Local #16, International Union of Elevator Constructors

LOCAL #16, INT'L UNION OF ELEVATOR CONSTRUCTORS Local # 16, International Union of Elevator Construc- tors, AFLCIO (Westinghouse Elevator Company, a Division of Westinghouse Electric Corporation) and Bobby Neal Jones. Case 15-CB- 1764 May 4, 1977 DECISION AND ORDER BY MEMBERS JENKINS, PENELLO, AND WALTHER On January 11, 1977, Administrative Law Judge Jennie M. Sarrica issued the attached Decision in this proceeding. Thereafter, the Respondent filed exceptions and a supporting brief. The General Counsel filed exceptions, a brief in support of exceptions, and a brief in support of the Administra- tive Law Judge's Decision as to matters not ad- dressed by the aforementioned exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, find- ings,1 and conclusions of the Administrative Law Judge and to adopt her recommended Order. 2 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that the Respondent, Local # 16, International Union of Elevator Constructors, AFL- CIO, New Orleans, Louisiana, its officers, agents, and representatives, shall take the action set forth in the said recommended Order. I The Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have carefully examined the record and find no basis for reversing her findings. 2 In accordance with our normal procedure, the "pay" to be reimbursed to the discriminatee includes not only the wages specifically mentioned by the Administrative Law Judge, but any benefits which he lost as a result of the discnmination. DECISION STATEMENT OF THE CASE JENNIE M. SARRICA, Administrative Law Judge: This is a proceeding under Section 10(b) of the National Labor Relations Act, as amended (29 U.S.C. 151, et seq.), hereinafter referred to as the Act. Based on charges filed on March 12, 1976,1 a complaint was issued on June 10, presenting allegations that Local # 16, International Union of Elevator Constructors, AFL-CIO, hereinafter referred to as the Respondent or as Local 16, committed unfair labor practices within the meaning of Sections 8(bXIXA) and (2) and 2(6) and (7) of the Act. The Respondent filed an answer denying that it committed the violations of the Act alleged. Upon due notice, the case was heard before me at New Orleans, Louisiana, on August 2 and November 16. Representatives of all parties entered appearances and had an opportunity to participate in the proceeding. Based on the entire record, including my observation of the witnesses, and after due consideration of briefs and argument, I make the following: FINDINGS AND CONCLUSIONS I. JURISDICTION Westinghouse Elevator Company, a Division of Westing- house Electric Corporation, hereinafter called Westing- house, is a Pennsylvania corporation with offices and a place of business in New Orleans, Louisiana, where it is engaged in the business of construction, installation, and servicing of elevators and escalator equipment. During the year preceding issuance of the complaint, a representative period, Westinghouse, in the course and conduct of its business operations, purchased and received goods valued in excess of $50,000 directly from points located outside the State of Louisiana. The National Elevator Industry, Inc., hereinafter re- ferred to as NEII, is an association of employers engaged in the business of construction, installation, and servicing of elevators and escalator equipment throughout the United States. Said association exists in part for the purpose of representing employer-members in the negotia- tion and administration of collective-bargaining agree- ments with labor organizations. Westinghouse is now, and at all times material has been, a member of NEII. Respondent admits and I find that Westinghouse and National Elevator Industry, Inc., are at all times material herein employers within the meaning of Section 2(2) of the Act, engaged in commerce and in operations affecting commerce within the meaning of Section 2(6) and (7) of the Act. I All dates are in 1976, unless otherwise specified. 229 NLRB No. 68 439 DECISIONS OF NATIONAL LABOR RELATIONS BOARD II. THE LABOR ORGANIZATION Respondent is now, and has been during all times material herein, a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background Westinghouse Elevator Company, hereinafter referred to as Westinghouse, has been a party to and bound by a standard agreement for the term March 24, 1972, to July 8, 1977, negotiated with Respondent by NEII. This agree- ment requires, inter alia, that elevator mechanics and helpers be hired through referral by Respondent. This agreement provides in part that: An employer shall hire experienced mechanics and helpers who permanently live in the area, are seeking employment and are qualified to perform the work required by the employer before hiring a transient employee or a new inexperienced employee. Elsewhere the contract specifically allows the hiring of nonresidents "where there are no qualified mechanics available in the local Union." It is alleged in the complaint that Respondent failed and refused to refer Bobby Neal Jones for employment by Westinghouse because of his lack of membership in Respondent and, thus, attempted to cause, and caused, Westinghouse to discriminate against Jones in violation of Section 8(a)(3) of the Act, thereby engaging in unfair labor practices within the meaning of Section 8(b)(I)(A) and (2) of the Act. Since 1970 Bobby Neal Jones has been a member of the Shreveport, Louisiana, Local No. 98, International Union of Elevator