Boilermakers Local 37 (Delta Maintenance)

326 DECISIONS OF NATIONAL LABOR RELATIONS BOARD International Brotherhood of Boilermakers, Iron Shipbuilders, Blacksmiths, Forgers & Helpers, Local 37 (Delta Maintenance, Inc.) and Paul R. West. Case 15-CB-2701 25 September 1984 DECISION AND ORDER BY CHAIRMAN DOSTON AND MEMBERS ZIMMERMAN AND DENNIS On 14 June 1983 Administrative Law Judge James L Rose issued the attached decision The Respondent filed exceptions and a supporting brief, and the General Counsel filed an answering 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 briefs and has decided to affirm the judge's rulings, findings,' and conclusions and to adopt the recommended Order, which is modified to reflect the amended remedy 2 AMENDED REMEDY Having found that the Respondent has violated Section 8(b)(1)(A) and (2) of the Act, we shall order that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act We have found that the Re- spondent discriminatorily prevented Delta Mainte- nance, Inc from hiring Paul R West on 18 Janu- ary 1983 in violation of Section 8(b)(2) of the Act We shall therefore order the Respondent to notify Delta Maintenance, Inc, in writing, with a copy furnished to Paul R West, that it has no objection to West's hiring or employment, and to request Delta Maintenance, Inc to hire West for the em- ployment which he would have had were it not for the Respondent's unlawful conduct, or for substan- tially equivalent employment Stage Employees IATSE Local 644 (King-Hang Productions), 259 NLRB 1415 (1982) We shall also order that the Respondent make West whole for any loss of earn- ings or other rights and benefits suffered by him as a result of its causing Delta Maintenance, Inc not to hire him on 18 January 1983 Backpay shall be computed in the manner set forth in F W Wool- worth Co, 90 NLRB 289 (1950), with interest as 1 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 F 2d 362 (3d Or 1951) We have carefully examined the record and find no basis for reversing the findings 2 We will amend the remedy section of the Judge s decision to grant the remedy customarily provided in cases of this nature provided in Florida Steel Corp, 231 NLRB 651 (1977) See generally Isis Plumbing Co, 139 NLRB 716 (1962) ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, International Brotherhood of Boilermak- ers, Iron Shipbuilders, Blacksmiths, Forgers & Helpers, Local 37, New Orleans, Louisiana, its offi- cers, agents, and representatives, shall take the action set forth in the Order as modified 1 Substitute the following for paragraph 1(b) "(b) 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 Insert the following as paragraph 2(a) and re- letter the subsequent paragraphs "ka) Notify Delta Maintenance, Inc , in writing, with a copy furnished to Paul R West, that it has no objection to West's hiring or employment, and request Delta Maintenance, Inc to hire West for the employment which he would have had were it not for the Respondent's unlawful conduct, or for substantially equivalent employment" 3 Substitute the attached notice for that of the administrative law judge APPENDIX NOTICE TO EMPLOYEES AND 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 any em- ployer to fail to hire an applicant for employment by unlawful application of our employee referral system 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 Delta Maintenance, Inc , in writing, with a copy furnished to Paul R West, that we have no objection to West's hiring, and re- quest Delta Maintenance, Inc to hire West for the employment which he would have had were it not for our unlawful conduct, or for substantially equivalent employment WE WILL make whole Paul R West for any loss of wages he may have suffered as a result of our 272 NLRB No 62 BOILERMAKERS LOCAL 37 (DELTA MAINTENANCE) 327 causing Delta Maintenance not to hire him on 18 January 1983, with interest INTERNATIONAL BROTHERHOOD OF BOILERMAKERS, IRON SHIPBUILDERS, BLACKSMITHS, FORGERS & HELPERS, LOCAL 37 DECISION STATEMENT OF THE CASE JAMES L ROSE, Administrative Law Judge This matter was tried before me at New Orleans, Louisiana, on April 25, 1983, on the General Counsel's complaint which alleged that on January 18, 1983, the Respondent's agents caused and/or attempted to cause Delta Mainte- nance, Inc , to refuse employment to Paul R West in violation of Section 8(b)(1)(A) and (2) of the National Labor Relations Act The Respondent generally denied it has engaged in any unfair labor practices and affirmatively contends that the actions of its agents concerning West's employment with Delta Maintenance, Inc , were pursuant to a valid and nondiscriminatorily applied referral system On the record as a whole, including my observation of the witnesses, and arguments of counsel (briefs having been waived) I make the following FINDINGS OF FACT AND CONCLUSIONS OF LAW I JURISDICTION Delta Maintenance, Inc (Delta) is a Louisiana corpo- ration doing business in Norco, Louisiana, where it pro- vides maintenance services to Shell Oil Refinery In the course and conduct of its business, Delta annually re- ceives gross revenues in excess of $1 million and has re- ceived directly from points outside the State of Louisiana goods and materials valued in excess of $50,000 It is