER AND THE LABOR ORGANIZATION INVOLVED Masonry Builders, Inc, herein called the Employer, a California corporation with a place of business located in Los Angeles, California, is engaged in the building and construction industry as a mason contractor During the past year, in the course and conduct of its business opera- tions, the Employer performed services valued in excess of $50,000 for firms which meet the Board's applicable direct standards for the assertion of jurisdiction The Employer is, and at all times material herein has been, a member of Mason & Builders Association of California, Inc, herein called the Association The Association, a California corporation with an office in San Francisco, California, is, and at all times material herein has been, a voluntary association of employers en- gaged in mason contracting At all times material herein, the Association has existed for the purpose, inter alga, of representing its member-employers in collective bargaining and in negotiating and administering collective-bargaining agreements in behalf of its member-employers with various labor organizations, including Respondent During the past year, member-employers of the Associa- tion, in the course and conduct of their business opera- tions, received at their respective places of business in Cali- fornia goods and materials valued in excess of $50,000 which were shipped to them directly from suppliers located outside the State of California It is admitted and found that the corporate Employer is, and at all times material herein has been, an employer engaged in commerce and in operations affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act Respondent Local 7 of the Bricklayers Union, AFL- CIO, is a labor organization within the meaning of Section 2(5) of the Act A The Facts After the General Counsel presented his evidence, the Respondent rested The facts found herein, therefore, are not in dispute and can be summarized as hereinafter stat- ed The above-named Employer, Masonry Builders, Inc, has a contract with the city of San Francisco for laying bricks on the sidewalks of Market Street Toney, the al- leged discriminatee, has been employed on this project since April 1972 The bricklayers employed on this project are supplied by San Francisco Local 7 of the Bricklayers Union, the Respondent herein, in accordance with a collec- tive-bargaining agreement between said Union and the Mason & Builders Association of California, Inc, of which the above-named Employer is a member In April 1972, when Local 7 was unable to supply a sufficient number of 209 bricklayers for this municipal project, the Employer con- tacted Local 8 of the Bricklayers Union which is headquar- tered in Oakland, California Local 8, the sister local of the Respondent Union, then notified Toney, a member of Lo- cal 8 since December 1969, of the San Francisco job Re- spondent Local 7 did not object to the Employer contact- ing its sister Local 8 as the contract provides that, in the event Local 7 cannot supply sufficient bricklayers, the Em- ployer can employ men from any source It was elicited on the Employer's cross-examination that, even though he knows Local 7 has no available bricklayers to refer, never- theless, he must first contact Respondent's union hiring hall However, it is the practice of Local 7, when it cannot supply the number of men requested by an employer, not to object if recourse is had to Local 8 to supply the brick- layers "as a matter of courtesy " Toney was hired by the Employer in this proceeding sometime in April 1972 and has worked continuously for about 2-1/2 years on the Market Street project without a vacation until Friday, September 6, 1974, inclusive, when he asked his Employer for a "vacation" of 4-6 weeks to begin on Monday, September 9, in order to visit his parents in Ohio and Alabama The Employer granted his request and told him that when he returned his job would be wait- ing for him Toney also notified Joe Siino, the Market Street project union job steward, that he was taking a 4- 6-week vacation He did not return to the job until Novem- ber 11, 9 weeks later, but he did telephone his foreman, Ray Johnson in the interim and asked him to notify the Employer that he had "car trouble and that I'd be back in a week or so " On Friday, November 8, 1974, at the end of their shift, and 3 days before Toney reported for work on November 11, 6 of the 20 bricklayers, who were working on the Market Street job, all members of Local 7, were laid off by the Employer When Toney reported for work at 8 a in on November 11, the Employer put him to work The Employer testified that even though six bricklayers were laid off for lack of work on November 8, when Toney returned on November 11, he felt he had a prior commitment to Toney "because I told him before he went on his vacation that he would have