Bricklayers, Local 7

National Labor Relations Board - Board Decisions

May 28, 1976

224 N.L.R.B. 206 (N.L.R.B. 1976)

206 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Bricklayers Local No 7, Bricklayers, Masons and
Plasterers ' International Union of America, AFL-
CIO (Masonry Builders , Inc.) and Charles J To-
ney Case 20-CB-3436
May 28, 1976
DECISION AND ORDER
By CHAIRMAN MURPHY AND MEMBERS FANNING
AND PENELLO
On January 6, 1976, Administrative Law Judge
Henry S Salim issued the attached Decision in this
proceeding, finding that Respondent did not violate
Section 8(b)(1)(A) and (2) of the Act and recom-
mending that the complaint be dismissed in its en-
tirety Thereafter, the General Counsel filed excep-
tions to the Decision and a supporting brief
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
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge only to
the extent consistent herewith
The complaint alleges that Respondent violated
Section 8(b)(2) and (1) of the Act by causing the Em-
ployer to terminate the employment of Charles J To-
ney because of Toney's lack of membership in Re-
spondent and/or for reasons other than his failure to
tender periodic dues and initiation fees The Admin-
istrative Law Judge concluded that Respondent's ac-
tions in seeking Toney's termination were not inher-
ently unreasonable and that General Counsel failed
to carry his burden of proof in that he did not pro-
duce evidence of improper motivation or discrimina-
tory practices in Respondent's decision to treat To-
ney as a new employee We do not agree
Toney, a member of Respondent's sister local, was
hired by Masonry Builders, Inc, in April 1972, under
an accepted procedure, when the Respondent was
unable to fill the Employer's manpower needs
through its exclusive hiring hall Thereafter, Toney
worked continuously until September 6, 1974, at
which time he requested of the Employer and was
granted a vacation leave for 4 to 6 weeks The stew-
ard was notified of this and did not protest At the
end of the original vacation period, Toney called the
Employer to request an extension of his leave be-
cause of an automobile breakdown The Employer
granted the extension and assured Toney that he
would have a job when he returned Respondent ap-
parently was not notified of this extension On Fri-
day, November 8, 1974, six employees, members of
Respondent, were laid off due to lack of work Toney
returned to the job on Monday, November I 1 The
other bricklayers refused to work while Toney was
on the job Respondent's business agent, Pat Cana-
van, told the Employer that he had hired a new man
(Toney) from "outside the local jurisdiction" and
that if Toney was not terminated the job would be
shut down The Employer sent Toney home and the
bricklayers returned to work
The presumptive effect of a union's causing an em-
ployee to be discharged is the encouragement of
union membership 1 This is so because such action
dramatically demonstrates the union's power over
the employee and its ability to affect his livelihood
Given the presumptive result, the union violates Sec-
tion 8(b)(2) and (1)(A) unless the disruption of em-
ployment was pursuant to the enforcement of a valid
union-security contract provision or was necessary to
the performance of the union's representative func-
tions
Toney's return cannot be viewed as other than an
ordinary return from vacation According to the
Employer's uncontradicted testimony, several other
employees had returned to the job from vacation
without incident Although Toney's vacation was rel-
atively long, it is not uncommon in the industry for
employees to take leaves of 2 months' duration or
with no fixed date of return There also is no evi-
dence in the instant case of contract provisions or
area practice which require that employees go
through the hiring hall when they return from vaca-
tion leaves
Thus, there was no legitimate reason for
Respondent's actions in demanding Toney's termina-
tion, since Toney's return from vacation did not con-
stitute an attempt to bypass the Union's hiring hall
and could not be reasonably viewed as such Toney
merely took a vacation for a period which is not un-
usual in the industry There is nothing in this circum-
stance which gave Respondent a legitimate basis for
the action it took and no other justification has been
presented In the absence thereof Respondent's ac-
tions in obtaining the discharge of Toney were un-
lawful We would so conclude even though Respon-
dent had no intent to encourage union membership
by interfering with Toney's employment The exer-
cise of control over employment opportunity other
i The Radio Officers Union of the Commercial Telegraphers Union AFL
[A H Bull Steamship Company] v N L R B 347 U S 17 44-45 (1954)
International Union of Operating Engineers, Local 18 AFL-CIO (Ohio Con
tractors Association) 204 NLRB 681 (1973), remanded 496 F 2d 1308 (C A
6 1974) 220 NLRB 147 (1975), International Association of Heat & Frost
Insulators & Asbestos Workers AFL-CIO Local 22 (Rosendahl, Inc) 212
NLRB 913 915-916 (1974)
224 NLRB No 19
BRICKLAYERS , LOCAL 7
than pursuant to a valid union-security clause or
where necessary to the effective performance of its
function of representing its constituency necessarily
has that effect 2
International Association of Machinists and Aero-
space Workers, San Francisco Machinists Lodge No
68 (West Winds, Inc), 205 NLRB 132 (1973), re-
versed and remanded sub nom Kai Kling v N L R B,
