Carpenters Local 607

National Labor Relations Board - Board Decisions

Sep 20, 1976

226 N.L.R.B. 62 (N.L.R.B. 1976)

62 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Carpenters Local 607, United Brotherhood of Carpen-
ters and Joiners of America , AFL-CIO (Massman
Construction Co.-Cannon Dam Project) and Daniel
W. Bybee. Case 14-CB-3096
September 20, 1976
DECISION AND ORDER
By MEMBERS JENKINS, PENELLO, AND WALTHER
On June 14, 1976, Administrative Law Judge Rob-
ert M. Schwarzbart issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order, except as modified
herein.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge as modified
below and hereby orders that the Respondent,
Carpenters Local 607, United Brotherhood of Car-
penters and Joiners of America, AFL-CIO, New
London, Missouri, its officers, agents, and
representatives, shall take the action set forth in the
said recommended Order as so modified:
1. Substitute the following for paragraph 1(b):
"(b) In any other manner interfering with, re-
straining, or coercing employees of Massman Con-
struction Co.-Cannon Dam Project in the exercise of
rights guaranteed-in Section 7 of the Act, except to
the extent that such rights may be affected by an
i We find no merit in Respondent 's exceptions since , in our view, the
matters raised therein can be more appropriately considered at the compli-
ance stage of the proceeding In par 1 (b) of his recommended Order the
Administrative Law Judge uses narrow cease-and -desist language , "like or
related manner ," rather than the board injunctive language "m any other
manner," which the Board traditionally provides in cases involving serious
8(b)(2) discrimination conduct . See Glaziers and Glassworkers Local Union
No 513, affiliated with International Brotherhood of Painters and Allied
Trades, AFL-CIO (Joseph J Cermak d/b/a Southern Glass Company), 200
NLRB 617 (1972). Morrison Knudsen Company, Inc, 122 NLRB 1147 (1959).
Accordingly, we shall modify the Order to require Respondent to cease and
desist from in any other manner mfrmging upon employee rights. This
change is also made in the revised notice.
agreement requiring membership in a labor organiza-
tion as condition of employment in accordance with
Section 8(a)(3) of the Act."
2. Substitute the attached notice for that of the
Administrative Law Judge.
APPENDIX
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides were represented by
their attorneys and presented evidence, it has been
found that we have violated the'National Labor Re-
lations Act in certain respects. To correct and reme-
dy these violations, we have been directed to take
certain actions and post this notice.
WE WILL NOT cause or attempt to cause Mass-
man Construction Co.-Cannon Dam Project to
discriminate against Daniel W. Bybee, Gerald
Phillips, or any other employees, in violation of
Section 8(a)(3) of the Act. -
WE WILL NOT in any other manner interfere
with, restrain, or coerce employees in the exer-
cise of their rights guaranteed in Section 7 of the
National Labor Relations Act, except to the ex-
tent that such rights may be affected by an
agreement requiring membership in a labor or-
ganization as a condition of employment in ac-
cordance with Section 8(a)(3) of the Act.
WE WILL notify Massman Construction Co.-
Cannon Dam Project, in writing, that we have
no objection to the employment of Daniel W.
Bybee and Gerald Phillips with all their former
rights and privileges, and we will furnish them
with copies of such notification.
WE WILL make whole Daniel W. Bybee and
Gerald Phillips for any loss of pay they may
have suffered by reason of our discrimination
against them.
CARPENTERS LOCAL 607, UNITED
BROTHERHOOD OF CARPENTERS AND JOINERS
OF AMERICA, AFL-CIO
DECISION
STATEMENT OF THE CASE
ROBERT M. SCHWARZBART, Administrative Law Judge:
Upon a charge and an amended charge filed on November
24 and December 15, 1975,' respectively, by Daniel W.
All dates hereinafter are within 1975, unless stated to be otherwise
CARPENTERS LOCAL 607 63
Bybee , an individual, a complaint dated December 18 was
issued by the Regional Director for Region 14, on behalf of
its General Counsel , alleging that Carpenters Local 607,
United Brotherhood of Carpenters and Joiners of America,
AFL-CIO, herein the Respondent Union, has engaged in,
and is engaging in, unfair labor practices within the mean-
ing of Section 8(b)(1)(A) and (2) of the National Labor
Relations Act, as amended , herein the Act. Respondent
duly filed an answer denying that it has engaged in the
alleged unfair labor practices . A hearing in this proceeding
was held on January 19, 1976 , in St. Louis , Missouri. Coun-
sel for the General Counsel and the Respondent have filed
briefs which have been carefully considered.
Upon the entire record in the case and from my observa-
tion of the witnesses and their demeanor , I make the fol-
lowing:
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYER
Massman Construction Co., a Missouri corporation, and
Land Equipment Co., at all times material herein, are and
have been partners doing business under the trade name
and style of Massman Construction Co: Cannon Dam Pro-
ject, herein the Employer.
At all times material herein the Employer has main-
tained its principal office in Kansas City, Missouri, and has
operated a field office in Center, Missouri, where it is pres-
ently engaged in the construction of the Clarence Cannon
Dam.
