Carpenters District Council of Denver and Vicinity

National Labor Relations Board - Board Decisions

Jan 23, 1976

222 N.L.R.B. 551 (N.L.R.B. 1976)

CARPENTERS DISTRICT COUNCIL OF DENVER AND VICINITY 551
Carpenters District Council of Denver and Vicinity
(Hensel Phelps Construction Co.) and Michael D.
Radke. Case 27-CB-906
Upon the entire record in this case, the Board
makes the following:
FINDINGS OF FACT
January 23, 1976
DECISION AND ORDER
By MEMBERS FANNING, JENKINS, AND PENELLO
Upon charges filed by Michael D. Radke, the
General Counsel of the National Labor Relations
Board, by the Regional Director for Region 27, on
May 14, 1975, issued a complaint against Respon-
dent Carpenters District Council of Denver and Vi-
cinity. Copies of the original charge filed on January
20, 1975, and the amended charge filed on May 2,
1975, and the complaint and notice of hearing before
an Administrative Law Judge were duly served on
the Respondent and the Charging Party. In sub-
stance, the complaint alleges that Respondent violat-
ed Section 8(b)(1)(A) and 8(b)(2) of the National La-
bor Relations Act, as amended, by refusing to refer
the Charging Party for work with Hensel Phelps
Construction Co., hereinafter called Hensel Phelps,
unless and until Radke transferred membership from
Carpenters Local No. 5^ into Carpenters Local No.
1391.
On or about September 23, 1975, the Charging
Party, the Acting General Counsel, hereinafter called
General Counsel, and Respondent entered into a
Stipulation of Facts and of the Record. The parties
agreed that the charge, amended charge, complaint,
notice of hearing, orders rescheduling hearing, affi-
davits of service of said documents, Respondent's
answer, and the stipulation of facts and exhibits at-
tached thereto shall constitute the entire record in the
case and that no'oral testimony was necessary or de-
sired by any of the parties. The parties waived a
hearing, the making of findings of fact and conclu-
sions of law, and the issuance of a decision by an
Administrative Law Judge, and submitted the case
for findings of fact and conclusions of law and an
order directly to the Board, and requested that the
case be transferred to the Board. On September 26,
1975, the Board ordered that the stipulation be ap-
proved and made part of the record and ordered the
proceedings transferred to the Board. Thereafter, the
General Counsel and the Respondent filed briefs
which have been duly considered by the Board.
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.
1. THE BUSINESS OF RESPONDENT
The parties stipulated and we find that Hensel
Phelps Construction Co. is now, and at all times ma-
terial herein has been, an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7)
of the Act. We further find that it will effectuate the
purposes of the Act to assert jurisdiction in this pro-
ceeding.
II. THE LABOR ORGANIZATION INVOLVED
The parties stipulated and we find that the Re-
spondent and Local No. 55 and Local No. 1391 are
each now, and have been at all times material herein,
labor organizations within the meaning of Section
2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
The parties stipulated the following facts to be
true:
At all times material herein, Hensel Phelps Con-
struction Co. and the Respondent have been parties
to the May 1, 1972-April 30, 1975, "'BUILDING CON-
STRUCTION AGREEMENT--CARPENTERS DISTRICT COUNCIL
OF DENVER AND VICINITY." On or about January 7,
1975, Hensel Phelps employed Michael D. 'Radke as
a journeyman carpenter. The wages, hours, and
working conditions of such employment were gov-
erned by the aforementioned agreement. At all times
material herein prior to January, 23, 1975, Radke was
a member of Local 55 and, since January 23, 1975,
Radke has been a member of Local 1391, his mem-
bership having been transferred by Respondent with-
out consultation with him.
By letter dated September 13, 1974, William Sidell,
general president of the United Brotherhood of Car-
penters and Joiners of America, extended the work
jurisdiction of Local 1391 to include, that work juris-
diction set forth in a Carpenter Drywall Specialties
Agreement between the United Brotherhood of Car-
penters and Joiners of America and the Gypsum
Drywall Contractors International, and further pro-
vided that such jurisdiction would extend over the
entire State of Colorado. Local 1391 was by said let-
ter given the responsibility for dispatching or refer-
ring for employment all individuals performing work
coming within its work jurisdiction., As a conse-
quence, the District Council designated Local' 1391
as a dispatch or referral point for individuals per-
-222 NLRB No. 86
552 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
forming work under Local 1391's jurisdiction to be
performed under the Building Construction Agree-
ment. At all times material herein, Michael Radke
performed work falling within the work jurisdiction
of Local 1391.
