Sheet Metal Workers, Local Union 13

374 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Sheet Metal Workers International Association, APPENDIX Local Union No. 13, AFL-CIO (Sheet Metal Contractors Association, Hudson & Bergen NOTICE To MEMBERS Counties, New Jersey) and Paul Mirable. Case POSTED BY ORDER OF THE 22-CB-4378 NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government November 23, 1981 DECISION AND ORDER WE WILL NOT refuse to refer nonmembers to jobs through our exclusive hiring hall. BY CHAIRMAN VAN DE WATER AND WE WILL NOT demand the payment of back MEMBERS JENKINS AND HUNTER dues for periods when dues were not validly required as a condition of employment, as a re- On August 20, 1981, Administrative Law Judge quirement for reinstatement into membership D. Barry Morris issued the attached Decision in and referral through our hiring hall. this proceeding. Thereafter, both Respondent and WE WILL NOT in any like or related manner the Charging Party filed exceptions and supporting restrain or coerce employees in the exercise of briefs, and Respondent filed an answering brief. the rights guaranteed them in Section 7 of the Pursuant to the provisions of Section 3(b) of the Act. National Labor Relations Act, as amended, the Na- WE WILL make whole Paul Mirable for any tional Labor Relations Board has delegated its au- loss of earnings, plus interest, he may have suf- thority in this proceeding to a three-member panel. fered as a result of our refusal to refer him to The Board has considered the record and the at- work and WE WILL reimburse him for the tached Decision in light of the exceptions and back dues, which we required him to pay. briefs and has decided to affirm the rulings, find- ings,' and conclusions2 of the Administrative Law SHEET METAL WORKERS INTERNA- Judge and to adopt his recommended Order, as TIONAL ASSOCIATION, LOCAL UNION modified herein.3 No. 13, AFL-CIO ORDER DECISION Pursuant to Section 10(c) of the National Labor STATEMENT OF THE CASE Relations Act, as amended, the National Labor Re- D. BARRY MORRIS, Administrative Law Judge: This lations Board adopts as its Order the recommended case was heard before me in Newark, New Jersey, on Order of the Administrative Law Judge, as modi- April 30, May 1, 18, and 19, 1981. The charge was filed fled below, and hereby orders that the Respondent, on June 27, 1980, and the complaint was issued on Sep- Sheet Metal Workers International Association, tember 26, 1980, alleging that Sheet Metal Workers In- Local Union No. 13, AFL-CIO, Union, New ternational Association, Local Union No. 13, AFL-CIO Jersey, its officers, agents, and representatives, shall (Respondent), violated Section 8(bX)()(A) and (2) of the take the action set forth in the said recommended National Labor Relations Act, as amended (the Act). Re- Order, as so modified: spondent filed an answer denying the commission of the alleged unfair labor practices. i. Substitute the following paragraph as para- The parties were given full opportunity to participate, graph l(c): produce evidence, examine and cross-examine witnesses, "(c) In any like or related manner restraining or argue orally, and file briefs. Briefs were filed by all par- coercing employees in the exercise of the rights ties. guaranteed them in Section 7 of the Act." Upon the entire record of the case, including my ob- 2. Substitute the attached notice for that of the servation of the witnesses, I make the following: Administrative Law Judge. FINDINGS OF FACT I Respondent has excepted to certain credibility findings made by the I. THE BUSINESS OF THE ASSOCIATION Administrative Law Judge. It is the Board's established policy not to overrule an administrative law judge's resolutions with respect to credi- Sheet Metal Contractors Association, Hudson & bility unless the clear preponderance of all of the relevant evidence con- Bergen Counties, New Jersey (the Association), a New vinces us that the resolutions are incorrect. Standard Dry Wall Products. Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have Jersey corporation with its principal offices in New carefully examined the record and find no basis for reversing his findings. Jersey, is an association of employers whose members ' In accordance with his dissent in Olympic Medical Corporation, 250 are engaged in the business of building construction in NLRB 146 (1980), Member Jenkins would award interest on the backpay New Jersey. For many years the employer-members of due based on the formula set forth therein. I We have modified the Administrative Law Judge's recommended the Association have delegated to it the authority to con- Order and notice to conform to the statutory language. duct collective-bargaining negotiations on their behalf 259 NLRB No. 56 SHEET METAL WORKERS, LOCAL UNION 13 375 and to enter into a collective-bargaining agreement. letter dated November 30, the International notified Re- During the 12 months preceding the issuance of the com- spondent that since Mirable was fined $1,000 "and ex- plaint, the employer-members of the Association pur- pelled by Local 112, it will be necessary for him to pay chased goods valued in excess of S50,000 from suppliers his fine and to receive clearance from Local 112 before in other States for delivery within New Jersey. he can be reinstated and dues accepted." On December The complaint alleges, the answer admits, and I find 18, Raymond Fleck, Respondent's financial secretary- that the Association is an employer engaged in corn- treasurer, sent Mirable a check for $204 as reimburse- merce within the meaning of Section 2(2), (6), and (7) of ment of the November dues, reinstatement, and appeal the Act. fees and advised Mirable that "Local 13 cannot accept your dues until you receive clearance from Local 112." 11. THE LABOR ORGANIZATION INVOLVED Thereafter, no dues were accepted. The complaint alleges, the answer admits, and I find that Respondent is a labor organization within the mean- 2. Refusal to refer through hiring hall ing of Section 2(5) of the Act. On December 3, Mirable was referred through Re- spondent's exclusive job referral system to a job for III. THE ALLEGED UNFAIR LABOR PRACTICES Hawthorne Sheet Metal, an employer-member of the As- A. The Issues sociation. The job for Hawthorne lasted about a day and a half. On December 6, Mirable returned to Respond- The complaint alleges that beginning December 30, ent's hall to seek work. Mirable credibly testified that 1979,1 Respondent refused to refer Paul Mirable to work George Murray, Respondent's business manager, told from its exclusive hiring hall because he was not a him that he "couldn't sign the book no more." 2 Mirable member of Respondent. The complaint also alleges that credibly testified, as follows: on June 24, 1980, Respondent required Mirable, as a con- dition precedent to reinstatement, to pay back dues for Q. Did Murray tell you why you couldn't be re- the period following September 24, when Mirable was ferred to work? not a member of Respondent. Respondent denied the al- A. Yes, because you're not a member no more. legations. The issues are: Q. Did you sign in that day? (I) Did Respondent refuse to refer Mirable to work A. No. I wasn't allowed to sign in. Only . . . if from its exclusive hiring hall because he was not a you're in the union you can sign in. member of Respondent; and (2) Did Respondent require Mirable to pay back dues Mirable testified that during the next several months as a condition precedent to reinstatement to membership he kept on coming to the hall, asking for work. He testi- in Respondent and referral from its hiring hall. fled that both Murray and William Voitle, Respondent's business agent, repeatedly told him "because I have no B. The Facts card, you can't work out of the hall." Mirable's testimo- ny was corroborated by Paul Schachter, Mirable's attor- 1. Background ney and one of his witnesses. Schachter testified that Mirable, a journeyman sheet metal worker, has been a Mirable came to him in March 1980 with respect to his member of Respondent for approximately 13 years. Re- not being referred by Respondent. Schachter credibly spondent is a party to a collective-bargaining agreement testified as follows: with the Association, the most recent of which was ef- fective from July 1, 1978, through June 30, 1981. The Q. So what did you do? collective-bargaining agreement provides for an exclu- A. After doing some preliminary investigation of sive job referral system whereby all sheet metal workers the facts of the case I called up Local 13 and I to be employed by the employer-members of the Associ- spoke to George Murray concerning the status of ation must be referred by Respondent. Mr. Mirable. During August, Mirable worked for several days at a Q. When was this conversation? job in Ithaca, New York. The job was under the jurisdic- A. This was on March I th. tion of Local 112 in Elmira. As a result of that job, Mira- Q. And what was said in the