Asbesto Workers, AFL-CIO, Local 22

National Labor Relations Board - Board Decisions

Aug 16, 1974

212 N.L.R.B. 913 (N.L.R.B. 1974)

11
ASBESTOS WORKERS , AFL-CIO, LOCAL 22 913
International Association of Heat & Frost Insulators &
Asbestos Workers, AFL-CIO, Local 22 (Rosendahl,
-Inc.) and William L . Booth. Case 23-CB-1466
August 16, 1974
DECISION AND ORDER
bor Relations Act, as amended. Respondent filed an answer
to the complaint denying it had engaged in the alleged
unfair labor practices. A hearing in this proceeding was held
before me and both the General Counsel and Union filed
a brief.
Upon the entire record in this case, and from my observa-
tion of the witnesses and their demeanor, I make the follow-
ing: I
By CHAIRMAN MILLER AND MEMBERS JENKINS FINDINGS OF FACT
AND KENNEDY
On April 23, 1974, Administrative Law Judge Phil
Saunders issued the attached Decision in this pro-
ceeding. Thereafter, Respondent filed exceptions, and
the General Counsel filed a brief in support of the
Administrative Law Judge's Decision.
Pursuant to the provisions of Section 3(b)^ of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief I
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the Respondent, International Associa-
tion of Heat & Frost Insulators & Asbestos Workers,
AFL-CIO, Local 22, Houston, Texas, its officers,
agents, and representatives, shall take the action set
forth in the said recommended Order.
i For the first time in this proceeding, Respondent argued in its exceptions
and brief to the Board that this matter should be deferred to the grievance-
arbitration machinery of the contract under the Board's Collyer principle.
(Collyer Insulated Wire, 192 NLRB 837 (1971).) We find that the issue has
not been timely and properly raised at this stage of the proceeding Mac-
Donald Engineering Co, 202 NLRB 748 (1973). Member Jenkins. in any
event, would not defer to arbitration for the reasons stated in the dissenting
opinion in Collyer and subsequent cases.
DECISION
I THE BUSINESS OF THE COMPANY
Rosendahl, Inc., herein called Rosendahl or the Compa-
ny, is a Texas corporation with its principal office and place
of business at Beaumont, Texas, where it is engaged in the
business of general maintenance contracting. During the
past 12 months Rosendahl performed services valued in
excess of $50,000 for Mobil Chemical Corporation in the
State of Texas, and which firm is directly engaged in inter-
state commerce and subject to the Board's jurisdictional
standards by virtue of selhng and shipping petroleum prod-
ucts valued in excess of $50,000 from Texas to points di-
rectly outside the State.
Rosendahl is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
II THE LABOR ORGANIZATION INVOLVED
The Respondent is a labor organization within the mean-
ing of Section 2(5) of the Act.
III THE UNFAIR LABOR PRACTICES
It is alleged in the complaint that the Respondent has
operated an exclusive hiring hall through which applicants
for employment by Rosendahl are referred, that on or about
June 14, 1973,2 Rosendahl requested the Respondent to
clear or refer Booth for employment, and that on the above
date the Respondentrefused to do so. It is further alleged
that the Respondent has refused to refer Booth for reasons
other than his failure to comply with exclusive hiring hall
procedures and/or failure to pay dues, initiation or referral
fees, and that by refusing to refer Booth the Respondent has
caused or attempted to cause Rosendahl to refuse to hire
him for reasons other than his failure to comply with exclu-
sive hiring hall procedures and/or failure to pay dues, initia-
tion or referral fees, in violation of Section 8(a)(3) of the
Act 3
Rosendahl performs maintenance work in the Beaumont
STATEMENT OF THE CASE
PHIL SAUNDERS , Administrative Law Judge : Based on an
original charge filed on December 4, 1973, by William L.
Booth, herein at all times Booth, a complaint against Inter-
national Association of Heat & Frost Insulators & Asbestos
Workers, AFL-CIO, Local 22, herein the Union , Local 22,
or Respondent , was issued on January 11, 1974, alleging
violation of Section 8(b)(1)(A) and (2) of the National La-
i All credibility resolutions made herein are based on a composite evalua-
tion of the demeanor of the witnesses and the probabilities of the evidence
as a whole.