a job when he came back" When Toney commenced working, the other bricklayers who were on the construc- tion site ready to work, on orders from their union job steward, refused to work At 8 15 a in, the Employer was notified by a Local 7 union official "to get Toney off the job get rid of him and if you don't, Local 7 bricklayers will not work " The Employer told the union official that Toney had returned from his vacation and that he was not a new hire The union official insisted that Toney must be discharged because the Employer had hired a new man from outside Local 7's jurisdiction without first going through its hiring hall The Employer then notified Toney of the situation, whereupon he was terminated and left the project site, at which time the other bricklayers, members of Respondent Local 7, commenced working B Discussion The casual, unstable, and intermittent nature of employ- ment in the construction industry often makes it needful 210 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that there be some place or means through which crafts- men can be hired, frequently on short notice Employers and unions have recognized this problem by contracting frequently on a multiemployer basis, as in this proceeding, for unions to operate hiring halls through which employees seeking work obtain referrals to whatever jobs may be open Such a recruiting arrangement between contractors and a union is called a referral system 2 The union's office or hiring hall is the location from which it fills requests for workers Normally, the method used to fill requests from contractors is a rotation system of referrals designed to assure fairness in treatment of applicants requesting refer- rals to jobs Under this arrangement when a workman is unemployed, he registers at the union office where the re- gistrants are listed in order of date of registration Oppor- tunities for employment and for obtaining employees are directly affected by the priority standards established in the hiring hall When the contractor contacts the union hall and advises the union's business representative of his re- quirements, the business representative usually selects from the top of the register or out-of-work list the workman qua- lified for the job, gives him a referral slip, and dispatches him to the jobsite of the contractor where his services are required The inevitable coercive effect upon employees of this referral system of "unfettered union control over all hir- ing" had over a period of time caused congressional con- cern 3 The evil which Congress has sought to eradicate is the encouragement or discouragement of union member- ship by any discrimination Moreover, Section 8(b)(l)(A), sometimes characterized as the counterpart of Section 8(a)(1) of the Wagner Act, makes it an unfair labor prac- tice for a union to restrain or coerce employees in the exer- cise of their statutorily guaranteed Section 7 rights Section 8(b)(l)(A) and 8(b)(2) provides that it shall be an unfair labor practice for a union to cause or attempt to cause an employer to discriminate against employees in regard to hire or tenure of employment or any term or condition of employment With respect to job applicants, the decisions of the Board and the courts hold that the test of the legality of a referral system is whether in its opera- tion, or effect, it results in unlawful discrimination to appli- cants for employment 4 In determining whether discrimina- tion, or an attempt to cause it, falls within the statutory condemnation, it is the "true purpose" or "real motive" that constitutes the test 5 A nondiscriminatory hiring hall operates to serve both members and nonmembers of the union An employee seeking a job referral is not required either to become a 2 For the legislative history of the Labor Management Relations Act of 1947 with respect to referral systems see S Rep 105 80th Cong 1st Sess 6 (1947) 93 Cong Rec 3836 (1960) See Mountain Pacific Chapter of the Associated General Contractors Inc et al 119 NLRB 883 896 (1957) and Local 357 IBT [Los Angeles Seattle Motor Express] v N L R B 365 U S 667 (1961) Cf N L R B v Lovvorn d/b/a Georgia Twine & Cordage Co 172 F 2d 293 295 (C A 5 1949) The preamble to the 1947 Taft-Hartley Act states that one of the legislative purposes of this statute is to protect the right of individual employees in their relations with labor organizations 4 N L R B v F H McGraw & Co 206 F 2d 635 (C A 6 1953) enfg 99 NLRB 695 (1952) 5 Local 357 IBT v N L R B supra 675 member of the union or to tender agency shop payments to the union in lieu of membership Settled law establishes that, subject to one sharply defined exception,6 the power of a union or employer to discriminate in employment has been annulled by the Act so that the rights of an applicant for employment may not be abridged nor may he be sub- jected to job