During the year ending November 30, which period is
representative of its operations during all times material
herein, the Employer, in the course and conduct of its busi-
ness operations, performed services valued in excess of
$500,000, and purchased and caused to be transported and
delivered at its Center, Missouri, field office goods and
materials valued in excess of $50,000, of which goods and
materials valued in excess of $50,000 were transported and
delivered to its Center, Missouri, field office directly from
points located outside the State of Missouri.
The complaint alleges, the answer as amended at the
hearing admits, and I find that the Employer is now, and at
all times material herein has been, an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7)
of the Act.
At all times material herein, the Respondent Union
through its International Union and Central Missouri Dis-
trict Council has been a party to a collective-bargaining
agreement with the Associated General Contractors of
Missouri ,2 to which the Employer had agreed to be bound.
This contract provides that the Union shall refer job appli-
cants to the worksite through the operation of its exclusive
hiring hall. However, article IV, section 2,A, states as fol-
lows: "[T]he Employer may bring in to any_ job from any
place or union jurisdiction the first and all other odd num-
bersof the crew until a total of five (5) transferred men and
five (5) local men is reached. Thereafter, one (1) man may
be transferred for each three (3) additional local men em-
ployed. Furthermore, the unions agreed to give due consid-
eration to any Employer's request for additional men con-
sistent with the purpose of this section."
In the event of layoff, the ratio of one company man for
each three (union) men who had come to the jobsite
through the hiring hall is maintained and, contractually, as
will be discussed, infra, was to be a factor in any layoff
affecting carpenters at the Cannon Dam site.
Daniel W. Bybee 3 and Gerald Phillips, lifelong acquain-
tances, applied directly to the Employer for employment as
carpenters on separate dates in September. On September
15, when Bybee, accompanied by Clinton A. (Rusty) Lav-
erack, requested employment at the Cannon Dam jobsite,
the two men were referred to Lowell Nester, Jr., the
Employer's carpenter foreman. In the response to their in-
quiry, Nester replied that men were needed as the Union
was having difficulty, in supplying the necessary help.
However, they first would have to clear through the Union.
The Respondent Union's business representative and fi-
nancial secretary, George N. Mundell, coincidentally, was
on the jobsite at the time and Nester told him about Bybee
and Laverack. Thereafter, Mundell sold the two men work
permits,' telling Bybee and Laverack that he was glad to
see them come out because of the difficulty he was having
in supplying men.
Bybee began work on September 17, with the day shift.'
On September 29, Phillips, too, visited the jobsite and
asked Nester if he could go to work. Nester replied that
when Phillips had cleared through the Union he would be
employed on the swing shift, the second shift with hours
from 4:30 p.m. until midnight. That evening Phillips went
to Mundell's home, purchased a work permit, and thereaf-
ter began work on the jobsite 6
II. THE LABOR ORGANIZATION INVOLVED
The Respondent Union is a labor organization within
the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Facts
The complaint alleges that on or about November 18 the
Respondent Union caused or attempted to cause the Em-
ployer to discriminatorily discharge or lay off Daniel W.
Bybee and Gerald Phillips, employed by the Employer as
carpenters, from the Cannon Dam project because of their
nonmembership in the Respondent Union.
2 Although the contract in evidence was executed on December 28, 1971,
to be effective retroactively from July 12, 1971, through April 30, 1974, and,
therefore, would have expired prior to the time of the events of this proceed-
ing, it is not disputed that the terms of this agreement were still in effect in
1975 when the incidents described herein occurred
3 For 2 years prior to June 1974, Bybee had been a member of Carpenters
Local 1792, a sister local to the Respondent Union based in Sedalia, Mis-
souri However, his membership had lapsed and by September 1975, when
he applied for employment at the Cannon Dam project, he was not a union
member Phillips has never been a union member
4 Work permits are valid for 30 days, after which they must be renewed,
and were priced at the same amount as I month's union dues
5 There were three shifts operating at the time on a 24-hour basis During
his period of employment at the jobsite, Bybee continued to work on the
day shift.
6 Mundell testified that it was his practice to tell those individuals to
whom he sold permits that the Union conducted its regular meetings on the
Continued
64 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Both Bybee and Phillips testified that together they at-
tended the Respondent's monthly meeting on the evening
of Monday, October 6, at the Laborers' hall in Hannibal,
Missouri. They stated that they had gone to the meeting to
vote on an assessment that had been proposed for the pur-
pose of raising the business agent's salary. Neither had at-
tended the meeting for the purpose of becoming members
of Respondent Union at that time' While the meeting was
in progress behind closed doors, Bybee, Phillips, and other
nonmembers congregated in an anteroom. Presently, Mun-
dell emerged from the meeting room and began to take
information from various membership applicants waiting
in the anteroom with Bybee and Phillips, which informa-
tion he used to complete their respective application forms.
That night, 11 new union members were signed up by
Mundell. However, Bybee and Phillips both left the union
hall before Mundell could reach them.'
During the week following the October 6 meeting, Mun-
dell, encountering Bybee, asked him why he and Phillips
had not remained at the meeting to buy their books. Bybee
replied that he had had no money.
On October 15 and 29, Bybee and Phillips, respectively,
bought their new work permits from Mundell. On October
31, 17 carpenters were laid off by the Employer for eco-
nomic reasons.