On or about January 6, 1975, Radke received a
telephone call from one of his former employers in-
forming Radke that Hensel Phelps wished to have
Radke and a carpenter apprentice named Victor
Manuel report to work-for Hensel Phelps on the fol-
lowing day. On or about January 7, 1975, Hensel
Phelps employed Radke and Manuel to perform
work at its First National Bank project located at
17th and California Streets in Denver, Colorado. In
hiring Radke and Manuel, Hensel Phelps did not
comply with the procedures set forth in Article VII of
the Building Construction Agreement. On January
15, 1975, Respondent's president, Edward Rylands,
was contacted by a representative of Hensel Phelps,
who verbally requested that Radke and Manuel be
dispatched to Hensel Phelps' employment at its First
National Bank project, in accord with the procedure
outlined in the Building Construction Agreement.
Rylands informed the Hensel Phelps representative
that Radke and Manuel should secure work referrals
from Local 1391. On January 16, 1975, Calvin Ran-
kin, a general superintendent for Hensel Phelps, in-
formed Radke and Manuel that they would have to
secure referrals from the Respondent before they
could "continue" work on the First National Bank
project. Rankin also told them that Hensel Phelps
would not accept a Local 1391 referral. Radke and
Manuel then went to the offices of Local 55, where
they were told by Raymond Olson, a Local 55 em-
ployee, that they would have to secure referrals for
the Hensel Phelps job from Local 1391. Radke and
Manuel then went directly to the Denver offices of
Local 1391. There, Radke was informed by Bea
Washington, an employee of Local 1391 with respon-
sibility for the clerical administration of the hiring
hall, and the only employee present in the hiring hall,
that Radke could not be issued a referral until he had
become a member of Local 1391. Radke had been
told that the dues structure of Local 1391 was higher
than that of Local 55, of which he was a member,
and, because he was not familiar with the people who
administered Local 1391, he refused to transfer his
membership into Local 1391. He was therefore not
issued a referral. Having been told by Hensel Phelps
that it would not accept a Local 1391 referral, Radke,
as set out in the stipulation, would have refused to
accept such a referral had it been offered. On Janu-
ary 20, 1975, Radke filed the original charge herein.
On January 21, Radke contacted Council President
Rylands and informed him that Hensel Phelps would
refuse a referral from Local 1391. Rylands requested
that Radke secure his-referral from Local 1391 and
further stated that he desired witnesses of Hensel
Phelps' refusal to accept the Local 1391 referral. On
January 22, Phelps refused to accept a Local 1391
referral for Victor Manuel. The dispute resolution
procedure of the Building Agreement was therefore
invoked by Respondent against Hensel Phelps by
telegram dated January 22. On January 23, Victor
Manuel reported to the Hensel Phelps jobsite accom-
panied by Leslie Prickett, a business representative of
Local 55, and again requested that he be placed to
work; after some delay the Local 1391 referral was
accepted by Hensel Phelps. Hensel Phelps eventually
reimbursed Manuel for the loss of wages resulting
from its initial refusal to accept the Local 1391 refer-
ral. Also on January 23, Radke received a message
from Respondent that if he wished to return to work
he should go to Local 1391 the following day and
secure a referral. Because of his need for work, Rad-
ke returned to Local 1391 on January 24 and secured
a referral. At Radke's request, the business represen-
tative of Local 1391 changed the designation on the
referral, crossing out "Drywall Specialties Local
1391," and inserting in its place "Local 55." Radke
then returned to work at the Hensel Phelps project
on the same day.
At all times material herein, Local 1391 was an
agent of Respondent acting on its behalf, and an
agent within the meaning of Section 2(13) of the Act.
Bea Washington was "an employee" of Local 1391
with responsibilities including the clerical adminis-
tration of the hiring hall. At all times material on
January 16, Washington was the only Local 1391 em-
ployee present in the hiring hall.
Discussion
The General Counsel contends that Respondent
violated Section 8(b)(1)(A) and (2) by refusing to is-
sue a referral to the Charging Party unless and until
he had transferred his membership from Local 55 to
Local 1391.
