Asbestos Workers Local 26 (Griffin Insulation)

National Labor Relations Board - Board Decisions

May 28, 1993

311 N.L.R.B. 969 (N.L.R.B. 1993)

969
311 NLRB No. 96
ASBESTOS WORKERS LOCAL 26 (GRIFFIN INSULATION)
1 The Respondent also filed a motion to strike a portion of the
General Counsel’s answering brief, on the basis that it was beyond
the scope of the Respondent’s exceptions. The General Counsel filed
a response in opposition to the Respondent’s motion to strike. We
deny the Respondent’s motion to strike, finding that the portion of
the General Counsel’s answering brief at issue properly dealt with
questions raised by the Respondent’s exceptions. We grant the Re-
spondent’s motion to correct the transcript.
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
3 In the text of his decision, the judge found that in refusing to
refer John Landowski, the Respondent attempted to cause and did
cause Employers Griffin, Frontier, ‘‘and other employer-members’’
of the Master Insulators’ Association of Rochester, New York (the
Association), to unlawfully discriminate against Landowski. Because
the complaint as amended specifies only Griffin and Frontier, we do
not rely on the judge’s finding regarding the ‘‘other employer-mem-
bers’’ of the Association.
At fn. 3 of his decision, the judge found that in view of his find-
ing that the Respondent operated an exclusive hiring hall and vio-
lated Sec. 8(b)(1)(A) and (2) of the Act, it was unnecessary to pass
on the General Counsel’s alternative contention. That contention was
based on the argument that even if the Respondent operated a non-
exclusive hiring hall, it violated its duty of fair representation by re-
fusing to refer John Landowski. The judge further stated, however,
that had it been necessary to consider this contention, he would have
found merit in it. We do not rely on the judge’s statement that he
would have found merit in the General Counsel’s alternative conten-
tion, because the duty of fair representation does not attach to a
union’s operation of a nonexclusive hiring hall. Carpenters Local
537 (E. I. du Pont), 303 NLRB 419, 420 (1991).
1 The complaint initially alleged, inter alia, that the Respondent
had unlawfully refused to refer the Charging Party to an employer.
At the hearing, I granted the General Counsel’s motion, over the Re-
spondent’s objection, to add an allegation that, at or about the same
time frame, the Respondent unlawfully refused to refer the Charging
Party to a second employer. The Respondent had argued that the
General Counsel had knowledge of it when the complaint issued. In
its brief, the Respondent restated that objection and cited Wilson &
Sons Heating, 302 NLRB 802 (1991), as supportive of its conten-
tion. That case does not support the Respondent’s contention. I shall
treat the contention in the Respondent’s brief as a motion to recon-
sider my ruling and shall deny it.
2 The Respondent separately contends that Sec. 10(b) of the Act
bars the alleged discriminatory conduct as to Landowski on the
ground that he had prior notice that the Respondent gave preference
to its members. The Respondent cited A & L Underground, 302
NLRB 467 (1991), to support its contention. That case concerned the
repudiation of a contract. I find no merit in the Respondent’s conten-
tion as the alleged violations before me are all timely in reference
to Sec. 10(b) of the Act.
The International Association of Heat and Frost
Insulators and Asbestos Workers Local No. 26,
Rochester, New York (Griffin Insulation Com-
pany, Inc.) and John Landowski and the Mas-
ter Insulators’ Association of Rochester, New
York, Party to the Contract. Case 3–CB–5929
May 28, 1993
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
On July 23, 1992, Administrative Law Judge James
F. Morton issued the attached decision. The Respond-
ent filed exceptions and a supporting brief, and the
General Counsel filed an answering brief.1
The National Labor Relations Board has delegated
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 de-
cided to affirm the judge’s rulings, findings,2 and con-
clusions3 and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, The International Associa-
tion of Heat and Frost Insulators and Asbestos Work-
ers Local No. 26, Rochester, New York, its officers,
agents, and representatives, shall take the action set
forth in the Order.
Michael Cooperman, Esq., for the General Counsel.
James R. LaVaute, Esq. (Blitman & King), of Syracuse, New
York, for the Respondent.
