Carpenters Local 2310 (Hazex Construction)

CARPENTERS LOCAL 2310 (HAZEX CONSTRUCTION) United Brotherhood of Carpenters and Joiners of America, Local No. 2310, AFL-CIO (Hazex Construction Co.) and Arthur B. Miller. Case 9-CB-6321 18 June 1986 DECISION AND ORDER BY MEMBERS JOHANSEN, BABSON AND STEPHENS On 18 March 1986 Administrative Law Judge William F. Jacobs issued the attached decision. The General Counsel filed exceptions and a supporting brief, the Respondent filed exceptions, and the General Counsel filed an answering brief to the Re- spondent's exceptions.' The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings, and conclusions and to adopt the recommended Order as modified.2 ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, United Brotherhood of Carpenters and Joiners of America, Local No. 2310, AFL-CIO, it officers, agents, and representatives, shall take the action set forth in the Order as modified. 1. Substitute the following for paragraphs 1(a) and (b). ' The General Counsel moved to strike the Respondent 's exceptions for failure to comply with the provisions of Sec 102 46 (b) of the Board's Rules and Regulations Although the Respondent's exceptions do not conform in all particulars with Sec 102 46(b), they are not so deficient as to warrant sinking. Accordingly, the General Counsel 's motion to strike is denied Plumbers Local 230 (Bechtel Power Corp.), 267 NLRB 589 fn 1 (1983) 2 The General Counsel has excepted to the judge 's failure to include in his recommended Order a "visitatonal clause" authorizing the Board, for compliance purposes, to obtain discovery from the Respondent under the Federal Rules of Civil Procedure under the supervision of the United States Court of Appeals enforcing this Order . In the circumstances of this case, we find it unnecessary to include such a clause. Accordingly, we deny the General Counsel 's request The judge recommended that the Respondent be ordered to cease and desist from (a) causing or attempting to cause Hazex Construction Co. "or any other employer" to discriminate against employees in violation of Sec 8(aX3); and (b) "in any other manner" infringing upon employees' Sec 7 rights We have considered this case in light of the standards set forth in Hickmott Foods, 242 NLRB 1357 (1979), and have concluded that a broad remedial order is inappropriate inasmuch as it has not been shown that the Respondent has a proclivity to violate the Act or has en- gaged in such egregious or widespread misconduct as to demonstrate a general disregard for the employees ' fundamental statutory rights Ac- cordingly, we shall delete the reference to "or any other employer" in par 1(a) of the recommended Order, and we shall narrow par 1(b) to proscribe only "like or related " conduct by the Respondent 425 "(a) Causing or attempting to cause Hazex Con- struction Co. to discharge, terminate, or otherwise discriminate against employees in regard to hire or tenure of employment or any other term or condi- tion thereof in violation of Section 8(a)(3) of the Act." "(b) In any like or related manner restraining or coercing employees of Hazex Construction Co. in the exercise of the rights guaranteed them by Sec- tion 7 of the Act." 2. Substitute the attached notice for that of the administrative law judge. APPENDIX NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. WE WILL NOT cause or attempt to cause Hazex Construction Co. to discharge, terminate, or other- wise discriminate against employees in regard to hire or tenure of employment or any other term or condition of employment in violation of Section 8(a)(3) of the Act. WE WILL NOT in any like or related manner re- strain or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. WE WILL notify Hazex Construction Co. and Arthur B. Miller that we withdraw our objections to the employment of Arthur B. Miller by that Company. WE WILL make Arthur B. Miller whole for any loss of pay suffered because of the discrimination against him, plus interest. UNITED BROTHERHOOD OF CARPEN- TERS AND JOINERS OF AMERICA, LOCAL No. 2310, AFL-CIO Donald A. Becher, Esq., for the General Counsel. Carl Dean Beck, Organizer-Representative of Beecher City, Illinois, and Wayne Towery, Executive Secretary & Business Manager of Paducah, Kentucky, for the Respondent. Arthur B. Miller, of Nebo, Kentucky, pro se. DECISION STATEMENT OF THE CASE WILLIAM F. JACOBS, Administrative Law Judge. This case was tried before me on 18 December 1985 1 at Ma- i Hereinafter all dates are in 1985 unless otherwise indicated 280 NLRB No. 47 426 DECISIONS OF NATIONAL LABOR RELATIONS BOARD disonville, Kentucky. The charge was filed on 26 Sep- tember by Arthur B. Miller, an individual. The com- plaint issued 6 November and alleges a violation of Sec- tion 8(bX2) of the Act in that United Brotherhood of Carpenters and Joiners of America, Local No. 2310, AFL-CIO (the Union), caused Hazex Construction Co. (the Company), to lay off Miller by picketing the Com- pany's construction site, because Miller was not a member of the Union. The Union, in its answer, denies the commission of any unfair labor practices. Representatives of all parties were present and were given full opportunity to participate in the hearing and subsequently filed briefs.2 Based on the entire record in- cluding my observation of the witnesses and after due consideration of the briefs, I make the following FINDINGS OF FACT 1. JURISDICTION The Company is a Kentucky corporation with an office and place of business in Henderson, Kentucky, where it is engaged in the business of bridge construction and excavation work. During the 12-month period imme- diately preceding issuance of complaint, the Company purchased and received at jobsites located in the State of Kentucky products, goods, and materials valued in excess of $50,000 directly from points outside the State of Kentucky. The complaint alleges, the answer admits, and I find that the Company is, and at all times material has been, an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The complaint alleges, the answer admits, and I find that the Union is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Facts The Company is a small contractor engaged in bridge