The next union meeting was held on Monday, Novem-
ber 3.9 Bybee and Phillips attended that meeting for the
purpose of joining the Union, together with six other appli-
cants. As had been the case at the earlier meeting, the ap-
plicants waited in the anteroom while the meeting proceed-
ed behind closed doors. Presently, Mundell came out and
completed the application forms on behalf of those who
had presented themselves for membership, including Bybee
and Phillips. When this was done, Mundell reentered the
meeting. He thereafter emerged and informed the appli-
cants that the-membership had voted to hold them over for
a 7-day investigation.10 Mundell initially implied that the
membership, on its own initiative, had voted to hold over
first Monday of each month at which time they could buy their membership
books. Consistent with this practice, he believed that he had so informed
Bybee and, Phillips, particularly the latter.
7 Neither Bybee nor Phillips was specific as to his reasons for believing
that he might be able to vote when he was not a member.
8 It was a practice at the monthly union meetings to consider new appli-
cants for membership. Under the existing procedures, after the start of the
meeting , when the question of membership applicants was raised, Mundell
customarily would enter the anteroom with the membership application
book and complete the applications on the behalf of the candidates who
were waiting in the anteroom who had not already done so He would then
reenter the meeting chamber where the members would vote on the new
applicants. On the same night, following a favorable vote, the new members
would be required to pay a $165 initiation fee and 1 month's dues of $15 10,
and would immediately thereafter receive their membership books Howev-
er, the Union's bylaws also allowed the issuance of books upon payment of
one-third of the initiation fee with the balance to be submitted within 90
dais
Bybee testified that shortly before the November 3 meeting, in the con-
text of the layoff that had just occurred, he had asked Mundell if the Union
was going to force the layoff of permit men first Mundell had replied that
he had gone to the Company's office and told them that they would have to
lay off permit men first , but that he was not going to hold them to it.
10 Sec 44 of the Union's bylaws, governing the admission of members
provides in relevant part, as follows.
the eight applicants for a 7-day investigation. However, un-
der closer questioning, Mundell related that Emmett Stolte,
the Respondent Union's president, and two or three trus-
tees had reviewed the Union's bylaws during the meeting,
after which Stolte had read to the membership the provi-
sion which related to the 7-day investigation: Stolte had
assured the membership that that procedure was legal and
had recommended that the membership vote that it be ap-
plied to the applicants. The membership, following this rec-
ommendation, had so voted. Thereafter, Mundell reen-
tered the anteroom and informed the eight applicants,
including Bybee and Phillips, of the results of the vote. ll
One evening shortly after the November 3 meeting," By-
bee telephoned Mundell at the latter's home and told him
that he was coming down to buy a book that evening.
Mundell replied that he was not authorized to sell a book
at his home. Bybee replied that he had heard that Mundell
was selling books at his home all the time. Mundell an-
swered that he had never sold a book at home and that he
sold them only at the union hall.13
The application of the candidate must be presented to the Financial
Secretary, with the full initiation fee, which except for apprentices and
applicants for non-beneficial membership in beneficial Local Unions,
shall be not less than . a sum equal to the current month 's dues, and
before the candidates can be obligated shall lay over one week for
investigation and shall be referred to a special committee of three, who
shall in the meantime, inquire into the candidate's qualifications to
become a member and report at the next regular meeting of the Local
Union making such recommendations as they deem proper, or the can-
didate may be elected and initiated at the same meeting if the investi-
gating committee reports favorably.
The Union's bylaws provide that membership books may only be sold
during the monthly union meeting which, as noted, in the absence of a
holiday, is conducted on the first Monday of each month. Accordingly, the
practical effect of the Respondent Union's determination on November 3 to
hold over the applicants for a 7-day investigation was to prevent them from
receiving their membership books before the next monthly meeting on De-
cember 1
i2 As Mundell recalls, the telephone conversation took place on or about
November 1, shortly after the October 31 layoff, but before the November
3 meeting.
13 Mundell's conceded statement to Bybee that he could not sell him a
membership book at his home was inconsistent with Mundell's general testi-
mony Mundell's office, where he maintains his records, is in his home.
From there, he also issues work permits, as applicable. Mundell sought to
explain the relevant difference between the sale of a work permit and a
membership book by noting that the applicants for a book are required
under the Respondent Union's bylaws to appear at a union membership
meeting to obtain them as they must take an oath before the flag and pay
their initiation fees in the prescribed manner after theii applications had
been voted on by the membership There are no such requirements relating
to the sale of permits. Mundell testified, however, that in his view an excep-
tion to that rule existed with respect to the eight applicants of November 3,
who had been held over for a 7-day investigation. On that night a three-man
investigation committee had been appointed to,review the qualifications of
the applicants Mundell testified that the committee had instructed him that,
if it did not report negatively to him, the candidates would not have to await
the next monthly meeting and he would be authorized to issue membership
books to the eight applicants at the conclusion of the 7 days following that
meeting As far as Mundell had known, this committee never issued a report
and Mundell had never checked back with the committee to find out if it
had reached a decision. Accordingly, as Mundell had not received an unfa-
vorable report from the committee, he assumed that he was authorized to
issue the books to the eight applicants starting '7 days after the November 3
meeting. However, Mundell was vague as to which of those applicants, if
any, he had told that they could get their books early. He conceded that he
did not so inform the candidates at the time of the union meeting when he
told them of the membership's vote to delay action on their bids. Similarly,
during his above-described telephone conversation with Bybee around the
time of the November 3 meeting, Mundell admitted that he had refused to
CARPENTERS LOCAL 607
On November 4, on the day after the second union meet-
ing, while on the jobsite, Bybee and Phillips related the
results of their efforts at obtaining membership to the car-
penter superintendent, Nester. Nester's reaction was sym-
pathetic. During that conversation Bybee asked Nester if
he would lay off permit men first, should additional layoffs
be required. Nester opined that he might have to, adding
that he did not believe that it would be right, but that if the
Company did not do so the possibility existed that the job
would be shut down.