503 F 2d 1044 (C A 9, 1975), relied on by the Ad-
ministrative Law Judge, is distinguishable There the
employee, who was a member of the respondent
union, was initially granted a 2-month leave of ab-
sence so that he could explore personal business op-
portunities His leave was extended on two occa-
sions, despite the union's protestation, and he was
away from the job for a total of 5 months Unlike the
situation here, the union in West Winds was legiti-
mately concerned about protecting the relative se-
niority and job security of unit employees who re-
mained on the job during a fellow employee's
protracted leave of absence for personal business
reasons Also, there the union did not threaten to
take any coercive action in seeking a resolution of
the problem and did not seek to cause the employee's
termination
Furthermore, we conclude that Respondent in fact
demanded Toney's discharge because he was not a
member, in violation of the Act Thus, Respondent
demanded Toney's discharge on the Monday follow-
ing the Friday layoff of six of its members In taking
this action, Respondent's business agent, Pat Cana-
van, complained that the Employer had hired a man
"from outside the local jurisdiction " The absence of
any legitimate reason for Respondent's demand for
Toney's termination, the close proximity in time to
layoff of Respondent's members,' and the reference
to Toney's being outside the jurisdiction established
that Respondent would not have taken this action if
it had not considered it an effective means of getting
rid of an outsider, i e , nonmember, in order to place
one of its members on the job
For the reasons set forth above, we conclude that
Respondent violated Section 8(b)(1)(A) and (2) of
the Act when it caused Masonry Builders, Inc, to
terminate the employment of Charles J Toney
THE REMEDY
Having found that Respondent engaged in unfair
2 Radio Officers Union, supra, International Union of Operating Engineers,
Local 18, AFL-CIO supra, Rosendahl Inc supra
3 In early 1974, Toney attempted to join Respondent when he was in-
formed that if an employee from outside Respondent's jurisdiction was laid
off he could not return Respondents business agent confirmed the infor-
mation and rejected Toney s attempts to join and to pay dues because Re-
spondent did not need any more bricklayers
207
labor practices proscribed by Section 8(b)(1)(A) and
(2) of the Act, it will be ordered that Respondent
cease and desist from such conduct and take certain
affirmative action designed to effectuate the policies
of the Act
The Respondent discriminated against Toney by
causing the Employer to terminate him on November
11, 1975 Therefore, it will be ordered that Respon-
dent notify the Employer in writing, and furnish a
copy of such notice to Toney, that it has withdrawn
its objection to Toney's employment without preju-
dice to his seniority and other rights and privileges,
and that it recommends such unconditional rein-
statement In addition, Respondent shall make To-
ney whole for any loss of pay or other benefits he
may have suffered by reason of the unlawful discrim-
ination against him, by paying to him a sum of mon-
ey equal to that which he would have earned from
the date of his termination on November 11, 1975, to
5 days after the date Respondent notifies the Em-
ployer and Toney, in writing, that it has no objec-
tions to the employment of Toney, and that it recom-
mends his unconditional reinstatement, less his net
earnings elsewhere during said period Such loss of
earnings shall be computed with interest in the man-
ner set forth in F W Woolworth Company, 90 NLRB
289 (1950), and Isis Plumbing & Heating Co, 138
NLRB 716 (1962)
CONCLUSIONS OF LAW
I Masonry Builders, Inc, is an employer engaged
in commerce and in operations affecting commerce
within the meaning of Section 2(6) and (7) of the Act
2 Bricklayers Local No 7, Bricklayers, Masons
and Plasterers' International Union of America,
AFL-CIO, Respondent herein, is a labor organiza-
tion within the meaning of Section 2(5) of the Act
3 By attempting to cause and by causing Mason-
ry Builders, Inc , to discriminate against Charles J
Toney in violation of Section 8(a)(3) of the Act, Re-
spondent has violated Section 8(b)(2) and (1)(A) of
the Act
4 The aforesaid unfair labor practices affect com-
merce within the meaning of Section 2(6) and (7) of
the Act
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the Respondent,
Bricklayers Local No 7, Bricklayers, Masons and
Plasterers' International Union of America, AFL-
CIO, San Francisco, California, its officers, agents,
and representatives, shall
208 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1 Cease and desist from
(a) Causing or attempting to cause Masonry
Builders, Inc, or any other employer, to discriminate
against Charles J Toney, or any other employee, in
violation of Section 8(a)(3) of the Act because of his
membership status in the Union
(b) In any other manner restraining or coercing
employees or applicants for employment in the exer-
cise of rights guaranteed in Section 7 of the Act
2 Take the following affirmative action which the
Board finds necessary to effectuate the purposes of
the Act
(a) Make whole Charles J Toney for any loss of
pay he may have suffered by reason of the discrimi-
nation practiced against him in the manner set forth
in The Remedy section of this Decision
(b) Preserve and, upon request, make available to
the Board or its agents, for examination and copying,