construction and excavation. Anthony Hazelwood is its president and part owner. Bobby Vaught is employed by the Company as a foreman. Donald Wayne Towery, at the time of the incident de- scribed herein, was a business agent for the Union. Before becoming a business agent he was employed as a working carpenter for about 10 years , sometimes on bridge construction. The Company at one time had a collective-bargaining agreement with the Union . This agreement expired in 1984 and was not renewed. In June 1985 Towery learned that the Company had been awarded a contract to construct a bridge in Provi- dence, Kentucky, which is located within the Union's ju- a The General Counsel on 14 January 1986 filed a motion, pursuant to Sec. 102 24 of the Board's Rules and Regulations, to have the at attach- ments to Respondent's brief to the judge as well as portions of Respond- ent's brief referring to and discussing the attachments stricken on grounds that the attachments were not part of the record of the case as defined in Sec. 102 45(b) of the Board's Rules The motion is granted Today's Man, 263 NLRB 332 (1982), Presidents Island Steel, 277 NLRB 30 (1985) risdiction. On 8 July he visited the jobsite and found that construction was well under way and that the Company had four employees working there-two carpenters and two laborers. Neither of the carpenters was a member of Towery's Locals and neither bothered to check in at the Union's hiring hall before beginning work on the Provi- dence Bridge project. The two carpenters on the job were Vaught and Miller. Vaught was a regular year- round employee of the Company whereas Miller was a relatively new employee-hired specifically for the Providence job on 2 July on the recommendation of a friend of Hazelwood in the construction business. Since his employ Miller had proven to be a satisfactory worker. On 9 July Towery again came to the Providence Bridge jobsite and this time spoke with Hazelwood. He told him that he wanted him to hire someone from Local 2310. Hazelwood replied that he would not do so be- cause he had all the men he needed . Towery insisted that the Company hire at least one of Local 2310's people to pacify the membership. Hazelwood argued that his was a small Company, that he could not afford to hire another employee. Towery told Hazelwood that if he did not hire carpenters out of Local 2310, the Union would throw up a picket line. Hazelwood said that the only way he could hire one of Towery's men would be if he laid off one of the carpenters already on the job because he did not need another man. He added that he did not have anybody on the job whom he wished to lay off. Towery replied that he did not care one way or the other if Hazelwood laid off anybody. Sometime on of July 9 Towery also had a conversa- tion with Vaught similar in content to the one he had with Hazelwood. He told Vaught, as he had Hazelwood, that if the Company did not hire any of his men, he would put up a picket. On the 9th it was evident that the project was at a critical stage. The steel and the forms were all in place, pilings had been driven, and the Company was ready to pour. Any experienced carpenter such as Towery could easily tell that the pour was imminent. It was, in fact, scheduled for the following day. Also visible to a trained observer, was a crack in the earth's surface that indicated instability and a shifting of the earth. A slide threatened that, if it occurred before the pour, could knock the forms out of line. That would mean that the forms would have to be dug up and part of the construction redone with a consequential delay of several days and the loss of several thousand dollars. The following morning, on 10 July at 6 a.m., Towery returned with the Local Union's president Mike Jackson. Both carried picket signs. Vaught arrived shortly after with two other employees. Vaught said to Towery, "I see you've got a picket line up on us!" Jackson replied, "Well, you boys are not going to cross the picket line." 8 The Company contributed sums into various union funds on behalf of its employees who were union members I do not, however, draw any conclusions from this fact as to the existence of a contract in light of tes- timony that such contributions were ordinarily accepted from employers that had been, but were no longer, signatories to collective-bargaining agreements with the Union. CARPENTERS LOCAL 2310 (HAZEX CONSTRUCTION) Vaught asked if the picket was legal and Towery replied that it was. Vaught, who was a member of another local, said that he was not going to go through the picket line just then, but would have to go into the job trailer to call Hazelwood. He then did so and advised Hazelwood of the situation. Hazelwood asked to speak with Towery, and Vaught called him to the phone. When Towery picked up the phone, he told Hazelwood that he wanted him to put one of his men on the job and that he could get the pickets removed if he would put one of Towery's men to work on the job, kept the laborers off carpenters' work,4 and signed a contract.5 Hazelwood told Towery that if he did put one of the Union's men to work on the job, he would have to lay off Miller. Towery said that the man he wanted Hazelwood to hire was right there at the site. Hazelwood replied that he had to make the con- crete pour or lose it and under the circumstances, in order to make the pour, he would hire Towery's man. After telling Towery that he would hire his man, Ha- zelwood asked to speak with Vaught. When he got Vaught on the phone he ordered him to hire Jackson im- mediately and to let Miller go at the end of the day be- cause he did not need three carpenters . Thereafter, Vaught put Jackson to work and the pickets were imme- diately removed, never to return. That afternoon Miller, the youngest man in seniority, was laid off. According to Hazelwood, he did not consider building behind the picket line because he did not want to ask his employees, who were union men, to work behind the picket line. Moreover, he was not sure he could get the concrete trucks to cross the picket line and he had to pour that day. B. Analysis and Conclusion The facts in this case are not really in dispute. Towery, the representative