Carpenters Local 283 (Nisco Nuclear)

National Labor Relations Board - Board Decisions

May 5, 1987

283 N.L.R.B. 877 (N.L.R.B. 1987)

CARPENTERS LOCAL 283 (NISCO NUCLEAR) 877
Carpenters & Joiners of America Local 283 (NISCO
Nuclear Installation Services) and Herbert
Currie. Case 10-CB-4740
5 May 1987
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
JOHANSEN AND STEPHENS
On 17 September 1986 Administrative Law
Judge J. Pargen Robertson issued the attached de-
cision. The Respondent filed exceptions and a sup-
porting brief. The Respondent ` further, filed a
motion to reopen record for the purpose of intro-
ducing certain records, and the General Counsel
filed a response to the motion.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the, decision and the
record; in light of the exceptions and briefs and'
has decided to affirm the judge's rulings,, findings, 2
and conclusions and to adopt the recommended
Order.
i The Respondent in its motion to reopen urges that the record be re-
opened to permit the introduction of certain records regarding hiring hall
referrals m January 1986. The Respondent does not state any reason why
this evidence could not have been presented at the hearing nor does the
Respondent state that this is evidence that has become available only
since the close of the hearing. The Respondent's motion is therefore
denied.
z The Respondent has excepted to some of the judge's credibility find-
ings The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance, of all
the relevant evidence convinces us that they are incorrect Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd. 188 F 2d 362 (3d Cir. 1951).
We have carefully examined the record and find no basis for reversing
the findings
Concerning the Respondent's hiring hall procedure, Chairman Dotson
finds, as the record establishes, that as individuals come in to report they
are out of work, the Respondent's secretary, Linda Corbin, has a practice
of placing their names, along with the date, at the bottom of out-of-work
lists, one for carpenters, another for millwrights As companies call re-
questing millwrights or carpenters, referrals are made from the top of
these lists. In January 1986 Herbert Currie was second on the millwrights
out-of-work list. After Currie accepted referral 2 January for a mill-
wrights job with NISCO beginning 6 January, the Respondent's business
agent referred two other employees that ranked below ,Currie on the list
to the NISCO position, without first informing Currie Later that day the
Respondent offered, but Currie declined, a night-shift job with Multi-
Craft. Currie testified he understood the Multi-Craft position was can-
celed before it began. The judge found Corbin confirmed this fact
The Respondent contends that Corbin's testimony on the subject of the
Multi-Craft job being canceled was indecisive Chairman Dotson agrees
Nonetheless, he finds Currie's credibility is not undercut by his possibly
mistaken belief in this regard. Further, even if the Multi-Craft job was
not canceled, the fact remains, as the' judge found, that for reasons which
were arbitrary, invidious, or irrelevant to legitimate business interests, the
Respondent deviated from its established referral procedure by taking the
NISCO job away from Currie Accordingly, Chairman Dotson, in agree-
ment with his colleagues and the judge, finds that this conduct, and the
Respondent's failure to refer Currie on 5 February to a job at Westing-
house at a time he was first, on the millwrights out-of-work list, violates
Sec. 8(b)(1)(A) and (2).
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Carpenters
& Joiners of America, Local 283, Augusta, Geor-
gia, its officers, agents, and representatives, shall
take the action set forth in the Order.
Sharon E. Howard, Esq., for the General Counsel.
Charles W. Wilkinson, Esq., of Augusta, Georgia, for the
Respondent.
DECISION
STATEMENT OF THE CASE
J. PARGEN ROBERTSON , Administrative Law Judge.
This case was heard in Augusta, Georgia, on 25 June
1986. The complaint, which issued on 9 May 1986; and is
based on a 27 March 1986 charge, alleged that Respond-
ent failed to refer Herbert Currie for `employment since 6
January and 5 February 1986 "in disregard for Currie's
proper placement on Respondent's referral list."
The complaint alleged, and Respondent admitted, that
Respondent is a labor organization and is party to a col-
lective-bargaining agreement with various employers in-
cluding Pullman Power Company, that that collective-
bargaining agreement provides that its party-employers
hire all classifications of journeymen and others exclu-
sively through Respondent's referral procedures;' and
that Pullman2 is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
The Evidence
The General Counsel's case is based on evidence that
Respondent unlawfully withdrew a 6 January referral of
member Herbert Currie to a job with NISCO and that
Respondent unlawfully failed to refer Currie to a 5 Feb-
ruary 1986 job with Westinghouse.
