Carpenters, Local 1913

National Labor Relations Board - Board Decisions

Mar 31, 1971

189 N.L.R.B. 521 (N.L.R.B. 1971)

CARPENTERS , LOCAL 1913
United Brotherhood of Carpenters And Joiners Of
America, Local # 1913 , AFL-CIO; and Los
Angeles County District Council Of Carpenters,
United Brotherhood Of Carpenters And Joiners Of
America, AFL-CIO and Michael R . Amato,
United Brotherhood Of Carpenters And Joiners Of
America, Local # 1913 , AFL-CIO; and Los
Angeles County District Council Of Carpenters,
United Brotherhood Of Carpenters And Joiners Of
America, AFL-CIO (Fixtures Unlimited) and Mi-
chael R. Amato
United Brotherhood Of Carpenters And Joiners Of
America, Local # 1913 , AFL-CIO ; and United
Brotherhood Of Carpenters And Joiners Of Ameri-
ca, Local # 25, AFL-CIO (Robert E. McKee
Construction Co.) and Michael R. Amato. Cases
31-CB-502, 31-CB-525, 31-CB-536, and
31-CB-537
March 31, 1971
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING, JENKINS, AND KENNEDY
On August 21, 1970, Trial Examiner Herman Marx
issued his Decision in the above-entitled proceeding,
finding that Respondent United Brotherhood of
Carpenters and Joiners of America, Local # 1913,
AFL-CIO, hereinafter called Local 1913, had en-
gaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision. The
Trial Examiner further found that Respondent Local
1913 and Respondents Los Angeles County District
Council of Carpenters, United Brotherhood of Car-
penters and Joiners of America, AFL-CIO, and
United Brotherhood of Carpenters and Joiners of
America, Local 25, AFL-CIO, had not engaged in
certain other unfair labor practices alleged in the
complaint. Thereafter, the General Counsel and
Respondent Local 1913 filed exceptions to the Trial
Examiner's Decision, and briefs in support therein.
The General Counsel also filed an answering brief.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and
the entire record in these cases, and hereby adopts the
'Although the designation "AFL-CIO" is appended to the
Brotherhood's name as incorporated in the names of Locals 25 and 1913
and the District Council, I omit the designation in otherwise stating the
521
findings, conclusions, and recommendations of the
Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended , the National Labor
Relations Board adopts as its Order the Recommend-
ed Order of the Trial Examiner and hereby orders that
Respondent , United Brotherhood of Carpenters and
Joiners of America , Local # 1913 , AFL-CIO, its
officers , agents , and representatives , shall take the
action set forth in the Trial Examiner 's Recommend-
ed Order.
In footnote 24 of the Trial Examiner 's Decision
change "10" to "20" days.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
HERMAN MARx, Trial Examiner : The complaint alleges,
in material substance , that the Respondents , three labor
organizations known , respectively , as United Brotherhood
of Carpenters and Joiners of America , Local No. 25,
AFL-CIO (herein Local 25), United Brotherhood of
Carpenters and Joiners of America , Local No. 1913,
AFL-CIO (herein Local 1913), and Los Angeles District
Council of Carpenters , United Brotherhood of Carpenters
and Joiners of America , AFL-CIO (herein the District
Council), are affiliated with the United Brotherhood of
Carpenters and Joiners of America (herein the
Brotherhood); ' that an organization of employers called
Associated Contractors of America , Southern California
Chapter (herein AGC), on behalf of its members , and the
Brotherhood , on behalf of various of its affiliates , including
Locals 25 and 1913 and the District Council , are parties to a
collective-bargaining agreement prescribing terms and
conditions of employment of employees of the said
members of AGC; that other employers , including an
enterprise named Fixtures Unlimited , have adopted the
terms of the agreement ; that the said agreement provides
for the operation and maintenance of an "exclusive hiring
hall" by affiliates of the Brotherhood , including the
Respondents , for the purpose of supplying employers with
labor ; that on or about June 23 , 1969, a member of Local
1913, Michael R. Amato, was fined and suspended from
union membership for one year by Local 1913 and the
District Council because he "protested or grieved over the
manner" in which Local 1913 operated the said hiring hall,
or "because he sought a referral " therefrom ; that by such
fine and suspension, Local 1913 and the District Council
violated Section 8(b)(1)(A) of the National Labor Relations
Act2 (herein the Act); and that the Respondents have
unlawfully discriminated against Amato in the operation of
the said hiring hall by improperly placing his name at the
bottom of the job referral list , and refusing to refer him for
available employment with Fixtures Unlimited and a
Brotherhood 's name because that is the way it appears in the evidence and
allegations directly involving it
229USC 151, etseq
189 NLRB No. 81
522 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
member of AGC, Robert E. McKee Construction Co.
(herein McKee), thereby violating Section 8(b)(1)(A) and
(2) of the said Act.3
The Respondents have filed a joint answer which, in
material substance, denies the commission of the unfair
labor practices imputed to them.
Pursuant to notice duly served by the General Counsel of
the National Labor Relations Board upon all other parties,
a hearing upon the issues in this proceeding has been held
before me, as duly designated Trial Examiner. The General
Counsel and the Respondents appeared through respective
counsel, and all parties were afforded a full opportunity to
be heard, examine, and cross-examine witnesses, adduce
evidence, file briefs, and submit oral argument.
Upon the entire record, from my observation of the
demeanor of the witnesses, and having read and considered
the briefs submitted to me since the hearing, I make the
following:
materials valued in excess of $50,000 from suppliers who
receive the said materials from locations outside the State
of California. By reason of its purchase and receipt of such
materials, Fixtures Unlimited is, and has been at all
material times, engaged in commerce, and in operations
affecting such commerce, within the meaning of Section
2(6) and (7) of the Act.
By reason of the operations of AGC, its members, and
Fixtures Unlimited in, and affecting, interstate commerce,
as described above, the Board has jurisdiction of the subject
matter of this proceeding.
II. THE LABOR ORGANIZATIONS INVOLVED
Locals 25 and 1913 and the District Council are, and
have been at all material times, labor organizations within
the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
FINDINGS OF FACT
I. NATURE OF THE BUSINESS OF AGC, MCKEE, AND
FIXTURES UNLIMITED; JURISDICTION OF THE BOARD
AGC is an organization of employers, and exists for the
purpose of representing, and represents, its members,
including McKee, in the negotiation, execution, and
administration of agreements with various labor organiza-
tions. Such members and AGC are, and have been at all
material times, employers within the meaning of Section
2(2) of the Act. Members of the AGC annually perform
services outside California valued in excess of $50,000, and
annually purchase and receive materials valued in excess of
$50,000 from sources located outside the said state. By
reason of such performance of services, and purchase and
receipt of materials, such members and AGC are, and have
been at all material times, engaged in commerce, and
operations affecting such commerce, within the meaning of
Section 2(6) and (7) of the Act.
McKee is a "nationwide construction company," and
does business in California. In the course of its operations,
it annually purchases and receives at construction sites in
that state from sources located outside thereof materials
valued in excess of $50,000. By reason of such purchase
and receipt of materials, it is, and has been at all material
times, engaged in commerce, and in operations affecting
such commerce, within the meaning of Section 2(6) and (7)
of the Act.