of the Union threatened to picket and in fact did so in order to force the Company to hire one of the Union's members. Towery knew at the time that there was no job opening available for an addi- tional carpenter and was told that if Jackson was hired, Miller would have to be laid off. Towery, nevertheless, insisted that Jackson be hired under threat of picketing. Under the circumstances the Company had no choice but to hire Jackson and lay off Miller. It has been held that, in the absence of a contract, where a labor organization sends a member to an em- ployer to fill a job already occupied by another man so that the employer has to lay off the one employed earlier to make room for the member referred , it is a violation of the Act. Porter-De Witte Construction Co., 134 NLRB 963 (1961). Even if the labor organization does not spe- cifically demand the layoff of the worker already em- ployed, it is the cause and effect which is important and a violation will be found. Carpenters Local 607 (Massman Construction), 226 NLRB 62 (1976); Bakery Workers Local 20 (Berwick Cake Co), 126 NLRB 22 (1960). In ac- • Hazelwood successfully argued that the job was a small one with a small crew and sometimes each craftsman would have to do another craftsman's job because there was not enough work available to keep them busy strictly at their own trade. " Hazelwood refused to sign a contract. 427 cordance with the law of the cases cited herein, I fmd that the Union is in violation of Section 8(b)(2) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent Union set forth in section III, above, to the extent found unlawful, occur- ring in connection with the operations of the Company described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor dis- putes burdening and obstructing commerce and the free flow thereof. THE REMEDY Having found that the Respondent Union has engaged in unfair labor practices violative of Section 8(b)(2) of the Act, I shall recommend that it be ordered to cease and desist therefrom and to take certain affirmative ac- tions designed to effectuate the policies of the Act. Having found that Respondent caused the Company to discriminate with respect to the tenure of employment of Arthur Miller, I shall recommend that the Union be compelled to notify the Company , in writing, with a copy to Miller that it has no objection to the employ- ment of Miller, and that it requests the Company to rein- state him to the position he formerly held with all of the attendant rights and privileges. This notification should also state that if the job formerly held by Miller is now held by Jackson, or other members of the Union, the Union will have no objection to the layoff of Jackson or such other member of the Union if such action is neces- sary in order to effect the reinstatement of Miller to his former position. I shall also recommend that the Union reimburse Miller for any loss of pay he may have suf- fered by payment to him of a sum of money equal to the amount that he would have earned from the date of his termination to the date on which a bona fide offer of re- instatement is made, with interest thereon to be comput- ed in the manner prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), and Florida Steel Corp., 231 NLRB 651 (1977).8 CONCLUSIONS OF LAW 1. The Company is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3. By causing Hazex Construction Co., an employer, to discriminate against an employee in violation of Sec- tion 8(a)(3) of the Act, the Union has engaged in and is engaging in unfair labor practices within the meaning of Section 8(b)(2) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. 8 See generally Isis Plumbing Co., 138 NLRB 716 (1962). 428 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed? ORDER The Respondent, United Brotherhood of Carpenters and, Joiners of America, Local No. 2310, AFL-CIO, its officers, agents, and representatives, shall 1. Cease and desist from (a) Causing or attempting to cause Hazex Construction Co. or any other employer to discharge, terminate, or in any other manner discriminate against employees in regard to hire or tenure of employment or any term or condition thereof in violation of Section 8(a)(3). (b) In any other manner restraining or coercing em- ployees of Hazex Construction Co. in the exercise of the rights guaranteed them by Section 7 of the Act except to the extent that such rights may be affected by an agree- ment requiring membership in a labor organization Ps a condition of employment in accordance with Section 8(aX3) of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Notify the Company, in writing, and furnish a copy to Arthur Miller, that the Union has no objection to the employment of Miller by the Company, that it requests the Company to reinstate him to the position he held with all rights and privileges. The notification shall state 7 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. that if the job formerly held by Miller is now held by Mike Jackson, or any other member of the Union, the Union will have no objection to the layoff of Jackson or such other member of the Union if such action is neces- sary in order to effect the reinstatement of Miller to his former position. (b) Make whole Arthur Miller for any loss of pay he may have suffered as a result of the discrimination against him in the manner set forth in the remedy section of this decision. (c) Post at conspicuous places at the business office of the Union copies of the attached notice marked "Appen- dix."" Copies of the notice, on forms provided by the Regional Director for Region 9, after being signed by the Respondent'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 cus- tomarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, de- faced, or covered by any other material. (d) Furnish to the Regional Director for Region 9 signed copies of the attached notice for posting by Hazex Construction Co., it being willing, at places where it cus- tomarily posts notices to its employees. (e) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. 6 If 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 Nation- al 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."