On November 14, the Employer laid off .54 carpenters.
In the early morning of that day, Bybee was approached by
Chris Lemler, then his foreman.14 Lemler told Bybee that
he was on permit and was going to be laid off that day.
However, at 10 a.m., Lemler returned and informed Bybee
that he was going to get to stay. Accordingly, Bybee was
not laid off, on that day.
Also on November 14, Bybee bought his third work per-
mit from Mundell. On that occasion, Bybee asked Mundell
why he and the others had not been sold their books on
November 3. Mundell replied that the members had voted
on it and that it had been their decision. Mundell initially
testified that he could not recall the conversation with By-
bee at the time that he had sold him the November 14
permit. He later recalled that he had offered to sell Bybee a
book, but that Bybee had been interested only in pressing
charges -against him and the Union.15
On November 14, Bybee learned that all the members of
his crew except himself, two bookmen, and Lemler had
been laid off. Lemler, however, as a result of the reduction
in force, thereafter worked in a nonsupervisory status and
was-replaced as foreman of Bybee's crew by Tom Rogers.
Employees were transferred in from other crews to fill the
depleted ranks of Bybee's and Phillips' crews.16
On November 18, as part of a furlough affecting approx-
imately 25 employees, Bybee and Phillips were laid off.
Bybee learned of his situation at the conclusion of that
day when Tom Rogers, his foreman, handed him his notice
of termination and informed him that he was being laid
off. The reason set forth on the termination notice was
sell Bybee a book at_his,home and before the next membership meeting.
Mundell's testimony that at various times during November, while at the
Cannon Dam ,jobsite, he had informed certain applicants that they could
pick up their membership books before the December I meeting was also
quite unspecific as to details, including the relevant dates. As his testimony
progressed, Mundell became more inconclusive as to whether he was actual-
ly prohibited from selling membership books between the November and
December meetings because of the bylaw, provision that books could only
be sold at the monthly membership meetings, or whether, as he testified, he,
in fact, had been authorized to convey books to the applicants before the
December 1 meeting. It is noted that, by December 1, the seasonal layoffs
had been completed.
14 Bybee had begun his employment on thejobsite in the carpenter shop,
however, after the October 31 layoff, he was transferred to a crew at the
dam site powerhouse where, on November 14, he was part of a nine-man
crew working under Lemler.
15
Mundell and Phillips had no direct communication with each other
except on September 29 and October 29, when Mundell sold Phillips his
respective work permits, and, on November 3, when Phillips tried to become
a union member. However, there were no separate discussions between Phil-
lips and Mundell as to why Phillips' application had not been favorably
received on November 3.
16
During Phillips' employment period at the jobsite, he was assigned to a
crew at the powerhouse under Ken Goodin, foreman.
65
"Reduction in force." After receiving his layoff notice, By-
bee collected his tools and went to the gang box to pick up
his toolbox. While there he spoke to Nester, asking him
when the Company would be starting up the job again.
Nester replied, "After first of the year." Bybee asked
whether he was being laid off because of a reduction in
force or because he was on permit. Nester told Bybee that
he had wanted to keep him and Phillips but that the Union
had made him terminate them. Bybee asked if he could use
what Nester had said. Nester told him that he could and, if
needed, promised to testify on Bybee's behalf in any subse-
quent proceeding relevant to his layoff.
Bybee then went to the warehouse to check his hardhat.
At the warehouse, Bybee asked the Respondent's union
steward, Lonnie Fredrick, if it would do him any good to
get on the (out-of-work) list. Fredrick stated that he doub-
ted it. Bybee asked Fredrick if any of the members who
had joined the Union earlier in the summer had been held
over for a 7-day investigation. Fredrick said that they had
not been and could give no reason why the applicants of
November 3 had been placed on a 7-day investigation."
Phillips received his notice of termination, also marked
"Reduction in force," from his foreman, Goodin, after
which he left the jobsite. Neither Bybee nor Phillips has
been employed at the jobsite since November 18.
The General Counsel's contention that Bybee and Phil-
lips had been laid off on November 18 because they were
working on permits from and were not members of the
Respondent Union is supported by the testimony of Lowell
Nester, Jr., the Employer's carpenter superintendent.18
Nester testified that, on his arrival at the project, it had
been necessary for him to increase the number of carpen-
ters employed on the dam project from about 52 to approx-
imately 160. Accordingly, in August and September, the
Employer had asked the Union to refer many carpenters.