Constructors, where he is classified as an elevator constructor mechanic. Because of the scarcity of work in the Shreveport area Jones came to New Orleans around the first of February seeking employment. As a result he was called to work for Dover, under Construction Superintendent Gene Hunter, who assigned him to work at the Oschner Hospital project. Before going to work in the New Orleans area, Jones received a verbal clearance to work as an out-of-area mechanic from LeRoy Phillips, business representative of Local 16. On Thursday, March 4, Phillips came to the Oschner jobsite and was told by Hunter and Dover District Manager Paul Dyminck that a layoff would take place the following day, March 5, in which three temporary mechanics 2 would be reduced to helpers, and six helpers and one mechanic would be laid off. Phillips was given the names of the individuals affected. He proceeded to the shack of the mechanic-in-charge and spoke to the employ- ees present advising of the impending layoff. He also stated there was no reason for the men to miss any worktime, as Westinghouse was then hiring. He told them to come by the union office on Monday and he would try to place them with Westinghouse. Phillips mentioned the names of A temporary mechanic is an experienced helper who has not passed the mechanic's test but who is permitted to serve as a temporary mechanic when no certified mechanics are available. various individuals affected, but did not mention Jones whose name, he admitted, was on the list for layoff. B. Operative Events On March 5, Hunter came to the jobsite and told Jones he was laid off. Jones went to the office of William J. Printz, district field manager of Westinghouse, and in- quired of the possibility of work for that employer in the Shreveport area. Printz advised that the Company had a full complement of elevator mechanics in Shreveport but inquired whether Jones would be willing to work in the New Orleans area without the expenses usually required to be paid for "out-of-town mechanics." Jones indicated his willingness to accept this condition, and Printz stated he could put Jones to work Tuesday morning on a job on the riverfront. Printz called Phillips and stated he would like to hire Jones if Phillips would clear him. Phillips stated he was not in favor of clearing Jones because the Respondent had some Local 16 helpers who could be upgraded to temporary mechanic. Printz told Phillips he wanted to hire more qualified individuals and wanted to hire Jones because he was a "full fledged" mechanic. Jones went to the Respondent's office on Monday, March 8, seeking clearance and a referral to Westinghouse. Phillips refused this request on the ground that Local 16 had helpers on the bench and one of them had previously worked as a temporary mechanic. Phillips told Jones he was going to take care of his "local people" first before any "out-of-town" mechanics went to work through his local. Phillips stated he was going to call Printz and try to get "everybody in the local" working; meanwhile, Jones should wait. Jones called Printz on March 9 and advised Printz he was unable to get clearance from Phillips. Printz stated he could not understand why Jones could not obtain the clearance because he had spoken with Phillips specifically asking for Jones and had ascertained that Phillips had helpers he wanted to refer as mechanics but Printz had indicated he had enough helpers. In a telephone conversation, after Printz learned that Phillips had refused clearance to Jones, Phillips told Printz that Jones had not followed the correct procedure in seeking employment with Westinghouse-that Jones should have gone through Local 16. Printz told Phillips he could see nothing wrong with an applicant coming to his office for an interview as long as Printz sent the applicant to the local union for clearance before he was hired. Jones had several subsequent telephone conversations with Phillips trying to obtain a clearance so that he could go to work for Westinghouse. Phillips refused such clearance, stating that Jones might as well go back to Shreveport because he was going to take care of "local people" first.3 Because Phillips refused a clearance for 3 The foregoing is based upon testimony which I have credited taking 440 LOCAL #16, INT'L UNION OF ELEVATOR CONSTRUCTORS Jones, Printz did not hire Jones at that time.4 In summary, it is undisputed that Jones was offered employment by Westinghouse, conditioned upon clearance by Local 16 in accordance with the collective-bargaining agreement; that Jones attempted to clear through Local 16 to go to work for Westinghouse; that Printz, on behalf of Westinghouse, told Phillips of Local 16, that he was in need of qualified mechanics and that he wished to hire Jones as an experienced mechanic and wanted Local 16 clearance for Jones' employment. It is admitted that at that time none of the "men on the bench" had acquired the status of "certified" mechanic, but were helpers only, except that one among them had on occasion served as a temporary mechanic. In other words there was no fully qualified mechanic available to refer. It is further admitted that had Jones been a member of Local 16, he would have been cleared to work for Westinghouse when the request therefor was made. Discussion and Conclusion Aside from a plea for discrediting the testimony of the Charging Party, Respondent rests its defense entirely upon cases allowing referral discrimination in certain circum- stances based on "area residence." 