Sheet Metal Workers Local 16 (Parker Sheet Metal)

SHEET METAL WORKERS LOCAL 16 (PARKER SHEET METAL) Sheet Metal Workers International Association, Local No. 16 (Parker Sheet Metal Co.) and Roy S. 'Jorgenson. Case 36-CB-1100 28 June 1985 DECISION AND ORDER By CHAIRMAN DOTSON AND MEMBERS HUNTER AND DENNIS On 26 September 1984 Administrative Law Judge David G. Heilbrun issued.the attached deci- sion.- The Respondent filed exceptions and a sup- porting brief. The Board has considered the decision and the record in light of the exceptions and brief and has decided to affirm the judge's rulings, findings,' and conclusions and to adopt the recommended Order. In adopting the judge's decision, we rely on the following. A nonexclusive hiring hall arrangement was in effect between Parker Sheet Metal Compa- ny, herein Parker, and the Respondent. In Septem- ber 1983, Roy Jorgenson, who had been a member of the Respondent for 13 years, contacted Parker about securing employment. When Jorgenson in- formed the Respondent that he had lined up a job with Parker, Hill, the Respondent's business man- ager, refused to dispatch him because of his low position on the. out-of-work list.2 Thereafter, Jor- genson contacted the International Union to protest the Respondent's refusal to refer him. In December 1983, Parker specifically requested the assignment of Jorgenson and Local 16 member Tom Butler to its Camas construction site; the Respondent dis- patched Butler but refused to refer Jorgenson. Section 8(b) makes it an unfair labor. practice for a union "(1) to restrain or coerce (A) employees in the exercise of rights guaranteed in Section 7,' and "(2) to cause or attempt to cause an employer to discriminate against an employee in violation, of subsection 8(a)(3)." Jorgenson was engaged in protected activity when he contacted the International Union to pro- test the Respondent's refusal to dispatch him. In re- sponse to Jorgenson's activities, the Respondent, despite several requests by Parker for Jorgenson's services, refused to refer Jorgenson to the con- struction site. As the judge found, the Respondent dispatched Butler but refused 'to' refer Jorgenson i The Respondent has excepted to some of the judge's credibility find- ings The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for reversing the findings. z The Respondent maintained that its arrangement with Parker was an exclusive hiring hall As noted above, however, the judge found that the evidence indicated otherwise 867 explicitly because the latter had.called the Interna- tional Union, and Respondent thereby violated Section 8(b)(1)(A). Further, even absent an exclu- sive hiring hall, a union's causing an employer to refuse to hire an individual for union -related rea- sons violates Section 8(b)(2)3 as well as Section 8(b)(1)(A) of the Act. By refusing Parker 's requests that Jorgenson be referred , explicitly because of Jorgenson's complaint to the International Union, thereby causing Parker not to hire Jorgenson, the Respondent Union violated Section 8(b)(2) of the Act. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Sheet Metal Workers International Local No. 16, Portland, Oregon, and its officers, agents, and representa- tives, shall take the action set forth in the Order. 3 See, e g, Operating Engineers Local 17 (Combustion Engineering), 231 NLRB 1287 (1977) (where employer acquiesced in union's demand that dissident members be replaced on job , union violated Sec 8(b)(2)) DECISION STATEMENT OF THE CASE - DAVID G. HEILBRUN, Administrative Law Judge. This case was tried at Portland, Oregon, on July 17, 1984.1 The charge was filed' by Roy S. Jorgenson January 6 and the complaint was issued -February 29. The primary issue' is whether Sheet Metal Workers International As- sociation, 'Local No. 16 (Respondent), unlawfully refused to dispatch Jorgenson to an available job, in violation of Section 8(b)(1)(A) and (2) of the National Labor Rela- tions Act. On the-entire record, including my observation of the demeanor of witnesses and after consideration of oral summation made by the General Counsel at the conclu- sion of hearing and a written brief filed by Respondent, I make the following . ' FINDINGS OF FACT I. JURISDICTION Parker Sheet Metal Company; a corporation, maintains an office and place of business in Longview, Washing- ton, where it engages as a sheet metal/mechanical con- tractor. During a representative • past 12-month period it had gross sales of goods and. services - in 'excess of $100,000, while purchasing and receiving goods and ma- terials valued in excess of $50,000 at its facilities directly from points outside Washington or from- suppliers within that State which in turn obtained such goods and materi- i All dates are from August 1983 until February 1984 unless otherwise indicated 275 NLRB No.. 121 868 DECISIONS OF NATIONAL LABOR RELATIONS BOARD als directly from sources outside Washington. On- these admitted facts I find that Parker Sheet Metal Company is' an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and that Respondent is a labor organization within the meaning, of Section 2(5). II. ALLEGED UNFAIR LABOR PRACTICES A. Basis of Analysis Respondent has approximately 2000 members and a geographical jurisdiction of 24 counties, 'primarily those situated in Oregon. It maintains a nonexclusive - hiring hall program, featuring an out-of-work list keyed