Herbert Currie testified without rebuttal that he is a
millwright member of Respondent. Pursuant to estab-
lished procedure, Herbert Currie was included on Re-
spondent's out-of-work list before and on 6 January and
5 February 1986.
On 2 January 1986, according to Currie's testimony,
he was visiting relatives in Tabor City, North Carolina,
where he received a message that Respondent needed
him for a job on Monday, 6 January. Currie called Re-
spondent's hall on 2 January and spoke with Business
Agent David Frambes.3 Frambes told Currie that Re-
spondent needed millwrights on a job with NISCO be-
I Respondent's answer further alleged that the exclusive referral proce-
dure in the collective-bargaining agreement also provides "if Respondent
does not provide the required manpower within 48 hours, employers can
hire, needed workers from off the street or through any other source "
2 The record evidence illustrated that other employers party to the ex-
clusive hiring hall contractual provisions included P4ISCO and Westing-
house at Plant Vogle
8 As business agent, Frambes was the ultimate authority on all job re-
ferrals. Frambes, who was business agent during material times, has since
been replaced
283 NLRB No. 140
878 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ginning Monday, 6 January 1986. Currie told Frambes
that he would take the job. Due to the requirement that
Currie begin ' work at 7 a.m. on Monday morning,
Frambes told Currie that he would leave Currie's refer-
ral slip under a floormat outside the door of Respond-
ent's hall.4 After talking with Frambes, Currie tele-
phoned him, later on 2 January,5 and asked Frambes if
Respondent could also refer Currie' s son , an apprentice,
to the NISCO job. Frambes agreed that he would refer
both Herbert Currie and Currie' s son Bill to the 6 Janu-
ary NISCO job.
Linda Corbin testified that Herbert Currie ranked
number 2 on Respondent 's January 1986 out-of-work list
and number 1 on Respondent's February 1986 out-of-
work list. Corbin, when first called by the General
Counsel, testified that she usually handled referrals for
Respondent, but she did not know if she called Herbert
Currie about the 6 January NISCO job. Later, when
called by Respondent, Corbin testified, "I think I remem-
ber calling [Currie] and he couldn't quite-he hadn't
made up his mind yet (regarding whether to accept the
referral to the 6 January NISCO job)." Subsequently,
Corbin admitted that she could not remember whether
she talked to Currie before 6 January regarding the
NISCO referral. Corbin admitted that Business Agent
Frambes sometimes personally handled referrals.
Currie drove back from Tabor City, North Carolina.
At 4:30 a.m. on 6 January, he checked by Respondent's
hall but the referral slips were not under the floormat as
promised by Business Agent Frambes.6
Shortly after Respondent opened its hall on 6 January,
Herbert Currie phoned and asked to speak with Business
Agent Frambes. Currie was told by Linda Corbin that
Frambes was not there. A few minutes later, Currie tele-
phoned again and asked Corbin to have Frarnbes tele-
phone him. Currie telephoned again after lunch, but was
told that Frambes was not in. Currie then drove back to
Respondent's hall where he found and talked to
Frambes. Currie asked Frambes if the NISCO job had
been canceled. Frambes replied that the job had been
filled. Frambes mentioned day- and night-shift jobs with
Multi-Craft. Currie asked for the day shift but Frarnbes
said the day-shift jobs had been filled. Currie told
Frambes to send the out-of-towners to the Multi-Craft
night shift and send Currie "where he was supposed to
have sent me." Frambes replied that the Multi-Craft
night shift was all he had open. Currie said the night
shift would be very temporary.'
Paul Cobb testified that he was referred to the NISCO
job where he started work on 6 January. Cobb admitted
that Linda Corbin told him on Friday, 3 January, that
Herbert Currie and Currie's son were going on the 6
4 Both Currie and a secretary for Respondent, Linda Corbin, testified
that it was normal procedure for Respondent to leave referrals under the
floormat -when referral employees were required to pick up the referral
slips while Respondent's hall was closed
5 Currie's telephone bill`shows phone calls from Tabor City, North
Carolina, to Respondent's hall that were charged to Currie's home phone
at 10:24 a.m.'and 10:27 a.m. on 2 January 1986
6 There was no dispute , but referral slips were required before an em-
ployee would be accepted on a job
7 Currie testified and Linda Corbin confirmed that the Multi-Craft
night-shift job was subsequently canceled before it began
January NISCO job with Cobb.8 However, Cobb testi-
fied that two "out-of-towners" showed up at NISCO on
6 January and worked instead of Currie and Currie's son.
Respondent's out-of-work list plus notes of Linda
Corbin and Corbin's testimony show that two "out-of-
towners" (i.e., members of locals other than 283) were
referred to the 6 January NISCO job along with Paul
Cobb, even though the out-of-towners should have been
referred after Currie. The two out-of-towners, Carl
McNeil and Gale Thompson, reported to the NISCO job
and worked on 6 January 1986.
