United Brotherhood Of Carpenters And Joiners Of America, Afl-Cio, Carpenters Local Union No. 316 (Bay Counties General Contractors Association)

504 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD United Brotherhood of Carpenters and Joiners of America, AFL-CIO, Carpenters Local Union No 316 (Bay Counties General Contractors As sociation) and Cleve Wallace Graves Case 32- CB-2756 October 31 1988 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFT On March 29 1988 Administrative Law Judge Gerald A Wacknov issued the attached decision The Respondent filed exceptions and a supporting brief 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 brief and has decided to affirm the judge s rulings findings i and conclusions and to adopt the recommended Order as modified and set forth in full below ORDER The National Labor Relations Board orders that the Respondent United Brotherhood of Carpenters and Joiners of America AFL-CIO Carpenters Local Union No 316 San Jose California its offi cers agents and representatives shall 1 Cease and desist from (a) Coercing and restraining employees by re quinng them to attend prounion demonstrations or engage in any other union activity under the threat of losing their numerical ranking on the out of work list (b) Placing employees in a lower numerical rank ing on the out of work list because they failed and refused to attend a prounion demonstration (c) In any like or related manner restraining or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act 2 Take the following affirmative action neces sary to effectuate the policies of the Act Based on our review of the stipulated record in this case we also fmd that the Respondent departed from its established hiring hall proce dures by issuing the July 30 1987 letter to its registrants The letter states that attendance at the August 7 1987 rollcall is mandatory and that no excuses will be accepted Certain hiring hall tickets introduced into evi dence by the General Counsel indicate that registrants are permitted two absences from or late arrivals to rollcalls provided they contact the Re spondent ahead of time This apparent departure from previously estab lished hiring hall procedures further supports our finding that the Re spondent violated Sec 8(b)(1)(A) and (2) of the Act by threatening to assign and thereafter assigning lower numbers on the out-of work list to certain hiring hall registrants because they failed to attend a union rally Se Operating Engineers Local 406 (Ford Construction) 262 NLRB 50 51 (1982) (a) Make Cleve Wallace Elmer Carl Honea Jr and other similarly situated individuals whole for any loss of earnings suffered by them by reason of the discrimination against them in the manner set forth in the remedy section of the administrative law judge s decision (b) Restore Cleve Wallace Elmer Carl Honea Jr and any other employees to their proper place on the hiring hall list and remove from its records any reference to the lower placements (c) Post at its office and meeting halls copies of the attached notice marked Appendix 2 Copies of the notice on forms provided by the Regional Director for Region 32 after being signed by the Respondents authorized representative shall be posted by the Respondent immediately upon re ceipt and maintained for 60 consecutive days in conspicuous places including all places where no tices to members are customarily posted Reasona ble steps shall be taken by the Respondent to ensure that the notices are not altered defaced or covered by any other material (d) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply 2 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 Judgement of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board APPENDIX NOTICE To EMPLOYEES 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 coerce or restrain hiring hall reg istrants by requiring that they appear for rollcall at locations other than our normal hiring hall in order to cause them to attend prounion demonstrations WE WILL NOT assign employees a low number on the out of work list because they refused to attend the August 7 1987 prounion demonstration at Minton & Company and we will pay backpay and interest to registrants who have been adversely affected by our conduct 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 291 NLRB No 88 CARPENTERS LOCAL 316 (BAY COUNTIES CONTRACTORS) 505 WE WILL restore Cleve Wallace Elmer Carl Honea Jr and any other employees to their proper places on the hiring hall list and remove from our records any reference to the lower placements It is unlawful to condition placement on the out of work list on a registrants union activity UNITED BROTHERHOOD OF CARPEN TERS AND JOINERS OF AMERICA AFL-CIO CARPENTERS LOCAL UNION No 316 Raoul Thorbourne Esq for the General Counsel Michael B Roger Esq (Van Bourg Weinberg Roger and Rosenfeld) of San Francisco California for the Re spondent cated within the State of California which sellers or sup pliers received such goods in substantially the same form directly from outside the State It is admitted and I find that the Association and each of its constituent member employers are now and have been at all times material employers engaged in commerce within the meaning of Section 2(2) (6) and (7) of the Act II THE LABOR ORGANIZATION INVOLVED It is admitted that the Respondent is and has been at all times material a labor organization within the mean ing of Section 2(5) of the Act III THE ALLEGED UNFAIR LABOR PRACTICES A The Issue DECISION STATEMENT OF THE CASE GERALD A WACKNOV Administrative Law Judge Pursuant to notice a hearing regarding this matter was held before me in Oakland California on January 7 