Fixtures Unlimited is a California corporation; main-
tains its principal office and place of business in Gardena,
California, where it is engaged in the construction and
installation of fixtures for commercial enterprises; and is,
and has been at all material times, an employer within the
meaning of Section 2(2) of the Act. In the course and
conduct of its business operations, Fixtures Unlimited
annually purchases and receives at its place of business
3 The complaint is dated December 22, 1969, and, as amended on
January 30, 1970, is based upon a charge filed in Case 31-CB-502 on July
18, 1969, a charge filed in Case 31-CB-525 on September 22, 1969, a
charge filed in Case 31-CB-536 on November 13, 1969, and a charge filed
in Case 31-CB-537 on November 13, 1969 The charges have been duly
consolidated for hearing Each Respondent has been duly served with
copies of the charge or charges applicable to it, and of the complaint,
A. Prefatory Statement
The brotherhood's constitution provides for the charter-
ing of local affiliates such as Locals 25 and 1913 (sec. 29),
and, in cities where two or more exist, their organization
into regional bodies such as the District Council (sec. 26).4
The district organizations and their constituent locals are
subject to the constitution which, inter aka, provides that
dues of members of the locals are payable on the first of
each month, but that a member "does not fall in arrears
until the end of the month in which the member owes three
months' dues" (sec. 44); lists "offenses," for which
members of locals may be disciplined by fine, suspension or
expulsion (sec. 55); vests in the district bodies jurisdiction
to process and hear charges brought against such members
(sec. 56); and provides for an appeal from discipline
imposed to the Brotherhood's General Executive Board,
and from that body to the Brotherhood's General
Convention, subject to a requirement, among others, that
where a fine exceeds $50, no appeal "can be entertained" by
the General Executive Board unless the appellant first pays
that sum to the relevant local or district body "on account,
to be held until the appeal is decided by the General
Executive Board," and that if the decision is adverse to the
appellant, he pay the full amount "before a further appeal
can be taken" (sec. 57C). A time limit of 30 days after
imposition of the penalty is specified for the filing of an
appeal , and, in case of a fine in excess of $50, an appeal must
be accompanied by a receipt showing the payment required
as a condition of the appeal (sec. 57D). Fines must be paid
within 30 days after imposition to entitle the fined member
"to any privilege, rights or donations," but this is subject to
provisions governing appeals (sec. 45).
The District Council consists of local affiliates, including
Locals 25 and 1913, which do business in the Los Angeles
area. The locals are represented in the District Council by
amendment thereof, and order of consolidation A hearing on the issues in
this proceeding was held on February 24, 25, and 26, 1970, at Los Angeles,
California
4 A booklet in evidence (Jt Exh A) is divided into three subheadings
respectively labelled "Constitution ," "General Bylaws ," and "General
Laws," but all three are treated in the record as constituting the
Brotherhood 's constitution , and are so treated here
CARPENTERS , LOCAL 1913 523
delegates they elect for that purpose; and are subject to the
District Council's bylaws. These, among other things,
prescribe the monthly dues required of members of the
locals (sec. 30, bylaws); specify that no member shall
receive a "working card" from his local unless "all his
arrearages for dues, fines and assessments are paid in full"
(sec. 26, bylaws), and that while at work, he carry a
prescribed card "showing dues paid for the current month"
(sec. 42M, bylaws); and provide for the selection and
procedures of trial committees to hear charges against
members of the constituent locals, and upon a finding of
guilty, to recommend the penalty to the delegates to the
District Council who have the "final decision" thereon
subject to prescribed limitations set forth in the bylaws
(secs. 34 and 36, bylaws). The procedures entitle an accused
to charges in writing; a hearing with notice thereof and a
right to appear in person; reading of the charges and
arraignment thereon; confrontation of witnesses; repre-
sentation by counsel, and an opportunity for the presenta-
tion of evidence and cross-examination of witnesses.
AGC, on behalf of its members, and the Brotherhood, on
behalf of its affiliates in Southern California, including
Locals 25 and 1913 and the District Council, are, and have
been at all times material here, parties to a contract
prescribing terms and conditions of employment for
various classifications of employees, including carpenters,
in the employ of members of AGC Fixtures Unlimited has
adopted the contract as an employer, and has been subject
to it at all such material times.
The contract contains "hiring hall" provisions which, in
effect, require Locals 25 and 1913 (and other locals not
involved here) to "establish and maintain open and
nondiscriminatory employment lists for the use of work-
men desiring employment on work covered" by the
contract; entitle such workmen to use the lists without
charge; obligate contracting employers requiring workmen
to call "first" on the given local to supply them, and the
local to furnish them; and require the local to dispatch such
workmen "from among those entered on said lists in
numerical order" subject to an "order of preference,"
including the preferential dispatch of available workmen
who are "specifically requested by name" by an employer,
and who have been employed by such employer "in the
geographic area" of the given local within three years
preceding the request (art. II)
The contract also includes union security provisions
(whose legality is not in question here) requiring that
employees subject to the agreement who had worked for
one or more AGC members "for ... 8 days continuously
or accumulatively shall be or become after the 8-day period
. . members of the Union and shall remain members of
the Union as a condition of continued employment" (art.
lI).5
The District Council has implemented the contractual
hiring provisions with hiring hall regulations, which have
been in effect for its constituent organizations, including
5 Although the term "Union" in the union security provisions literally
refers to the Brotherhood, it is evident from the record as a whole that the
Respondent organizations treat membership in a local affiliate of the
Brotherhood as membership in the Brotherhood itself
5 All dates set forth below occurred in 1969 unless otherwise specified
7 Apart from the hearsay statement in the work request, there is no
Locals 25 and 1913, at all times material here. The rules
provide, among other things, that each such organization
maintain a hiring hall (or "dispatch office," as the
regulations call the facility); that an individual seeking
work through the hall register there by writing his name and
classification on an "employment list" beneath the
preceding registrations; that "(f)inancial good standing in
the Union can be required as a condition of dispatchment
for workmen who are required to become members of the
Union (presumably the Brotherhood or its appropriate
local affiliate) as a condition of employment" under the
contract between the Brotherhood and AGC;and that
registrants be dispatched by classification, during specified
weekday morning hours in descending order as listed. The
regulations also require that a roll call of registrants be held
each Monday morning, and that a registrant's name be
removed from the list in certain specified circumstances,
including his failure to answer a roll call.
Under customary procedure at Local 1913's hiring hall,
at least, a workman entitled to preferential dispatch
because of a specific request for him by an employer for
whom he had worked within the preceding three years is
dispatched with a "work referral form" to thejob upon his
presentation at the hiring hall of a "work request" from the
employer certifying to the prior employment.
B. The Discipline of Michael R. Amato
In or about mid-April 1969,6 the Charging Party, Michael
R. Amato, who has been ajourneyman carpenter for some
30 years, and a member of Local 1913 for about half that
period, found a job opening as a carpenter on a
construction project of an AGC member named G. 0.
Gartz Construction Company (herein Gartz). The project
was within the territorial area served by Local 1913, and as
Amato had worked for Gartz within the preceding 3 years,
he secured a work request from Gartz, in effect certifying to
his prior employment, in conformity with the hiring
procedures,7 and presented it on the morning of April 17 at
the appropriate dispatch window at Local 1913's hiring hall
to a business agent of the union, Samuel Cowan, who was
on duty at the window, for issuance of the required work
referral form. As of that time, Amato had not paid his dues
for April, amounting to about $10.65, which had become
payable on the first of that month. Another business agent
of the local, Joseph Riviezzo, and a hiring hall dispatcher
named Shirley Futterman were at their respective desks
near the window during Amato's visit to the dispatch
facility. Some 25 to 50 members of Local 1913 were in the
hiring hall while Amato was there, some of them situated
about six feet from him.