discrimination This can be established by a showing that any disparate treatment could reasonably be said to have encouraged or discouraged the desire of em- ployees to unionize 7 For example, a refusal to list mem- bers of a sister local at the hiring hall,' threats to blackball members of a sister local who refused to leave the union hiring hall when work was slack,9 and refusing to refer a nonunion applicant for work 10 are all examples of illegal discriminatory practices proscribed by Section 8(b)(2) of the Act Preference in referrals do not violate the statute, however, if based upon objective criteria such as area resi- dency,lt work experience in the mdustry,12 or qualifying through a test administered by the union 13 Moreover, the Board has held, citing as its authority, Local 357, Teamsters v N L R B, 365 U S 667 (1961), that neither an employer nor a union violates Section 8(a)(3) or 8(b)(2) of the Act, if an applicant is required to obtain a referral from the union as a condition precedent to employment where the union and the employer have a nondiscriminatory agreement obligating use of the hiring hall and the hall is operated in a nondiscriminatory manner 14 In the case at bar, it is alleged that Respondent Union Local 7 violated Section 8(b)(1)(A) and 8(b)(2) of the Act by causing the Employer to discharge Toney, the alleged discrimmatee Before considering this alleged discrimina- 6 This exception permits a union through a valid union-security agree- ment to compel payment of union dues See Secs 7, 8(a)(3), and 8(b)(2) and the proviso to Sec 8(a)(3) with respect to a union-security provision See also Sec 14(b) J Radio Officers' Union [Bull Steamship Co] v N L R B, 347 U S 17 at 51 (1954) 8 Brotherhood of Teamsters & Auto Truck Drivers Local 70 IBT (California Trucking Assn) 188 NLRB 305 (1971) 9 Plumbing and Steamfitters Local 100 (The McCally Co) 188 NLRB 951 (1971) 10 United Brotherhood of Carpenters & Joiners of America Local 117 (Peter Kiewit Sons Co) 189 NLRB 690 (1971) it J Willis & Son Masonry Co 191 NLRB 872 (1971), Metropolitan Dis trict Council of Carpenters (Jamestown Metal Products Co) 194 NLRB 159 (1971) 12 Intl Union of Operating Engineers, Local 302 (Mountain Pacific Chapter of the Associated General Contractors of America Inc) 186 NLRB 21 (1970) General Drivers and Helpers Local Union No 229 IBT (Associated Transport Inc) 185 NLRB 631 (1970) 13 Local #42 of the Intl Assn of Heat and Frost Insulations and Asbestos (Catalytic Constr Co), 164 NLRB 916 (1967) Local Union No 269 Intl Brotherhood of Electrical Workers (Natl Electrical Contractors Assn) 149 NLRB 768 (1964) 14 Hoisting and Portable Engineers, Local 302 (West Coast Steel Works) 144 NLRB 1449 (1963) In that case the subcontractor and the union had an informal hiring hall agreement under which the subcontractor would obtain clearance or referral of job applicants from the union The Board found that this hiring hall procedure imposed by such arrangement was not in itself discriminatory or operated in a discriminatory manner Cf N L R B v I L W U [Pacific Maritime Assn ], 210 F 2d 581 (C A 9 1954) N L R B v I L W U Local 10 [Pacific Maritime Assn J 214 F 2d 778 (C A 9 1954) NLRB v Waterfront Employers of Washington 211 F 2d 946 (C A 9 1954) Construction Specialties Co 102 NLRB 1542 (1953) enfd 208 F 2d 170 (C A 10 1953), George D Auchter Co, 102 NLRB 881 (1953) enfd 209 F 2d 273 (C A 5, 1924) Enterprise Industrial Piping Co 117 NLRB 995 (1957) BRICKLAYERS, LOCAL 7 211 tion, the contractual provision applicable in this case, arti- cle VIII of the collective-bargaining agreement between Mason & Builders Association, Inc, the multiemployers bargaining group of which Masonry Builders, the Employ- er, is a member, and Respondent Bricklayers Local 7, reads in pertinent part as follows Any outside employer coming into this jurisdiction shall be permitted to bring with him one foreman All other employees shall be referred by the Union In the event the Union is unable to supply an employee with- in two (2) business days after a request, the employer shall be free to hire other employees from any source Outside employers shall report all jobs within the ju- risdiction of the local union to the local union twenty- four (24) hours prior to the start of said job 11 C Contentions The Respondent claims that the General Counsel failed to establish by a preponderance of the evidence that Toney was discriminated against in violation of Section 8(b)(2) Respondent argues that it was merely enforcing article VIII of the collective-bargaining agreement when it sought Toney's termination as it was a "rehire" after 9 weeks' ab- sence, and that the Union's action was not taken because Toney failed to hold membership in Local 7 Therefore, argues Respondent, illegal motivation has not been proved by a preponderance of the credible