all payroll records, social security payment records,
work lists, timecards, personnel records and reports,
and all other records necessary to analyze the
amount of backpay due under the terms of this Or-
der
(c) Notify Masonry Builders, Inc, in writing, with
a copy to Charles J Toney, that it has no objection
to the hiring or employment of Toney, and recom-
mends that he be unconditionally reinstated to his
former job or, if it no longer exists, to a substantially
equivalent position without loss of benefits or senior-
ity
(d) Post conspicuously, at all places where notices
to employees, applicants for referral, and members
are posted, copies of the attached notice marked
"Appendix " 4 Copies of said notice, on forms pro-
vided by the Regional Director for Region 20, after
being duly signed by the Union's representative, shall
be posted by the Union immediately upon receipt
thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all
places where notices to its members are customarily
posted Reasonable steps shall be taken by the Union
to insure that said notices are not altered, defaced, or
covered by any other material
(e) Forthwith mail to the Regional Director for
Region 20 signed copies of said notices for posting
by Masonry Builders, Inc, if it be willing, in places
where notices to its employees are customarily post-
ed
(f) Notify the Regional Director for Region 20, in
writing, within 20 days from the date of this Order,
4In the event that 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 "
what steps the Respondent has taken to comply here-
with
APPENDIX
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing in which both sides had the opportu-
nity to present their evidence, the National Labor
Relations Board has found that we, Bricklayers Lo-
cal No 7, Bricklayers, Masons and Plasterers' Inter-
national Union of America, AFL-CIO, violated the
National Labor Relations Act and has ordered us to
post this notice and abide by its terms
WE WILL NOT cause or attempt to cause Ma-
sonry Builders, Inc, or any other employer, to
discriminate against Charles J Toney, or any
other employee, in violation of Section 8(a)(3) of
the Act because of his membership status in the
Union
WE WILL NOT in any other manner restrain or
coerce employees or applicants for employment
in the exercise of rights guaranteed in Section 7
of the Act
WE WILL make whole Charles J Toney for any
loss of pay, with interest, suffered by him by
reason of the discrimination practiced against
him
WE WILL notify Masonry Builders, Inc, in
writing, with a copy to Charles J Toney, that we
have no objection to the hiring or employment
of Charles J Toney and will recommend his un-
conditional reinstatement to his former job or, if
it no longer exists, to a substantially equivalent
position without loss of benefits or seniority
BRICKLAYERS LOCAL No 7, BRICKLAYERS,
MASONS AND PLASTERERS' INTERNATIONAL
UNION OF AMERICA, AFL-CIO
DECISION
STATEMENT OF THE CASE
HENRY S SAHM, Administrative Law Judge This pro-
ceeding was heard at San Francisco, California, on August
5, 1975,1 pursuant to a charge filed on March 19, and a
complaint issued May 29 The primary issue is whether the
Respondent Union violated Section 8(b)(1)(A) and 8(b)(2)
by engaging in a discriminatory practice whereby it is al-
1 Except where otherwise specified all dates herein refer to the year 1975
BRICKLAYERS , LOCAL 7
leged that employee Toney was discharged because he was
not a member of Respondent Local 7 The Union denies it
violated the Act when it demanded that Masonry Builders,
Inc, the employer of Toney, terminate him There are no
indications, in this proceeding, of racial overtones against
Toney, who is black
THE BUSINESS OF THE EMPLOYER AND THE LABOR ORGANIZATION
INVOLVED
Masonry Builders, Inc, herein called the Employer, a
California corporation with a place of business located in
Los Angeles, California, is engaged in the building and
construction industry as a mason contractor During the
past year, in the course and conduct of its business opera-
tions, the Employer performed services valued in excess of
$50,000 for firms which meet the Board's applicable direct
standards for the assertion of jurisdiction The Employer
is, and at all times material herein has been, a member of
Mason & Builders Association of California, Inc, herein
called the Association
The Association, a California corporation with an office
in San Francisco, California, is, and at all times material
herein has been, a voluntary association of employers en-
gaged in mason contracting At all times material herein,
the Association has existed for the purpose, inter alga, of
representing its member-employers in collective bargaining
and in negotiating and administering collective-bargaining
agreements in behalf of its member-employers with various
labor organizations, including Respondent
During the past year, member-employers of the Associa-
tion, in the course and conduct of their business opera-
tions, received at their respective places of business in Cali-
fornia goods and materials valued in excess of $50,000
which were shipped to them directly from suppliers located
outside the State of California It is admitted and found
that the corporate Employer is, and at all times material
herein has been, an employer engaged in commerce and in
operations affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act
Respondent Local 7 of the Bricklayers Union, AFL-
CIO, is a labor organization within the meaning of Section