The disciplinary proceeding involved here grew out of
charges filed with the District Council by Riviezzo and
Cowan that Amato misbehaved himself while at the hiring
hall on April 17, and by working later that day at the Gartz
project without prior payment of his April dues. Although,
direct evidence that Amato had worked for Gartz within the preceding 3
years, but one may fairly infer that Amato had the requisite employment
history with Gartz from the general context of circumstances, including the
fact that Local 1913 makes no claim that he lacked the pnor work
qualification for referral , and rested an objection to the referral at the
hiring hall on another ground
524 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
as will appear in more detail later, the discipline in question
was based on the record of a hearing on the charges before
a regularly constituted trial committee of the District
Council, the events at the hiring hall were litigated in the
case at bar, and findings thereon are appropriate, at least as
an aid to an assessment of the motive for the charges. The
relevant findings follow.8
Upon presentation of the Gartz work request, Cowan
asked Amato for his working card which would reflect the
latter's dues status . Amato produced the card, and Cowan,
noting the dues arrearage for April, told Amato that he
would issue the referral if Amato would pay the April dues
to George Collins, the local's financial secretary, who was
in another office on the premises. Amato replied to the
effect that that was not necessary, and Cowan cited section
42M of the District Council's bylaws, requiring that
members of the constituent locals, "while at work," carry a
card "showing dues paid for the current month." Then
Amato, in a state of anger, and speaking in an excessively
loud voice-loud enough to be heard by the rank-and-file
union members in the hall-said, in effect that he did not
give a "Goddamn" about the bylaws; that he was governed
by "the law of the land"; that he "dare(d)" Cowan to deny
him the referral; and that he had "plenty" (or "enough") on
both you guys." And addressing himself loudly in general
to the union members present in the hall, he announced
that Cowan had denied him a referral, and that he wanted
"a witness" to the demal.9
Cowan made no reply to this, and over a period of about
20 minutes, while Amato was in the hiring hall, busied
himself with other matters. He then went to Collins' office
to verify Amato's arrearage, and ascertaining what was due,
he told Collins to prepare a working card for Amato.
a In making findings as to events at the hiring hall, I have taken into
account the testimony of all five witnesses who describe Amato's behavior
there, but dispense with a canvass of various differences in details among
them that in my judgment can have no impact on the ultimate results here
Much of what occurred is not in material dispute , and where there is
conflict on a matter of substance , the difference will be noted and resolved
9 Amato, conceding that he spoke in a loud voice, but claiming that he
usually does because of a hearing defect , denies that he was "abusive"
toward the two business agents , asserting, also, that he expressed himself in
terms normally used at the hiring hall in substance, he pictures himself as
requesting the referral, replying to Cowan's reference to the bylaws with a
position that he was entitled to the referral under "the rules of the land"
and the Brotherhood's constitution, and, as asking Cowan twice, during a
period of about 25 minutes in which Cowan was dawdling, that Cowan
either issue the referral or reject the request for it I am persuaded that
Amato was not as restrained as he would have one believe He does not
deny, in terms at least , that he dared Cowan to reject his referral request,
and that he made a general announcement to the union members in the
hall that he had been denied a job referral, and that he wanted "a witness",
and he conceded, somewhat reluctantly, that he "may have" made a
profane reference to the bylaws That he was angered by Cowan's
requirement that he pay the dues as a condition of the referral is evidenced
by his own testimony that "it didn' t sit well with me," and by that of a
witness, Angelo Koufos, who was called by the General Counsel to
corroborate Amato on a number of issues, and although obviously
favorably disposed toward Amato (testifying, for example, that Amato
"didn't raise his voice anymore than anybody else, when deprived of
the job"), nevertheless describes Amato as getting "mad" during his
conversation with Cowan Moreover, in his testimony and demeanor,
Amato appeared to me at various points to be more emphatically
argumentative than was warranted by the circumstances , and these
indications , coupled with his angry state at the hiring hall, heighten the
plausibility of the testimony depicting him, in effect, as loudly
argumentative , and as making offensive remarks in the presence of other
members of Local 1913. To be sure, the two business agents and Futterman
Cowan then returned to the dispatch window, and a few
minutes later, receiving word from Collins that the
requested card was ready, he gave Amato a referral slip and
told him to "be sure you pick up your card at ... Collins'
office before you report to the job" (or, in other words, to
pay his dues to Collins and procure the requisite card
before starting to work). Amato, however, proceeded to the
job without paying the dues, and without the card. As
Cowan testified, he issued the referral before the dues were
actually paid in order "to get rid of the noise" made by
Amato, and in the expection that the latter would follow his
admonition to procure the requisite card before proceeding
to his work.fo
Later that morning, learning from Collins that Amato
had not made the dues payment, Cowan reported the
matter to Riviezzo (who served as the local's representative
in the area in which the Gartz project was located), and
both business agents proceeded to the Gartzjob site. There
they told Amato, in substance, that it would be necessary
for him to pay his dues before continuing with his work,
and Cowan also so informed Amato's foreman. Amato
acquiesced in the requirement, but, applying an obscene
term to the business agents, told them that they would "pay
me for every hour I lose." He then left the project,
proceeded to the local's office, paid his April dues, and then
returned to the project where he resumed his work.ii
About a week after the hiring hall episode, Riviezzo and
Cowan filed the charges, previously mentioned, with the
District Council, alleging, in substance, that Amato had
violated sec. 55A(l) and (13) of the Brotherhood's
constitution by conduct at the hiring hall (summarized in
the charges, and not necessary to repeat here), and by
working at the Gartz project without the dues payment
are not in total accord on remarks one or another of the three imputes to
Amato, but such variances among witnesses who testify about the same
events a substantial period of time after they occur are common, and do
not necessarily destroy their credibility. One of them may recall what
another has forgotten, and the substantial truth may often be found in a
composite of the versions given . Such , in myjudgment , is the case with the
accounts of Riviezzo , Cowan, and Futterman regarding Amato's behavior
at the hiring hall, and I have made corresponding findings
io According to Amato, Cowan issued the referral without any
condition, but this does not quite amount to a clear denial that in the
process of issuing the referral, Cowan told him to "be sure to pick up" the
card in Collins' office before proceeding to the job In any case, Riviezzo
and Futterman substantially corroborate Cowan on the relevant point, and
especially in view of the requirement of sec 42M of the bylaws, the
indisputable fact that Cowan had invoked these provisions in the course of
his prior discussion with Amato, and the course of action Cowan followed
later that morning when he learned that the dues payment had not been
made , I am convinced that upon issuing the referral , Cowan told Amato to
procure the card from Collins before going to work Moreover, in view of
Amato's behavior in the hiring hall, I am persuaded of the credibility of
Cowan's explanation of the reason he turned the referral slip over to
Amato before actual payment of the dues
ii The finding that Amato made the obscene remark and threatened to
make the two business agents pay "for every hour I lose" is based on
Riviezzo's version Amato's account of the conversation amounts to a
denial that he made the statement . Cowan does not quote Amato as
making it , and Riviezzo does not do so in his testimony before the trial
committee However, that may be because Cowan bore the principal
burden of describing the events at the hiring hall and the project, and he
does characterize Amato as being "very abusive" at both places, although
less so at the project than at the hall It is likely that Amato was angry at
the project, as at the hall, and resentful that he had to lose time from his
work to make the dues payment , and, upon my impression of him, I am
persuaded that he expressed himself in the terms attributed to him
CARPENTERS , LOCAL 1913
'required by the District Council's bylaws, and previously
required of him at the hiring hall.
Subdivisions (1) and (13) of sec. 55A of the Brotherhood's
constitution respectively forbid "(c)ausing dissension
among the members of the . . . Brotherhood"; and
"(v)iolating the Obligation." The "Obligation" is, in
substance, a "promise" made in a prescribed ritual by each
member of a Brotherhood local at the time he becomes a
member, committing him, among other things, "to abide by
(the Brotherhood's) constitution and laws," and to "observe
the local trade rules of this order."
On May 14, the District Council wrote to Amato,
advising him that he had been charged with violation of sec.
55A(l) and (13), stating that its executive committee
"would like to review these charges" with him, and
specifying a date, time, and place for the discussion. Amato
did not appear, notifying the District Council by mail that
he would not do so because its notice of May 14 contained
no details of the charges and thus (according to Amato)
failed to comply with rights given him by "sec. 101-A, Par.
5 of the Disclosure Act of 1959." 12
On June 5, the District Council served Amato, by
certified mail, with a copy of the charges, and a notice that
a hearing would be held on them at a specified time and
place on June 16 before a District Council trial committee.
Amato did not appear.