ad- mitted, and I find, that Delta is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act II THE LABOR ORGANIZATIONS INVOLVED International Brotherhood of Boilermakers, Iron Ship- builders, Blacksmiths, Forgers & Helpers, Local 37 (the Respondent or Local 37) is admitted to be and I find it is a labor organization within the meaning of Section 2(5) of the Act Also involved are the International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers, AFL-CIO (the International), its National Transient Division (N T D), and its Locals 582 of Baton Rouge, Louisiana, and 802 of Chester, Pennsylvania The International and N T D are headquartered in Kansas City, Kansas III THE ALLEGED UNFAIR LABOR PRACTICE A The Facts This case involves the Respondent's application of a referral system which its counsel correctly identified as "perhaps the most elaborate system in the construc- tion industry" The following explanation of the system I find from reconciling the testimony of the Respondent's witnesses with the two collective-bargaining agreements involved and the International's constitution Work involving the erection, dismantling, and repair of towers, storage tanks, and similar vessels has been viewed in the industry as difficult and unique Indeed, this type of work traditionally has been performed by members of the boilermakers trade who move from job to job throughout the United States and beyond, work- ing for contractors who also travel Given the itinerant nature of this work, the International created what is, in effect, a national, in scope, local lodge now styled the National Transient Division The N T D negotiates col- lective-bargaining agreements with certain employers who are engaged in this particular type of work Delta is one such employer Under the N T D contract an employer is permitted, without referral from either the N T D or any local lodge, to hire "national transient boilermakers" Howev- er, the employer must also hire a certain number of local boilermakers for each transient boilermaker employed depending, according to the provisions of the contract, on the specific type of work involved The work in- volved in this case required a 2-to-1 ratio in favor of local employees after the employer had initially hired the first two Thus Delta was allowed to hire directly and without referral two employees, with the next two em- ployees being "local boilermakers," then one direct hire, followed by two locals and so on The local employees hired under the N T D contract are to be referred from the local's out-of-work list and its particular referral pro- cedure In this case, the applicable referral procedure for local boilermakers is set forth in the contract between the International and the South Central Employers (to which Local 37 is a party) The referral procedure is the indus- trywide "National Joint Rules and Standards Governing Operation of Exclusive Referral Plans" In brief, the system under which Local 37 provides employees is an exclusive hiring hall through which employees are re- ferred on the basis of seniority on the out-of-work list Thus to man its Norco job, Delta was entitled to hire directly a certain percentage of employees but the rest of them had to come through Local 37's hiring hall While there is some indication in the record that to be hired directly a potential employee must belong to the National Transient Division, there is nothing in the N T D contract so specifying In fact, it appears, and I find, that a signatory employer to the N T D contract may hire whomever he wishes as a national transient boi- lermaker whether that individual is a member of the N T D, some other local lodge of the International, a member of another union, or not a union member at all National transient boilermakers are defined in the N T D contract as those "by trade who customarily work in different parts of the country" And "local boil- ermakers" are those "by trade who customarily work in the local area" I note that "national transient boilermak- ers" are not defined as members of the N T D In fact 328 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the N.T.D. contract contemplates a local member leav- ing his home area to follow N.T.D. work: Article 4.E. "Members of a Local Lodge who leave the jurisdiction of their lodge to follow work covered by the provisions of this agreement." To be hired directly as an N.T.D. employee does not require membership in the N.T.D., even if such a provision were lawful. Thus a traveling boilermaker who desires to work for an N.T.D. employer has two options. He can either seek employment directly or he can go to the local lodge having geographical jurisdiction and get on its out-of- work list for referral to the job. Several factors govern the individual's decision: the potential number to be em- ployed, the ratio of transient to local lodge employees applicable to that particular job, and the number of em- ployees on the local's out-of-work list. It should be noted that an employee hired directly is entitled to subsistence whereas one referred by the local is not. Nevertheless, one might conclude it to be advan- tageous to go through the local rather than attempt to seek employment directly because of the greater likeli- hood of obtaining work. In