5 However, as pointed out by the General Counsel, there is no evidence whatso- ever concerning the residence of the Local 16 members "on the bench" alluded to by Phillips as having preference over Jones. Although Phillips may have been referring to individuals who were in fact area residents, it is clear he was considering membership in Local 16 and not local residency as the determinative factor, for he testified that if Jones had been a Local 16 member he, Phillips, would have referred Jones to Westinghouse, and this clearly without regard to whether or not Jones was an area resident. I conclude that Phillips refused clearance for Jones to work for Westinghouse because of his nonmembership in Local 16.6 Respondent thereby violated the Act, as alleged. 7 into consideration internal consistency, corroboration, the inherent proba- bilities, and the demeanor of the vanous witnesses. Although Hunter's memory did not verify that Jones was initially hired by Dover to become a contract keyman on the Taft project, I find that he led both Jones and Phillips to believe this was the case and that the Oschner assignment was to hold Jones as an employee until the Taft construction commenced. I do not credit Phillips' denial that he refused clearance to Jones for the Westing- house job: that he raised no objection to Printz hinng Jones but only sought to have Printz give consideration to others laid off by Dover; that after checking his mechanics-to-helpers ratio Printz advised that his mechanics ratio was high and he needed no mechanics but selected by name four helpers; that he asked "what about Jones" and Pnntz said. "Well Ijust don't have anything for him. He might just as well go back to Shreveport": and that when Jones called back he told Jones that Printz had decided against hiring a mechanic because of the mechanics-to-helpers ratio, but to continue checking with his office and if he could possibly put Jones to work he would certainly do so. Phillips admitted that if he had had "all the people" busy he would have allowed Jones to work for Westinghouse, and that when he spoke with Printz he specified that there were local qualified people available; that the only mechanic available was one who did not pass the mechanics test until May 17 and who, although he had worked as a temporary mechanic in the past, was among those laid off from the Oschner job as a helper: that Printz had told him several times he wanted more qualified men--he was tired of setting helpers up as temporary mechanics and wanted people who knew what they were doing; and that if Jones had been a member of Local 16, he definitely would have referred Jones to Westinghouse. Printz testified there was a conversation with Phillips in April concerning mechanics-to-helpers ratio and that the result of his check at that time was that he had entirely too many helpers in relation to the skilled mechanics employed. CONCLUSIONS OF LAW 1. Westinghouse Elevator Company, and National Elevator Industry, Inc., an association of employers, are employers engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. Respondent, Local # 16, International Union of Elevator Constructors, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. By refusing, in the operation of its exclusive hiring hall arrangement, to refer Bobby Neal Jones to a job with Westinghouse and to clear Bobby Neal Jones for employ- ment upon request by Westinghouse because he lacked membership in the Union, Respondent restrained and coerced Bobby Neal Jones in the exercise of rights guaranteed by Section 7 of the Act in violation of Section 8(b)(1)(A) of the Act, and by attempting to cause and causing Westinghouse to discriminate against Bobby Neal Jones for the same reason contrary to the interdiction of Section 8 (a)(3) of the Act Respondent thereby engaged in unfair labor practices proscribed by Section 8(b)(2) and (1)(A) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, I shall recommend that an order issue requiring it to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. Having found that Respondent restrained and coerced Jones in the exercise of his Section 7 rights by refusing, in the operation of its exclusive hiring hall, to refer him to employment with Westinghouse because of his lack of membership in the Union, it will be recommended that 4 On June i, after the charges herein were filed, Jones received a clearance from Respondent but for personal reasons did not begin working for Westinghouse until June 14. 5 Respondent cites Legislative History of the Labor-Management Reporting and Disclosure Act of 1959, p. 427, and the following case precedent: Bricklayers, Masons and Plasterers' International Union of America, Bricklayers, Masons, Marble Masons, Tile Layers and Terrezza Workers Union No. 28, AFL-CIO (Plaza Builders, Incorporated), 134 NLRB 751 (1%961); Local Union No. 337, United Association of Journeymen and Apprentices of the Plumbing and Pipefitiong Industry of the United States and Canada, AFL-CIO (Townsend and Bottun, Inc.), 147 NLRB 929 (1964); Metropolitan District Council, United Brotherhood of Carpenters and Joiners of Philadelphia and Vicinit), 194 NLRB 159, 160 (1971). In view of my holding, infra, I find it unnecessary to pass on the General Counsel's additional argument that these cases do not establish a right to discriminate on the basis of area residency where union membership is a factor, or where the question of qualifications enters into the picture, or on other factors which arguably may distinguish those cases from the instant one. See A malganuated Meat Cutters and Butcher Workmen of North America Local No. 576 (Westfield Thriftway Supermarket), 201 NLRB 922 (1973), where nonmembership was the dominant consideration. 