Riviezzo, Cowan, and Collins testified before the trial
committee, and the upshot of the hearing was that the
commettee made a finding of "guilty" on the charges and
recommended that Amato be fined $300 and suspended
from union membership for one year. Amato was notified
of the result, and that the trial committee's action would be
presented to the District Council for consideration and
disposition. He did not appear before that body or
otherwise submit to it any opposition to adoption of the
trial committee's finding and recommendation. The Dis-
trict Council adopted the committee's report, and by
certified mail dated June 24, 1969, notified Amato of the
action taken by it.i3
Several weeks later, by letter dated July 10, 1969, Amato
filed an appeal with the Brotherhood's General Executive
Board, and that body replied in a letter dated July 15, 1969,
stating, in substance, that under sec. 57C of the Brother-
hood's constitution, in order for his appeal to be
considered, it would be necessary for him to submit "a valid
receipt" showing that he had paid at least $50 of the fine
12 Amato's statutory reference appears to be to sec 101(a) of the
Labor-Management Reporting and Disclosure Act of 1959 (29 U S C 411),
which forbids a union to discipline a member (with an exception not
relevant here) unless it first serves him "with written specific charges" He
was served with a copy of the charges well in advance of a hearing on them
before a trial committee, and in view of the limited purpose of the letter of
May 14, there would be no legal necessity to detail the charges therein A
claim he makes in his testimony that the omission "violated (his) rights"
lacks substance
13 According to Amato at one point, he did not appear before the trial
committee because the District Council's letter of May 14 notifying him
that the charges had been filed "violated (his) rights" in that it contained
no details of the charges Subsequently, he added another explanation to
the effect that "there is no such thing as a 'trial committeeunder the
Brotherhood's constitution Both explanations lack substance Especially in
view of the service of a copy of the charges well before the committee
hearing, there was no legal necessity for inclusion of details of the charges
in the letter of May 14 The second explanation rests on an inaccurate
525
imposed upon him. In a subsequent letter to Amato dated
July 25, 1969 (replying to a communication from Amato
that need not be detailed here), the General Executive
Board set forth the provisions of sec. 57C in full, and told
Amato that upon compliance with these provisions and
submission of a receipt showing the payment, his appeal
would be given further consideration.
Amato has not made the required payment; the General
Executive Board has taken no further action on the appeal;
the fine and suspension remain in effect ; and no legal
proceeding has been brought to collect the fine.14
C. The Alleged Hiring Hall Discrimination Against
Amato
Amato paid his dues for May and June, but not for July
and August, and there is conflict in the record whether he
attempted to do so during the latter 2 months.
According to Amato, he attempted to make payments
during both months, and his account of the first effort is to
the effect that during the latter part of July, he came to the
"dues window" at Collins' office, and told the latter that he
wished to bring his dues up to date; that Collins asked him
to produce "a valid receipt for the $50" (a reference, if
Amato's account of the incident is credited, to the part
payment of the fine required as a condition of the appeal);
that he told Collins that he had no receipt, and had no
intention of paying that sum, that Collins then said that he
could not accept the dues; that Local 1913's treasurer, Dan
Currier, was standing near Amato during the colloquy;
that Amato told Currier that the latter had "witnessed" the
refusal to accept the dues; and that Currier acquiesced.
According to Amato, he had much the same experience
in the following month, testifying that accompanied by
Koufos, he came to the dues window, with the requisite
amount in his hand, and offered to pay what he owed as
dues; and that as on the prior occasion, Collins replied that
he could not accept the dues unless Amato produced "a
valid receipt" showing payment of the $50. Purportedly
describing the same episode, Koufos quotes Collins as
saying that he could not accept the dues until Amato "paid
the fine."
Collins denies that either episode occurred, stating that
Amato made no effort to pay dues either in July or August.
The credibility questions presented are not easy to
resolve, for the witnesses on both sides of the issues were
not always candid in their testimony. This is the case with
premise, for sec 56 of the Brotherhood's constitution expressly provides for
trial committees and spells out procedures to be followed by them The
reasons for his nonappearance before any agency of the District Council in
connection with the charges do not affect the ultimate issues in this case,
but one may note , in passing , a facet of his testimony warranting a belief
that he was more concerned with the discovery of some flaw in the District
Council's procedures that could be turned against it than in defending
himself on the meets of the charges against him This attitude emerged in
his explanation that he did not appear before the District Council to
oppose adoption of the trial committee 's action because he did not wish to
take the District Council "off the hook" or, in other words , as he also
testified , place it in a position "to rectify any mistakes" it had made in
violating his rights
14 Sec 57A of the Brotherhood 's constitution provides that penalties
imposed by a local or district body are not effective while on appeal to the
general executive board , except in cases where there has been a failure to
make the payment required by sec 57C
526 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the accounts by both Amato and Koufos of Amato's
behavior at the hiring hall on April 17. Moreover, the
precise phrase, "a valid receipt," which appears in the two
letters sent to Amato by the Brotherhood's General
Executive Board in connection with the processing of
Amato's appeal, is imputed by Amato to Collins on four
occasions, two of them in July and August, as described
above, the third in September, and the fourth in October,
when, according to Amato, he attempted to pay his dues.
There is no evidence that Collins had ever seen a copy of
either letter ; and one may well doubt the likelihood that he
would use the precise phrase in question on all four
occasions. What is more, Koufos turns up as a witness as to
a number of episodes involving Amato and one or another
of the Respondent labor organizations, doing so on at least
some occasions at Amato's invitation, and while that, of
course, does not of itself place Koufos' credibility in
jeopardy, the fact of his presence by prearrangement,
coupled with indications at some points in his testimony of
a disposition to argue Amato's case, rather than to respond
factually to interrogation, gives his testimony some color of
bias and preconception.
On the other hand, a number of factors tip the credibility
scales against Collins. One is the unexplained failure of
Local 1913 to call Currier as to the dues offer Amato says
Currier witnessed Moreover, it seems plausible that Amato
would seek to pay his dues for July and August, as he had
for May and June, following his experience on the Gartz
job in April. Finally, there are aspects of Collins' testimony,
to be discussed later, given in connection with the dues
offer made by Amato in September, which impel a
conclusion that Collins has a policy of refusing to accept
dues from Amato until he pays $50 on account of his fine.
Thus, for the reasons stated, while I have some doubt that
Collins used the precise phrase, "a valid receipt," on each
occasion when Amato offered to pay the dues, I am
persuaded, and find, that he offered to pay his dues to
Collins in July and August, and that the latter declined to
accept the offers, telling Amato, on each occasion, in
substance, that he could not accept the dues unless Amato
paid $50 on account of the fine that had been imposed on
him.
On September 15, a Monday and thus a day on which the
roll was called at Local 1913's hiring hall, Amato, who had
signed the unemployed register, came to the hall in time for
the dispatches which were being handled by Riviezzo on a
platform in the hall preceding the rllcall, as was
customary. Riviezzo announced that a number of carpen-
ters (about six or seven, according to Riviezzo) were needed
for a "fixture job" by Fixtures Unlimited, as contractor, at
a specified department store, and then proceeded to call
some names from the register, including that of Amato,
who had specified his availability for such work.