conversation? ble was brought up on charges by Local 112, was found A. I told Mr. Murray-I identified myself. I said guilty and fined $1,000 by Local 112, and was expelled I'm Paul Schachter, Director of the Labor Law from membership in the International. Thereafter, Mira- Clinic; we're trying to assist Mr. Mirable in getting ble appealed to the International but his appeal was reinstated to his job so that he could be again re- denied as being untimely. ferred out from the hiring hall since he was not During the pendency of the appeal, until December 6, being referred out at the instant time ... . and Mr. Respondent permitted Mirable to seek work through its exclusive job referral system. Mirable was in fact re- ' Inasmuch as the events of December 6 occurred prior to the 10(b) ferred to employment on several occasions during the period, I am not finding any violation of the Act baaed on such events. fall of 1979. Respondent also accepted the tender of dues However, "earlier events may be utilized to shed light on the true char- Mirable in October and November. However, by acter of matters occurring within the limitations period; and for that pur- by Mirable in October and November. However, by pose 10(b) ordinarily does not bar such evidentiary use of anterior events." Local Lodge Na 1424, International Association of Machinists 'All dates refer to 1979 unless otherwise specified. AFL-CIO. et at v. N.L R.B. 362 U.S. 411, 416 (1960). 376 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Murray told me that they had no objection to rein- he would have appeared at the hall and, on his own voli- stating Mr. Mirable. The problem was, however, tion, not have signed the out-of-work list. The evidence that they had to get clearance from Owen Jones at instead clearly points to the credibility of Mirable's state- Local 112 in upstate New York. ment that he was instructed not to sign the out-of-work I asked Mr. Murray if Mr. Mirable would be re- list. ferred out to jobs pending getting the clearance Accordingly, I find that Mirable was told by Respond- from . .. Mr. Jones, since ... Mr. Mirable had al- ent that he could not sign the out-of-work list because he ready paid the fine. was not a member of Respondent. After December 30, Mr. Murray told me that as soon as Mr. Mirable this instruction was reaffirmed by Respondent's state- was reinstated to the union, he would be able to be ments that because Mirable had no "card," he could not referred out for jobs again. "work out of the hall." I find that commencing Decem- Q. Did Murray say anything further in the con- ber 303 Mirable was not referred to jobs by Respondent versation? He said that as soon as Mr Mirable was through its hiring hall because he was not a member of reinstated he could be referred out from the hall at Respondent. Local 13. Q. Did Murray say anything further? 3. Employment at Hudson Food A. Yes. When I asked Mr. Murray if Mr. Mirable Mirable testified that he attended an executive board could be referred pending his reinstatement into the union, the answer was that only--he would have tomet Peter Nigro, vice president of union office he met Peter Nigro, vice president of be in the union because only union people could be Hudson Food Service Equipment Company (Hudson), r ]erred fr m the hall. Hudson Food Service Equipment Company (Hudson), referred from the hall. who offered him a job as a welder. Mirable felt that he Schachter also testified with respect to a further con- could not take the job because he did not have a "card." versation he had with Murray towards the latter part of Peter Nigro corroborated Mirable's testimony as to the April 1980. Schachter inquired of Murray whether Mira- job offer. He stated that he met Mirable at the union ble's application for reinstatement was being processed, office on April 21. He testified as follows: to which Murray replied in the affirmative. Schachter credibly testified as follows- Q. Would you tell the court the circumstances under which you met him, what had happened, I asked Mr. Murray if Mr. Mirable would be re- how he was introduced to you and so forth? ferred out to jobs now that the application was A. I just met him in the outer offices there and I being processed. Mr. Murray said, no, that he asked him if he was a sheet metal worker and he would not be referred out to jobs until he was rein- said yes and I asked him if he was working. He said stated into the union, which he expected to be no. I asked him if