DECISION
STATEMENT OF THE CASE
JAMES F. MORTON, Administrative Law Judge. The
amended complaint in this case, as further amended at the
hearing,1 alleges that the Respondent, the International Asso-
ciation of Heat and Frost Insulators and Asbestos Workers
Local No. 26, Rochester, New York, has engaged in unfair
labor practices within the meaning of Section 8(b)(1)(A) and
(2) of the National Labor Relations Act (the Act). More par-
ticularly, the Respondent is alleged to have maintained provi-
sions in its collective-bargaining agreement with the Master
Insulators’ Association of Rochester, New York (the Asso-
ciation), which give unlawful preferences to members of the
Respondent when employer-members of the Association hire
or lay off employees. The Respondent is further alleged to
have unlawfully refused to refer the Charging Party, John
Landowski, for employment with employer-members of the
Association, Griffin Insulation Company, Inc. (Griffin) and
Frontier Insulation (Frontier). The answer filed by the Re-
spondent denies that it has violated the Act.2
The hearing was held in Rochester, New York, on April
29 and 30, 1992. On the entire record, including my observa-
tion of the demeanor of the witnesses, and after consideration
of the briefs filed by the General Counsel and the Respond-
ent, I make the following
970 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT
I. JURISDICTION
The pleadings, as amended, establish that Griffin and
Frontier are engaged in the business of installing insulation
at commercial and industrial facilities. Griffin and Frontier,
in their respective operations annually, each meet the Board’s
nonretail jurisdictional standard.
The Association, of which Griffin, Frontier, and other em-
ployers are members, represents these employers in negoti-
ating and administering collective-bargaining agreements
with the Respondent.
The Respondent is a labor organization as defined in the
Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Contract Provisions
The following provisions are in the collective-bargaining
agreement between the Respondent and the Association:
Hire and Lay-Off Procedure
1. Class A Mechanics are those who have been
issued Union membership as Mechanics by [the Re-
spondent].
2. Class B are those qualified Mechanics who are
members of the International Association [within] the
territorial jurisdiction of other Local Unions.
3. Employers shall first employ Mechanics in Class
A who are registered and available for employment,
then Mechanics in Class B. Separate lists shall be main-
tained for registration of Mechanics in each such class.
Classification of Apprentice
4. Class A are those Apprentices who are duly in-
dentured and enrolled in the Joint Apprenticeship Train-
ing Program of the [Respondent] and the Employers
Association.
Class B are those employees of Probationary appren-
tice grade who have not qualified as Mechanics and
have not been indentured and enrolled in the joint Ap-
prenticeship Program of the [Respondent] and the Em-
ployers Association.
5. All Employers shall first employ Apprentices in
Class A who are registered and available for employ-
ment and then may employ Class B employees of pro-
bationary apprenticeship grade providing no indentured
apprentice is unemployed and available for work. No
Class B Probationary Apprentice may continue employ-
ment when any Indentured Apprentice is unemployed.
Lay-Off Order
6. In the laying-off of employees all Mechanics in
Class A shall be treated as having been hired prior to
Mechanics in Class B. All Mechanics in Class B shall
be laid off before any Mechanics in Class A are laid
off. Shops that employ Class B Mechanics shall not
continue their employment [Class B] when Class A
Mechanics are unemployed and available for work.
Similarly all Apprentices in Class A shall be treated
as having been hired before those in Class B and all
those in Class B shall be laid off before those in Class
A. Shops that employ Class B Apprentices shall not
continue their employment [Class B] when Class A Ap-
prentices are unemployed and available for work.
7. No Probationary Apprentice shall begin employ-
ment or if employed remain employed during any pe-
riod where any indentured apprentice is available for
employment but is unemployed.
The Respondent offered testimony by its business man-
ager, William Urquhart, that the actual import of these provi-
sions is to ensure that employees with 10,000 hours of expe-
rience in the trade and who have worked for employers
under the agreement are given preference and that is all that
is intended by the references in the contract to the pref-
erences given to its members. Nonetheless, these contractual
provisions violate the express provisions of the Act and are
not privileged by the Respondent’s assertions of good-faith
or practical considerations. See Manitowac Engineering Co.,
291 NLRB 915, 918 (1988). Moreover the hiring and layoff
provisions are so clearly set out as to outweigh any probative
value alluded to in Urquhart’s extrinsic testimony. See Elec-
trical Workers IBEW Local 11 (Los Angeles NECA), 270
NLRB 424, 425 (1984).
B. Alleged Unlawful Refusals to Refer Landowski
for Employment
The complaint, as amended, alleges that the Respondent,
because Charging Party John Landowski was not a member,
refused requests to refer him to Griffin, to Frontier, and to
other employer-members of the Association for employment.