Hearing his name, which was the second or third called,
Amato called out that he would accept thejob, came to the
platform, and displayed his "working card," but at about
that point Riviezzo left, stating he would return in a
moment. He came back a few minutes later, and handed
Amato a slip of paper containing the following unsigned
typewritten statement:
To: Michael Amato
Local Union 1913 is not dispatching you for the sole
reason that you failed to pay regular monthly union
dues and did not remain a member in good standing of
the Union as required by Article 2, section 206 of the
Master Labor Agreement.15
After some words between Riviezzo and Amato (their
versions conflict, but need not be set forth, as neither
account materially affects the issues), Amato, accompanied
by Koufos, went to the dues window in Collins' office,
where Amato spoke to Collins. As the evidence establishes,
without material dispute, Amato told Collins that he
wished to pay the dues he owed, and Collins said that he
would not accept payment, but there is conflict as to the
reason given by Collins. According to him, the reason he
gave was that Amato's "time for payment of dues had
expired." According to Amato, Collins said that he would
not accept the dues without production of "a valid receipt
for $50." Koufos quotes Collins as saying that Amato
would have to pay the "fine imposed on him" before his
dues would be accepted
As is evident from Collins' own testimony during his
cross-examination, he did something more than make the
vague statement that Amato's "time for payment of dues
had expired," for, after citing as his authority for the dues
rejection various sections of the Brotherhood's constitution,
which include provisions for loss of membership for
nonpayment of a fine due for more than 30 days, except
"where an appeal is pending" (sec. 45), and for payment of
$50 on account, as a condition of appeal, where the fine
exceeds that sum (sec. 57), he testified that he told Amato
that he "had no record of his appeal," and that the effect of
what he told Amato was that "until such time as I received
word that he had filed an appeal, whether it be by the
submission of a $ 50 deposit . . . I would be in no position to
take his dues." As the constitution requires the payment as
a condition of the appeal, Collins' enlarged account of what
he told Amato comes close to a concession that he told the
latter, in substance, that unless he was informed that Amato
had paid the $50, he could not accept dues from Amato.
It appears to me that Amato's version of the conversa-
tion is materially closer to the truth than Collins' vague
and fragmented account, and thus I find that on Septem-
ber 15, Collins was aware that Amato had not paid the $50,
and that he told Amato, in substance, that he could not
accept the dues because Amato had not made the required
$50 payment.
Rollcall on September 15 was held at 8 a.m., as
customary, and Amato's name was not called. Amato
looked at the register that morning shortly after completion
of the call, and saw that a line had been drawn through his
name, and that a notation had been made alongside to the
effect that that had been done at 7:45 a.m.
On October 17, 1969, several weeks after Amato had filed
a charge alleging that the refusal to dispatch him on
September 15 was unlawful, the Respondents' attorney
wrote a letter to Amato, stating that the District Council
is The slip of paper has some written notations made by Amato and
Koufos after it was given to Amato I base no findings on the notations
CARPENTERS, LOCAL 1913
and Local 1913 had no objections to his employment at the
Fixtures Unlimited project, or by any other employer,
provided he complied with the AGC contract, nor to his
registration on the unemployed list at the Local 1913 hiring
hall; and that he would be dispatched without discrimina-
tion in accordance with the hiring procedures set forth in
the contract.
Shortly after receipt of this letter, Amato registered at the
bottom of the unemployed list at the hiring hall, and made
an offer to Collins at the dues window to bring his dues up
to date, and Collins rejected the offer in substantially the
same terms as before.
In most weeks between that incident and the hearing in
this proceeding, Amato has registered on the unemployed
list at Local 1913's hiring hall, but he has not been
dispatched during the period. In some of the weeks, he did
not answer rollcall, and in each such week his name was
dropped from the register until he reregistered.
On or about November 13, Amato secured a job as a
carpenter on a construction project from McKee, by whom
he had been employed within the preceding 3 years, and as
the project was within the territorial area served by Local
25, he procured the requisite work request from McKee
and, accompanied by Koufos, submitted it at the local's
dispatch window to an office employee of the organization,
Elizabeth Carson, whose duties include dispatching. She
prepared the requested referral slip and gave it to Amato.
He left the window, but instead of proceeding to the job,
returned after several minutes, told Carson that he was not
current in his dues payments, and, submitting his working
card to her, asked her if it was the policy of Local 25 to issue
a referral to one who was not current in his payments.
Verifying the fact of his arrearage from his card, she told
him that it was not the local's policy to issue such a referral,
and that she had assumed he was current and had made a
mistake. She retrieved the referral slip from Amato, and
told him that she would issue it if he brought his dues
payments up to date. He did not do so, and did not work at
the project.
D. Discussion of the Issues, Concluding Findings
The General Counsel views Amato's behavior at the
hiring hall on April 17 as the exercise of Section 7 rights,
that is, to quote the General Counsel's brief, that Amato
was protesting "against the manner in which his collective
bargaining representative (Local 1913) was operating the
contractual referral system." Harnessing this position to a
contention that the fine was unreasonably high, and the
discipline "arbitrary," the General Counsel maintains that
the penalty imposed violated Section 8(b)(1)(A). As is
evident from the complaint and the General Counsel's
brief, this claim is tendered without regard to the issue
whether the denials of referral following the imposition of
the discipline were unlawful.
Granting that union discipline of a member, obligated to
belong to the union as a condition of employment, for
conduct protected by Section 7 violates Section 8(b)(1)(A)
527
if the penalty, although otherwise proper, exceeds reasona-
ble limits,is there is an underlying fallacy in the General
Counsel's thesis, and that is that Amato was disciplined for
exercising Section 7 rights.
It is true, as the General Counsel points out, that Local
1913 acts as the agent of the contracting employers in
dispatching employees subject to the agreement to jobs,
that Section 7 protects the right of such an employee to
protest the operation of the contractual dispatch machinery
to deny him a referral, and that, as the Seventh Circuit has
said, "not every impropriety committed during such
(Section 7) activity places the employee beyond the
protective shield of the Act" (N.L.R.B. v. Thor Power Tool
Company, 351 F.2d 584, 587). But is is also true, as the
Court pointed out, that "flagrant conduct of an employee,
even though occurring in the course of Section 7 activity,
may justify disciplinary action by the employer . . . The
employee's right to engage in concerted activity may permit
some leeway for impulsive behavior, which must be
balanced against the employer's right to maintain order and
respect" (id.). And one need hardly add that a union that
serves as the employer's hiring agent has a comparable
"right" at its hiring facility.
Applying that right to the facts in this case, the nub of the
matter is that Local 1913 has an important stake in the
maintenance of peace and good order in its facility,
especially when substantial numbers of jobseekers gather
there ; in retaining their trust in the fairness of the operation
of the facility; in protecting its representatives from
unwarranted abuse in the course of their duties there; and
in financing its operation through the collection of proper
dues; and that the record as a whole impels a conclusion
that the charges brought against Amato, and the resulting
discipline, were not aimed at Amato's right to disagree with,
and protest, the refusal to give him the work order unless he
paid his current month's dues, but at conduct by him at the
hiring hall and at the project militating against the peaceful
and orderly operation of the referral system, and of the
related provisions of section 42M of the bylaws.
There is no demonstration (or claim, for that matter) that
the proceeding against Amato failed to comply with the
regular disciplinary procedures prescribed by the District
Council's bylaws and the Brotherhood's constitution; nor is
there any warrant for a conclusion that the trial committee
based its finding and recommendation on anything but the
evidence before it.
The committee hearing record (a verbatim transcript of
which is in evidence in this case), consisting of undisputed
testimony, portrays Amato as being "noisy" and
"boisterous" while in the hiring hall; as "raving and
ranting" in response to Cowan's request that he see Collins,
pay his dues and procure the requisite card; as insisting that
Cowan was denying the referral, despite repeated state-
ments by Cowan that the referral would be issued upon
presentation of the proper working card; as being "very
abusive" toward Riviezzo and Cowan at the hiring hall and
the Gartz job site, although less so at the project than at the
hall; as rejecting the authority of the bylaws and the
Brotherhood's constitution in profane terms; as challenging
16 Scofield v N L R B, 394 U S 423, see also N LR B v Marine and Shipbuilding Workers, 391 U.S 418
Allis-Chalmers Mfg Co, 388 U S 175, and N LR B v Industrial Union of
528 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Cowan to deny the referral, coupling this, in the presence of
other members of Local 1913 who were "listening," with a
statement to Riviezzo and Cowan that "I have enough on
you guys now"; and as working at the Gartz project,
without the requisite card, in violation of the bylaws,
despite Cowan's admonition that he first procure one.