1988 The initial charge was filed on August 10 1987 by Cleve W Graves an individual An amended charge was filed on September 22 1987 Thereafter on September 22 1987 the Regional Di rector for Region 32 of the National Labor Relations Board (the Board) issued a complaint and notice of hear ing alleging a violation by United Brotherhood of Car penters and Joiners of America AFL-CIO Carpenters Local Union No 316 (Respondent) of Section 8(b)(1)(A) and (2) of the National Labor Relations Act (the Act) The parties were afforded a full opportunity to be heard to call to examine and cross examine witnesses and to introduce relevant evidence Since the close of the hearing briefs have been received from the General Counsel and counsel for Respondent On the entire record and based on my observation of the witnesses and consideration of the briefs submitted I make the following FINDINGS OF FACT I JURISDICTION At all times material the Bay Counties General Con tractors Association (the Association) has been a volun tary association of employers engaged in the construc tion industry in California and has been organized for the purpose inter alia of representing its constituent member employers in negotiating and administering labor agreements with the collective bargaining representatives of certain employees of its constituent member employ ers including Respondent The constituent member employers of the Association annually in the course and conduct of their respective business operations collectively purchase and receive goods or services valued in excess of $50 000 directly from suppliers located outside the State of California and collectively purchase and receive goods or services valued in excess of $50 000 from sellers or suppliers lo The principal issue raised by the pleadings is whether the Respondent coerced and restrained employees in vio lation of Section 8(b)(1)(A) and (2) of the Act by assign ing them lower numbers on the hiring hall list because they failed and refused to attend a union rally or demon stration B The Facts The Respondent and other union members of the Car penters 46 Northern California Counties Conference Board and the Association (together with other employ er members of a multiemployer bargaining group) have maintained in effect and enforced a collective bargaining agreement that sets forth the wages rates of pay hours of employment and terms and conditions of employment of an appropriate unit of employees of the member em ployers of the Association and that contains a provision calling for the operation of exclusive hiring halls by the constitutent member labor organizations of the confer ence board including Respondent Pursuant to this agreement the Respondent has nor mally operated and maintained a hiring hall at 2102 Al maden Road San Jose California adjacent to Respond ent s business offices at the same address The operation of the hiring hall has included the use of an out of work list under which registrants for work are entitled to job referrals based on their relative positions on the list At a union meeting conducted on February 10 1987 Respondents membership passed a motion to endorse the concept of a mobile hiring and dispatch hall There after between February 10 and July 30 1987 three hiring hall roll calls were held at locations away from the normal hiring hall On July 30 1987 Respondents business representative Fred Wright sent the following letter to all hiring hall registrants including Elmer Carl Honea Jr and Cleve Wallace Graves the Charging Party as follows 506 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Roll Call Location for August 17 1987 (8 00 a in ) 100 View Street Between Evelyn and Villa in Mountain View Minton & Company Dear Brothers and Sisters The Mill Cabinet Local Union #262 of the Santa Clara Valley District Council is in need of our help For the past twelve (12) weeks our brothers at Local #262 have been involved in a bitter strike a fight for their very existence In a show of solidarity and support for our strik ing brothers Local Union #316 in conjunction with Local #668 and Local 1280 will again be holding roll call in the field The target is MINTON & COMPANY in Moun tam View MINTON & COMPANY supplies mill work pre hung doors and hardware They are an old family owned firm who up until now have been union To reach MINTON & COMPANY from San Jose proceed North on Highway 280 to Highway 85 Proceed North on Highway 85 to Evelyn Ave exit off of Highway 85 Turn left on Evelyn Avenue to MINTON & COMPANY Park in the lot across the street from MINTON & COMPANY on Evelyn Avenue next to the rail road tracks Local #316 will hold our roll call in front of MINTON S main office at 100 View Street be tween Evelyn and Villa St This is a mandatory roll call THERE WILL BE NO EXCUSES THOSE WHO CHOSE NOT TO SHOW UP WILL BE PUT AT THE END OF THE OUT OF WORK LIST" The Hiring Hall at 2102 Almaden Road will be open for dispatch requests and sign ups ONLYl!! On August 7 1987 Graves and Honea and perhaps other hiring hall registrants appeared at Respondent s normal hiring hall but were not permitted to place their names on the out of work list At this time Business Agent Dennis Pearsall told Graves that if he did not pro ceed to the Minton jobsite to place his name on the out of work list at that location his name would be dropped to the bottom of the list Further on August 10 Re spondent s Business Representative Fred Wright told Graves that because he did not show up at the Minton jobsite the previous Friday (August 7) his name had been dropped to the bottom of the list As a result of their failure to attend the August 7 1987 roll call at the Minton