The Respondent denies that it refused any such request and
it avers that it need not have honored such a request as it
does not operate an exclusive hiring hall. On the latter con-
tention, the General Counsel asserts that the Respondent does
operate an exclusive referral system. Alternatively, the Gen-
eral Counsel argues that the Respondent has violated its duty
to fairly represent Landowski in the unit it represents by not
referring him, even if the Respondent does not maintain an
exclusive referral system.
Landowski is a member of a Carpenters local union in the
Rochester, New York area. This is the area in which the Re-
spondent represents journeymen and apprentices who do in-
sulation work. In 1988, Landowski was laid off from work
as a carpenter. He got a job doing insulation work for an em-
ployer-member of the Association, i.e., Rochester Industrial
Insulation under the following circumstances. Landowski’s
wife was secretary to Ed Stone, the owner of Rochester.
Stone asked William Urquhart, the Respondent’s business
manager, about Landowski then when he was at a meeting
the Respondent was having with the Association. According
to Urquhart, Stone told him that he would like to hire
Landowski as a favor to Landowski’s wife and other mem-
bers of the Association (including Griffin and Frontier)
joined in the request ‘‘trying to sell it to [the Respondent]
. . . so that [they] could get [Landowski] started.’’ Urquhart
consented.
Landowski began working for Rochester Insulation in Oc-
tober 1988 and was laid off in April 1989. He then went to
work for Griffin, according to records furnished by the Re-
spondent, and was with Griffin until he was laid off in July
1989. He returned to Griffin in November 1989 when work
971ASBESTOS WORKERS LOCAL 26 (GRIFFIN INSULATION)
3 In view of this finding, it is unnecessary to pass on the General
Counsel’s alternate contention, that the Respondent violated its duty
of fair representation as to Landowski by having arbitrarily refused
to refer him. Had it been necessary to make a finding thereon, I
would find merit. In that regard, see Carpenters Local 1016 (Ber-
tram Construction), 272 NLRB 539 (1984).
Continued
picked up and worked there until July 1990. In August and
September 1990, he worked for Rochester Insulation. In Sep-
tember, he returned to Griffin and was assigned to an insula-
tion job at a Kodak plant. In March 1991 Kodak told Griffin
that it needed a smaller crew. Kodak’s representative asked
that Landowski be kept on the job. Landowski was a permit
mechanic, that is, one who is neither a member of the Re-
spondent nor of one of its sister locals.
Jay Griffin, the president of Griffin, testified that he then
asked Urquhart if Landowski could stay on. His testimony
was to the effect that if Landowski was retained, an A me-
chanic would have to be laid off. According to Jay Griffin,
Urquhart told him that Landowski could not continue to
work. Griffin then laid off Landowski. His layoff then is not
alleged as violative of the Act.
Landowski testified that, about 4 weeks later, he asked
Urquhart at his office for work and was told that there was
none and that, instead, Urquhart told him that he would call
in mechanics from Buffalo and Syracuse. Landowski testified
further that Urquhart told him that the men did not like
Landowski because he had demanded overtime work.
Urquhart’s account of a discussion he had with Landowski
then was that he told Landowski that he might be able to
give him a definite answer in a few weeks about work op-
portunities, that ‘‘for the next six months . . . it’s real spot-
ty,’’ and that there was work coming up soon in another area
if Landowski ‘‘would want to go down there.’’
There are two versions of another conversation Urquhart
had, this one with Jay Griffin. Griffin testified that, in July
1991 when Kodak wanted more insulation work done, he
called Urquhart and in that discussion he told Urquhart he
would appreciate it if he could get Landowski back. Griffin
related that Urquhart responded that Landowski could not go
back.
Urquhart’s version is as follows. Griffin asked that
Landowski be included in the referral to the Kodak job.
Urquhart replied that he preferred not to refer Landowski be-
cause Landowski does not have ‘‘that much training (and as
Urquhart would) really like to help out some of the Buffalo
guys that are out of work.’’