he wanted to work with us. I shortly. needed at that time a man in the shop to do sinks and dish tables. While Murray denied that he told Mirable that he could not sign the out-of-work list, he admitted that he Joseph Nigro, president of Hudson, testified that Mira- told Mirable "you have to pay the fine or I'm not able to ble first came to work on June 16, 1980. He testified that send you to work." Murray also testified that when Mir- he called either Murray or Voitle who told him that able finished the Hawthorne job he came to the hall but Mirable "could work." However, Nigro testified that he "didn't sign an out-of-work sheet, and he didn't sign the could not have sent Mirable to do "outside" work with- book." out a union card. I credit Mirable's testimony that Murray and Voitle Based upon the testimony of Mirable, Peter Nigro, and told him "because I have no card, you can't work out of Joseph Nigro, I find that Mirable was offered a job with the hall." This testimony, in effect, was corroborated by Hudson on April 21, 1980. However, this job was not re- Schachter who credibly testified that Murray told him ferred by Respondent through the hiring hall. Instead, that only union people would be referred from the hiring Mirable happened to meet Peter Nigro at the union hall and that Mirable would not be referred again until office. After finding out that Mirable was a welder, he was reinstated into membership. Murray virtually Nigro offered him a job. I conclude that the job offer conceded this when he testified that he told Mirable that was not a referral by Respondent through its hiring hall. "you have to pay the fine or I'm not able to send you to work." With respect to Murray's testimony that Mirable 4. Reinstatement fee appeared at the hall after the Hawthorne job but did not Mirable testified that Fleck invited him to come to an sign the book, it is inconceivable that Mirable would vol- executive board meeting on April 21, 1980. At that time untarily not have signed the book. Murray testified that he was told that he would have to pay the sum of S395 under the hiring hall procedure, when an individual re- to be reinstated to membership in Respondent. Mirable ports out of work "he comes into the union office and testified that that night Fleck handed him General Coun- we have slips of paper on the desk in a box and he signs sel's Exhibit 3(b) which itemizes the total of S395 as fol- in the paper and he signs his name." He also testified that this procedure is something that the members "automatai- ' While the practice of nonreferral began on December 6, as pointed cally" follow. Inasmuch as Mirable had finished the out above, inasmuch as December 6 antedates the 10(b) period, no viola- Hawthorne job and was out of work, it is incredible that tion is being found for events occurring prior to December 30. SHEET METAL WORKERS, LOCAL UNION 13 377 lows: $296-"8 months back dues" for October 1979- findings are based upon Mirable's credible testimony May 1980; $25-"reinstatement fee"; and $74-"June & which was corroborated by the testimony of Schachter. July dues." Mirable testified that he paid the $395 on Indeed, Murray himself testified that he told Mirable June 24, 1980.4 Fleck did not deny Mirable's version of "you have to pay the fine or I'm not able to send you to the events. work." I credit Mirable's testimony which essentially is uncon- I further find that the discrimination continued until troverted and I find that Respondent required Mirable to June 24, 1980. While Mirable was offered a job with pay a fee of $395 as a condition precedent to being rein- Hudson in April 1980 this was not pursuant to a referral stated into membership in Respondent. I find that the through Respondent's hiring hall. $395 fee consisted of $296 back dues for the period Octo- Accordingy, I find that from December 30, 1979, until ber 1979 to May 1980; $25 reinstatement fee; and $74 as June 24, 1980, Respondent refused to refer Mirable to dues for June and July 1980. jobs from its hiring hall because Mirable was not a C. Discussion and Analysis member of Respondent in violation of Section 8(bXIXA) and (2) of the Act. 1. Refusal to refer 2. Reinstatement fee The law is well settled that a union violates Section 8(bX)(lA) and (2) of the Act when, under an exclusive An applicant cannot be required to pay back dues for hiring-hall agreement with an employer, it accords its a period when dues were not validly required as a condi- own members