On January 7, when Hensel Phelps initially hired
Radke, it concededly did not comply with the hiring
provisions contained in Article VII of the Building
Construction Agreement with Respondent. However,
on January 16, Hensel Phelps did comply with the
agreement when it requested by name both Radke
and Victor Manuel, later following with written con-
firmation of that request. It is clear from the Building
Construction Agreement that Hensel Phelps had an
exclusive hiring-hall agreement with Respondent.' It
1 Art VII of the Agreement provides in pertinent part
CARPENTERS DISTRICT COUNCIL OF DENVER AND VICINITY 553
is also clear that Radke was told that Respondent
was conditioning its referral of Radke upon his trans-
ferring his union membership to Local 1391, in con-
travention of job referral procedure contained in the
agreement .2
We find that Respondent's conduct in requiring
Radke to loin Local 1391, as a condition of referral
under its exclusive hiring hall contract, constitutes a
violation of Section 8(b)(1)(A) and (2) of the Act.3
IV. THE EFFECTS OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of Respondent set forth above have
a close, intimate, and substantial relationship to
trade, traffic, and commerce among the several
States and tend to lead to industrial strife burdening
and obstructing commerce.
V. THE REMEDY
Having found that Respondent has engaged in un-
fair labor practices violative of Section 8(b)(1)(A)
HIRING PROCEDURE
(A) The Employer agrees that he will give the Union the first opportu-
nity to furnish , and the Union agrees to furnish , all classes of employ-
ment that are provided for in this Agreement if workers are available
for referral, except as referred to in paragraph (H) in this Article The
Employer further agrees that all requests for employees will be placed
with the Union dispatching office for a maximum of thirty-six (36)
hours prior to the contemplated time of employment of such workmen,
excluding Saturdays, and/or holidays
(B) Selection of applicants for referral to jobs shall be on a non-dis-
criminatory basis and shall not be based on, or in any way affected by.
Union membership , bylaws, rules , regulations, constitutional provi-
sions , or any other obligation or aspect of Union membership , policies
or requirements . In addition , the selection of applicants for referrals to
jobs shall in nowise be affected by race, color , age, creed , national
origin or sex
(H) The Employer signatory to this Agreement shall have the right to
request by name any job applicant who is registered with the referral
office , who within the past one year immediately preceding the job
order , performed work of the type covered by this Agreement, for a
period of not less than 30 working days, in the area of the Carpenters
District Council of Denver and Vicinity for a contractor signatory to
this Agreement. Verification of the request shall be in writing or by
telephone . The Union shall give this employee a referral slip to the
Employer upon reporting at the Union dispatch office.
2 Respondent contends that it cannot be held to have violated the Act
because employee Washington was not its agent As noted above, however.
Respondent Council concedes that Local 1391 was its agent, and that em-
ployee Washington , who was charged with the responsibility of administer-
ing the hiring hall of Local 1391, was in fact the only employee present
when Radke sought a referral. Moreover , it is also evident that Local 1391
held Washington out to the public as an agent, with ostensible authority to
furnish information on its behalf in regard to referrals , and to dispatch
individuals for referral Thus, Respondent 's attempt now to disavow
Washington 's conduct must fail . Construction and General Laborer 's Union.
Local 304 Laborers ' International Union of North America, AFL-CIO
(George D Willis), 191 NLRB 764, 766-768 (1971).
3 International Brotherhood of Electrical Workers, AFL-CIO, Local 648
(Foothill Electrical Corporation ), 182 NLRB 66 (1970), Utility and Industrial
Construction Company, 214 NLRB No 152 (1974)
and (2) of the Act, we shall order that it cease and
desist therefrom, and that it take certain affirmative
action designed to effectuate the policies of the Act,
including making Michael Radke whole for any loss
of earnings he may have sustained as an employee of
Hensel Phelps Construction Company from January
16 to 21 as a result of Respondent's unlawful con-
duct.
Backpay shall be computed in the manner set forth
in F. W. Woolworth Company, 90 NLRB 289 (1950),
with interest added thereto in the manner set forth in
Isis Plumbing & Heating Co., 138 NLRB 716 (1962).