2(5) of the Act
A The Facts
After the General Counsel presented his evidence, the
Respondent rested The facts found herein, therefore, are
not in dispute and can be summarized as hereinafter stat-
ed
The above-named Employer, Masonry Builders, Inc,
has a contract with the city of San Francisco for laying
bricks on the sidewalks of Market Street Toney, the al-
leged discriminatee, has been employed on this project
since April 1972 The bricklayers employed on this project
are supplied by San Francisco Local 7 of the Bricklayers
Union, the Respondent herein, in accordance with a collec-
tive-bargaining agreement between said Union and the
Mason & Builders Association of California, Inc, of which
the above-named Employer is a member In April 1972,
when Local 7 was unable to supply a sufficient number of
209
bricklayers for this municipal project, the Employer con-
tacted Local 8 of the Bricklayers Union which is headquar-
tered in Oakland, California Local 8, the sister local of the
Respondent Union, then notified Toney, a member of Lo-
cal 8 since December 1969, of the San Francisco job Re-
spondent Local 7 did not object to the Employer contact-
ing its sister Local 8 as the contract provides that, in the
event Local 7 cannot supply sufficient bricklayers, the Em-
ployer can employ men from any source It was elicited on
the Employer's cross-examination that, even though he
knows Local 7 has no available bricklayers to refer, never-
theless, he must first contact Respondent's union hiring
hall However, it is the practice of Local 7, when it cannot
supply the number of men requested by an employer, not
to object if recourse is had to Local 8 to supply the brick-
layers "as a matter of courtesy "
Toney was hired by the Employer in this proceeding
sometime in April 1972 and has worked continuously for
about 2-1/2 years on the Market Street project without a
vacation until Friday, September 6, 1974, inclusive, when
he asked his Employer for a "vacation" of 4-6 weeks to
begin on Monday, September 9, in order to visit his parents
in Ohio and Alabama The Employer granted his request
and told him that when he returned his job would be wait-
ing for him Toney also notified Joe Siino, the Market
Street project union job steward, that he was taking a 4-
6-week vacation He did not return to the job until Novem-
ber 11, 9 weeks later, but he did telephone his foreman,
Ray Johnson in the interim and asked him to notify the
Employer that he had "car trouble and that I'd be back in
a week or so " On Friday, November 8, 1974, at the end of
their shift, and 3 days before Toney reported for work on
November 11, 6 of the 20 bricklayers, who were working
on the Market Street job, all members of Local 7, were laid
off by the Employer
When Toney reported for work at 8 a in on November
11, the Employer put him to work The Employer testified
that even though six bricklayers were laid off for lack of
work on November 8, when Toney returned on November
11, he felt he had a prior commitment to Toney "because I
told him before he went on his vacation that he would have
a job when he came back" When Toney commenced
working, the other bricklayers who were on the construc-
tion site ready to work, on orders from their union job
steward, refused to work At 8 15 a in, the Employer was
notified by a Local 7 union official "to get Toney off the
job get rid of him and if you don't, Local 7 bricklayers
will not work " The Employer told the union official that
Toney had returned from his vacation and that he was not
a new hire The union official insisted that Toney must be
discharged because the Employer had hired a new man
from outside Local 7's jurisdiction without first going
through its hiring hall The Employer then notified Toney
of the situation, whereupon he was terminated and left the
project site, at which time the other bricklayers, members
of Respondent Local 7, commenced working
B Discussion
The casual, unstable, and intermittent nature of employ-
ment in the construction industry often makes it needful
210 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that there be some place or means through which crafts-
men can be hired, frequently on short notice Employers
and unions have recognized this problem by contracting
frequently on a multiemployer basis, as in this proceeding,
for unions to operate hiring halls through which employees
seeking work obtain referrals to whatever jobs may be
open Such a recruiting arrangement between contractors
and a union is called a referral system 2 The union's office
or hiring hall is the location from which it fills requests for
workers Normally, the method used to fill requests from
contractors is a rotation system of referrals designed to
assure fairness in treatment of applicants requesting refer-
rals to jobs Under this arrangement when a workman is
unemployed, he registers at the union office where the re-
gistrants are listed in order of date of registration Oppor-
tunities for employment and for obtaining employees are
directly affected by the priority standards established in
the hiring hall When the contractor contacts the union hall
and advises the union's business representative of his re-
quirements, the business representative usually selects from
the top of the register or out-of-work list the workman qua-
lified for the job, gives him a referral slip, and dispatches
him to the jobsite of the contractor where his services are
required
The inevitable coercive effect upon employees of this