to indi- vidual dispatch/qualification cards. These show a mem- ber's dispatch record, chronology of job termination dates, and specific trade abilities. Actual day-to-day, dis-' patching is ordinarily performed by Bob Hawes, who is' spelled as necessary by Business Representatives Les Wallingford and Leo Lyman, or, least likely of all, by' Business Manager-Financial Secretary/Treasurer Milton Hill. An office device of Respondent permits • member cards to be associated' with an out-of-work roster for purposes of filling 'currently available craft- openings with those members most-lengthily unemployed. Sister Local No:- 150 has approximately 700 'members in a geographical jurisdiction of seven Washington coun- ties, within which the Parker Sheet Metal Company is, found. The addendum to Local 150's standard form of Sheet Metal Workers' International Association (SMIA)' Union Agreement with industry employers, sets forth an exclusive hiring hall provision as ' its article XX. Under- this a contractor established in Local 150's geographical jurisdiction may obtain a qualified person by name only to fill a foreman position or if the individual so requested has ' worked for the contractor-wit hin the past 6 month's: Parker had previously performed on jobs within Re-" spondent's geographical jurisdiction including those at' Newberg and St. Helens, Oregon. In mid-1983 it became subcontractor to Wright, Schuchart & Harbor for instal- lation' of a machine hood at-a Camas, Washington paper- mill located in one of Respondent's counties` In August a prejob conference was'-held in Longview atwhich'Local' 150's business representative Robert Steele introduced fellow unionists Hill and Wallingford' to Company Owner Peter Parker. John Daniels, the job's intended su- perintendent, was also present. - This' meeting - dealt first' with craft- preeminence of the SMIA'as -opposed to any, jurisdictional claim by the Iron Workers Union,'arid'tlieii separate 'conversation' was subsequently =engaged in 'by the same participants except for' Parker: Concerning - this, Hill' testified ' that he 'and colleagues - explained to Daniels that- they `wanted-fo adopt Local 150's exclusive hiring hall as a staffing guide for the Camas job and to this Daniels assented wanting only to secure a transfer of named journeymen -•Sworden and Simpson: Hill is corroborated by Wallingford that hiring` from the out-of:wor , board' was settled; upon;,' while' .11 Steele also believed' this to have been the agreement. Daniels testified contrarily that beyond tacit consent to his early utilization of Sworden and Simpson, nothing was said to him about his imminent job at Camas being subject to 'the exclusive hiring hall that existed within Local '150's seven-county area. - Charging Party Jorgenson has been- a member of Re- spondent for approximately 13 years. He was employed during 1983 by Superior Air Handling Corporation on a project in downtown Portland which phased out during the fall. Anticipating-layoff, Jorgenson contacted Daniels by telephone on September- 19: to inquire about future employment prospects with Parker, for whom Jorgenson had worked on three occasions in the past. Daniels ad- vised of the coming Camas job, and was favorably dis- posed.toward using Jorgenson which could then be esti- mated as around early November. Jorgenson called Dan- iels again on October 25, learning on that occasion how the job timetable was delayed and that controversy- had arisen between Daniels and Hill with respect to transfer of journeymen between jobsites. Daniels remarked about how this could, signify a problem insofar as an inclination to have Jorgenson specifically dispatched to the job would be concerned.2 When actually laid, off by Superior -Air-Handling on October 27, Jorgenson went' immediately to Respond- ent's' union hall and there spoke with Hill. He registered on the out-of-work list and told Hill of having lined up a job-with Parker at the Camas project. Jorgenson, testified that Hill cursed Daniels and resolutely refused to allow the desired dispatch to take place. After another follow- up call to Daniels in,November, Jorgenson then contact- ed two 'SMIA International representatives concerning the subject, and advice from them was to correspond with the International -Union. Jorgenson did not do so until early January, however both Hill and Lyman learned of the verbal contact 'around December 9. Hill's recollection of the late October conversation with Jor- genson was that-he had explained how Respondent had set up arhiring' system for the, Camas project, and was going to strictly follow the out-of-work list with quali- fied members, who in some cases; had been out of work for as much as 2 years. Hill testified that this explanation engendered` some hostility in Jorgenson, who was clearly ' told he would' not be sent to the job because of his low: position on'the list: ' Also about December 9, Daniels had occasion to re- quest two' journeymen for the Camas job. Members -Ron Beach and Leo' Messick were dispatched; however, both left within a week because of unwillingness to work at the a heights, that were involved. • "On approximately December 15, Daniels spoke to; Lyman atthe'jobsite' saying that he,Wanted'Jorgenson and member Tom Butler.3 Lyman's response to this al- 2 Daniels. did not testify- to such an episode and Hill dented ever having had background problems