The Union had had difficulty in meeting the Company's
requirements, for, while it had registered on its hiring hall
referral list a number of experienced unemployed carpen-
ters, there were an insufficient number who had the spe-
cialized experience required in dam construction: Accord-
ingly, an unusually large number of -referred carpenters
were subsequently rejected by the Employer.
However, it had become necessary in late October to
begin a series of layoffs to reduce the work force. The sea-
sonal work limitation was based on a specification con-
tained in the contract between the Employer and the U.S.
Army Corps of Engineers, which serves as the administra-
tive agent for the project. The contract provided that, after
December 1, it would- be necessary for the Employer to
undertake cold weather procedures for the protection of
concrete when it is poured. Because of this provision, the
Employer limited the work performed in colder months to
certain narrowly defined priority items. In compliance with
his instructions from the Employer, Nester reduced the
carpenter staff at the Cannon Dam site to 24 before
17 It is undisputed that no applicant during the course of the Cannon
Dam job had been held over for a 7-day investigation except for one other
individual who had applied before Bybee and Phillips, but who did not have
tools.
18 Nester, who started with the Employer on September 23, 1973, had
come to the Clarence Cannon Dam project on August 11.
66 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Thanksgiving Day. This reduction in force necessitated an
additional employee layoff on November 24, after Bybee
and Phillips were no longer on the job.
The criteria used in the layoffs were the ratio of compa-
ny men to bookmen 19 and work proficiency. Seniority is
not a factor in determining the order of layoff. It should be
noted, however, that even the company men hired under
the 1-to-3 ratio must be cleared through the Union from
which they must purchase permits before they may be em-
ployed.
Nester explained that, in advance of each layoff, he
would ask his foremen-to prepare lists of men for layoff.
Nester would then review the lists submitted to him, either
combining the various lists into one master list or else f as-
tening the separate-lists together. In either event, when the
lists were assembled, the least proficient men were marked
for initial layoff. Before submitting the layoff list to the
office for action, Nester would discuss the names with
Mundell and the-Respondent Union's steward, Fredrick.
Layoffs became official when the affected employees were
handed their checks at the end of their shifts by their re-
spective supervisors, following approval of the list by the
Employer's office.
On November 14, Nester followed the foregoing proce-
dures and conferred with Mundell with respect to the con-
solidated layoff list. Also present at the time were Ron
Moyle, the general carpenter foreman, and Fredrick. ,Nes-
ter testified that, during that meeting, Mundell stated that
the Employer still had permit men, on the job ands that
whichever permit men were not laid off on that date were
going to, have to be laid off before the Employer could lay
off any more union members. Nester did not reply and the
layoff proceeded as planned.
_ On November 17, Nester, advised Mundell that there
would be a layoff on the following day to further reduce
the carpenter' staff. Nester also requested his foremen to
give him lists of those they proposed for layoff, which he
received on the morning of November 18. On that occasion
Nester prepared a master list from the foremen's lists. He
testified that Bybee and Phillips were not on that list.
On the morning of November 18, Nester, Mundell,
Moyle, and Fredrick met again to discuss the layoff list. At
that time, according to Nester, Mundell stated, "You will
not have any permit men left on the job and you will lay
them off before you lay off any bookmen. The permit men
will go ' before the bookmen go." There was no discussion
concerning the layoff ratio of company men to bookmen.
Mundell simply went down the list and indicated various
permit men, telling Nester that he had to lay them off.
Mundell also informed Nester that Bybee and Phillips had
to be laid off because they, too, were permit men. Accord-
ingly, names were changed around to put Bybee and', Phil-
lips and one other unidentified permit man, also noted by
19 As was noted above, under the relevant collective-bargaining agree-
ment, the Employer is not obliged to obtain all of its carpenters from the
Respondent Union's hiring hall. Individuals called in by name by the Em-
ployer are termed company men, whether or not they have membership
books in the Union. Bookmen are individuals who had been referred to the
job through the hiring hall When layoffs occur, one company man must be
laid off for every three bookmen, thereby preserving the ratio as established
in the collective-bargaining agreement
Mundell, on the layoff list. Nester testified that, if it were
not for the position taken by Mundell, Bybee and Phillips
would still be employed on the fob 20
Nester testified that, although he had not known either
Bybee or Phillips before hiring them in September, he had
been reluctant to lay them off because both men were very
good workers and had had prior experience at the Truman
Dam project in south central Missouri, an area that had
proved to be a source for experienced dam builders. Dam
building requires carpentry techniques which are not char-
acteristic of other types of construction in that different
forming systems and principles are utilized and the proce-
dures are more dangerous. Nester characterized the labor
source local to the area of the Cannon Dam, in general
terms, as not being adequately trained or motivated to be
utilized as a principal source of labor or of potential lead-
men and foremen. It, therefore, had been necessary for him
to obtain men from outside that area to develop a suffi-
cient number of qualified foremen, leadmen, and workmen
to complete the project.21 Besides Bybee and Phillips, Nes-
ter had employed several other men from the Truman Dam
area on the Cannon Dam job. He testified that Bybee and
Philhps had been well recommended by carpenters whom
Nester knew and respected.21
Nester testified that, following the November 18 layoff,
