Billings Local 1172, Brotherhood of Carpenters

National Labor Relations Board - Board Decisions

Sep 26, 1961

133 N.L.R.B. 358 (N.L.R.B. 1961)

358 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in return for overtime worked . He did not question the charge of change in his
and Smith's attitude and work habits . But he testified that the Company had in fact
habitually paid for overtime in the past , this presumably to show that the ex-
planation was concocted and the failure to pay for the 4 days in October was dis-
criminatory . Confronted with payroll records which showed no overtime pay at
any time except for 2 weeks , Anderson now testified that overtime payments were
made in cash , in addition to the regular check which he normally received . We need
not concern ourselves with probabilities , business practice, or tax reasons for
paying employees in so informal and indefinite a manner . Anderson's testimony
can at best be described as uncertain. Apparently without accounting , the Company
bought his supper but allegedly deducted for it ; he could not say how many hours
of overtime he worked or was paid for, or how much he received.
It should be noted that the Company did pay for overtime worked during the
weeks ending August 19 (this was apparently before the Union 's organizing drive
was begun ) and September 9, 1960 . While these two exceptions were not explained,
the payments were listed on the payroll records and were not in cash. The
Platovsky brothers (the father was in a hospital at the time of the hearing) im-
pressed me as frank and ingenuous , and I credit their explanation for the withhold-
ing of holiday pay, and Leo Platovsky 's testimony that overtime was never paid for
in cash.
While this in itself is not determinative, it is relevant to note that , after the
Company learned on September 9 of Anderson 's nand Smith's union membership, it
paid them for the September 22 and 23 holidays . This is consistent with its ex-
planation of refusal to pay only because they refused to continue to work overtime.
In short , the terms and conditions of employment were not discriminatorily changed
by the Company ; rather, the employees first departed from the established practice,
and the Company 's action was retaliatory (for the employees ' acts on the job, not
their union activities ), understandable , and lawful.
This proceeding may have been prompted by failure to date to arrive at a
collective-bargaining agreement ; but the evidence adduced does not warrent findings
of the violations alleged . Nor can counsel , however competent , provide proof of
violation or sufficient basis for inference where the facts indicate the contrary. What-
ever their legitimate concern, I find that the Company 's representatives are guileless
and sincere , and that any preference that their employees not be organized was not
expressed in violative acts.
Upon the basis of the above findings of fact , and upon the entire record in the
case , I make the following:
CONCLUSIONS OF LAW
4 . The Company is engaged in commerce within the meaning of the Act.
2. District 65, Retail, Wholesale and Department Store Union, AFL-CIO, is a
labor organization within the meaning of Section 2(5) of the Act.
3. The Company has not engaged in unfair labor practices within the mean-
ing of Section 8 (a) (1) of the Act.
[Recommendations omitted from publication. ]
Billings Local No. 1172 of United Brotherhood of Carpenters
and Joiners of America , and Montana State Council of the
United Brotherhood of Carpenters and Joiners of America
and United Brotherhood of Carpenters and Joiners of America
and Anthony Ocepek and The Refinery Engineering Company,
Billings Contractors Council , Inc., and Montana Contractors
Association , Inc., Parties to the Contracts . Cases Nos. 19-CB-
518 and 19-CB-530. September 26,1961
SUPPLEMENTAL DECISION AND ORDER
On February 16, 1961, the Board entered its Decision and Order
in this proceeding' in which it found that the Respondents had vio-
3 130 NLRB 307.
133 NLRB No. 44.
BILLINGS LOCAL 1172, BROTHERHOOD OF CARPENTERS 359
lated Section 8(b) (2) and (1) (A) of the Act in that Respondent
Brotherhood had maintained its closed-shop contract with the Com-
pany during the period in question, and Respondent Council and
Respondent Local had maintained a hiring hall agreement with the
Montana Contractors Association during the period in question which
contained none of the hiring hall safeguard provisions set out by the
Board in Mountain Pacific Chapter of the Associated General Con-
tractors, Inc., et al., 119 NLRB 883.
Since issuance of the Board's Decision and Order in this proceed-
ing, the Supreme Court of the United States has, in Local 357, In-
ternational Brotherhood of Teamsters, etc. v. N.L.R.B.,2 denied en-
forcement of a Board order involving application of the so-called
Mountain Pacific standards.
We have carefully reexamined and reconsidered the entire record
in this case in the light of the Supreme Court's decision, and, in view
of the paucity of testimony concerning operation of the hiring hall
in question, hereby vacate that portion of our Decision and Order
having to do with the hiring hall arrangements in effect between the
Montana Contractors Association and Respondent State Council and
its constituent locals, including Respondent Local 1172. We reaffirm
that portion of our Decision and Order having to do with the illegal
closed-shop contract existing between the Company and the Respond-
ent Brotherhood during the 6-month period prior to the filing of
charges herein until terminated on August 20, 1958, and the remedy
already ordered in that connection.3