evidence and, there- fore, this proceeding must be dismissed The Employer testified that the official of the Respon- dent Union told him that when Toney returned to the con- struction site after 9 weeks' absence from the job that he had "hired a new employee" and under the contract's pro- visions this was impermissible as it is necessary under the circumstances here present for the Employer to contact first the union hiring hall and advise the Union's business agent of his requirements for bricklayers Accordingly, Re- spondent Local 7 argues that failure to contact the Union before putting Toney to work on November 11 violated the parties' collective-bargaining agreement as he was not dis- patched from the hiring hall with a required referral slip Finally, Respondent's attorneys state that Toney cannot "return" to his "former" Market Street j ob "from a layoff " The General Counsel, on the other hand, maintains that inasmuch as Respondent Local 7's union steward had been notified by Toney before he had left on his vacation that the Union's refusal to permit him to resume his job when he returned 9 weeks later was for reasons which were "ir- relevant, invidious, or unfair" and tended to encourage union membership thereby establishing the prerequisite for a violation of Section 8(b)(2) 16 Moreover, General Counsel argues that the denial of Toney's previous request of Re- spondent in 1973 to allow him to join Local 7 or to pay "IU dues," which would have given Toney the privilege of 15GC Exh2 16 Miranda Fuel Co, 140 NLRB 181 (1962), enforcement denied 326 F 2d 172 (C A 2, 1963) The court in Miranda, supra, affirmed the Board's hold mg that unfair , irrelevant, or invidious discrimination against an employee can constitute an unfair labor practice under Sec 8 of the Act See 284 F 2d 861 (C A 2, 1960), and 356 U S 763 (1961) being referred to jobs from Respondent Local 7's hiring hall, tended to illegally encourage membership in Respon- dent Union D Conclusions It is well settled that "the policy of the Act is to insulate employees' jobs from their organizational rights " Thus, Section 8(a)(3) and 8(b)(2) was designed to allow employ- ees to freely exercise their right to join unions, "be good, bad, or indifferent members, or abstain from joining any union without imperiling their livelihood " 17 In fur- therance of this policy, Section 8(b)(2) makes it an unfair labor practice for "a labor organization or its agents to cause or attempt to cause" employer discrimination against an employee "in regard to hire or tenure of employment to encourage or discourage membership in any labor organi- zation" in violation of Section 8(a)(3) Similarly , Section 8(b)(1)(A) of the Act makes it an unfair labor practice for a union "to restrain or coerce employees in the exer- cise of [their] rights " The Act "aims at every practice, art, source or institution which in fact is used to encourage and discourage union membership by discrimination in regard to hire or tenure, term or condition of employment " 18 A discriminatory referral for any reason except to en- force a valid union-security provision under Section 8(a)(3) is violative of Section 8(b)(1)(A) and (2) of the Act unless the lack of referral is pursuant to objective criteria estab- lished and spelled out in a collective-bargaining agreement In determining whether discrimination, or an attempt to cause it, falls within the statutory condemnation, it is the "true purpose" or "real motive" that constitutes the test 19 The Supreme Court established in Local 357, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America v N L R B, 365 U S 667 (1961), that a hiring hall arrangement between employer and union is not per se illegal However, proof of discriminatory referral practices that tend to encourage union membership will render the hiring hall arrangement illegal The question presented in the instant case is whether the Union violated Section 8(b)(1)(A) and (2) of the Act by engaging in an alleged discriminatory practice to effect em- ployee Toney's discharge by requiring him to reregister with the hiring hall after a leave of absence of 9 weeks Recently, in a case factually similar to the case at bar, the Board found no violation of Section 8(b)(1)(A) and (2) against the union 20 In that proceeding the employer and the union had a collective-bargaining agreement which had no provision for leaves of absence The employer who op- erated a plant (not a construction site) originally granted 17 Radio Officers Union [A H Bull Steamship Co ] v N L R B 347 U S 17, 40 (1954) 18 Local 357, International Brotherhood of Teamsters [Los Angeles- Seattle Motor Express] v N L R B, 365 U S 667-676 (1961) Accord N L R B v International Brotherhood of Electrical Workers [Walsh Consir Co] 301 F 2d 824 825 (C A 9, 1962) N L R B v International Association of Ma chinists