referral system of "unfettered union control over all hir-
ing" had over a period of time caused congressional con-
cern 3 The evil which Congress has sought to eradicate is
the encouragement or discouragement of union member-
ship by any discrimination Moreover, Section 8(b)(l)(A),
sometimes characterized as the counterpart of Section
8(a)(1) of the Wagner Act, makes it an unfair labor prac-
tice for a union to restrain or coerce employees in the exer-
cise of their statutorily guaranteed Section 7 rights
Section 8(b)(l)(A) and 8(b)(2) provides that it shall be an
unfair labor practice for a union to cause or attempt to
cause an employer to discriminate against employees in
regard to hire or tenure of employment or any term or
condition of employment With respect to job applicants,
the decisions of the Board and the courts hold that the test
of the legality of a referral system is whether in its opera-
tion, or effect, it results in unlawful discrimination to appli-
cants for employment 4 In determining whether discrimina-
tion, or an attempt to cause it, falls within the statutory
condemnation, it is the "true purpose" or "real motive"
that constitutes the test 5
A nondiscriminatory hiring hall operates to serve both
members and nonmembers of the union An employee
seeking a job referral is not required either to become a
2 For the legislative history of the Labor Management Relations Act of
1947 with respect to referral systems see S Rep 105 80th Cong 1st Sess
6 (1947) 93 Cong Rec 3836 (1960)
See Mountain Pacific Chapter of the Associated General Contractors Inc
et al 119 NLRB 883 896 (1957) and Local 357 IBT [Los Angeles Seattle
Motor Express] v N L R B 365 U S 667 (1961) Cf N L R B v Lovvorn
d/b/a Georgia Twine & Cordage Co 172 F 2d 293 295 (C A 5 1949) The
preamble to the 1947 Taft-Hartley Act states that one of the legislative
purposes of this statute is to protect the right of individual employees in
their relations with labor organizations
4 N L R B v F H McGraw & Co 206 F 2d 635 (C A 6 1953) enfg 99
NLRB 695 (1952)
5 Local 357 IBT v N L R B supra 675
member of the union or to tender agency shop payments to
the union in lieu of membership Settled law establishes
that, subject to one sharply defined exception,6 the power
of a union or employer to discriminate in employment has
been annulled by the Act so that the rights of an applicant
for employment may not be abridged nor may he be sub-
jected to job discrimination This can be established by a
showing that any disparate treatment could reasonably be
said to have encouraged or discouraged the desire of em-
ployees to unionize 7 For example, a refusal to list mem-
bers of a sister local at the hiring hall,' threats to blackball
members of a sister local who refused to leave the union
hiring hall when work was slack,9 and refusing to refer a
nonunion applicant for work 10 are all examples of illegal
discriminatory practices proscribed by Section 8(b)(2) of
the Act Preference in referrals do not violate the statute,
however, if based upon objective criteria such as area resi-
dency,lt work experience in the mdustry,12 or qualifying
through a test administered by the union 13 Moreover, the
Board has held, citing as its authority, Local 357, Teamsters
v N L R B, 365 U S 667 (1961), that neither an employer
nor a union violates Section 8(a)(3) or 8(b)(2) of the Act, if
an applicant is required to obtain a referral from the union
as a condition precedent to employment where the union
and the employer have a nondiscriminatory agreement
obligating use of the hiring hall and the hall is operated in
a nondiscriminatory manner 14
In the case at bar, it is alleged that Respondent Union
Local 7 violated Section 8(b)(1)(A) and 8(b)(2) of the Act
by causing the Employer to discharge Toney, the alleged
discrimmatee Before considering this alleged discrimina-
6 This exception permits a union through a valid union-security agree-
ment to compel payment of union dues See Secs 7, 8(a)(3), and 8(b)(2) and
the proviso to Sec 8(a)(3) with respect to a union-security provision See
also Sec 14(b)
J Radio Officers' Union [Bull Steamship Co] v N L R B, 347 U S 17 at 51
(1954)
8 Brotherhood of Teamsters & Auto Truck Drivers Local 70 IBT (California
Trucking Assn) 188 NLRB 305 (1971)
9 Plumbing and Steamfitters Local 100 (The McCally Co) 188 NLRB 951
(1971)
10 United Brotherhood of Carpenters & Joiners of America Local 117 (Peter
Kiewit Sons Co) 189 NLRB 690 (1971)
it J Willis & Son Masonry Co 191 NLRB 872 (1971), Metropolitan Dis
trict Council of Carpenters (Jamestown Metal Products Co) 194 NLRB 159
(1971)
12 Intl Union of Operating Engineers, Local 302 (Mountain Pacific Chapter
of the Associated General Contractors of America Inc) 186 NLRB 21 (1970)
General Drivers and Helpers Local Union No 229 IBT (Associated Transport
Inc) 185 NLRB 631 (1970)
13 Local #42 of the Intl Assn of Heat and Frost Insulations and Asbestos
(Catalytic Constr Co), 164 NLRB 916 (1967) Local Union No 269 Intl
Brotherhood of Electrical Workers (Natl Electrical Contractors Assn) 149
NLRB 768 (1964)
14 Hoisting and Portable Engineers, Local 302 (West Coast Steel Works)
144 NLRB 1449 (1963) In that case the subcontractor and the union had
an informal hiring hall agreement under which the subcontractor would
obtain clearance or referral of job applicants from the union The Board
found that this hiring hall procedure imposed by such arrangement was not