any event, as far as the collective-bargaining agree- ments are concerned, it appears these options are open to any prospective employee whether a member of the N.T.D., a local from another area or craft, or not a union member. Whether a local member could declare himself a transient and seek work as an N.T.D. employee on a job located in the geographical area of his home local is questionable. However, article 3.C. states: "Selec- tion of applicants for referral by the Union or initial em- ployment by the Contractor shall be on a nondiscrimina- tory basis and shall not be based on, or in any way af- fected by, union membership." In any event, such is not involved here for West in fact was a transient with a travel card from Local 802. Paul R. West has been a member of the International since January 1972. First he belonged to the National Transient Division (then styled National Transient Member). Then, having moved to Pennsylvania where he worked, apparently, on a non-N.T.D. job, he became a member of Local 802. The International constitution provides for transfer of membership from one local to another where an individual is working within the juris- diction of the other local and files an application. Ac- cording to the constitution, transfer must be granted after one has worked 8000 hours within the jurisdiction of the second local and where the member can demon- strate that his permanent residence is within the local's geographical jurisdiction. Further, one who has his trav- eling card on deposit 90 days "may be required to trans- fer his membership into such lodge." Though the basis is unclear, West's membership was transferred from the N.T.D. to Local 802 in 1975. Then West was self-em- ployed from June 1975 until October 1978 and since 1978 has worked for various N.T D. contractors in Louisiana, Texas, and Florida. At the time material to this matter, West was living in St. Francisville, Louisiana, within the geographical jurisdiction of Local 582. From September 29 until October 1982, West was em- ployed by Delta as a boilermaker-welder. Then he was laid off for lack of work. He had been hired directly by Duke Odom, the president of Delta. West was hired again in December by Odom, but he only worked 6 hours inasmuch as he "busted out the (welding) test" he had to take. On January 18, 1983, he was again sent to the Norco job by Odom. When West arrived, the Local 37 union steward, Shelton Anthony, asked him to show his mem- bership dues receipt West tendered his dues receipt from Local 802. Anthony then stated that West could not work because he was not an N.T.D. member, that he could not be referred directly by Odom but had to come through the Local 37 hiring hall. Ray Morgan, the job superintendent for Delta, testified about this event. He said that in January several new people came on the job—some sent by Odom and some who had been ordered from Local 37. As Morgan was processing the new employees and assigning them, An- thony told him that West did not have "the proper clear- ance to go to work that day." Anthony said something to the effect that West did not have N.T.D. papers. After discussing this with Odom, it was decided not to hire West. That day Morgan in fact hired five or six N.T.D. members sent by Odom. The testimony of Morgan and West concerning An- thony's involvement in keeping West from working is undenied, Anthony having not been called as a witness. However, the Respondent did call Albert Catyb, the business manager, secretary-treasurer of Local 37 and Al Wendelken, national transient international representa- tive, both of whom were on the Norco job the day West was denied employment. Wendelken had come from Kansas City specifically to attempt to resolve an appar- ent dispute Local 37 had with Delta concerning the ratio of N.T.D. employees to Local 37 referees. When Catyb and Wendelken arrived at the job, West approached them and asked why he could not go to work. Catyb tes- tified he told West: My understanding is that you have a book out of 802. I said: Now if you want to go to work, you come to Local 37 and you sign the book. Your name comes up, you'll go to work. I said: You're not a member of the National Transient Division Wendelken substantially corroborated the testimony of Catyb with regard to the conversation with West. And Wendelken went on to testify that he and Catyb then met with Morgan in order to straighten out the ratio problem and it was determined this would be resolved by Delta hiring more local men. Such resolution was ap- parently consistent with the N.T.D. contract which states, in pertinent part (art. 2.E.): "Men employed on a job as provided herein shall not be replaced for the pur- pose of establishing the applicable ratios set forth above." The parties therefore are in general agreement con- cerning the material facts: West, a member of Local 802 but living in Louisiana in the jurisdiction of Local 582 (where he was on the out-of-work list), had been re- ferred directly to a job by the president of Delta. Agents of Local 37 kept him from going to work on grounds that as a member of Local 802, he could be hired only BOILERMAKERS LOCAL 37 (DELTA MAINTENANCE) 329 through the Local 37 hiring hall and not directly That West was on the Local 582 