Aeronautical Industrial Lodge 727 [Menasco Mfg Co ], 279 F 2d 761 765-766 (C A 9, 1960), cert denied 364 U S 890 (1960) 19 Local 357 Teamsters v N L R B supra 20 Int 'l Assn of Machinists and Aerospace Workers Lodge 68 (West Winds Inc) 205 NLRB 132 (1973), remanded sub nom Ka] Kling v N L R B 503 F 2d 1044 (CA 9 1975) 212 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the employee a leave of absence which he later extended for an additional 2 months so that the employee could take care of his personal business No direct notice was given to the union by the employee as to his whereabouts or inten- tions to return, although the employee did put his request for an extension in writing at the employer's request and this, in turn, was forwarded by the employer to the union With the employer's knowledge and concurrence , the em- ployee actually prolonged the first grant of extended leave two more times and was gone from his job for a total of 5 months The employer considered this a leave of absence and stated that the employee was expected to return to work and, when he did so , it would be with full seniority and other job rights The union objected to this and ad- vised the employer it would consider the employee a new employee on his return to his job in the plant Months later, the union agreed to his return to work with full se- niority, but it alleged a constructive discharge for the inter- im period whereupon 8(b)(1)(A) and (2) charges were filed against the union by the employee The Board found in Machinists Local 68, supra, that the union had a valid interest "in protecting the relative senior- ity and job security of employees who remain on the job during a fellow employee's protracted leave of absence When he returns to the unit, usually to his own job, he bumps out the employee who has been temporarily as- signed to his job he has been accumulating seniority and thus acquiring superior rights to other employees who may have been hired during his leave and been actively at work while he was out on personal business " Thus, in Ma- chinists Local 68, supra, 133, the Board indicated that, de- spite the contract's silence on the granting of leaves of ab- sence and given the lack of prior consultation with the union, the employer's unilateral extensions of the leaves of absence for a total of 5 months and his continued willing- ness to recognize the returned employee with full seniority was arguably adversely affecting the employment condi- tions of the other unit employees who had continued to remain at work The Board, therefore, upheld the union's position, finding it neither frivolous, arbitrary, irrelevant, invidious, nor unreasonable and, in the absence of evi- dence of improper motivation, dismissed the 8 (b)(1)(A) and (2) charges, as the employee's 5-month leave of ab- sence rendered him a "new hire " In the instant case, the Employer and the Union have executed a collective-bargaining agreement expiring June 30, 1976, which includes a hiring hall provision whereby the Employer agrees to seek bricklayers, stone masons, etc, through the Local 7 hiring hall exclusively unless the hiring hall is unable to meet the Employer's needs When Re- spondent Local 7 was unable to supply bricklayers, the Employer contacted the business agent of Local 8 in Oak- land, who advised Toney there were jobs available on the San Francisco Market Street project Toney, in the vernac- ular of the trade, was then hired in April 1972 by the Em- ployer "off the street " Toney notified the Union initially through the Union's project job steward with respect to the Employer granting him a leave of absence for 4 to 6 weeks Sometime in Octo- ber, while still on leave, Toney telephoned and requested the Employer to extend his first leave of absence which was granted The record is silent as to whether the Employer or Toney informed the Union of the extension of his original leave of absence It is undisputed, however, that when To- ney returned from his extended leave of absence that the Employer accepted him back as a regular employee who had returned from vacation and to the job he left 9 weeks before The Union, on the other hand, told the Employer it con- sidered Toney to be a new employee or, as stated by a union official, "a new hire," which he claimed would re- quire that Toney reregister with Local 7's hiring hall and take his turn on the register for a new referral Whether Local 7's denial of Toney's application to become a mem- ber or to admit him under an "IU dues" status which would have given him the privilege of being referred to jobs is pertinent is not here decided in the absence of any proof by the General Counsel that such actions were moti- vated by proscribed considerations Toney did testify on his cross-examination that in early 1974 he had asked Can- avan, an official of Local 7, if it was