Painters, Local Union No. 487

PAINTERS, LOCAL UNION NO. 487 299 United Brotherhood of Painters, Decorators & Paper- hangers of America, Local Union No. 487, AFL- CIO (American Coatings , Inc.) and Robert G. Reise. Case 20-CB-3641 I. ISSUE The issue is whether the Union violated Section 8(b)(1)(A) and (2) by its refusal, on August 25, 1975, to refer Reise from its exclusive hiring hall upon the request of American Coatings, Inc. (herein called the Company). October 6, 1976 DECISION AND ORDER BY CHAIRMAN MURPHY AND MEMBERS JENKINS AND WALTHER On May 18, 1976, Administrative Law Judge Rich- ard J. Boyce issued the attached Decision in this pro- ceeding. Thereafter, the General Counsel filed excep- tions and a supporting brief, and the Respondent filed cross-exceptions 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 briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act as amended the National Labor Rela- tions Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the complaint be, and it hereby is, dis- missed in its entirety. DECISION STATEMENT OF THE CASE RICHARD J. BOYCE, Administrative Law Judge: This case was heard before me in Sacramento, California, on March 24, 1976. The charge was filed on September I and amend- ed on November 20, 1975, by Robert G. Reise, in his indi- vidual capacity. The complaint issued on December 16, 1975, and alleges a violation by United Brotherhood of Painters, Decorators & Paperhangers of America, Local Union No. 487, AFL-CIO (herein called the Union) of Section 8(b)(1)(A) and (2) of the National Labor Relations Act, as amended. The parties were given opportunity at the hearing to in- troduce relevant evidence, to examine and cross-examine witnesses, and to argue orally. Briefs were filed for the General Counsel and the Union. II. JURISDICTION The Company is a painting contractor headquartered in LaCanada, California. In 1975 it provided services of a value exceeding $50,000 to various general contractors in California, each of whom has an annual direct inflow ex- ceeding $50,000. The complaint alleges, the answer as amended at the hearing admits, and it is found that the Company is an employer engaged in unfair labor practices affecting commerce within the meaning of Section 2(2), (6), and (7) of the Act. III. LABOR ORGANIZATION The Union is a labor organization within the meaning of Section 2(5) of the Act. - IV. THE ALLEGED UNFAIR LABOR PRACTICES A. Facts The Union's standard labor contract establishes its hir- ing hall as the sole source of painters hired by signatory employers. The contract calls for the referral of job appli- cants in the order of their registration on the Union's out- of-work list, but with the exception -that: ... whenever an Employer requests a particular workman by name, the Union will furnish said work- man to such employer, if available, provided that such workman is registered on the [out-of-work] list. In practice, signup on the out-of-work list can be done in person or by an applicant's telephoning the Union. The request-by-name exception to the chronological order of referral is construed to permit a registrant himself to locate employment, so long as he or the prospective employer observes the formality of obtaining union clearance before the start of work. The Company began the job in question, at McClellan Air Force Base near Sacramento, on August 4, 1975, com- pleting it in February 1976. Having become signatory to the Union's contract for purposes of the job, it obtained its painters through the Union's hiring hall. Many of them were unsatisfactory in the Company's view, particularly in the first 2 or 3 weeks of the job. About 10 painters were discharged in that period, as against a crew size that fluctu- ated between 4 and 9. The early turnover was of concern to the Union's business agent, C. B. Kenney, and its treasur- er, J. B. Reed, prompting them to discuss the situation from time to time with' Job Foreman Chris Kappos. Among those discharged was a spray painter named Ivan Marinow, on August 21.1 Marinow had been on the 1 Mannow's name is erroneously spelled "Marionow" in the transcript 226 NLRB No. 47 300 DECISIONS OF NATIONAL LABOR RELATIONS BOARD job since shortly after its inception; and Kenney promised, on learning of his discharge, to "go out there and check the job over and see what was going on." Meanwhile, on Au- gust 20, apparently in anticipation of Marinow's discharge, Kappos asked of the crew if anyone knew of a "sprayman, in the area looking for work." There was no response at the