2 All dates are 1973 unless stated otherwise.
3 At all times material herein the following named persons occupied the
positions set opposite their respective names and are agents of Respondent
acting on its behalf and within the meaning of Section 2(13) of the Act
Jesse Jones-Business Agent
Brooks Baker-Business Manager
C. D. Matthews-Vice pres. poor to November 1973 and presently
president of Local 22
212 NLRB No. 142
914 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
area under the coordination effort of its manager, George
Llewellyn, and as of June 14 it was performing maintenance
for Mobil Chemical at four separate plants, one of which
was known as the "semi-works " Llewellyn testified that at
present Rosendahl is hiring asbestos insulators through the
Union in compliance with a contract between the Asbestos
Workers International Union and Rosendahl,4 and that this
contract is applied on a local level. He further stated that
in June the Company was honoring article III of that con-
tract which provides the Union be given 48 hours in which
to fulfill the contractor's manpower requirements, and the
management rights clause of the contract permits a contrac-
tor to request employees by name who have previous main-
tenance experience.
Manager Llewellyn also stated that in the month of June,
the time period directly relevant here, he was hiring asbestos
workers through the Union and had been given instructions
to the effect that "all people referred to the job, particularly
base plant, which is the ethylene plant, and 'semi-works'
would have to be given from the Houston office."
Llewellyn had received these instructions in the spring or
early summer of 1973 from the Union's business agent,
Jesse Jones, and said that since these instructions were con-
sistent with the terms of the contract, he followed them.
Booth stated that he also knew of the referral requirement
because Jones, after Booth was hired in May by Rosendahl
without union approval, had then told him that the "blanke-
ty-blank people" would have to hire through the Union.
It appears from this record that periodically Booth made
trips to the worksites and checked with Rosendahl's Field
Superintendent Al Berrard about job possibilities.5 On June
14, Booth talked to Berrard relative to employment and
then had dropped into Llewellyn's office, and while he was
there Superintendent Berrard called and asked Llewellyn
for two insulators. With Booth still in his office, Llewellyn
called the Union's Business Agent Jesse Jones in Houston,
and requested Booth and one other insulator. Llewellyn
testified that Jones told him that at this time he could not
send Booth out, but he then reminded Jones that according
to the terms of their bargaining agreement he could call the
"first man" on the job "by name." 6 Either Jones or Llewel-
lyn then mentioned the name of Doug Green-a union
insulator who had worked for Rosendahl off and on for
several years-but Llewellyn told Jones it would not be
possible to employ Green at the " semi-works" job because
of the client's objection to him.7 Llewellyn and Jones con-
tinued their conversation for a while longer, and after Llew-
ellyn got off the phone he told Booth what had happened.
After leaving Llewellyn's office Booth decided to call
4 G C Exh 2
5 During the periods relevant herein , Booth was a member of the Union
to good standing and had worked for some time as an asbestos insulator with
no complaints whatsoever as to his work
6 See G C Exh 2-article 11 "Management Rights The contractor
may hire employees by name who have special skills or have previous mainte-
nance experience "
1 It appears from this record that the refusal to employ Green was the
culmination of a 3-month dispute between Llewellyn and Jones concerning
Green Llewellyn admitted that he was the one who said not to send Green
and in relation thereto testified , " I am the guy that said it . that's right,
because I had been hit over the head for 3 months about not having Green
on the job."
Jones himself, but Llewellyn had told him not to mention
that he had been in his office when he had been talking to
Jones. Upon reaching Jones in Houston, Booth told him he
had "pretty good information" that men were needed on a
job at Mobil and a request had been put in for help, but
Jones would not acknowledge that Llewellyn had called him
earlier in the morning about the matter Jones concluded
this phone conversation by telling Booth that he "would
think about it."
After the call from Booth, Jones had a discussion in the
Union's office with Business Manager Brooks Baker, and
then called Llewellyn and asked that he reconsider his posi-
tion in refusing Doug Green, but Llewellyn would not
change his decision and then told Jones, "I have to have
people If I can't get Booth or Green, just send me two other
people." B
Starting in July, Booth worked for Rosendahl for several
weeks, but testified that Jones did not refer him. Booth
openly admitted that other than the incident on June 14,
here in issue , Jones never discriminated against him.9
Jones testified that under the terms of the bargaining
agreement, as aforestated, members of the Union can solicit
their own jobs and need not clear with him On cross-exami-
nation Jones said that after June 14 he does not recall refer-
ring Booth to any job. This record shows that during the
summer of 1973, Jones filed two or three grievances on
behalf of Doug Green for the times when Rosendahl refused
to employ him.