with Daniels as-a Parker superintendent except for an occasion in 1980• Lyman's testimony alluded only passingly to. having talked- with. Daniels several times early in the Camas job, in- cluding,once in October,•but the specific, subject of such talks was not, descnbed However what .dtd occur dunng October was'a Jorgenson- Lyman' discussion at the 'Portland' Iobsite of -Supeno'r Air Handling, in which Jorgenson told of his promising contacts with Daniels concerning future employment with Parker, to which Lyman stated such a dispatch would not happen because of a claimed written rule of Respondent for- bidding name requests by out-of-town contractors a Butler has been a member of Respondent for approximately 15 years and once previously had worked for Parker In 1983 he had been em- Continued SHEET METAL WORKERS LOCAL 16 (PARKER SHEET METAL) luded to Jorgenson having called the International, re- sulting in a situation that Lyman would not touch with the proverbial 10-foot pole. Lyman did in fact decline to relay Daniels request for Jorgenson, however' Butler was in fact dispatched for the Camas job where he worked for over 3 months. At this point in time Daniels had re- peatedly requested the dispatch of Jorgenson; and he ad- vised of these efforts in several telephone conversations with Jorgenson that occurred during December. At the time of Butler's referral on December 15, he was rela- tively low in out-of-work rotation. because of having last terminated on only August 3 (except for unaffecting tem- porary employment in November), and numerous other members stood above him in the dispatch numbering program. B. Analysis The General Counsel 'is contending that nonexclusive hiring hall principles are applicable to the Camas job staffing or, as an alternative, should the evidence show an exclusive hiring hall to be applicable that arbitrary and discriminatory actions have been shown on the part of Respondent leading to a showing of unfair labor prac- tice conduct within the meaning of NLRB v. Iron Work- ers Local 433, 600 F.2d 770 (9th Cir 1979). Respondent contends that its evidence shows the exclusive hiring hall provisions of Local 150's addendum were agreed upon by an authorized representative of Parker, and this bind- ing mode of obtaining journeymen sheet metal workers did not allow for the name request of Jorgenson. Alter- natively, as to Butler's actual dispatch, Respondent as- serts this was at worst an isolated mistake but that prob- ably even those higher standing members of the out-of- work list who were fully qualified for this specific work underway at Camas were unavailable at the time. On the fundamental question of controlling contractual language I credit Daniels' testimony that nothing was said to him at-the prejob conference from which it could be established that Local 150's contract became applica- ble to' Parker's -functioning at Camas 'as an out-of-town contractor with respect to the geographical jurisdiction of Respondent. Daniels was direct and persuasive in his description of what was and what was not said as he stood with Hill, Wallingford, and Steele. I am persuaded that Hill has misrecalled this conversation, particularly in view _of his palpable inclination to see his Union as a pre- ferred source of employees rather than private dealings between members and contractors. I cannot credit Wal- lingford's corroboration, for demeanor factors. make it appear he supports Hill only from institutional alignment. Finally the testimony of Steele is insufficiently convinc ing, with its composite being a disclaimer of actually hearing any conversational exchange that, could yield this sort of binding arrangement which is claimed. For' these reasons I conclude as a -threshold matter that the strictures of an exclusive hiring hall were not present, ployed by the general contractor at the Camas job; which influenced him to solicit future work from Daniels as generally Jorgenson had done. 869 and that Daniels, on behalf of- Parker, was thus free to staff his job, in discretionary manner from among avail- able members of Respondent. The bare assertion that out-of-town contractors could not do so as a matter of practice has been convincingly "contradicted by the highly credible testimony of both Jorgenson himself and of member Max Hintz, whose description of having se- cured his own employment in the past from at least three out-of-town contractors was not shown to be inaccurate. Furthermore, I cannot . accept Respondent's argument that its functionaries were without animosity toward Jor- genson. It is not a matter of resolving whether Lyman said that he would not touch Jorgenson for having con- tacted the International Union versus not touching a sub- ject that had been taken outside his responsibilities, but rather that contemporaneous with such a general expres- sion the similarly situated Butler was handily dispatched upon a name request while Jorgenson remained frozen out of the procedure. Such conduct establishes the Gen- eral Counsel's alternate contention that discriminatory, arbitrary, and invidious considerations were at play in the denial of referral privileges to Jorgenson. Respondent has pointed to the'decision in Plumbers Local 392 v. NLRB, 712 F.2d 225 (6th Cir. 1983), as suggesting exon- eration of its conduct. This case is unavailing-however, for in denying enforcement to a Board Order, the