time; but, that night, the Union's steward on the job, Terry Tarin, told Reise about it and gave him Kappos' telephone number. Reise is a member of the Union of several years' standing. He was not on the out-of-work list, however, hav- ing been laid off a job that very day. Reise telephoned Kappos the night of August 21, relat- ing his understanding that the Company was ,looking for a sprayman. Kappos, after satisfying himself of Reise's expe- rience and familiarity with spray equipment, said he would call the Union the next day for his referral. Stating that he would not be first on the out-of-work list, Reise advised Kappos to "ask for me personally, and the Union would contact me, and I could go out." At or about 7:30 a.m. on both August 22, a Friday, and August 25, a Monday, Reise telephoned Business Agent Kenney. The testimony of the two suggests confusion by one or both concerning what was said in which conversa- tion, but basic agreement as to the content of the conversa- tions in aggregate. Reise testified that, in the Friday con- versation, he asked to be placed on the out-of-work list, making no mention of an expected request for him by the Company. He remembered Kenney saying that he "would be going out real shortly because there was a lot of work ready to break." Kenney testified, on the other hand, that Reise asked on Friday "for a referral slip to go to work" for the Company; and that Kenney, alluding to the spate of discharges in general and to that of Marinow in particular, replied that he could not give Reise a referral slip "cause we're having trouble on the job and . . . wasn't nobody going out there." It was not until the Monday conversation, according to Reise, that he requested referral to the Company and that Kenney refused, giving as the reason the Company's "union troubles." Kenney recalled that Reise "blew his stack" on Monday, threatening to file an unfair labor prac- tice charge. It is unnecessary to resolve these conflicts, the upshot either way being the same. On the morning of August 22, after Reise's first conver- sation with Kenney, Kappos called Sharon Rodgers, secre- tary to the Union's dispatcher, asking that Reise be cleared to begin work on Monday, August 15. Rodgers gave every indication that the request would receive routine treat- ment 2 Then on August 25, a couple hours after Reise's second conversation with Kenney, Kappos again called Rodgers expressing puzzlement that Reise had not report- ed for work. Rodgers explained that there was "some mix- up," and that Kenney would be out to see Kappos about it. Kenney presently arrived at the jobsite, followed in a few minutes by Treasurer Reed. To Kappos' question why Reise had not been referred, Kenney answered that Reise 2 Kappos is credited over Rodgers' denial that Reise was requested by name The manner in which the present dispute arose and the overall con- text of the case support Kappos in this respect. "hadn't signed the out-of-work list." Kappos protested,, asking "if a man still couldn't solicit his own employment." Kenney acknowledged that practice, but said that it did not obtain in Reise's case because he had not signed the out-of-work list. Kenney asked ' how Kappos had gotten Reise's name and it was "brought out" that Tann, the steward, had told Reise of the opening. Kenney then re- buked Tarin, saying it was not his job, as steward, to serve as a go-between for the Company and prospective employ- ees "it was the same thing as jumping the list." During the same conversation, Kenney questioned Kap- pos about the Marinow discharge. Upon learning the cir- cumstances, he became satisfied that it was for good reason and withheld any objection 3 Kappos then complained about one Benny Bennefield, a brush painter on the job, declaring that he was about to be fired. Reed suggested, since there was a need for another spray painter and since he knew that Bennefield was "a heck of a good sprayman," that Bennefield be tried at spraying rather than'discharged outright. Kappos did not ,voice immediate acceptance of the idea, persisting that he wanted the Union to refer a sprayman by noon. Bennefield nevertheless was reassigned that morning, and, as things turned out, performed accept- ably as a sprayman. Bennefield's -reassignment eliminated the immediate need for a sprayman, prompting Kappos, to call Sharon Rodgers in the late morning of August 25 canceling his request of the previous Friday. Still later on August 25, the shift of Bennefield having created the need for another brush painter, Kappos called