The Union maintains that had Booth been candid with all
of the parties involved, this controversy would never have
come about, and points to the fact that Booth could have
solicited the job for himself instead of asking Llewellyn to
contact Jones and by so doing initiating the referral proce-
dure. The Union contends that the "surreptitious manner"
in which Booth conducted himself during the entire incident
was to a great extent responsible for him not being referred
to one of the available openings. The Union further argues
that when it became evident to both Llewellyn and Jones,
during the course of their telephone conversation, that they
had reached an impasse, it was Llewellyn and not Jones who
suggested that two new insulators be sent out to fill the
positions. The Union contends that rather than concluding
that its actions discriminated against Booth, the evidence
actually shows a good-faith attempt by the Union to prevent
discrimination against Green. For reasons hereinafter giv-
en, I reject the Union's arguments and contentions.
Both Llewellyn and Booth gave reliable testimony that
Business Agent Jones had expressly told them that he fully
expected Rosendahl to adhere to the exclusive referral prac-
tice outlined in the controlling provisions of their bargain-
8 The two new men were sent to fill the positions and worked a total of
8 or 9 days
v Booth would attribute his initial difficulties with Local 22 to some years
back when he and other members complained to certain authorities about
Brooks Baker Booth also brought this present incident or event of June 14
to the attention of the Union's International president in Washington, and
attributes his rehiring by Rosendahl in July to the fact that the International
gave his complaint favorable treatment , and his testimony in this respect is
supported by Llewellyn Booth also said that he appeared before the Union's
executive board in December in his efforts to collect damages from the
Union by their refusal to refer him on June 14
ASBESTOS WORKERS , AFL-CIO, LOCAL 22 915
ing contract.10 As further pointed out, both Llewellyn and
Booth also testified that such a referral practice was in effect
throughout June, and their actions on June 14 , as aforemen-
tioned, confirm they were acting in compliance with the
terms of the referral system , and the Union failed to provide
a witness to corroborate Jones' assertion that the exclusive
hiring provision was not being enforced at the time here in
question.
When Llewellyn called the Union on June 14 and specifi-
cally requested Booth , Business Agent Jones then had a
duty, under the terms of the contract, to inquire if Booth
was available for work and if so to refer him. As pointed out,
the testimony by Jones that he did not know whether Booth
was available to work is discredited by his admission that
he talked to Booth before his second phone conversation
with Llewellyn, and wherein Booth by this time had in-
formed Jones that two men were needed and he wanted a
job.
There is also reliable testimony in this record revealing
that Booth did not enjoy friendly relationships with Busi-
ness Agent Jones or with Business Manager Brooks Baker
and Jones admits he consulted with Baker on June 14 before
his second telephone conversation with Llewellyn, as
aforestated. Moreover, Booth was known to visit with pro-
spective employers about possible jobs, and although not
in violation of any union rule or any provision in the con-
tract between Rosendahl and the Union, this practice of
independence on Booth's part could hardly be expected to
endear him to the agents of Local 22, who by this time
were intent on maintaining control of employment refer-
rals.11
Both Jones and Llewellyn testified to the dispute between
Rosendahl and the Union over the employment of Green.
It appears that Rosendahl could not employ Green at the
"semi-works" due to its client's objections , and for several
months Jones had wrangled with Llewellyn over the matter
which ended up with Jones filing two or three grievances
against the Company on Green 's behalf . In these respects
the General Counsel presents a valued argument as to the
showdown on June 14, by stating the following: "On that
date Jones denied Llewellyn's request for an experienced
employee and proved to Llewellyn that if the company did
not give the Union what it wanted, i.e., employment for
Green, that the company would be denied what it wanted-
William Booth, an experienced, hardworking employee fa-
miliar with the company 's operations. It was a classic power
play with Booth, an innocent victim , caught in the middle."
The Union further maintains that Jones did not refuse to
refer Booth, but rather, that Llewellyn withdrew his request.
While Llewellyn did finally retreat to a request for two new
men, as indicated previously , it is clear that this was done
to get the needed insulators. This record further shows that
Llewellyn's primary obligation was to get the work done,
and that he never withdrew his request for Booth, but mere-
ly bowed to the reality', that Jones would not send him. '2
10There is no question that the contract referred to herein was enforced
between the International Union and Rosendahl , and was applied on the
local level
n Although Booth talked to the field superintendent of Rosendahl and to
Llewellyn on June 14 about a job, he was fully aware that Rosendahl had
to hire through the Union.