list was not a factor but, ap- parently, would have kept West from signing the Local 37 list because one can be on only one referral list at a time B Analysis and Concluding Findings In Teamsters Local 357 v NLRB, 365 U S 667 (1961), the Supreme Court held that an agreement whereby the union is the exclusive source of employees, though po- tentially susceptible to discriminatory abuse, is permissi- ble However, to be lawful, where a union operates an exclusive hiring hall, it must use "objective criteria or standards for the referral of employees" Laborers Local 394, 247 NLRB 97 (1980) Thus where a union does not have objective criteria or does not follow the criteria it has, then the failure to refer an employee, or securing the discharge of an employee who has not gone through the referral system, is violative of Section 8(b)(1)(A) and (2) of the Act However where in fact the Union does apply objective criteria it is not unlawful for it to seek the discharge of an employee who has obtained his job directly rather than going through the exclusive hiring hall Laborers Local 596 (Hood Mason Contractors), 216 NLRB 778 (1975) In a recent review of this subject, the Board said The Board will presume that a union acts illegally any time it prevents an employee from being hired or causes an employee to be discharged because by such conduct the union demonstrates its power to affect the employee's livelihood in so dramatic a way as to encourage union membership among the employees However, this presumption may be re- butted "where the facts show that the union action was necessary to the effective performance of its function of representing its constituency" Thus, a union operating a hiring hall may lawfully refuse to refer an individual for hire for a period of time for quitting a previous job, for excessive absenteeism, or where the employee was also an employer In such circumstances, it is assumed that unions are not acting to encourage union membership, but for the legitimate purpose of promoting the efficiency and integrity of their hiring hall operations [Boilermak- ers Local 40 (Envirotech Corp ), 266 NLRB 432 (1983) ] Thus the first question is whether the system here meets the test of legitimacy, and second whether applica- tion of the system resulting in West having been denied employment was lawful I conclude that the hiring hall procedure is permissible under Board law However I further conclude that representatives of the Respondent erred in causing Delta not to hire West on January 18, 1983 The referral system in the N T D contract appears ra- tional It attempts to accommodate the needs of employ- ers in obtaining qualified men for jobs in a particular sub- specialty of boilermaker work with the desire of local lodges to spread available work for the benefit of all seeking work in the craft Thus the employer may hire directly a certain percent- age of employees but the rest must come from the local, which will then provide employees pursuant to operation of a nondiscriminatory exclusive hiring hall From the testimony of Morgan and West, it is obvious that Anthony concluded that West could not be hired di- rectly by Delta since he was not a member of NTD, a determination which was confirmed by Catyb when West approached him and Wendelken Without passing on whether the system as envisioned by Anthony and Catyb would be legitimate (which I doubt because such would favor opportunity for employment based on mem- bership in a particular local) I conclude that they were in error There is nothing in the N T D or South Central Employers contract prohibiting direct employment of a non-N T D member In fact, as noted above, such is contemplated in the N T D contract It is expected that local members will sometimes follow work covered by the N T D contract While a local lodge member, such as West, on obtain- ing employment as an N T D employee (as opposed to a local employee working for an N T D employer) would be required to deposit his travel card with the N T D unit, nothing prohibits such employee from obtaining direct employment from the N T D contractor as a tran- sient employee Nor is it required that the travel card be deposited before obtaining employment West's travel card was deposited with the N T D on February 14, 1983 Of course, for West, or any other individual so sit- uated, to obtain employment directly would require the employer to hire him That, in turn, would require some kind of demonstration, presumably, that the applicant could do the work required with sufficient competency to justify the contractor hiring him In any event, so far as I can determine from any of the applicable documents, direct employment is not limited just to those who are current N T D members, those who do not belong to the International at the time of employment, or those who have a travel card on deposit with the N T D unit There is nothing in either contract to prevent a local lodge member from seeking and obtaining direct employ- ment from an N T D contractor Yet this is the basis on which the Respondent's agent advised Delta that West should not be hired There is indication in the record that in fact Delta had hired more transient employees than it was entitled under the ratio provisions of the contract Since