ORDER
Upon the entire record in the case, and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, United Brother-
hood of Carpenters and Joiners of America, its officers, agents, repre-
sentatives, successors, and assigns, shall :
A. Cease and desist from :
(1) Executing, performing, maintaining, or otherwise giving effect
to provisions of any agreement or understanding with The Refinery
2 365 U.S. 667.
8 Member Brown would dismiss the entire case for the following reasons: The Supreme
Court's aforementioned decision has removed the principal theory upon which this case
was tried , and the only remaining aspect of the original case concerns the alleged in-
validity of a contract which was superseded in or before August 1958 during the
"moratorium" mentioned by the Trial Examiner . There is no showing of individual dis-
crimination during the operative period of the contract , nor is there any claim of dis-
crimination since the contract was superseded . Upon consideration of these circumstances,
and wholly apart from reservations that the disputed contract is unlawful ( see Member
Murdock 's dissenting opinion in Marley Company, 117 NLRB 107 , 119-122 ), Member
Brown considers further proceedings unwarranted.
360 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Engineering Company, or with any other employer whose operations
affect commerce within the meaning of the Act, which conditions the
hire of employees or the retention of their employment upon member-
ship in the Respondent Union except to the extent that membership
therein as the condition of continuing in employment may be required
on or after 30 days by an agreement permitted by the proviso to Sec-
tion 8(a) (3) of the Act, as modified by the Labor-Management Re-
porting and Disclosure Act of 1959.
(2) In any like or related manner, restraining or coercing em-
ployees in the exercise of their rights guaranteed by Section 7 of the
Act, except as authorized by Section 8(a) (3) of the Act, as amended.
B. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(1) Post at its offices and publish in its official publications of
general circulation among members, copies of the notice hereto at-
tached marked "Appendix." 4 Copies of said notice, to be furnished
by the Regional Director for the Nineteenth Region, shall, after
being duly signed by representatives of Respondent Brotherhood, be
posted by it immediately upon receipt thereof, and be maintained by
it for a period of 60 consecutive days thereafter, in conspicuous places,
including all places where notices to members are customarily dis-
played in its offices. Reasonable steps shall be taken by the Respond-
ent to insure that said notice is not altered, defaced, or covered by
other material. Also the said notice, after having been duly signed
as directed above, shall be published by the Respondent in the next
succeeding issue of publications normally issued by it and distributed
generally among its membership.
(2) Additional copies of the said notice herein marked "Appendix,"
to be furnished by the Regional Director for the Nineteenth Region,
shall be signed by a representative of the Respondent Brotherhood
and forthwith returned to the said Regional Director. These notices
shall be posted-Refinery willing-in places where notices to em-
ployees of Refinery, covered by Respondent's contract found herein to
have exceeded lawful union-security provisions, are customarily
posted.
(3) Notify the Regional Director for the Nineteenth Region, in
writing, within 10 days from the date of this Order, what steps have
been taken in compliance.
The complaint herein is hereby dismissed insofar as it alleges the
existence of an unlawful hiring hall arrangement and practice within
the 6-month period prior to filing of charges herein until terminated
4In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order "
BILLINGS LOCAL 1172, BROTHERHOOD OF CARPENTERS 361
on April 30, 1958, between Respondent State Council and its con-
stituent local unions in Montana, including Respondent Local 1172,
and the Montana Contractors Association.
CHAIRMAN McCuLLOCH and MEMBER LEEDOM took no part in the
consideration of the above Supplemental Decision and Order.
APPENDIX
To ALL MEMBERS OF UNITED BROTHERHOOD OF CARPENTERS AND
JOINERS OF AMERICA
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our members that :
WE WILL NOT enter into, maintain, or enforce any contract,
agreement, understanding, or practice with The Refinery En-
gineering Company, or any other employer over whom the Board
will assert jurisdiction, which unlawfully conditions the hire of
applicants for employment or retention of employees in employ-
ment by such employer upon clearance or approval by us, except
to the extent that membership as the condition of continuing in
employment may be required on or after 30 days by an agreement
permitted by the proviso to Section 8 (a) (3) of the Act, as modi-
fied by the Labor-Management Reporting and Disclosure Act
of 1959.
WE WILL NOT in any like or related manner restrain or coerce
employees of The Refinery Engineering Company, or any other
employer, in the exercise of rights guaranteed in Section 7 of the
Act, except as authorized by Section 8(a) (3) of the Act, as
amended.
Signed copies of this notice have been mailed to the National
Labor Relations Board's Regional Director for the Nineteenth Region
for posting by The Refinery Engineering Company, the said employer
willing, in all locations where notices to their employees are custom-
arily posted.
UNITED BROTHERHOOD OF CARPENTERS
AND JOINERS OF AMERICA,
Labor Organization.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.