jobsite Respondent did drop Graves and Honea and perhaps others to the bottom of the out of work 'ist Analysis and conclusions The Respondent maintains that the July 30 1987 memo merely provides notification of a change of loca tion for the biweekly roll call Thus the registrants are required only to be present answer their name when it is called and receive their number on the out of work list thereupon they are free to leave This procedure argues Respondent is no different than the procedure required to be followed at the normal union hiring hall location and requires no union activity on the part of the regis trants I do not agree The July 30 1987 letter is quite specific It solicits aid in furtherance of a bitter strike in the form of a show of solidarity and support for members of another local who are engaged in a fight for their very existence and requires that the registrants congregate for the roll call in front of Minton s main office where apparently picketing was being conducted Clearly regardless of whether the registrants elected to carry a picket sign their very prese-ice at the site mandated by Respondent was orchestrated to be and was in fact union activity See Mine Workers Local 1329 (Alpine Construction) 276 NLRB 415 431 (1985) Although a union may discipline members who refuse to support legitimate union ends such discipline may not adversely affect an employees employment status Food & Commercial Workers Local 597 (S & M Grocers) 237 NLRB 1159 (1978) Thus as the Board stated in Long shoremen ILWU Local 17 (Associated Metals) 173 NLRB 594 (1968) We agree with the Trial Examiners ultimate con clusion since the Respondents business agent conceded that one of the reasons Kraus was refused clearance was that the Respondent believed that he had failed to perform his picket duty during the strike at Associated As found by the Trial Examin er a union violates Section 8(b)(2) of the Act by imposing such a discriminatory condition upon re ferral of an employee under a hiring arrangement which makes referral a condition of employment Accordingly we find that the Respondent caused or attempted to cause Associated to dis criminate against Kraus in violation of Section 8(a)(3) of the Act and thereby violated Section 8(b)(2) and (1)(A) of the Act See also Radio Officers v NLRB 347 U S 17 (1954) Op erating Engineers Local 450 (Tellepsen Construction) 122 NLRB 564 583 ( 1958) enfd 281 F 2d 313 (5th Cir 1960) In Painters Local 277 v NLRB 717 F 2d 805 812 (3d Cir 1983) the court states Section 8(a)(3) 29 U S C § 158(a)(3) prohibits em ployers from discriminating among employees in a way that would encourage or discourage union membership Section 8(b)(2) prohibits unions from causing or attempting to cause employers to dis criminate in violation of section 8(a)(3) The mem bership to which section 8(a)(3) refers is thus in corporated in section 8(b)(2) and is broad enough to embrace participation in union activities and mainte nance of good standing Local 100 United Association of Journeymen v Borden 373 U S 690 83 S Ct 1423 10 L Ed 2d 638 (1963) The oft quoted passage on this subject bears repeating here The policy of the Act is to insulate employees jobs from their organizational rights Thus sections CARPENTERS LOCAL 316 (BAY COUNTIES CONTRACTORS) 507 8(a)(3) and 8(b)(2) were designed to allow employ ees to freely exercise their right to be good bad or indifferent members or abstain from joining any union without imperiling their livelihood Radio Officers Union v NLRB 347 U S 17 40 74 S Ct 323 335 98 L Ed 455 (1954) Specifically the Union may not use its power to provide or with hold job referrals in order to reward or punish a worker for his union related activities The Respondents discipline of Graves Honea and other hiring hall registrants who refused to attend the August 7 1987 roll call which was in effect a prounion demonstration took the form not of internal union sanc tions but rather of the loss of their numerical hiring hall ranking and thus directly affected their employment op portunities By such conduct the Respondent violated Section 8(b)(2) of the Act Further by the June 30 1987 letter and August 7 and 10 1987 statements of Business Agents Pearsall and Wright respectively the Respond ent has violated Section 8(b)(1)(A) of the Act as alleged CONCLUSIONS OF LAW I Bay Counties General Contractors Association and each of its constitutent members are employers engaged in commerce within the meaning of Section 2(2) (6) and (7) of the Act 2 The Respondent is a labor organization within the meaning of Section 2(5) of the Act 3 The Respondent has violated Section 8(b)(1)(A) and (2) of the Act as alleged THE REMEDY Having found that Respondent has engaged in certain unfair labor practices I shall recommend that it cease and desist therefrom and take certain affirmative action to effectuate the policies of the Act including the post ing of an appropriate notice and the payment of backpay for any loss of earnings suffered by Cleve Wallace Graves Elmer Carl Honea Jr and other similarly situat ed individuals who may have received a lower numerical hiring hall ranking because they failed to attend the August 7 1987 demonstration Loss of earnings shall be computed in accordance with the Board s decision in F W Woolworth Co 90 NLRB 289 (1950) with interest on such backpay to be computed in accordance with the Board s decision in New Horizons for the Retarded 283 NLRB 1173 (1987) 1 [Recommended Order omitted from publication ] ' Under New Horizons for the Retarded interest is computed at the short term Federal rate for the underpayment of taxes as set out in the 1986 amendment to 26 U S C § 6621