To be sure, some of the testimony before the committee
consisted of conclusions and generalizations such as that
Amato was "raving," "ranting," "noisy," "boisterous," and
"very abusive," but that is not the case with Amato's
violation of sec. 42M of the bylaws, which obviously was
not protected by Section 7 of the Act, nor with his assertion,
"I have enough on you guys now" which, to the other union
members present, could reasonably convey the meaning
that Amato had information of misconduct by Riviezzo
and Cowan, and could be reasonably interpreted as a threat
of reprisal against both business agents if they accepted his
challenge to "go ahead and refuse me this job." The
potential of such behavior for planting seeds of dissension
and distrust of the operation of the hiring hall among other
union members is obvious, and it is equally evident that in
the circumstances presented, the intimated threat of
reprisal was not the exercise of a Section 7 right Moreover,
it is one thing to say that the testimony before the
committee included conclusions and generalizations, but
quite another to say that these characterizations covered
conduct protected by Section 7. The disciplinary proceed-
ing was brought by nonlawyers and heard and decided by
nonlawyers, and the record of the hearing before the
committee should not bejudged by the evidentiary niceties
that prevail in judicial proceedings. Deliberately absenting
himself, Amato contributed nothing to enlighten the
committee, which necessarily had to base its decision on the
testimony presented to it. In the absence of any evidence to
the contrary, it is fair to conclude that the committee, in the
light of the total record before it, accorded the quoted
generalizations the meaning they would have in reason and
common understanding, that is, that Amato, without good
cause, engaged in noisy and boisterous behavior at the
hiring hall that was detrimental to the peace and good order
that the facility should have, and verbally abused
representatives of the local both there and at the Gartz job
site while they were endeavoring to discharge their duties. 17
In the context of circumstances, I find no more protection
in Section 7 for such behavior than for Amato's veiled
threat of reprisal against Riviezzo and Cowan if the referral
17 In making findings previously as to Amato's behavior at the hiring
hall, I have taken into account variances between the testimony Riviezzo
and Cowan gave in this case and that they gave before the committee
Bearing in mind the differences between the two types of proceedings, the
disparities between the two hearing records are not so great as to warrant
the rejection of the versions Riviezzo and Cowan gave in this case In any
event, one must look to the record before the committee, and not to the
testimony here, for the evidentiary basis for the committee's finding and
recommendation
i" As regards the reasonableness of the discipline, the General Counsel
makes much of the fact that an exhibit (R Exh 6) listing penalties imposed
by the District Council since January 1, 1965 shows that no member of
Local 1913 has been fined as much as 300 during the period covered, but
that, in my view, is an unduly limited use of the exhibit The disciplining
agency is not Local 1913, but the District Council which performs that
function for some 24 constituent locals in the Los Angeles area There is no
were denied him, or his violation of section 42M of the
bylaws.
The correlative result of a conclusion that the conduct for
which Amato was disciplined is not protected by Section 7
is that a judgment as to the reasonableness of the penalty is
not the province of the National Labor Relations Board.
That is not to say that the Board may not take the scope of
the penalty into account in the process of determining
whether a union member has been punished for exercising a
protected right. Conceivably, in given cases, unprotected
conduct may be used as a pretext to punish a union
member for exercising a protected right, or the motive for
the discipline may be obscure, and in such situations, the
relative severity of the penalty might help shed light on its
purpose.
But multiple factors may govern an inquiry whether a
penalty was aimed at the exercise of protected rights, and
the mere fact that its scope may run counter to the
factfinder's perception of what is reasonable does not
inevitably spell out an invasion of Section 7 rights.
Perceptions of the reasonable in penalties may reasonably
vary widely, conditioned by such factors as variations in the
behavioral standards of those charged with the responsibili-
ty of forming a judgment, or degrees of awareness of the
need for the discipline imposed. Wide, but acceptable
variations, in assessing damages or imposing penalties are a
common experience in the courts. And in examining the
range of the penalty as part of an examination of its
underlying aim, one not charged with the responsibilities of
Local 1913 and the District Council should exercise
appropriate caution, lest he improperly invade their
province.
Guided by that admonition and the total record,
including Amato's deliberate and repeated failures to avail
himself of opportunities to appear before the District
Council or its appropriate agency, and offer information
(such as, for example, mitigating circumstances or data on
his financial resources) that could conceivably have
resulted in a reduced penalty, or none at all, I am unable to
find in the discipline such unreasonableness as to warrant a
conclusion that its aim was suppression of any protected
right of protest, or punishment for its exercise, rather than
an expression of Local 1913's legitimate interest in
maintaining peace and good order in its hiring facility,
protecting its representatives from unwarranted abuse and
threat of reprisal for performance of their duty, and
securing compliance with lawful dues requirements.18
indication that its disciplinary standards differ from one local to another.
Variables in discipline are to be expected because of factual variables and
the changing personnel of trial committees, but passing that, it is a fact that
in the period since January 1, 1965, there have been many cases before the
District Council involving various locals, in which the penalty was
expulsion or a fine of $300 or more or expulsion plus a substantial "special
initiation fee" for violation of various provisions of Section 55 of the
Brotherhood's constitution It is true that the record does not reflect the
underlying facts in these cases (except one involving Amato in 1968 that
need not be detailed here), but responsibilty for that omission must be laid
at the General Counsel's door It is he who asserts that the discipline was
unreasonably disparate, and the burden of proof in the matter is his As the
record attests, the files of the disciplinary proceedings for the period
covered by the exhibit were made available to him by the District Council,
yet the record, with the one exception noted, leaves one in the dark as to
the evidence in the many cases reflected in the exhibit. It is no answer to
(Continued)
CARPENTERS , LOCAL 1913
I find, in sum, for the reasons stated, that Amato was
disciplined for conduct not protected by Section 7, and that
the discipline did not violate Section 8(b)(1)(A). According-
ly, I shall recommend dismissal of the allegations of such a
violation.19
The remaining question is whether the Respondents
unlawfully discriminated against Amato after his fine and
suspension at the respective hiring hall facilities of Locals
25 and 1913. There is no evidence that the Distnct Council
participated in the operation of either hall, or had any
connection either with the refusals to accept Amato's dues,
or to refer him from either facility. Thus, I shall recommend
dismissal of the allegations of unlawful discrimination to
the extent that they pertain to the District Council.
It is beyond dispute, however, that Local 1913 denied
Amato referral to the Fixtures Unlimited job on September
15, and dropped his name from the unemployed register
before rollcall that day. As the Supreme Court has pointed
out, union security agreements permitted by the Act may
not be utilized "for any purpose other than to compel
payment of union dues and fees" (Radio Officers' Union v.
N.L.R.B., 347 U.S. 17, 41). And the only ground on which
the local could lawfully deny Amato a referral to which he
was otherwise entitled was a failure by him to tender
periodic dues and initiation fees uniformly required as a
condition of acquiring or retaining membership in the
local.20
Notwithstanding the terms of the note given Amato by
Riviezzo on September 15, the evidence impels a conclusion
that Local 1913 assigned Amato the status of "a member
(not) in good standing" not because of his nonpayment of
dues, but because he was under penalty of a fine and had
not paid it. Collins had on two prior occasions rejected
offers by Amato to pay the dues then owing, and on each
occasion had given the reason that Amato had not made
the $50 down payment of account of his fine, required as a
condition of his appeal, and rejected a third offer on
substantially the same ground on September 15.