preference in job referrals over non- tion of employment. Bricklayers: Local No. 8, supra, 235 members using its hiring hall facilities. Local 357, Inter- NLRB at 1005. I have found that Mirable was not of- national Brotherhood of Teamsters, Chauffeurs, Warehouse- fered work through Respondent's hiring hall from De- men and Helpers of America [Los Angeles-Seattle Motor cember 30, 1979, until June 24, 1980. I have further Express] v. N.LR.B., 365 U.S. 667, 674-675 (1961); found that on June 24, 1980, Respondent demanded, and N.LR.B. v. Local 269, International Brotherhood of Elec- Mirable paid, the sum of $296 as back dues for the trical Workers AFL-CIO, and Mercer County Division, period of October 1979 through May 1980. New Jersey Chapter, National Electrical Contractors Asso- Respondent argues that the money requested constitut- ciation 357 F.2d 51, 55 (3d Cir. 1966). As the Board has ed a "reinitiation" fee. However, the record does not stated in Sachs Electric Company, 248 NLRB 669, 670 support a finding that Mirable was asked for a "reinitia- (1980). tion" fee. On the contrary, General Counsel Exhibit's 3(b), which was handed to Mirable on June 24, 1980, The operation of a union hiring hall imposes con- specifically states the $296 as "8 months back dues." The siderable responsibilities on the union agents in "reinstatement fee" is specifically stated to be $25. charge of the hall. Thus, they must neither foster Accordingly, I find that Respondent's requirement that nor countenance discrimination with regard to Mirable pay back dues for the period of December 30, access to, or referral from, the hall on the basis of 1979, to June 24, 1980, violates Section 8(b)(IXA) and International union membership, local union mem- International union membership, local union mem- (2) of the Act. See United Brotherhood of Carpenters and bership, or any other arbitrary, invidious, or irrele- Joiners of America, East Pennsylvania Industrial District vant considerations. Council, AFL-CIO (Ridge Homes, a Division of Evans Respondent concedes that if in fact Mirable was dis- Products Co., Inc.) 224 NLRB 1144, 1148 (1976). criminated against because of his not being a member in Respondent, such discrimination constitutes a violation CONCLUSIONS OF LAW of the Act.5 I have found that in early December Re- 1. The Association is an employer engaged in com- spondent was notified by the International that it could merce within the meaning of Section 2(2), (6), and (7) of no longer accept dues from Mirable. Soon thereafter, the Act. Mirable was told he could no longer "sign in" and was 2. Respondent is a labor organization within the mean- thereafter not referred to jobs from the hiring hall. These ing of Section 2(5) of the Act. 3. By refusing to refer Mirable to employment through ' Mirable credibly testified that he gave Fleck S400 and received change so that the total paid was "three ninety something." While the its hiring hall from December 30, 1979, to June 24, 1980, record contains a receipt for $99, which appears to include S25 as rein- because Mirable was not a member of Respondent, Re- statement fee and $74 for June and July dues, I credit Mirable's testimony spondent has violated Section 8(b)(IXA) and (2) of the that he in fact paid an additional $296, for a total of $395. ' Respondent adduced testimony to show that during the winter Act. months a number of employees were out of work. In the first place, Re- 4. By requiring Mirable to pay back dues for the spondent has not shown that jobs were unavailable. In fact, Voitle con- period of December 30, 1979, to June 24, 1980, as a con- ceded that "Mirable would have had no problem getting a kitchen equip- dition precedent to Mirable's reinstatement to member- ment job if he had signed the list between December of 1979 and July of 1980." More importantly, however, the Board has held that where a ship and referral through the hiring hall, Respondent has union refuses to refer an applicant because of improper union consider- violated Section 8(b)(1)(A) and (2) of the Act. ations, the General Counsel need not prove that jobs were available at 5. The aforesaid unfair labor practices constitute unfair the time of the request for referral. Bricklayers' and Stonemasons' Interna- tional Union, Local No. 8. B.M. d P.. U. of America (California Conference labor practices affecting commerce within the meaning of Mason Contractor Associations Inc.), 235 NLRB 1001, 1005 (1978). of Section 2(6) and (7) of