true that when a Local 8 member was laid off from a project under Local 7's juris- diction that the Local 8 member could not return to the job and Canavan answered in the affirmative Arguably, the Union had a legitimate position in insist- ing that Toney renew his employment status at Local 7's hiring hall when he returned after 9 weeks off the job Moreover, the layoff of six bricklayers occurring just the day before Toney's return from his "vacation" serves to focus the problem created by the Employer's unilateral grant of a leave of absence and his continued willingness to extend the original 4 to 6 weeks to 9 weeks 2] As succinctly stated in Machinists Local 68, supra When the Employer continued to extend [the employ- ee's] leave of absence without prior consultation with the Union, the Union not unreasonably, protested the decision since the Employer, by unilaterally continu- ing to extend such leaves, was, at least arguably, ad- versely affecting the condition of employment of the unit employees In the Machinists case, the focus is not on management's right to grant the initial leave Rather, it is a question of the employer's continued willingness to take the employee back which at some point conflicts with the union's interest in protecting "the relative seniority and job security of unit employees who remain on the job during a fellow employee's protracted leave of absence " Bricklayers Local 7 facts differ from Machinists Local 68, in that the case at bar involves a hiring hall arrangement for referrals to a construction site whereas Machinists was concerned with a factory This could alter the tentative presumption that management has the right to make the initial grant and certainly bears on the employer's ability to make a person- al commitment to any employee regarding the extension of a leave of absence In any event, the holding in Machinists Local 68 does focus on the fact that it is at a point later in the process, beyond the initial grant when an extension is 21 Robert Langeberg who was in charge of the Market Street project testified that since April 1972 when work began there have been several layoffs BRICKLAYERS, LOCAL 7 213 granted, that the real conflict with the union's interest aris- es, particularly so in the instant case where the extension was unilaterally granted without the apparent knowledge or approval of the Union which the General Counsel failed to elicit It would seem the Union's insistence that Toney must be reregistered as a new employee is not inherently an unrea- sonable or an arbitrary demand in the context of his ex- tended 9 weeks' leave of absence and in light of the Board's decision in Machinists Local 68 Moreover, it is not too unreasonable to assume that the Market Street project lay- offs on November 8 of six bricklayers, 3 days before Toney's return to work, were made on the basis of seniority and lack of work See sec A, supra Based on the Board's holding and rationale in Machinists Local 68, it would seem particularly persuasive that the Union's insistence that To- ney was a "new hire" has merit To be sure, the employee was not at work for 5 months in Machinists, whereas it was a little over 2 months in this proceeding, but this distinction should not be the control- ling consideration in the context of six layoffs immediately prior to Toney's return Rather it is a combination of fac- tors which should be considered, namely, the lack of con- sultation by the Employer with the Union when Toney overstayed his estimate of 4 to 6 weeks' leave, as well as the concomitance of the Employer's continuing willingness to accord full job rights to Toney upon his return and the detrimental and adverse impact on other job applicants' condition of employment in that such treatment was tanta- mount to according Toney the right to bypass the union hiring hall and thus grant him preference in job referrals 22 Moreover, the General Counsel failed to carry his burden of proof in that he did not produce sufficient evidence of any improper motivation or discriminatory practices in the Union's decision to treat Toney as a new employee which culminated in his Employer dismissing him at the insis- tence of the Union Accordingly, it is found that Section 8(b)(1)(A) and (2) of the Act was not violated by Respon- dent [Recommended Order for dismissal omitted from publi- cation I 22 For provisions granting preference in job referrals based not on length of service with the employer who is a member of a multiemployer bargain mg group but on service under a collective bargaining agreement between the parties to the referral system see International Photographers Local 659 (MPO-TV of Calif Inc Y-A Productions Inc) 197 NLRB 1187 (1972) Directors Guild of America Inc (Association of the Motion Picture & Televi sion Producers) 198 NLRB 707 (1972) enfd 494 F 2d 692 (C A 9 1974)