in itself discriminatory or operated in a discriminatory manner Cf
N L R B v I L W U [Pacific Maritime Assn ], 210 F 2d 581 (C A 9 1954)
N L R B v I L W U Local 10 [Pacific Maritime Assn J 214 F 2d 778 (C A
9 1954) NLRB v Waterfront Employers of Washington 211 F 2d 946
(C A 9 1954) Construction Specialties Co 102 NLRB 1542 (1953) enfd
208 F 2d 170 (C A 10 1953), George D Auchter Co, 102 NLRB 881 (1953)
enfd 209 F 2d 273 (C A 5, 1924) Enterprise Industrial Piping Co 117
NLRB 995 (1957)
BRICKLAYERS , LOCAL 7 211
tion, the contractual provision applicable in this case, arti-
cle VIII of the collective-bargaining agreement between
Mason & Builders Association, Inc, the multiemployers
bargaining group of which Masonry Builders, the Employ-
er, is a member , and Respondent Bricklayers Local 7, reads
in pertinent part as follows
Any outside employer coming into this jurisdiction
shall be permitted to bring with him one foreman All
other employees shall be referred by the Union In the
event the Union is unable to supply an employee with-
in two (2) business days after a request, the employer
shall be free to hire other employees from any source
Outside employers shall report all jobs within the ju-
risdiction of the local union to the local union twenty-
four (24) hours prior to the start of said job 11
C Contentions
The Respondent claims that the General Counsel failed
to establish by a preponderance of the evidence that Toney
was discriminated against in violation of Section 8(b)(2)
Respondent argues that it was merely enforcing article
VIII of the collective-bargaining agreement when it sought
Toney's termination as it was a "rehire" after 9 weeks' ab-
sence, and that the Union's action was not taken because
Toney failed to hold membership in Local 7 Therefore,
argues Respondent, illegal motivation has not been proved
by a preponderance of the credible evidence and, there-
fore, this proceeding must be dismissed
The Employer testified that the official of the Respon-
dent Union told him that when Toney returned to the con-
struction site after 9 weeks' absence from the job that he
had "hired a new employee" and under the contract's pro-
visions this was impermissible as it is necessary under the
circumstances here present for the Employer to contact
first the union hiring hall and advise the Union's business
agent of his requirements for bricklayers Accordingly, Re-
spondent Local 7 argues that failure to contact the Union
before putting Toney to work on November 11 violated the
parties' collective-bargaining agreement as he was not dis-
patched from the hiring hall with a required referral slip
Finally, Respondent's attorneys state that Toney cannot
"return" to his "former" Market Street j ob "from a layoff "
The General Counsel, on the other hand, maintains that
inasmuch as Respondent Local 7's union steward had been
notified by Toney before he had left on his vacation that
the Union's refusal to permit him to resume his job when
he returned 9 weeks later was for reasons which were "ir-
relevant, invidious, or unfair" and tended to encourage
union membership thereby establishing the prerequisite for
a violation of Section 8(b)(2) 16 Moreover, General Counsel
argues that the denial of Toney's previous request of Re-
spondent in 1973 to allow him to join Local 7 or to pay
"IU dues," which would have given Toney the privilege of
15GC Exh2
16 Miranda Fuel Co, 140 NLRB 181 (1962), enforcement denied 326 F 2d
172 (C A 2 , 1963) The court in Miranda, supra, affirmed the Board's hold
mg that unfair , irrelevant , or invidious discrimination against an employee
can constitute an unfair labor practice under Sec 8 of the Act See 284 F 2d
861 (C A 2, 1960), and 356 U S 763 (1961)
being referred to jobs from Respondent Local 7's hiring
hall, tended to illegally encourage membership in Respon-
dent Union
D Conclusions
It is well settled that "the policy of the Act is to insulate
employees' jobs from their organizational rights " Thus,
Section 8(a)(3) and 8(b)(2) was designed to allow employ-
ees to freely exercise their right to join unions, "be good,
bad, or indifferent members, or abstain from joining any
union without imperiling their livelihood " 17 In fur-
therance of this policy, Section 8 (b)(2) makes it an unfair
labor practice for "a labor organization or its agents to
cause or attempt to cause" employer discrimination against
an employee "in regard to hire or tenure of employment to
encourage or discourage membership in any labor organi-
zation" in violation of Section 8(a)(3) Similarly , Section
8(b)(1)(A) of the Act makes it an unfair labor practice for
a union "to restrain or coerce employees in the exer-
cise of [their] rights " The Act "aims at every practice, art,
source or institution which in fact is used to encourage and
discourage union membership by discrimination in regard
to hire or tenure, term or condition of employment " 18
A discriminatory referral for any reason except to en-
force a valid union-security provision under Section 8(a)(3)
is violative of Section 8(b)(1)(A) and (2) of the Act unless
the lack of referral is pursuant to objective criteria estab-
lished and spelled out in a collective-bargaining agreement
In determining whether discrimination, or an attempt to
cause it, falls within the statutory condemnation, it is the
"true purpose" or "real motive" that constitutes the test 19
The Supreme Court established in Local 357, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America v N L R B, 365 U S 667 (1961), that a