the Act. 378 DECISIONS OF NATIONAL LABOR RELATIONS BOARD THE REMEDY New Jersey, its officers, agents, and representatives, Having found that Respondent has engaged in certain Cease and desist from: unfair labor practices, I shall order it to cease and desist (a) R efusing t o refer nonm embers to jobs through its therefrom and to take affirmative action designed to ef- exclusive hiring hall. fectuate the policies of the Act. (b) Demanding the payment of back dues for periods Respondent having refused to refer Mirable to em- when dues were not validly required as a condition of ployment through its hiring hall from December 30, employment, as a requirement for reinstatement into 1979, to June 24, 1980, I shall order Respondent to make membership and referral through the hiring hall. Mirable whole for any loss of earnings he may have suf- (c) In any like or related manner interfering with, re- fered by not being referred to jobs during that period. straining, or coercing employees in the exercise of their In addition, having found that Respondent unlawfully rights under Section 7 of the Act. required Mirable to pay back dues as a condition prece- 2. Take the following affirmative action necessary to dent to his reinstatement into membership and referral effectuate the policies of the Act: through the hiring hall, I shall order Respondent to re- (a) Make whole Paul Mirable for any loss of earnings imburse him for the amount of back dues paid for the he may have suffered as a result of Respondent's refusal period of December 30, 1979, to June 24, 1980.6 to refer him to work, in the manner set forth above in Backpay shall be computed in accordance with the the section entitled "The Remedy." formula approved in F. W. Woolworth Company, 90 (b) Reimburse Mirable for back dues which he was re- NLRB 289 (1950). Interest shall be computed in the quired to pay for the period December 30, 1979, to June manner prescribed in Florida Steel Corporation, 231 24, 1980, plus interest, in the manner set forth above in NLRB 651 (1977).7 the section entitled "The Remedy." Upon the foregoing findings of fact, conclusions of (c) Post at its offices, meeting halls, and hiring halls, law, and the entire record, and pursuant to Section 10(c) copies of the attached notice marked "Appendix."9 of the Act, I hereby issue the following recommended: Copies of the notice, on forms provided by the Regional Director for Region 22, after being duly signed by Re- ORDER" spondent's authorized representative, shall be posted by Respondent immediately upon receipt thereof, and be The Respondent, Sheet Metal Workers International maintained by it for 60 consecutive days thereafter, in Association, Local Union No. 13, AFL-CIO, Union, conspicuous places, including all places where notices to members are customarily posted. Reasonable steps shall c Counsel for Mirable urges that I order Respondent to reimburse the be taken by Respondent to insure that the notices are not SI,000 fine which Mirable paid to Respondent for transmittal to Local altered, defaced, or covered by any other material. 112. At the hearing, counsel for Mirable moved to amend the complaint to include an allegation that Mirable was required to pay the $1,000 fine. (d) Notify the Regional Director for Region 22, in Counsel for the General Counsel and Respondent objected to the motion. writing, within 20 days from the date of this Order, what Pursuant to GTE Automatic Electric. Inc., 196 NLRB 902 (1972), 1 denied steps Respondent has taken to comply herewith. the motion to amend. Accordingly, inasmuch as the matter of the fine was not litigated in this proceeding, I cannot order the relief requested by the Charging Party. become its findings, conclusions, and Order, and all objections thereto ' See, generally, Isis Plumbing & Heating Co., 138 NLRB 716, 717-721 shall be deemed waived for all purposes. (1962). ' In the event that this Order is enforced by a Judgment of a United 'In the event no exceptions are filed as provided by Sec. 102.46 of the States Court of Appeals, the words in the notice reading "Posted by Rules and Regulations of the National Labor Relations Board, the find- Order of the National Labor Relations Board" shall read "Posted Pursu- ings, conclusions, and recommended Order herein shall, as provided in ant to a Judgment of the United States Court of Appeals Enforcing an Sec. 102.48 of the Rules and Regulations, be adopted by the Board and Order of the National Labor Relations Board."