On 5 February, Currie visited Respondent's hall after
his nephew, a foreman for Westinghouse at Plant Vogle,
phoned him that Westinghouse had asked Respondent to
refer two millwrights. As shown above, - Currie was
number 1 on Respondent's referral list on 5 February.
Currie testified that he contacted Respondent and was
told by Linda Corbin that Respondent had referred two
out-of-towners to the Westinghouse job, and that those
employees had not been specifically requested by Wes-
tinghouse. Respondent's February referral list and notes
prepared by Linda Corbin in the normal course of her
work were received in evidence. Those documents sup-
port Currie's testimony. The two "out-of-towners" re-
ferred to the 5 February Westinghouse job were Gary
Stonecipher and James O'Mahoney.
Discussion
I find that Herbert Currie was a credible witness as to
material questions regarding the alleged unfair labor
practices. Curries testimony was not rebutted. More-
over, his testimony regarding the allegedly violative
action was , supported by Respondent's records- including
Respondent's January and February- 1986 referral lists
and notes prepared by Respondent's secretary Linda
Corbin.
The testimony of Linda Corbin to the effect that she
may have talked to Currie about the 6 January NISCO
referrals cannot be credited. Corbin admitted that she
could not recall talking with Currie on that occasion.
Currie denied that he told Corbin that he had not made
up his mind regarding the NISCO job. I credit Currie's
denial.
Additionally, I do not credit the testimony of Paul
Cobb regarding his telephone conversation with Currie
on the, night of 6 January. Cobb admitted at the begin-
ning of his testimony that he did not think it was right
for Currie to sue the Union. Moreover, I was not im-
pressed with Cobb's demeanor. Additionally, Cobb's tes-
timony, especially in response to the General Counsel's
questions, illustrated an eagerness to testify in a manner
harmful to Currie. For example, when asked if Currie
told him that Currie had turned down a night-shift job
8 According to Cobb, Currie expressed concern with passing a urine
test. Cobb testified that Currie told him in a telephone conversation on
the night of 6 January that Currie had been "smoking pot." Cobb re-
called that he told Currie that NISCO required a urine test and that
Currie would have failed the test if he had -been smoking pot Currie tes-
tified in rebuttal that he did telephone Paul Cobb on 6 January, but that
nothing was said about not passing a urine test because Currie had been
smoking marijuana According to Currie, he phoned Cobb to ask who
had been referred to the NISCO job in his place
CARPENTERS LOCAL 283 (NISCO NUCLEAR) 879
with NISCO, Cobb replied, "How can they offer, it to
him if they can't get in touch with him." Despite Cobb's
testimony, there was no probative evidence that Re-
spondent expressed difficulty contacting Currie regard-
ing the 6 January job with NISCO. I credit Currie's tes-
timony that he did not tell Cobb that he had been smok-
ing marijuana.
In view of my credibility findings, I' find that the evi-
dence shows that Respondent told Currie that he was
being referred to the 6 January -NISCO job. Subsequent-
ly, without first informing Currie, Respondent, through
its Business Agent Frambes, referred two other employ-
ees that ranked below Currie on Respondent's referral
list. Respondent's refusal to refer Currie to the 6 January
NISCO job was contrary to Respondent's established re-
ferral procedure.
Additionally, I fmd that the evidence shows that Re-
spondent's refusal to refer Currie to the 5 February 1986
Westinghouse job at Plant Vogle was contrary to Re-
spondent's established referral procedure.
Conclusions
In Electrical Workers IBEW Local 11 (Los Angeles
NECA), 270 NLRB 424, 425 (1984), the Board found:
The Board has held that a union which operates an
exclusive hiring hall must represent all individuals
who seek to utilize the hall in a fair and impartial
manner . The labor organization conducting [an ex-
clusive hiring hall] has a duty to conform with and
apply lawful 'contractual standards in administering
the referral system, and any department from the
established procedures resulting in a denial of em-
ployment constitutes discrimination which inherent-
ly encourages union membership. This discrimina-
tion constitutes a violation of Section 8(b)(1)(A) and
(2) of the Act.
In Stage Employees IATSE Local 646 (Parker Play-
house), 270 NLRB 1425 (1984), the Board sustained find-
ings of an administrative law judge that a union must use
objective criteria or standards for referring employees
pursuant to exclusive referral provisions of a collective-
bargaining agreement.
The law does not require a showing of specific intent
to discriminate to support a finding of an unfair labor
practice in the improper operation of a hiring hall. Car-
penters Local 25 v. NLRB, 769 F.2d 574, 580 (9th Cit.