in such a request, which was filled the next morning by the referral of one Zachary Tar- lanovic.4 On the night of August 25 Reise telephoned the Union's president, Jim Gordon, asking "where it said in our bylaws I could not solicit my own work." Gordon replied that Reise could, whereupon Reise related "what had taken place." Gordon told Reise he would call him back, and shortly did so, telling Reise to report to the job in the morning, ready to work, and he_ would be cleared. Reise followed Gordon's instructions, only to be told by Kappos that Tarlanovic had dust been sent and that there was no opening. Reise testified that, about a year before the events in question, when he and Kenney were on the same crew, the crew was involved in "a safety uprising about toxic fumes." There was some disagreement, Reise continued, whether he and several others had quit in protest, or had been fired, Kenney taking the former view, Reise the latter. As a re- sult, according to Reise, "it was obvious" that he had a "dispute" with Kenney. There is no basis in the record for inferring that Kenney saw the matter in the same light. There is some evidence, limited but unrebutted, that the Union sometimes makes referrals pursuant to specific re- quests even though the requested person is not then on the 3 Certain errors in the transcript are hereby noted and corrected 4 Rodgers is credited over Kappos' denials that he canceled the Friday request and that he requested a brush painter on August 25. Bennefield's reassignment having eliminated the need for a sprayman and created a need for a brushman, and it being contrary to the probabilities of the situation that the Union would have sent Tarlanovic without invitation, the weight of plausibility favors Rodgers. PAINTERS, LOCAL UNION NO. 487 out-of-work list. The record is silent whether this ever hap- pens when others are on the list, awaiting dispatch. There was little if any turnover, because of discharges for cause, between the August 25 visit of Kenney and Reed to the jobsite and the completion of the job. B. Analysis The Board stated in International Union of Operating En- gineers, Local 18, AFL-CIO, 204 NLRB 681 (1973): When a union prevents an employee from being hired ... it has demonstrated its influence over the employ- ee and its power to affect his livelihood in so dramatic a way that we will infer-or, if you please, adopt a presumption that-the effect of its action is to encour- age union membership on the part of all employees who have perceived that exercise of power. There is no doubt that the Company wished to hire Reise, and that it was prevented from doing so by the Union's refusal to refer him on the morning of August 25, bringing the presumption of illegality into play. The real question is whether the Union's action and ra- tionale were such as to overcome the presumption. As is further stated in Operating Engineers, Local 18, 204 NLRB 681, the presumption is rebutted: ... in instances where the facts show that the union action was necessary to the effective performance of its function of representing its constituency. Or, as put in Millwrights' Local Union 1102, United Brother- hood of Carpenters and Joiners of America, AFL-CIO, (Planet Corporation), 144 NLRB 798, 800 (1963), the pre- sumption: ... may be rebutted by evidence of a compelling and overriding character showing that the conduct com- plained of was referable to other considerations, law- ful in themselves, and wholly unrelated to the exercise of protected employee rights or to other matters with which the Act is concerned. It is plain that union actions reasonably designed to pre- serve the integrity of contractually prescribed referral prac- tices, even though those actions bring changes in job status to individual employees, are of a nature meeting the bur- den of rebuttal. E.g., Birmingham Country Club, 199 NLRB 854 (1972); Everett Construction Company, Inc., 186 NLRB 240 (1970). What is reasonable, moreover, is not to be nar- rowly construed in matters of this sort. Extracting from Ford Motor Company v. Huffman, 345 U.S. 330, 338 (1953): A wide range of reasonableness must be allowed a statutory bargaining representative in serving the unit it represents, subject always to complete good faith and honesty of purpose in the exercise of its discre- tion. Similarly, to quote from Chicago Federation of Musicians, Local 10, American Federation of Musicians (Shield Radio & T.V. Productions, Inc.), 153 NLRB 68, 84 (1965): "[T]he Board does not, and should not, substitute itself