This course points to the underlying reason for the denial
of referral on that date. Under the Brotherhood' s constitu-
tion, the penalty was not only in effect while the $50
remained unpaid, but by September 15, the 30-day
limitation for perfecting the appeal, and for making the
related down payment, had expired, and Amato was not, in
the language of sec. 45E of the constitution, "entitle(d) . . .
to any privilege, rights or donations." Significantly enough,
in his testimony, Collins cited sec. 45E, sec. 55, which
contains a list of offenses, including those with which
Amato was charged, sec. 56, which deals with "charges and
say that the presentation of such evidence is difficult or impractical, for the
fact still remains that before one could form a valid judgment on the
General Counsel's disparity thesis, it would, at least , be necessary to take
into account the other cases of substantial penalties reflected in the exhibit,
and the underlying evidence (not merely the charges) that led to them
Moreover, the General Counsel's position is not made by the fact that the
District Council's bylaws specify relatively small fines for violation of
"trade rules" (such as sec 42M) in or appended to the bylaws, for the
charges against Amato involved substantially more than a violation of sec
42M or the "trade rules" In short, the record will not support a finding
that the Distnct Council meted out significantly different punishment to
Amato from the discipline of others in substantially similar situations
19 In view of the conclusion that Amato was disciplined for conduct not
protected by Section 7, 1 find inapposite cases holding that a fine for a
529
trials," and sec. 57, which spells out the appellate procedure
and the 30-day time limitation, as his authority for
rejecting the dues offer of September 15.
In sum, taking all factors into account, I find that Local
1913 denied Amato the status of "a member in good
standing" not because of nonpayment of dues, but because
of his failure to pay the fine; that that was the underlying
reason for denial of the referral on September 15 and the
removal of his name from the register on that date; and that
by the refusal to refer him to the Fixtures Unlimited project
and the removal of his name from the list, Local 1913,
which was the hiring agent of the employers subject to the
contract between the Brotherhood and AGC, caused
employers to discriminate in violation of Section 8(a)(3) of
the Act, and thus violated Section 8(b)(2) of the Act, and
restrained and coerced employees in the exercise of rights
guaranteed them by Section 7 of the Act, thereby violating
Section 8(b)(1)(A) of the statute.
Turning to the claim of discrimination against Amato at
Local 25's hiring hall, the Respondents argue that his
purpose in seeking referral to the McKee job was not to
secure work, but to "set up" Local 25 for a charge of
discrimination. Although the Respondents do not expressly
make the point, the implication of their position is that the
charges by Amato based on the episode amount to an abuse
of the Board's processes warranting dismissal of the
relevant allegations.
There is ground for suspicion, at least, that Amato had
the aim imputed to him. He was hard put to it to explain
Koufos' presence at the hall, conceding at one point that
Koufos had accompanied him to serve as a "witness," then
denying such a purpose and offering the lame excuse that
Koufos "just came along with me." Koufos, I find, did
accompany Amato by prearrangement to serve as a
"witness." That, of course, does not establish the ulterior
motive attributed to Amato by the Respondents, but it does
add some color to the claim that he entertained it. More to
the point is the undisputed fact that he himself brought
about rejection of his request, for after the referral was
issued, he gratuitously raised the question with the
dispatching clerk whether he was entitled to the referral,
offering the information to the effect that he had not paid
his dues for the current month, but saying nothing to the
clerk about the reason repeatedly given him by Collins for
rejection of his dues offers, nor about the letter from the
Respondents' attorney, previously described. Conceivably,
had he not withheld this information, the clerk would have
referred Amato's request to a superior who, in turn, would
have sought counsel in the matter.
protected activity violates Sec 8(b)(l)(A) if it is unreasonably high Among
such decisions, see Washington Baltimore Newspaper Guild, Local 35
(Washington Post Co and Evening Star Co), Cases 5-CB-924-I, 924-2,
issued June 24, 1970 by Trial Examiner Abraham H Malley, Booster Lodge
No 405, JAM (Boeing Co), Case 15-CB-779, issued December 30, 1968, by
Trial Examiner Ramey Donovan, Communications Workers of America,
Local 6222 (John H Reinbold), Case 23-CB-888, issued May 12, 1969, by
Trial Examiner James T Barker, and Carpenters Local Union 101 (Andrew
D Lewis), Case 5-CB-908, 984, recently issued by Trial Examiner William
Kappell. At least some of these cases are before the Board for review as of
the date of this decision
20 Mayfair Coat & Suit Co, 140 NLRB 1333, 1334 , Building Material &
Dump Truck Drivers Local 420 (Matt J Zaich Co), 132 NLRB 1044, 1048
530 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On the other hand, Amato did go to the trouble of finding
the McKee job, and, in view of indications that he had had
periods of unemployment in 1969, there is good reason to
doubt that he would use the job opening as a mere vehicle
for building a case against Local 25. Moreover, he
explained that the reason why he raised the question of his
dues status after the referral had been given to him was that
he was concerned that thejob steward at the project would
remove him after he began work, and he thought he should
clarify his status before proceeding to the job site. The
explanation sounds a plausible note in view of his prior
experience at the Gartz project Although with some
misgiving, I accept the explanation, and find that his
purpose at the hiring hall was to secure a referral to the
McKee job, and not to manufacture a basis for a claim of
discrimination at the dispatch facility.
However, I find no basis in the record for charging Local
25 with a violation of the Act As is evident, the dispatching
clerk was not even aware of the rejection of Amato's dues
offers to Local 1913, not to speak of the reason for the
rejection. The sole reason for the withdrawal of the referral
was Amato's own representation that he had not paid his
dues for the current month. Section 42M of the District
Council's bylaws in effect requires such a payment as a
condition of work. The General Counsel makes no claim
that section 42M is unlawful; I find no legal impropriety in
the requirement; and it appears to me that Local 25 could
properly take the short cut of denying Amato the referral
because he had not paid his dues for the current month
instead of waiting until he actually arrived at the project for
work.21 For the reasons stated, I find that Local 25 did not
violate the Act as a result of denial of the referral, and
therefore shall recommend dismissal of the allegations of
the complaint pertaining to Local 25.
But this does not exonerate Local 1913 of an unlawful
role in Amato's loss of work on the McKee project, albeit
Local 25 did not act as Local 1913's agent in denying the
referral. Section 8(b)(2) of the Act forbids a labor
organization "to cause an employer to discriminate" in
prescribed circumstances. Local 25 was McKee's hiring
agent; and the question presented is whether Local 1913
"caused" McKee, though its agent, to discriminate
unlawfully. Plainly, the fact that Local 25 acted unwittingly
in the affair does not preclude a finding that Local 1913
"caused" a condition which had an unlawful impact on
Amato
The nub of the matter is that Local 1913 had repeatedly
rejected Amato's offers to pay dues because he had not paid
a portion of his fine; that it would have been futile for
Amato to make an offer to pay his dues for November in
view of the rejection that had taken place in each of the
preceding four months, and that by bringing about that
situation, Local 1913 had "caused" a condition in which
Amato could neither pay the dues requested as a condition
of his employment by McKee nor work for McKee without
such payment. In short, Local 1913 brought about the
21 Building Material & Dump Drivers Local 420 (Matt J Zaich Co), 132
NLRB 1044, 1048
22 Although the record establishes no discriminatory failure or refusal to
refer Amato from the hiring facility of Local 1913 after September 15, nor
any failure or refusal by the local to permit him to reregister on the
denial of the referral because Amato had not made the
requested payment of the fine.
I find that by bringing about such a result, Local 1913
caused McKee to discriminate against Amato in violation
of Section 8(a)(3) of the Act; and that Local 1913 thereby
violated Section 8(b)(2) of the Act, and restrained and
coerced employees in the exercise of rights guaranteed them
by Section 7 of the Act, thus violating Section 8(b)(1)(A) of
the statute.
IV. THE EFFECT OF THE UNFAIR LABOR
PRACTICES UPON COMMERCE
The activities of Local 1913, set forth in section III,
above, occurring in connection with the operations of
Fixtures Unlimited, McKee, and AGC and its members
described in section I, above, have a close, intimate, and
substantial relation to trade, traffic, and commerce among
the several states and tend to lead to labor disputes
burdening and obstructing commerce and the free flow of
commerce.
V. THE REMEDY
It has been found that Local 1913 has engaged in unfair
labor practices violative of Sections 8(b)(1)(A) and (2) of
the Act. In view of these findings, I shall recommend that
Local 1913 cease and desist from its unfair labor practices
and take certain affirmative actions designed to effectuate
the policies of the Act.