Radke did not actually return to work at Hensel
Phelps until January 24. However, Respondent,
through its president, Ed Rylands, asked Radke to
secure his referral from Local 1391 on January 21,
thus in our view terminating its unlawful refusal to
issue him a referral as of that date. Whether Hensel
Phelps then would have refused to accept a Local
1391 referral for Radke, as it did on the following
day for Victor Manuel, is not known. If so, Respon-
dent would have been in a position to invoke the
Building Agreement's dispute resolution procedure
against Hensel Phelps for Radke in the same manner
as it did for Manuel, and presumably with the same
result. Respondent did not have that opportunity,
however, because Radke delayed securing his referral
until the day following Respondent's second request
that he do so. In these circumstances, we conclude
that Respondent should not bear the responsibility
for Radke's failure to act between January 21 and
January 24.
CONCLUSIONS OF LAW
1. Hensel Phelps Construction Co. is an employer
engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. Respondent Carpenters District Council of
Denver and Vicinity and its Local No. 55 and Local
No. 1391 are each labor organizations within the
meaning of Section 2(5) of the Act.
3. By refusing to issue a referral to the Charging
Party because of his lack of membership in Local
1391, Respondent has violated Section 8 (b)(1)(A)
and (2) 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 Respondent Car-
penters District Council of Denver and Vicinity and
its Local 1391, Denver, Colorado, its officers, agents,
and representatives, shall:
554 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1. Cease and desist from: (e) Notify the Regional Director for Region 27, in
(a) Refusing or declining to issue work-referrals to writing, within 20 days from the date of this Order,
individuals because of lack of membership in Local what steps the Respondent has taken to comply here-
1391. with.
(b) Causing or attempting to cause Hensel Phelps
Construction Co. or any member of the Associated
General Contractors, Colorado Building Chapter,
Inc., or others signatory to the Building Construction
Agreement-Carpenters District Council of Denver
and Vicinity, to deny employment in violation of
Section 8(a)(3) of the Act.
(c) In any other manner interfering with, restrain-
ing, or coercing employees or applicants for employ-
ment in the exercise of any right guaranteed in Sec-
tion 7 of the Act.
2. Take the following affirmative action:
(a) Make whole Michael D. Radke for any loss of
earnings he may have sustained as an employee of
Hensel Phelps Construction Co. because of the dis-
crimination against him, in the manner set forth in
the section entitled "The Remedy" above.
(b) Notify Hensel Phelps Construction Co. as well
as the aforementioned parties, in writing, with a copy
to Michael D. Radke, that Respondent will not dis-
criminate in his referral for employment, or the em-
ployment of any other job applicant who is not a
member of Respondent or Local 1391.
(c) Preserve and, upon request, make available to
the Board or its agents, for examination and copying,
all records pertaining to its hiring halls and all other
records necessary to analyze the amount of backpay
due under the terms of this Order.
(d) Post at its offices and hiring hall dispatch
points copies of the attached notice marked "Appen-
dix." 4 Copies of said notice, on forms provided by
the Regional Director for Region 27, after being duly
signed by an authorized representative, of the Re-
spondent, shall be posted by the Respondent imme-
diately upon receipt thereof, and be maintained by it
for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employ-
ees, members , and applicants for referral are custom-
arily posted. Reasonable steps shall be taken by the
Respondent to insure that said Notices are not al-
tered, defaced, or covered by any other material.
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 "
APPENDIX
NOTICE To EMPLOYEES AND MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse or decline to issue work
referrals to individuals because of lack of mem-
bership in Local 1391.
WE WILL NOT cause or attempt to cause Hensel
Phelps Construction Co., or any other employer,
to discriminate against any employee in viola-
tion of Section 8(a)(3) of the Act.
WE WILL NOT discriminate in the referral of
individuals for employment in the operation of
our exclusive hiring hall agreement with signato-
ry employers.
WE WILL make whole Michael D. Radke for
any loss of earnings he may have suffered from
January 16 to January 21, 1975, by the discrimi-
natory operation of our hiring hall.
WE WILL NOT in any other manner restrain,
interfere with, or coerce employees in the exer-
cise of the rights guaranteed by Section 7 of the
Act, except to the extent that such rights may be
effected by an agreement requiring membership
in a labor organization as a condition of em-
ployment, as authorized by Section 8(a)(3) of the
Act.
CARPENTERS DISTRICT COUNCIL OF DENVER
AND VICINITY
LOCAL 1391, UNITED BROTHERHOOD OF
CARPENTERS AND JOINERS OF AMERICA