6 Accordingly, I find that the General Counsel's reliance on Bobby Nick Ward v. N.LR.B., 462 F.2d 8 (C.A. 5, 1972), affd. on remand 198 NLRB 1113, and Bechtel Power Corporation, 223 NLRB 925 (1976), is well placed. 7 See Local No. 64, Falls Cities District Council of Carpenters, United Brotherhood of Carpenters and Joiners of America, AFL-CIO (Western Dr, Wall Compan)y, Inc.), 204 NLRB 590 (1973). 441 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent post a notice designed to remove the continu- ing coercive impact of such conduct. Having found that Respondent caused Westinghouse to refuse to hire Jones because of his nonmembership in Respondent organiza- tion, it will be recommended that Respondent make Jones whole for any loss of pay suffered by reason of Respon- dent's unlawful conduct, by payment to him of a sum of money equal to the amount he would have earned as wages from the date of the discrimination until 5 days after Respondent notified Westinghouse it had no objection to Jones' employment in accord with the terms of the contract; 8 the amount of backpay, if any, to be computed in the manner set forth by the Board in F. W. Woolworth Company, 90 NLRB 289 (1950), with interest to be accorded in the manner set forth in Isis Plumbing & Heating Co., 138 NLRB 716 (1962). Upon the foregoing findings of fact, conclusions of law, and the entire record in the case, and pursuant to Section 10(c) of the Act, I hereby issue the following recommend- ed: ORDER 9 The Respondent, Local #16, International Union of Elevator Constructors, AFL-CIO, New Orleans, Louisi- ana, its officers, agents, and representatives, shall: 1. Cease and desist from: (a) Failing or refusing, in the operation of its exclusive hiring hall, to refer Bobby Neal Jones for employment for reasons that include his lack of membership in Local # 16. (b) Causing or attempting to cause Westinghouse Elevator Company, or any other employer, to refuse to hire Bobby Neal Jones by discriminatorily refusing to refer or clear him for employment for reasons that include his lack of membership in the Union. (c) In any like or related manner restraining or coercing employees or applicants for employment in the exercise of rights guaranteed by Section 7 of the Act. 2. Take the following affirmative action designed and found necessary to effectuate the purposes of the Act: (a) Make whole Bobby Neal Jones for any loss of pay he may have suffered by reason of the discrimination practiced against him in the manner set forth in the section entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all such records, reports, work lists, and other documents as may be in its possession, custody, or control, which are necessary or appropriate to analyze the amount of backpay that may be due under the terms of this Order. (c) Post at its business office, hiring hall, and meeting hall copies of the attached notice marked "Appendix." ' Copies of said notice, on forms provided by the Regional Director for Region 15, after being duly signed by the Union's authorized representative, shall be posted by the Union immediately upon receipt thereof, and be main- tained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to job applicants 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. (d) Sign and mail a sufficient number of copies of said notice to the Regional Director for Region 15 for posting by Westinghouse Elevator Company and every employer signatory to a collective agreement with the Respondent that provides for the participation of such employer in the Respondent's exclusive hiring facility, if they be willing, in places where notices to their employees are customarily posted. (e) Notify the Regional Director for Region 15, in writing, within 20 days from the date of this Order,what steps the Respondent has taken to comply herewith. 8 See Amalgamated Meat Cutters and Butcher Workmen of North America, Local No. 576, 201 NLRB 922 (1973). The evidence establishes that by letters dated May 27, 1976, Respondent, through its attorney, notified both Westinghouse and Jones that it had no objection to Jones' employment by Westinghouse. Jones' employment, however, was delayed for reasons relating to his own personal convenience. The precise date for termination of backpay, therefore, remains to be determined in the compliance stage of this proceeding. 9 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. 10 In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX NOTICE To MEMBERS AND APPLICANTS FOR EMPLOYMENT POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT restrain or coerce any applicant for employment pursuant to the exclusive hiring hall we operate by refusing to refer them to jobs for reasons that include lack of membership in Local # 16. WE WILL NOT cause or attempt to cause Westing- house Elevator Company, or any other employer, to discriminate against Bobby Neal Jones by refusing to refer or clear him for employment in violation of the Act for reasons that include his lack of membership in the Union. WE WILL NOT in any like or related 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 Bobby Neal Jones for any loss of pay suffered by reason of the discrimination practiced against him. LOCAL # 16, INTERNATIONAL UNION OF ELEVATOR CONSTRUCTORS, AFL-CIO