Urquhart further testified, in substance, that he never ob-
jected to an employer’s hiring anyone on its own. Jay Grif-
fin, on the other hand, testified that, in all his dealings with
Urquhart which include the 10 years he served as president
of the Association, employers ‘‘can hire people that are out
of work as long as they’re A mechanics without going
through [Urquhart]’’ and that they cannot hire on their own
anyone who is not an A mechanic. As noted above, an A
mechanic is one who is a member of the Respondent. Tim-
othy Brady, vice president of Frontier, testified that Fron-
tier’s practice has been to call Urquhart for referrals for all
its employees, except that it can hire members of the Re-
spondent on its own. Brady also testified that, in April 1991,
he asked Urquhart if Landowski was available for referrals
and was told that he would send ‘‘travelers’’ (i.e., members
of the other locals of the Respondent’s International Union)
to Frontier. Brady related that Urquhart then referred only
travelers.
I credit the accounts of Landowski, Griffin, and Brady
where they are in conflict with the testimony of Urquhart.
Their demeanor indicated to me that they readily deferred to
Urquhart. Urquhart’s demeanor suggests that they had good
reason to defer to him in view of his authority over referrals.
At one point in the hearing, he dismissed the General Coun-
sel’s efforts to obtain an answer to a question even though
his own counsel had indicated to him that he should be re-
sponsive. Urquhart persisted, saying that he had answered
that same question ‘‘10 minutes ago, 15 minutes ago,’’ and
that his answer ‘‘was already in the record.’’ His evasion of
the question suggests to me that he feared that an answer
might not have comported with his previous answer. His per-
sistence in declining to answer suggests too that he is accus-
tomed to having the final say.
I find that the employer-members of the Association do
not hire employees unless they are members of the Respond-
ent, without Urquhart’s consent or referral. Urquhart enforces
the express discriminatory hiring criteria, quoted above, set
out in the collective-bargaining agreement between the Re-
spondent and the Association. I further find that Griffin,
Frontier, and Landowski had applied to the Respondent’s
business manager to refer Landowski out to employment and
that their efforts were rejected by him because Landowski
was not a member of the Respondent. Although the dates on
which Griffin and Frontier asked for Landowski’s referral
vary from the dates set out in the complaint, the issues were
fully litigated and the findings thereon are within the ambit
of the amended complaint. In that regard, see All-American
Gourmet, 292 NLRB 1111, 1135 (1985), and cases cited
there.
The primary contention of the General Counsel is that the
Respondent unlawfully refused to honor the requests of Grif-
fin, Frontier, and Landowski, himself, to refer Landowski for
employment from the exclusive referral system it operates.
The Respondent asserts that it does not operate an exclusive
system, noting that there is nothing in its collective-bargain-
ing agreement with the Association pertaining to a referral
system. It notes also that Griffin and Frontier are free to hire
employees on their own. The credited evidence, however, es-
tablishes that Griffin and Frontier have followed a long-es-
tablished practice of hiring all but members of the Respond-
ent by calling Urquhart for referrals. In these circumstances,
I must find that the Respondent has maintained an exclusive
referral system on behalf of the employer-members of the
Association. See Carpenters Local 608 (Various Employers),
279 NLRB 747, 754 (1986), and cases cited there.
The credited evidence further establishes that the Respond-
ent failed to honor the requests to refer Landowski because
he was not a member, either of the Respondent or of one of
its sister locals. It is well settled that a labor organization un-
lawfully discriminates against an applicant by refusing to
refer him from its exclusive referral system based on non-
membership. See Laborers Local 644 (Kellerman Construc-
tion), 278 NLRB 1104 (1986). I thus conclude that the Re-
spondent, in refusing to refer Landowski because he was not
a member, has attempted to cause and did cause Griffin,
Frontier, and other employer-members of the Association to
discriminate against him in violation of the Act.3
972 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
The Respondent offered Urquhart’s testimony that Landowski was
inexperienced. That testimony may relate to a contention that, not-
withstanding any discriminatory motive found, the Respondent
would still not have referred him because of its view that he was
unqualified to perform the work that Griffin, Frontier, and Rochester
had assigned him. Any such contention would be without merit.
4 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended 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 purposes.
5 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
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.’’
CONCLUSIONS OF LAW
1. The Association, Griffin, and Frontier are each an em-
ployer within the meaning of Section 2(2), (6), and (7) of the
Act.
2. The Respondent is a labor organization as defined in
Section 2(5) of the Act.
3. The Respondent has engaged in unfair labor practices
within the meaning of Section 8(b)(1)(A) and (2) of the Act
by having:
(a) Maintained provisions in its collective-bargaining
agreement with the Association which give preference to em-
ployees in hiring and in protection against layoff based on
their being members of the Respondent.