hiring hall arrangement between employer and union is not
per se illegal However, proof of discriminatory referral
practices that tend to encourage union membership will
render the hiring hall arrangement illegal
The question presented in the instant case is whether the
Union violated Section 8(b)(1)(A) and (2) of the Act by
engaging in an alleged discriminatory practice to effect em-
ployee Toney's discharge by requiring him to reregister
with the hiring hall after a leave of absence of 9 weeks
Recently, in a case factually similar to the case at bar,
the Board found no violation of Section 8(b)(1)(A) and (2)
against the union 20 In that proceeding the employer and
the union had a collective-bargaining agreement which had
no provision for leaves of absence The employer who op-
erated a plant (not a construction site) originally granted
17 Radio Officers Union [A H Bull Steamship Co ] v N L R B 347 U S
17, 40 (1954)
18 Local 357, International Brotherhood of Teamsters [Los Angeles- Seattle
Motor Express] v N L R B, 365 U S 667-676 (1961) Accord N L R B v
International Brotherhood of Electrical Workers [Walsh Consir Co] 301
F 2d 824 825 (C A 9, 1962) N L R B v International Association of Ma
chinists Aeronautical Industrial Lodge 727 [Menasco Mfg Co ], 279 F 2d
761 765-766 (C A 9, 1960), cert denied 364 U S 890 (1960)
19 Local 357 Teamsters v N L R B supra
20 Int 'l Assn of Machinists and Aerospace Workers Lodge 68 (West Winds
Inc) 205 NLRB 132 (1973), remanded sub nom Ka] Kling v N L R B 503
F 2d 1044 (CA 9 1975)
212 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the employee a leave of absence which he later extended
for an additional 2 months so that the employee could take
care of his personal business No direct notice was given to
the union by the employee as to his whereabouts or inten-
tions to return , although the employee did put his request
for an extension in writing at the employer 's request and
this, in turn , was forwarded by the employer to the union
With the employer's knowledge and concurrence , the em-
ployee actually prolonged the first grant of extended leave
two more times and was gone from his job for a total of 5
months The employer considered this a leave of absence
and stated that the employee was expected to return to
work and, when he did so , it would be with full seniority
and other job rights The union objected to this and ad-
vised the employer it would consider the employee a new
employee on his return to his job in the plant Months
later, the union agreed to his return to work with full se-
niority , but it alleged a constructive discharge for the inter-
im period whereupon 8(b)(1)(A) and (2) charges were filed
against the union by the employee
The Board found in Machinists Local 68, supra , that the
union had a valid interest "in protecting the relative senior-
ity and job security of employees who remain on the job
during a fellow employee's protracted leave of absence
When he returns to the unit , usually to his own job,
he bumps out the employee who has been temporarily as-
signed to his job he has been accumulating seniority
and thus acquiring superior rights to other employees who
may have been hired during his leave and been actively at
work while he was out on personal business " Thus, in Ma-
chinists Local 68, supra, 133, the Board indicated that, de-
spite the contract's silence on the granting of leaves of ab-
sence and given the lack of prior consultation with the
union, the employer's unilateral extensions of the leaves of
absence for a total of 5 months and his continued willing-
ness to recognize the returned employee with full seniority
was arguably adversely affecting the employment condi-
tions of the other unit employees who had continued to
remain at work The Board , therefore, upheld the union's
position , finding it neither frivolous , arbitrary , irrelevant,
invidious , nor unreasonable and, in the absence of evi-
dence of improper motivation, dismissed the 8 (b)(1)(A)
and (2) charges , as the employee ' s 5-month leave of ab-
sence rendered him a "new hire "
In the instant case, the Employer and the Union have
executed a collective-bargaining agreement expiring June
30, 1976 , which includes a hiring hall provision whereby
the Employer agrees to seek bricklayers, stone masons, etc,
through the Local 7 hiring hall exclusively unless the hiring
hall is unable to meet the Employer's needs When Re-
spondent Local 7 was unable to supply bricklayers, the
Employer contacted the business agent of Local 8 in Oak-
land, who advised Toney there were jobs available on the
San Francisco Market Street project Toney, in the vernac-
ular of the trade , was then hired in April 1972 by the Em-
ployer "off the street "
Toney notified the Union initially through the Union's
project job steward with respect to the Employer granting
him a leave of absence for 4 to 6 weeks Sometime in Octo-
ber, while still on leave , Toney telephoned and requested
the Employer to extend his first leave of absence which was
granted The record is silent as to whether the Employer or
Toney informed the Union of the extension of his original
leave of absence It is undisputed, however, that when To-
ney returned from his extended leave of absence that the
Employer accepted him back as a regular employee who
had returned from vacation and to the job he left 9 weeks
before
The Union, on the other hand, told the Employer it con-
sidered Toney to be a new employee or, as stated by a