no permit men continued to work on the job 23 Mundell,
corroborated by Steward Fredrick, denied that he had in-
structed, or in any other way indicated to Nester during
any of the prelayoff conferences, that permit men should
be laid off before bookmen, or that Bybee and Phillips,
specifically, should be laid off by the Employer, contend-
ing that Bybee and Phillips, and all other affected employ-
ees, had been laid off at the Employer' s initiative . Mundell
answered that, during those meetings,,he had restricted his
attention and comments merely to the maintenance of the
20 Prior to acceding to Mundell's- demands, Nester had consulted with
David Kucera, the general superintendent and his immediate superior. Kuc-
era told Nester that, if Mundell wanted him to lay off the men, he should do
so
21 During the summer of 1975, Nester had had approximately 19 foremen
working under him
22 Mundell testified that Kenny Goodin, Phillips' foreman, who frequent-
ly discussed individual work performance with him, had twice told Mundell,
at the time of the October3l and November 14 layoffs, respectively, that,
because of the poor quality of Phillips' work, he had twice listed him for
layoff. Nester, however, denied that Goodin had criticized Phillips' job per-
formance or that Phillips had been listed for layoff Contrary to Mundell,
Nester asserted that Goodin had praised Phillips' work. Mundell testified
that he had not heard any criticism directed at Bybee. Goodin did not
appear at the hearing. Noting that it would more readily be within the
normal course of business for Goodin to report to Nester than to Mundell
as to the work performance of his men, that Bybee, whose work record had
not been criticized, was laid off at the same time as Phillips, and the credi-
bility resolutions to be noted herein, I find no basis for concluding that
Phillips' job performance was a factor in his layoff
23 Mundell, however, testified that one permit man, Bill Gibbons, re-
mained on the job until the November 24 layoff Gibbons, who received
work permits from Mundell on September 29 and October 29, had never
applied for union membership Gibbons was a foreman on the swing shift
until either the layoff of October 31 or November 14, after which he contin-
ued in a nonsupervisory status Nester, in explanation of this discrepancey,
stated that he had no personal knowledge as to which of the employees were
company men, bookmen, or permit men. During the various conferences
with Mundell at which layoffs were discussed, he had relied on Mundell to
indicate the status of each. Accordingly, he had no information as to wheth-
er Gibbons was a company man or a bookman
CARPENTERS LOCAL 607 67
ratio. He also denied that Bybee, Phillips, and the six other
applicants for union membership on November 3 had been
placed on 7-day investigation that night in an effort to
make them more susceptible to future layoff than were the
bookmen, noting that no pattern existed whereby the per-
mit men were laid off in advance of bookmen. It is not
disputed that bookmen in substantial numbers had been
included among those laid off on October 31 and Novem-
ber 14, before Bybee and Phillips had been released.24
It was Mundell's position that no deliberate effort had
been taken by the Respondent Union on November 3 to
deny the applicants their books. The invocation of the
scarcely used 7-day investigation procedure had been pred-
icated on a desire to "save the applicants money. As layoffs
were about to occur, it had been the membership's general
sentiment that it would be a disservice to the applicants to
accept their money when they were about to face unem-
ployment. He noted that, subsequently, dung the next
monthly union meeting on` Monday, December 1, the two
individuals who had applied for membership on November
3, and had continued to express interest, received their
books.25
-The testimony of Bybee and Phillips, as supported by
Nester, is credited. These witnesses testified forthrightly
and generally with consistency. On the other hand, Mun-
dell appeared to be considerably less candid. Only -after
repeated questioning did he describe in detail the sequence
of events leading to the invocation of the 7-day investiga-
tion procedure, thereby revealing, that its application had
been recommended by the Respondent Union's president
and trustees. Mundell's testimony in other areas contained
several inconsistencies. For example, in. describing the ef-
fect of the decision to utilize the 7-day investigation, he
testified that it would not have been necessary for the ap-
plicants to wait until the next monthly meeting since he
had been authorized to sell membership books to interest-
ed applicants 1 week after the November 3 union meeting.
He stated that, in fact, he had offered to sell Bybee a book
on November 14, when he issued Bybee's third work per-
mit. On the other hand, Mundell also testified that, when
Bybee had called him with an offer to purchase a book
shortly after the October 31 layoff, he had informed Bybee
that he could sell books only at the membership meetings
and not at his home. Mundell also testified that, although
the bylaws apparently precluded the sale of membership
books except at monthly membership meetings, he had at-
tempted to notify various employees on the jobsite of their
right to obtain books before the December 1 monthly
membership meeting. Fredrick's testimony that Mundell,
during the prelayoff conferences with Nester on November
14 and 18, had restricted his attention' to the ratio of layoff
of the permit men to company men was also unconvincing
as his testimony was restricted to conclusions, Fredrick not
24 Mundell's son, Norris, a bookman, was laid off on November 18, on
the same date as were Bybee and Phillips Another son, Mark, also a book-
man, had been injured on the job prior to November 18, and had not been
able to return to work
25 Mundell identified the successful applicants of December 1 as David
W. Cain and Larry E. Hayes. Cain, who previously had been employed at
the Cannon Dam project, was laid off on November 14. Hayes had never
worked at that jobsite.
being able to recall anything that actually had been said at
either of those meetings. Fredrick's testimony was further
compromised by his admission that, on November 18, he,
too, had helped spread a rumor that permit men would be
laid off that day.