court declared itself unconvinced that deviation from clear and unambiguous provisions of the collectively bargained hiring hall had occurred, nor was there separate and dis- tinct proof of any unlawfully discriminatory motive. Cf. Operating Engineers Local 17 1 Combustion - Engineering), 231 NLRB 1287 (1977);. Plasterers Local 232 (John G. Ruhhn Construction), 268 NLRB 795 (1984) According- ly, I render a conclusion of law that Respondent, by fail- ing and'refusing to dispatch Jorgenson to Parker's Camas jobsite, has engaged in unfair labor practices affecting commerce within the meaning of Section 8(b)(1)(A) and (2) of the Act. - REMEDY Having found-that Respondent has engaged in certain unfair labor practices, it is necessary to order it to cease and desist and to take certain affirmative action designed to effectuate the policies of the Act. Respondent having discriminatorily caused Parker to fail to hire Jorgenson for the now completed' job, it must make him whole for any loss of earnings and other bene- fits computed on a quarterly basis from December 9, less' any net interim, earnings, as prescribed .in F. W. Wool, worth Co., 90,,NLRB 289 (1950), plus, interest as comput- ed in Florida Steel Corp.,- 231, NLRB B 651 (1977)-., . On these findings of fact ! and conclusions of law and on the entire record, I issue the. following recommend-; ed4 * If no exceptions are 'filed as. provided,by Sec 102 46 of the Board's Rules and Regulations, the -findings, conclusions, and recommended Order shall, as provided in Sec 102 48 of the Rules, be adopted by the Board and all objections to'them shall be deemed waived for'all pur- poses. 870 DECISIONS OF NATIONAL LABOR RELATIONS BOARD . ORDER The Respondent, Sheet Metal- Workers International Association, Local No. 16, Portland, Oregon, its officers, agents, and representatives, shall 1. Cease and desist from (a) Operating its nonexclusive hiring hall in disregard of the provisions of its collective-bargaining agreement with Portland, Oregon vicinity employers, or any succes- sor agreement. (b) Dispatching any person in violation of said con- tractual nonexclusive hiring hall provisions. - (c) Failing to dispatch any person who is entitled to dispatch pursuant to the contractual nonexclusive hiring hall provisions. • - • ' (d) Restraining or coercing Roy S. Jorgenson,, or any other member utilizing ' Local 16's nonexclusive hiring hall, by refusing to refer persons to employment with contractors who have requested them by name because they have chosen to accept employment with 'out-of- town contractors who obtain their employees by direct- contact rather than through the Union's hiring hall. (e) Causing or attempting to cause 'Parker Sheet Metal Co. to fail to employ Roy S. Jorgenson or any other qualified member. - (t) In any like or related- manner restraining or coerc- ing employees in the exercise of the rights guaranteed them by Section 7 of the Act. ` 2. Take the following affirmative action which is nec- essary to effectuate the policies of the Act. (a) Operate its nonexclusive hiring hall and referral system in a nondiscriminatory manner. (b) Make whole Roy S. Jorgenson in the manner set forth in the remedy section of this decision. (c) Preserve and, on request, make available to the Board or its agents for examination and copying, all pay- roll records, social security, payment records, timecards, personnel records and reports, and all other records nec- essary to analyze the amount of backpay due under the terms of this Order. (d) Post at Respondent's business offices and meeting hall copies of the attached notice marked "Appendix."5 If this Order is enforced by a Judgment of a•Umted States Court of Appeals, the words in the notice reading "Posted by Order of the Na- tional Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the Nation- al Labor Relations Board " Copies of the notice, on forms provided by the Regional Director for Region 19, after being signed by the Re- spondent's authorized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to members are customarily posted. Reasonable steps shall be taken by the Respond- ent to ensure that the notices are not altered, defaced, or covered by any other material. (e) Furnish the . Regional Director for Region 19 signed copies of such notice for posting by Parker Sheet Metal Co., if willing, in places where notices to employ- ees are customarily posted. • (f) Notify the Regional Director- in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply.. APPENDIX - NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT coerce or restrain Roy S. Jorgenson, or any other members utilizing Local 16's nonexclusive hiring hall, by refusing to refer persons to employment with contractors who have requested them by name be- cause they have chosen to accept employment with out- of-town contractors who obtain their employees by direct contact rather than through the Union's hiring hall. WE WILL NOT cause or attempt to cause Parker Sheet Metal Co. to fail to employ Roy S. Jorgenson, or any other qualified member. -WE WILL NOT in any like or related manner coerce or restrain employees in the exercise of the rights guaran- teed them by Section 7 of the Act. WE WILL make Roy S. Jorgenson whole for any, loss of earnings suffered by reason of discrimination against him, with interest. - SHEET METAL WORKERS INTERNATIONAL ASSOCIATION, LOCAL No. 16