union official, "a new hire," which he claimed would re-
quire that Toney reregister with Local 7's hiring hall and
take his turn on the register for a new referral Whether
Local 7's denial of Toney's application to become a mem-
ber or to admit him under an "IU dues" status which
would have given him the privilege of being referred to
jobs is pertinent is not here decided in the absence of any
proof by the General Counsel that such actions were moti-
vated by proscribed considerations Toney did testify on
his cross-examination that in early 1974 he had asked Can-
avan, an official of Local 7, if it was true that when a Local
8 member was laid off from a project under Local 7's juris-
diction that the Local 8 member could not return to the job
and Canavan answered in the affirmative
Arguably, the Union had a legitimate position in insist-
ing that Toney renew his employment status at Local 7's
hiring hall when he returned after 9 weeks off the job
Moreover, the layoff of six bricklayers occurring just the
day before Toney's return from his "vacation" serves to
focus the problem created by the Employer's unilateral
grant of a leave of absence and his continued willingness to
extend the original 4 to 6 weeks to 9 weeks 2] As succinctly
stated in Machinists Local 68, supra
When the Employer continued to extend [the employ-
ee's] leave of absence without prior consultation with
the Union, the Union not unreasonably, protested the
decision since the Employer, by unilaterally continu-
ing to extend such leaves, was, at least arguably, ad-
versely affecting the condition of employment of the
unit employees
In the Machinists case, the focus is not on management's
right to grant the initial leave Rather, it is a question of the
employer's continued willingness to take the employee
back which at some point conflicts with the union's interest
in protecting "the relative seniority and job security of unit
employees who remain on the job during a fellow
employee's protracted leave of absence " Bricklayers Local
7 facts differ from Machinists Local 68, in that the case at
bar involves a hiring hall arrangement for referrals to a
construction site whereas Machinists was concerned with a
factory This could alter the tentative presumption that
management has the right to make the initial grant and
certainly bears on the employer's ability to make a person-
al commitment to any employee regarding the extension of
a leave of absence In any event, the holding in Machinists
Local 68 does focus on the fact that it is at a point later in
the process, beyond the initial grant when an extension is
21 Robert Langeberg who was in charge of the Market Street project
testified that since April 1972 when work began there have been several
layoffs
BRICKLAYERS , LOCAL 7 213
granted, that the real conflict with the union's interest aris-
es, particularly so in the instant case where the extension
was unilaterally granted without the apparent knowledge
or approval of the Union which the General Counsel failed
to elicit
It would seem the Union's insistence that Toney must be
reregistered as a new employee is not inherently an unrea-
sonable or an arbitrary demand in the context of his ex-
tended 9 weeks' leave of absence and in light of the Board's
decision in Machinists Local 68 Moreover, it is not too
unreasonable to assume that the Market Street project lay-
offs on November 8 of six bricklayers, 3 days before
Toney's return to work, were made on the basis of seniority
and lack of work See sec A, supra Based on the Board's
holding and rationale in Machinists Local 68, it would seem
particularly persuasive that the Union's insistence that To-
ney was a "new hire" has merit
To be sure, the employee was not at work for 5 months
in Machinists, whereas it was a little over 2 months in this
proceeding, but this distinction should not be the control-
ling consideration in the context of six layoffs immediately
prior to Toney's return Rather it is a combination of fac-
tors which should be considered, namely, the lack of con-
sultation by the Employer with the Union when Toney
overstayed his estimate of 4 to 6 weeks' leave, as well as the
concomitance of the Employer's continuing willingness to
accord full job rights to Toney upon his return and the
detrimental and adverse impact on other job applicants'
condition of employment in that such treatment was tanta-
mount to according Toney the right to bypass the union
hiring hall and thus grant him preference in job referrals 22
Moreover, the General Counsel failed to carry his burden
of proof in that he did not produce sufficient evidence of
any improper motivation or discriminatory practices in the
Union's decision to treat Toney as a new employee which
culminated in his Employer dismissing him at the insis-
tence of the Union Accordingly, it is found that Section
8(b)(1)(A) and (2) of the Act was not violated by Respon-
dent
[Recommended Order for dismissal omitted from publi-
cation I
22 For provisions granting preference in job referrals based not on length
of service with the employer who is a member of a multiemployer bargain
mg group but on service under a collective bargaining agreement between
the parties to the referral system see International Photographers Local 659
(MPO-TV of Calif Inc Y-A Productions Inc) 197 NLRB 1187 (1972)
Directors Guild of America Inc (Association of the Motion Picture & Televi
sion Producers) 198 NLRB 707 (1972) enfd 494 F 2d 692 (C A 9 1974)