B. Analysis and Concluding Findings
The General Counsel's position that the Respondent
Union had compelled the layoffs of Bybee and Phillips on
November 18 because of their nonmembership in the Re-
spondent Union, rather than, as was contended by the Re-
spondent Umon, that they had been laid off for economic
reasons in a manner consistent with the terms of a lawful
collective-bargaining_agreemeiit, appears to be supported
by the credited evidence.
Thus, Nester testified that Bybee and Phillips were val-
ued employees who had specialized experience required for
dam construction, not readily obtainable in the vicinity on
the Cannon Dam jobsite. Nester also stated affirmatively
that he would have retained Bybee and Phillips on the pay-
roll were it not for Mundell's firm insistence during their
November 18 meeting that Bybee and Phillips be laid off
on that date.
The Respondent Union contends in its brief that, even
were Nester to be credited as to his account of the Novem-
ber 18 meeting, Mundell had not actually compelled the
Employer to lay off Bybee, and Phillips as his words con-
tained no threat of reprisal nor described any union action
that would be taken in the event that Nester did not-lay off
the two men. There is no legal merit to this position. Re-
gardless of how Mundell's remarks to Nester are character-
ized, it is clear that they caused the Employer to lay off
Bybee and Phillips on November 18. The Board has consis-
tently held, with judicial concurrence, that a labor organi-
zation need not make a specific demand upon some con-
cerned employer to terminate a worker for illegal reasons
before 8(b)(1)(A) and (2) violations may be found. As the
court stated in N.L.R.B. v. Jarka Corporation of Philadel-
phia,26 "This relationship of cause and effect, the essential
feature of Section 8(b)(2), can exist as well where an induc-
ing communication is in terms courteous or even precatory,
as where it is rude and demanding." 27 In agreement with
the General Counsel, I find grounds, to suspect-that the
Respondent Union's effectuation of the scarcely used 7-
day investigation procedure on November 3 was intended
to protect its existing members in the jobs with the Em-
ployer, while leaving outside permit men in more vulnera-
ble positions. As noted, the use of that procedure was a
departure from the Respondent Union's practice, as illus-
trated at the meeting of October 6 and December 1, of
routinely bestowing immediate membership at the time of
application. The November 3 action followed the recom-
mendation of the Respondent Union's top leadership, and
had proceeded in the context of a series of layoffs, past and
anticipated. However, the complaint properly does not al-
lege and I do not find that the use of the 7-day investiga-
tion procedure, in and of itself, was violative of'the Act.
26 198 F 2d 618, 621 (C.A 3, 1952)
27 See R-M Framers, Inc, 207 NLRB 36, 43-44 (1973), Yellow Freight
System, Inc, 197 NLRB 979, 981 (1972)
68 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The incident was germane in that it helped to set the stage
for the unlawful layoffs that followed.
Although the Respondent Union has adduced evidence
that bookmen were laid off before and concurrently with
Bybee and Phillips and that another permit man, Bill Gib-
bons, continued to work after Bybee and Phillips were laid
off, the central issue herein is whether' the `Respondent
Union had caused Bybee and Phillips to be laid off on
November 18 by its demand upon the Employer on that
date. While evidence as to the circumstances of other em-
ployees on the jobsite is helpful in evaluating the instant
record, as such evidence may tend to show that alleged
conduct did or did not occur, it is not a prerequisite to a
finding of a violation herein that all other permit men must
have been laid off before or concurrently with the alleged
discriminatees. In the instant case, the Respondent Union's
unlawful conduct was ' directly established through the
credited testimony of Nester.
I also find no merit to the Union's argument that Bybee
and Phillips, in any event, were susceptible to layoff as they
had been working in contravention of the union-security
clause contained in the collective-bargaining agreement
conditioning continued employment upon membership in
the Union after a grace period which, in their cases, had
long since expired. The terms of that contract provision
required that the _ Union affirmatively demand the dis-
charge of noncompliant employees in writing and it is es-
tablished that such a demand had never been made. Ac-
cordingly, as Respondent Union did not timely invoke the
union-security clause in the manner prescribed in the con-
tract while Bybee and Phillips were still employed by the
Employer, this position is of no relevance in the present
proceeding.
For the foregoing reasons, I find and conclude that, on
November 18, the Respondent Union caused the Employer
to lay off Bybee and Phillips in violation of Section
8(b)(1)(A) and (2) of the Act, because they were not mem-
bers of the Respondent Union.
Phillips, that it has no objection to the employment of By-
bee and Phillips with all their former rights and privileges
and that the Respondent make them whole for any loss of
pay they may have suffered by reason of the discrimination
against them, with backpay to be computed -on a quarterly
basis in the manner established by the Board in F. W.