1985). No evidence illustrated that Business Agent
Frambes had a legitimate reason to deny, the material re-
ferrals to Currie. Respondent refused to refer Currie "for
reasons which Were arbitrary, invidious, or irrelevant to
legitimate union interest." Operating Engineers Local 478
(Stone & Webster), 274 NLRB 567 (1985).
The record proves that Respondent refused to refer
Currie to the NISCO and Westinghouse jobs in contra-
vention of its established policies and procedures. Re-
spondent used no objective criteria or standards in deny-
ing those referrals to Currie. I fmd that Respondent's
failure to refer Currie to those positions on 6 and 5 Feb-
ruary 1986 constitutes unfair labor practices in violation
of Section 8(b)(1)(A) and (2) of the Act.
CONCLUSIONS OF.LAW
1. Pullman Power Company is an employer within the
meaning of Section 2(2) of the Act and is engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act.
2. Carpenters & Joiners of America, Local, 283 is a
labor organization within the meaning of Section 2(5) of
the Act.
3. Respondent, NISCO, Westinghouse, and other em-
ployers are parties to a collective-bargaining agreement
whereby Respondent operates an exclusive hiring hall
for the referral of employees by Respondent to the em-
ployers.
4. By failing and refusing to refer for employment
Herbert Currie in the manner established by Respond-
ent's collective-bargaining agreement and its own poli-
cies and procedures, Respondent has engaged in, and is
engaging in, unfair labor practices within the meaning of
Section 8(b)(1)(A) and (2) of the Act.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the,meaning of Sec-
tion 2(6) of the Act.
THE REMEDY
Having found that Respondent has engaged in, and is
engaging in, unfair labor practices within the meaning of
Section 8(b)(1)(A) and (2) of the Act, I recommend that
Respondeiutbe ordered to cease and desist therefrom and-
take certain affirmative action designed to effectuate the
policies of the Act.
Having found that Respondent unlawfully failed and
refused to refer for employment Herbert Currie in
accord with its established policies and procedures .and in
accord with its collective-bargaining agreement, I recom-
mend that Respondent be ordered to make Currie whole
for any loss of earnings or other benefits resulting from
Respondent's discrimination in the manner set forth in
F. W Woolworth Co., 90 NLRB 289 (1950), together
with interest as provided in Florida Steel Corp., 231
NLRB 651 (1977).9
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
edlo
ORDER
The Respondent, Carpenters & Joiners of America,
Local 283, its officers, agents, and representatives, shall
1. Cease and desist from
(a) Failing and refusing to refer employees for employ-
ment in accordance with the hiring hall practices and
procedures established pursuant to its collective-bargain-
ing agreements.
9 See generally Isis Plumbing & Heating Co., 138 NLRB 716 (1962).
10 If no exceptions are filed as provided by Sec. 102 46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
880 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
(b) In any like or related manner restraining or coerc-
ing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Operate its exclusive hiring hall in accordance with
its established practices and procedures pursuant to its
collective-bargaining agreements.
(b) Refer Herbert Currie to positions to which he is
entitled pursuant to the terms of its collective-bargaining
agreement.
(c) Make whole Herbert Currie for any loss of earn-
ings or other benefits resulting from its discrimination
against Currie in the manner prescribed in the remedy
section of this decision.
(d) Preserve and, on request, make available to the
Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order.
(e) Post at its hall copies of the attached notice marked
"Appendix."" I Copies of the notice, on forms provided
by the Regional Director for Region 10, after being
signed by the Respondent's authorized representative,
shall be posted by the Respondent immediately upon re-
ceipt and maintained for 60 consecutive days in conspic-
uous places including all places where notices to mem-
bers are customarily posted. Reasonable steps shall be
taken by the Respondent to ensure that the notices are
not altered, defaced, or covered by any other material.
r' If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al 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."
(f) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply
APPENDIX
NOTICE To EMPLOYEES AND MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT fail and refuse to refer employees for
employment in accordance with our hiring hall practices
and procedures pursuant to our collective-bargaining
agreements.
WE WILL NOT in any like or related manner restrain or
coerce you in the exercise of the rights guaranteed you
by Section 7 of the Act.
WE WILL operate our exclusive hiring hall in accord-
ance with our established practices and procedures pur-
suant to the terms of the collective-bargaining agree-
ments.
WE WILL refer Herbert Currie and all other signato-
ries to our referral list to positions for which they are en-
titled pursuant to the terms of our collective-bargaining
agreements.
WE WILL make whole Herbert Currie for any loss of
earnings of other benefits resulting from our discrimina-
tion against him, less any net interim earnings, plus inter-
est.
CARPENTERS & JOINERS OF AMERICA,
LOCAL 283