for the Union in weighing the wisdom of the stated objective." In other words, there is no violation if a union can show that 301 its conduct was not motivated by improper considerations of union membership or activity, and that it: ... was acting out of a legitimate concern for the other unit employees . . . its action in taking its posi- tion was not arbitrary, irrelevant, or invidious. International Association of Machinists and Aerospace Work- ers, San Francisco Lodge No. 68 (West Winds, Inc.), 205 NLRB 132, 133 (1973). See also Marquette Cement Manu- facturing Company, 213 NLRB 182 (1974); Local Union No. 337, United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, AFL-CIO (Townsend & Bottum, Inc.), 147 NLRB 929, 931 (1964); New York Typographical Union Number Six, International Typographical Union, AFL-CIO (Law- rence F. Cafero), 144 NLRB 1555, 1558-59 (1963); Miranda Fuel Company, Inc., 140 NLRB 181 (1962). Applying this overlay of legal principle to the present situation it is concluded that the Union has successfully rebutted the adverse presumption. To begin, the General Counsel's argument that Kenney was acting out of malice toward Reise, derived from the "safety uprising" of a year before, fails for want of record support. Malice eliminated as a motive, the weight of evidence indicates that Kenney's conduct was prompted by a sincere suspicion that the in- tegrity of the exclusive hiring hall was under challenge.5 Thus, when Kenney rebuked Tarin, he spoke of concern about "jumping the list." And, when he told Kappos that Reise had not been referred because he "hadn't signed the out-of-work list," Kenney plainly was not quarreling with the efficacy of Reise's calling in as a registration technique, but with the Company's having made a deal with Reise when he was not registered-which, together with the pan- demic discharge of those previously referred, suggested to Kenney that the Company was making a mockery of its hiring-hall commitment. \' It is evident that, before referring Reise, Kenney simply wanted to assure himself that everything was on the up- and-up, lest he become accessory to hiring-hall abuse. Once he was satisfied, referrals resumed; and, perhaps not coincidentally, the turnover rate dropped precipitately. That Reise was not then referred does not carry sinister import, Kappos having canceled the request for him after Bennefield's successful shift to spraying. The Union hardly can be faulted for proposing that the shift be made, as an alternative to Bennefield's being fired, even though it de- prived Reise of a job. Incumbent employees are valid ob- jects of union concern, perhaps more so than those await- ing referral.' The Company's next request-filled by Tarlanovic-would not have warranted Reise's referral, he being at or near the bottom of the list, unless expressly for him. There is not evidence that it was. 5 Fairness compels the caution, when weighing Kenney's words, that he is not blessed with verbal skills enabling precise articulation of his thought processes 6 As noted in International Association of Machinists and Aerospace Work- ers, Local Union No. 697, AFL-CIO (The H 0 Canfield Rubber Company of Virginia, Inc), 223 NLRB 832, fn 4 (1976) "[T]he nonunion applicant for employment, who utilizes the hiring hall, is clearly not an employee in the unit which is represented by the Union and is therefore not entitled as a matter of right to the unconditional provision of services that the Union must make available to all unit employees 11 302 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In short, while Kenney arguably jumped to conclusions that were premature, if not unfounded; and while-he argu- ably did not address himself to those- conclusions with opti- mum prudence, he nevertheless acted in furtherance of a valid objective, untainted by improper motivation, in a way that cannot be said to have been arbitrary, irrelevant, or invidious. The Union therefore did not cause or attempt to cause the Company to discriminate against Reise in vio- lation of Section 8(a)(3), and so did not itself violate Sec- tion 8(a)(2) and (1)(A) of the Act. CONCLUSIONS OF LAW 1. American Coatings, Inc., is an employer within the meaning of Section 2(2) of the Act, engaged in unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7). 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. The Union did not violate the Act 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: ORDER7 The complaint is dismissed. 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