(b) Refused applications by Griffin, Frontier, and
Landowski to refer Landowski to employment, from the ex-
clusive referral system it operates on behalf of employer-
members of the Association, because he is not a member of
the Respondent.
THE REMEDY
Having found that the Respondent has engaged in unfair
labor practices, it should be ordered to cease and desist from
engaging in such activities and to take certain affirmative ac-
tion to effectuate the policies of the Act.
It should be required to notify the Association in writing
that it will not give any force or effect to those provisions
of its collective-bargaining agreement which give job pref-
erences to its members. It should notify the Association,
Griffin, Frontier, and Landowski in writing that it has no ob-
jection to Landowski’s being employed by employer-mem-
bers of the Association without his being referred by the Re-
spondent and it should also notify in writing that it will
honor requests to refer Landowski. It shall make Landowski
whole for any loss of wages and benefits he may have suf-
fered as a result of its refusals to refer him and until it sends
out the written notices to the Association, Griffin, Frontier,
and Landowski as described above. The amount of backpay
due shall be computed in the manner set forth in F. W.
Woolworth Co., 90 NLRB 289 (1950), with interest as pro-
vided for in New Horizons for the Retarded, 283 NLRB
1173 (1987).
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended4
ORDER
The Respondent, the International Association of Heat and
Frost Insulators and Asbestos Workers Local No. 26, Roch-
ester, New York, its officers, agents, and representatives,
shall
1. Cease and desist from
(a) Maintaining those provisions in its collective-bar-
gaining agreement with the Master Insulators’ Association of
Rochester, New York (Association), which give preference to
employees in hiring and in protection against layoff based on
their being members of the Respondent.
(b) Refusing applications by Griffin Insulation Company
(Griffin), by Frontier Insulation (Frontier), and by John
Landowski to refer Landowski to employment, from the ex-
clusive referral system it operates on behalf of employer-
members of the Association, because he is not a member of
the Respondent.
(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 necessary to ef-
fectuate the policies of the Act.
(a) Notify the Association in writing that it will not give
force or effect to those provisions of its collective-bargaining
agreement which give job preferences to employees based on
their membership in the Respondent.
(b) Notify in writing the Association, Griffin, Frontier, and
Landowski that it has no objection to Landowski’s being em-
ployed by any of the employer-members of the Association
without his being referred by the Respondent and also notify
them in writing that it will honor requests to refer Landowski
without regard to union membership.
(c) Make Landowski whole, with interest as described in
the remedy section above, for any loss in wages or benefits
he suffered by the refusal of the Respondent to refer him for
employment because he is not a member of the Respondent.
(d) Post at its office copies of the attached notice, marked
Appendix.5
(e) Furnish to the Regional Director sufficient copies of
the attached notice, signed by an official of the Respondent,
for posting by employer-members of the Association, if they
are willing.
(f) Notify the Regional Director in writing within 20 days
of the date of this Order what steps have been taken to com-
ply with it.
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 vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
WE WILL NOT maintain those provisions in our contract
with the Master Insulators’ Association of Rochester, New
York, which give preference to employees in hiring and in
protection against layoffs based on their being members of
our Union.
973ASBESTOS WORKERS LOCAL 26 (GRIFFIN INSULATION)
WE WILL NOT refuse to honor requests by Griffin Insula-
tion Company or Frontier Insulation to refer to them John
Landowski for employment, or refuse to refer Landowski to
any employer-member of the Association, because
Landowski is not a member of our Union.
WE WILL NOT in any like or related manner restrain or co-
erce you in the exercise of the rights guaranteed you by Sec-
tion 7 of the Act.
WE WILL notify the Association in writing that WE WILL
NOT give force or effect to those provisions of our collective-
bargaining agreement which give job preferences to employ-
ees based on their membership in our Union.
WE WILL notify, in writing, the Association, Griffin, Fron-
tier, and John Landowski that we have no objection to John
Landowski’s being employed by any of the employer-mem-
bers of the Association without his being referred by us and
WE WILL honor requests to refer Landowski without regard
to his union membership.
WE WILL make John Landowski whole, with interest, for
any loss of wages or benefits he suffered by reason of our
failure to refer him for employment because he is not a
member of our Union.
THE INTERNATIONAL ASSOCIATION OF HEAT
AND FROST INSULATORS AND ASBESTOS
WORKERS LOCAL NO. 26, ROCHESTER, NEW
YORK