Woolworth Company,28 with interest at 6 percent per annum
as provided in Isis Plumbing & Heating Co.29 The evidence
provides no basis to support a finding that the-Employer
would have laid off Bybee and Phillips on November 24,
the date of the final layoffs 30 After the November 24 lay-
off, approximately 24 carpenters continued to work on the
jobsite . In addition , the order in which the carpenters were
laid off was not governed by seniority , but by work profi-
ciency and by the ratio between company men and union
men. As noted, Nester had developed a high regard for the
job performance and specialized experience of Bybee and
Phillips and these men had survived the layoffs of October
31 and November 14. Although the possibility exists that
Bybee and Phillips , in any event, might have been laid'off
on November 24 in order to maintain the contractual ratio
between company men and bookmen , such a finding at
this time would necessarily be based upon speculation.
This is particularly true as the Respondent Union, by its
unlawful conduct on November 18, had upset this ratio by
its insistence that permit men be laid off prematurely. Ac-
cordingly , there is no basis for concluding from the instant
record that the Employer would have laid off Bybee and
Phillips on November 24 or at any time prior to the com-
pletion of the carpenter work on the Cannon Dam project,
which work was still in progress at the time of the hearing.
See Local Union 29, Bricklayers, Masons' and Plasterers'
International Union, AFL-CIO (M. L. Masonry Co., Inc.).31
Upon the basis of the foregoing findings of fact and
upon the entire record , I make the following: _
CONCLUSIONS OF LAW
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of Respondent Union set forth in section
III, above,,to the extent found unlawful, occurring in con-
nection with the operations of the Employer described in
section I, above, have a close, intimate, and substantial
relationship to trade, traffic, and commerce among the sev-
eral States and tend to lead to labor disputes burdening
and obstructing commerce and the free flow thereof.
V. THE REMEDY
Having found that the Respondent Union has violated
Section 8(b)(1)(A) and (2) of the Act, it shall be ordered to
cease and desist therefrom and to take certain affirmative
action designed to effectuate the policies of the Act.
As I have found that the Respondent caused the Em-
ployer to discriminate with respect to the tenure of employ-
ment of Daniel W. Bybee and Gerald Phillips, I shall rec-
ommend that the Respondent Union be compelled to
notify the Employer, in writing, with copies to Bybee and
1. Carpenters Local 607, United Brotherhood of Car-
penters and Joiners of America, AFL-CIO, is a labor orga-
nization within the meaning of Section 2(5) of the Act.
2. Massman Construction Co,-Cannon Dam Project is
an employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
3. By causing and attempting to cause the Employer to
discharge and discriminate against Bybee and Phillips in
violation of Section 8(a)(3) of the Act, the Respondent
Union has engaged in and is engaging in unfair labor prac-
tices within the meaning of Section 8(b)(1)(A) and (2) of
the Act.
4. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
28 90 NLRB 289 (1950)
29 138 NLRB 716 (1962).
30 There were no additional layoffs after November 24 and, after the start
of 1976, the Employer began to hire additional carpenters
3 1 203 NLRB 506, 507-508 (1973).
CARPENTERS LOCAL 607 69
Upon the foregoing findings of fact and conclusions of
law and the entire record, and pursuant to Section 10(c) of
the Act, I hereby issue the following recommended:
ORDER32
Respondent Carpenters Local 607, United Brotherhood
of Carpenters and Joiners of America, AFL-CIO, New
London, Missouri, its officers, agents, and representatives,
shall:
1. Cease and desist from:
(a) Causing or attempting to cause Massman Construc-
tion Co.-Cannon Dam Project to discriminate against Dan-
iel W. Bybee, Gerald Phillips, or any other employees, in
violation of Section 8(a)(3) of the Act.
(b) In any like or related manner, restraining or coercing
employees of Massman Construction Co: Cannon Dam
Project in the exercise of rights guaranteed in Section 7 of
the Act, except to the extent that such rights may be affect-
ed by an agreement requiring membership in a labor orga-
nization as a condition of employment in accordance with
Section 8(a)(3) of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act:
(a) Notify Massman Construction Co: Cannon Dam
Project, in writing, that the Respondent Union has no ob-
jection to the employment of Bybee and Phillips, with all
32 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, 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.
their former rights and privileges, and furnish Bybee and
Phillips with copies of such notification.
(b) Make whole Bybee and Phillips for all loss of pay
which they may have suffered as a result of the discrimina-
tion against them in the manner set forth in the section of
this Decision entitled "The Remedy."
(c) Post at its offices, meeting halls, and all other places
where notices to members are customarily osted copies of
the attached notice marked "Appendix.- 3? Copies of said
notice, on forms provided by the Regional Director for
Region 14, after being duly signed by an authorized repre-
sentative of Respondent Union, shall be posted by Re-
spondent Union immediately upon receipt thereof, and be
maintained by it for a period of 60 consecutive days there-
after, in conspicuous places, including all places where Re-
spondent Union customarily posts notices to its members.
Reasonable steps shall be taken by Respondent Union to
insure that said notices are not altered, defaced, or covered
by any other material.
(d) Deliver to the Regional Director for Region 14
signed copies of the said notices, in sufficient numbers to
be posted by Massman Construction Co.-Cannon Dam
Project, the Employer being willing.
(e) Notify the Regional Director for Region 14, in writ-
ing, within 20 days from the date of this Order, what steps
the Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be dismissed
insofar as it alleges violations of the Act not specifically
found herein.
33 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 read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."