12 The General Counsel further points out that while Llewellyn did not
When a union prevents an employee from being hired or
causes an employee's discharge , it has demonstrated its in-
fluence over the employee and its power to affect his liveli-
hood in so dramatic a way that we will mfer-or, if you
please , adopt a presumption that: the effect of its action is
to encourage union membership on the part of all employ-
ees who have perceived that exercise of power.13 But the
inference may be overcome , or the presumption rebutted,
not only when the interference with employment was pur-
suant to a valid union -security clause, but also in instances
where the facts show that the union action was necessary to
the effective performance of its function of representing its
constituency.
Thus the Supreme Court has sanctioned union control
over access to employment through hiring hall agreement,l4
even though recognizing that "the very existence of a hiring
hall encourages union membership ." And the Board has
found legitimate a union's action in causing the layoff of an
employee who insisted on working without receiving a sub-
sistence allowance called for by the collective-bargaining
agreement . 15 In such cases, the union's actions , while inci-
dentally encouraging union membership, were nevertheless
essential to its effective representation of employees. See
International Union of Operating Engineers, Local 18, AFL-
CIO (Associated General Contractors, Inc.), 204 NLRB 681
(1973).
The only issue remaining for my consideration in the
instant case is whether or not the Union's interferences with
the employment of Booth operated unlawfully, and under
applicable precedent, and that, in turn, requires a determi-
nation as to whether the Union' s actions here were neces-
sary to the effective performance of its function in
representing employees. That question must be answered in
the negative. "While it might well be convenient for the
Union, in enforcing its own internal ' rules of conduct, to
have available an employment -related sanction , it can hard-
ly be said that such severe sanctions are necessary to that
end. Internal union discipline-fines, suspension, expulsion
from memberships, and the like-ought surely to be ade-
quate for this purpose." 16
Here the dispute between Rosendahl and the Union in-
volving Green was apparently worked out quite satisfacto-
rily after certain contacts were made with the International,
as aforestated.17 But in the finaltanalysis, it can hardly be
argued that the action by Jones on June 14 was necessary
to the performance of his duties in representing employees
when in reality , he was refusing a job for one of his own
members, and in so doing also violating a specific provision
argue with Jones about Booth, and while Jones' refusal was rendered in the
most civil terms, the cases are clear that a "courteous or even precatory"
communication can be as illegal as one that is "rude and demanding."
13 The Radio Officers' Union of the Commercial Telegraphers Union, AFL
[A.H Bull Steamship Co.] v N L R B, 347 U.S 17 (1954).
t 4 Local 357, International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America [Los Angeles-Seattle Motor Express] v.
N L.R.B., 365, U S. 667 (1961)
15 See, for example , Millwrights' Local Union 1102, United Brotherhood of
Carpenters and Joiners of America , AFL-CIO (Planet Corporation), 144
NLRB 798 (1963), Houston Typographical Union No 87, International Typo-
graphical Union, AFL-CIO (Houston Chronical Publishing Company), 145
NLRB 1657 (1964).
16 International Union of Operating Engineers, supra
17 It appears that Green was put to work on one of Rosendahl 's other
projects.
916 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of his agreement granting contractors the right to name the
first man on the job. Furthermore, there are no indications
or evidence in this record showing that the refusal by Jones
to refer Booth would in any way effectuate his responsibility
in representing his employees including Doug Green. On
the contrary, this matter involving Green was obviously at
a stalemate due to prior circumstances and difficulties be-
tween the parties, and, furthermore, Jones undoubtedly had
fulfilled whatever obligation he may have had in repre-
senting Green by filing grievances on his behalf. Consider-
ing the parties involved, the related problem with Green
could only be handled by internal methods within the total
framework of the Union.18
Booth was entitled to be called for by name, but he was
not dispatched or referred by Jones in order that Local 22
might impose its own hiring wishes or practices. Moreover,
while the evidence proffered here might indeed show that
the Union had no intent to encourage union membership by
interfering with Booth's employment, yet the display of
union power exhibited by an exercise of control over em-
ployment opportunity solely for reasons relating to the con-
duct of an employee as a union member would necessarily
have that effect, and since the Union's discrimination
against Booth was, at best, related to his obligation as a
union member such action by the Union comes within the
proscription action of Section 8(b)(2).'9
IV THE REMEDY
Having found that the Respondent has violated the Act
it will be recommended that it cease and desist therefrom
and take certain affirmative action designed to effectuate
the policies of the Act.
It has been found that the Respondent caused the Com-
pany herein to discriminate against William Booth within
the meaning of Section 8(a)(3) of the Act, and therefore has
itself violated Section 8(b)(2) and (l)(A) of the Act. It will
be recommended that the Respondent make William Booth
whole for any loss of earnings he may have sustained as a
result of the Respondent's unlawful conduct, by paying to
him a sum of money equal to the amount he normally would
have earned as wages from the date of the discrimination
absent the unfair labor practices of the Union, and in accor-
dance with the remedial relief policies of F. W. Woolworth
Company, 90 NLRB 289 (1950), and Isis Plumbing & Heat-
ing Co. 138 NLRB 716 (1962).