the ratio clause appears to be a rational accommodation between the interests of employers and employees I believe it is legitimate Therefore had the Respondent sought to en- force the ratio clause it would not be in violation of the Act However, I do not believe that this was the basis of Anthony's action First, at the very time that Anthony told Morgan that West could not be hired because his N T D papers were not in order, Delta directly hired about six others Thus it does not appear that Anthony was aware of any ratio problem or if he was this was not the reason he sought to have West denied employment 330 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Second, as noted above, where the ratio is out of bal- ance, employees will not be replaced to correct it Even had Anthony been seeking to enforce the ratio provisions of the contract the solution would not have been to deny West employment but rather to have had Delta hire ad- ditional Local 37 employees, which in fact, according to the testimony of Wendelken, was promised Accordingly, I conclude that Local 37 does have a lawful referral system for employees of N T D contrac- tors but that in the case of West it misapplied its system the effect of which was to cost him employment which he had obtained directly from Delta I therefore con- clude that by such acts the Respondent violated Section 8(b)(1)(A) and (2) of the Act and I will recommend an appropriate remedy The Respondent affirmatively contends that the com- plaint should be dismissed because Delta was not joined "as an indispensible party" and West did not exhaust his "administrative and/or internal union remedies Neither contention is a bar to issuance of a remedial order in this matter Identification of the employer is not a requisite to finding an 8(b)(2) violation See Longshore- men Union ILWU Local 12 (Donald D Wilson), 155 NLRB 1042, 1050 (1965) Thus the employer is not an indispensible party A union member who has been dis- criminated against by the union is not required to first seek vindication through internal procedures E g, Car- penters Local 2605 (DeRose Industries), 256 NLRB 584 (1981) IV THE EFFECT OF THE UNFAIR LABOR PRACTICE UPON COMMERCE The unfair labor practice found above, occurring in connection with the business of Delta, has a close, inti- mate, and substantial relationship to trade, traffic, and commerce among the several States and tends to lead to labor disputes burdening and obstructing commerce and the free flow thereof within the meaning of Section 2(6) and (7) of the Act V THE REMEDY Having found that the Respondent has engaged in an unfair labor practice, I shall recommend that it be or- dered to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act I recommend that the Respondent make whole Paul R West for any loss of earnings or other rights and benefits he may have suffered by reason of its causing Delta not to hire him on January 18, 1983 Backpay shall be computed in the manner set forth in F W Woolworth Co, 90 NLRB 289 (1950), with interest as provided in Florida Steel Corp, 231 NLRB 651 (1977) 1 ' See generally Isis Plumbing Go, 139 NLRB 716 (1962) On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed2 ORDER The Respondent, International Brotherhood of Boiler- makers, Iron Shipbuilders, Blacksmiths, Forgers and Helpers, Local 37, its officers, agents, and representa- tives, shall 1 Cease and desist from (a) Causing or attempting to cause an employer to dis- criminate against an employee by unlawful aplication of its hiring hall system (b) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act 3 2 Take the following affirmative action deemed neces- sary to effectuate the policies of the Act (a) Make whole Paul R West for any loss of wages or other rights and benefits he may have suffered as a result of the Respondent causing Delta Maintenance, Inc not to employ him on January 18, 1983, in accordance with the formula set forth above in the remedy section (b) Post at its business office and hiring halls copies of the attached notice marked "Appendix " Copies of the notice, on forms provided by the Regional Director for Region 15, after being signed by the Respondent's au- thorized representative, shall be posted by the Respond- ent immediately upon receipt and maintained for 60 con- secutive days in conspicuous places including all places where notices to members are customarily posted Rea- sonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material (c) Sign and mail to the Regional Director for Region 15 sufficient copies of said notice on forms provided by him for posting at the premises of Delta, Inc , if the latter be willing (d) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply 2 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 3 Although the unfair labor practice found did affect the employment of an individual, I do not believe, on the record before me, that it was more than a simple error concerning the terms of a complicated hinng hall system and it does not, in my judgment, show a proclivity to violate the Act Accordingly, the narrow injunctive remedy is appropnate See Hickmott Foods, 242 NLRB 1357 (1979) 4 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 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"