As Local 1913 caused Fixtures Unlimited, McKee, and
AGC and its members to discriminate unlawfully against
Michael R. Amato, as found above, thereby violating
Section 8(b)(1)(A) and (2) of the Act, I shall recommend
that Local 1913 make Amato whole foi any wages he may
have lost, as a result of its refusal to refer Amato for
employment by Fixtures Unlimited, between September 15,
1969, the date of such refusal, and the date Local 1913
notifies Fixtures Unlimited, in writing, as hereafter
provided, that it has no objection to the employment of
Amato; as a result of any failure to refer Amato from the
hiring hall operated by Local 1913 to any position to which
he has been, or would be, entitled to be referred or
dispatched between September 15, 1969, and the date Local
1913 notifies AGC, in writing, as hereafter provided, that it
has no objection to the employment of Amato; 22 and as a
result of the denial of referral for employment by McKee at
the hiring facility of Local 25, as found above, between the
date of denial of such referral to the date Local 1913
notifies McKee, in writing, as hereafter provided, that it has
no objection to the employment of Amato; and that such
loss of wages be computed in accordance with the formula
and method prescribed by the Board in F. W. Woolworth
Company, 90 NLRB 289, and include interest at the rate of
6 percent per annum as provided in Isis Plumbing &
Heating Co, 138 NLRB 716, to which cases the parties
hereto are expressly referred.
unemployed list at its facility after removal of his name on that date, in
view of the evidence of a discriminatory attitude toward him at the facility
on September 15, a determination whether there has been any
discrimination against him at the facility since September 15, should be,
and is, reserved for the compliance stage of this proceeding
CARPENTERS , LOCAL 1913 531
CONCLUSIONS OF LAW
Upon the basis of the foregoing findings of fact, and
upon the entire record in this proceeding, I make the
following conclusions of law:
1. Fixtures Unlimited, McKee, and AGC and its
members respectively are, and have been at all material
times, employers within the meaning of Section 2(2) of the
Act.
2. Locals 25 and 1913 and the District Council
respectively are, and have been at all material times, labor
organizations within the meaning of Section 2(5) of the Act.
3. By causing Fixtures Unlimited, McKee, and AGC
and its members to discriminate against Michael R. Amato
in violation of Section 8(a)(3) of the Act, as found above,
Local 1913 has engaged, and is engaging, in unfair labor
practices within the meaning of Section 8(b)(2) of the Act.
4. By restraining and coercing employees in the exercise
of rights guaranteed them by Section 7 of the Act, as found
above, Local 1913 has engaged, and is engaging, in unfair
labor practices within the meaning of Section 8(b)(1)(A) of
the Act.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce withui the meaning of Section
2(6) and (7) of the Act
6. The record establishes no unfair labor practices by
Local 25 and the District Council.
writing, that it has no objection to the employment of
Michael R Amato.
(c) Post in conspicuous places, including places where
notices to its members are customarily posted, at its office,
usual membership meeting place, and hiring hall, copies of
the notice attached hereto. Copies of said notice, to be
furnished by the Regional Director of Region 31 of the
National Labor Relations Board, shall, after being duly
signed by an authorized representative of Local 1913 be
posted by it immediately upon receipt thereof and
maintained by it for 60 consecutive days thereafter in such
conspicuous places. Reasonable steps shall be taken by the
said Local 1913 to insure that said notice is not covered,
altered, or defaced by any other material.23
(d) Forthwith mail copies of the said notice to the said
Regional Director, after such copies have been signed, as
provided above, for posting at the respective places of
business of the said Fixtures Unlimited, Robert E. McKee
Construction Co., and Associated General Contractors of
America, Southern California Chapter, if they so agree.
(e) Notify the said Regional Director, in writing, within
20 days from the receipt of a copy of this decision what
steps Respondent Local 1913 has taken to comply
therewith.24
It is also recommended that the complaint be dismissed
so far as it pertains to Local 25 and the District Council,
and to the extent that it alleges that Local 1913 engaged in
any unfair labor practices not expressly found above.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
conclusions of law, and upon the entire record in this
proceeding, I recommend that United Brotherhood of
Carpenters and Joiners of America, Local No. 1913,
AFL-CIO, its officers, representatives, agents, successors,
and assigns, shall:
1. Cease and desist from:
(a) Causing, or attempting to cause, Fixtures Unlimited,
Robert E. McKee Construction Co., Associated General
Contractors of America, Southern California Chapter, or
any of the members of the latter organization to deny
employment to, or in any other manner discriminate
against, any employee, in violation of Section 8(a)(3) of the
Act.
(b) In any like or related manner, restraining or coercing
employees in the exercise of the right to self-organization,
to form, loin, or assist any labor organization, to bargain
collectively through representatives of their own choosing,
to engage in concerted activities for the purpose of
collective bargaining or other mutual aid or protection, and
to refrain from any or all such activities, except to the
extent that such right may be affected by an agreement
requiring membership in a labor organization as a
condition of employment, as authorized in the Act.
2. Take the following affirmative actions which, I find,
will effectuate the policies of the Act:
(a) Make Michael R. Amato whole in the manner,
according to the method, and to the extent set forth in
section V, above, entitled "The Remedy."
(b) Forthwith notify Fixtures Unlimited, Robert E.
McKee Construction Co, and Associated General Con-
tractors of America, Southern California Chapter, in
23 In the event no exceptions are filed as provided by sec. 102 46 of the
Rules and Regulations of the National Labor Relations Board, the
findings , conclusions , recommendations , and Recommended Order herein
shall, as provided in Sec 102 48 of the Rules and Regulations, be adopted
by the Board, and become its findings , conclusions , and order, and all
objections thereto shall be deemed waived for all purposes In the event
that the Board's order is enforced by a judgment of a United States Court
of Appeals, the words in the notice reading "Posted by Order of the
National Labor Relations Board" shall be changed to read "Posted
Pursuant to a Judgment of the United States Court of Appeals Enforcing
an Order of the National Labor Relations Board "
24 In the event this Recommended Order adopted by the Board, par
2(e) thereof shall be modified to read "Notify the said Regional Director,
in writing, within 10 days from the date of this Order, what steps the
Respondent Local 1913 has taken to comply therewith "
APPENDIX
NOTICE TO MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
We hereby notify our members that:
After a hearing at which all sides had an opportunity to
present evidence and to state their positions, the National
Labor Relations Board found that we have violated the
National Labor Relations Act, and has ordered us to post
this notice.
The Act gives employees the following rights
To engage in self-organization
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To engage in activities together for the purpose
532 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of collective bargaining or other mutual aid or
protection
To refrain from the exercise of any or all such
activities.
WE WILL NOT cause, or attempt to cause, any
discrimination by any employer against any employee
in violation of the National Labor Relations Act at our
hiring hall or that of any other union.
WE WILL NOT in any other like or related manner
restrain or coerce any employee in the exercise of any of
the rights set forth above.
The National Labor Relations Board has found that
we unlawfully discriminated against Michael R. Amato
in the operation of our hiring hall, and that we caused
various employers to discriminate against him in
violation of the National Labor Relations Act; and has
therefore ordered us to reimburse him for any loss of
pay he may have suffered because of such discrimina-
tion.
WE WILL reimburse the said Michael R. Amato for
his loss of wages, together with interest thereon, in
accordance with the Board's order.
UNITED BROTHERHOOD OF
CARPENTERS AND JOINERS
OF AMERICA, LOCAL
# 1913, AFL-CIO
(Labor Organization)
Dated By
(Representative ) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered , defaced,
or covered by any other material.
Any questions concerning this notice or compliance with
its provisions may be directed to the Board's Office, Room
12100, Federal Building , 11000 Wilshire Boulevard, Los
Angeles, California 90024 , Telephone 824-7351.