It will also be recommended that the Union notify Wil-
liam Booth, in writing, that it has no objection to his em-
ployment by Rosendahl or any other employer, and that
henceforth it will not restrain or coerce him by unlawfully
infringing upon the right guaranteed to him by Section 7 of
the Act.
Upon the basis of the foregoing findings of fact and upon
the entire record in this case, I make the following.
18 Cases and authorities cited by the Respondent are generally distinguish-
able on a factual basis as they involve disputes on interpretations of specific
contractual provisions within various bargaining agreements
19 International Union of Operating Engineers, supra
CONCLUSIONS OF LAW
1. The Union and Respondent herein is a labor organiza-
tion within the meaning of Section 2(2), (6), and (7) of the
Act.
2. Rosendahl, Inc., is an employer engaged in commerce
within the meaning of the Act.
3. By unlawfully causing Rosendahl, Inc., to discrimi-
nate against William Booth, the Respondent has engaged in
and is engaging in unfair labor practices within the meaning
of Section 8(b)(1)(A) and 8(b)(2) of the Act.
4. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
Upon the basis of the foregoing findings of fact and con-
clusions of law and upon the entire record in this case, and
pursuant to Section 10(c) of the Act, I hereby issue the
following recommended: 20
ORDER
International Association of Heat & Frost Insulators &
Asbestos Workers, AFL-CIO, Local 22, its officers, agents,
successors, and assigns, shall:
1. Cease and desist from:
(a) Causing or attempting to cause Rosendahl, Inc., to
discriminate against William Booth, or any other employee,
in violation of Section 8(a)(3) of the Act, or causing or
attempting to cause any other employer to discriminate
against William Booth.
(b) In any like or related manner restraining or coercing
employees in the exercise of rights guaranteed by Section 7
of the Act.
2. Take the following affirmative action which it is found
will effectuate the policies of the Act.
(a) Make William Booth whole for any loss of earnings
he may have suffered as a result of the discrimination
against him in the manner set forth in the section above
entitled "The Remedy."
(b) Notify Rosendahl Inc., and William Booth, in writ-
ing, that it has no objection to the employment of Booth,
and also notify Booth in writing that henceforth it will not
coerce or restrain him by unlawfully infringing upon the
rights guaranteed to him by Section 7 of the Act.
(c) Post at its offices copies of the attached notice
marked "Appendix." 21 Copies of said notice, on forms pro-
vided by the Regional Director of Region 23, after being
duly signed by Respondent's representative, shall be posted
by Respondent immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter, and in
conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall
20 In the event no exceptions are filed as provided by Section 102 46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions , and recommended Order herein shall , as provided in Section
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.
2i in the event that the Board's 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 "
11
ASBESTOS WORKERS , AFL-CIO, LOCAL 22
be taken by Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(d) Additional copies of the notice attached hereto and
marked "Appendix" shall be forewith returned to the Re-
gional Director for Region 23 for posting by Rosendahl,
Inc., if willing , at their business offices and construction
projects where notices to its employees are customarily
posted.
(e) Notify the Regional Director of Region 23, in writing,
within 20 days from the date of this Decision what steps it
has taken to comply herewith.
APPENDIX
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT cause or attempt to cause Rosendahl,
Inc., or any other employer, to discriminate against any
of his employees in violation of 8(a)(3) of the Act.
WE WILL NOT refuse to refer William Booth, or any
other employee, to their rightful employment.
WE WILL NOT in any like or related manner restrain or
coerce employees in the exercise of their rights guaran-
917
teed in Section 7 of the Act.
WE WILL notify Rosendahl, Inc., in writing, that we
have no objection to the employment of William Booth
and we shall furnish him with copies of such notifica-
tion.
WE WILL make whole William Booth for any loss of
pay he may have suffered by reason of the discrimina-
tion against him.
Dated By
INTERNATIONAL ASSOCIATION OF
HEAT & FROST INSULATOR &
ASBESTOS WORKERS, AFL-CIO
LOCAL 22
(Labor Organization)
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material. Any questions concerning
this notice or compliance with its provisions may be direct-
ed to the Board's Office, Dallas-Brazos Building, 1125 Bra-
zos Street, Houston, Texas 77002, Telephone 713-226-4296.