Carpenters Local 455 (Building Contractors)

National Labor Relations Board - Board Decisions

Aug 21, 1984

271 N.L.R.B. 1099 (N.L.R.B. 1984)

CARPENTERS LOCAL 455 (BUILDING CONTRACTORS)
Local 455, United Brotherhood of Carpenters and
Joiners of America, AFL-CIO (Building Con-
tractors Association of New Jersey) and Wil-
liam J. Koenig. Case 22-CB-4936
21 August 1984
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
On 20 April 1984 Administrative Law Judge
James F. Morton issued the attached decision. The
Respondent, Local 455, United Brotherhood of
Carpenters and Joiners of America, AFL-CIO
filed exceptions.
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 has decided to
affirm the judge's rulings, findings, and conclu-
sions' as modified and to adopt the recommended
Order.
Judge Morton held that Local 455, United
Brotherhood of Carpenters and Joiners of America,
AFL-CIO violated Section 8(b)(1)(A) and (2)2 of
the National Labor Relations Act by attempting to
cause the discharge of employee William Koenig
on 30 March 1983 and by causing Koenig's dis-
charge on 13 August 1983. Local 455 excepts, on a
number of grounds, to the finding of these viola-
tions. No party excepts to, and we do not consider,
the judge's dismissal of other allegations that, from
16 August through 21 September 1983, Local 455
prevented Koenig from registering for job referrals
at its hiring hall and refused to refer him to em-
ployment.
Local 455 filed with the Board a motion for a new hearing, seeking
to set aside the decision of the judge on the grounds of fraud and mis-
take. The General Counsel filed an opposition to the motion, to which
Local 455 responded by filing a brief. In support of its motion, Local 455
attached a photocopy of a document purporting to be a letter dated 14
May 1984 from the managing director of the Building Contractors Asso-
ciation of New Jersey stating that, as far as the Association's records
show, J-Sac Construction, Inc. has never been a member of the Building
Contractors Association of New Jersey. The complaint in this case al-
leges, and Local 455's answer admits, that J-Sac Construction Co., Inc.
was a member of the Building Contractors Association of New Jersey,
and the judge so found. Additionally, the president of J-Sac gave uncon-
troverted testimony that J-Sac Construction Co., Inc. was a member of
the Building Contractors Association of New Jersey. Assuming arguendo
that what the document attached to Local 455's motion says is correct-
that the records of the Building Contractors Association of New Jersey
fail to show that J-Sac Construction. Inc. has ever been a member of the
Building Contractors Association of New Jersey-Local 455's motion
nevertheless makes no showing that the evidence contained in the docu-
ment was previously unavailable or was newly discovered and with due
diligence could not have been previously discovered. Accordingly, the
motion is denied See, e.g.. Benchmark Industries, 270 NLRB 22 fn. I
(1984); Longshoremen ILA Local 1291 (Trailer Marine), 266 NLRB 1204
fn 1 (1983).
2 29 U.SC. § 158(b)(1)(A) and (2).
271 NLRB No. 179
We find that Local 455's exceptions do not war-
rant reversal of the judge's conclusions that Local
455 violated Section 8(b)(1)(A) and (2), but we sup-
plement and modify the judge's rationale as fol-
lows.
First, in adopting the judge's conclusion that
Local 455 was attempting to cause Koenig's dis-
charge on 30 March 1983, when Local 455's busi-
ness representative sent a letter to J-Sac Construc-
tion Co., Inc., Koenig's employer, stating that
Koenig was not presently a member of the Carpen-
ters Union, we note that the union-security provi-
sion, article III of the collective-bargaining agree-
ment, contains the following language:
In the event an employee fails to tender the
initiation fee or fails to maintain membership in
good standing, the Union shall notify the Em-
ployer in writing, and such a notice shall con-
stitute a request to the Employer to discharge
said employee within forty-eight (48) hours
(Saturdays, Sundays and holidays excluded)
for failure to maintain continuous good stand-
ing in the Union, as set forth herein. The Em-
ployer then shall discharge such employee at
the end of such period.
The presence of this contract language lends fur-
ther support to the judge's conclusion that the busi-
ness representative's letter was an attempt to cause
Koenig's discharge, even though the letter itself
failed to specify what action, if any, Koenig's em-
ployer was expected to take in response to the
letter.
Additionally, we agree with Local 455 that the
judge erred in declining to decide whether Local
455's attempting to cause, and its eventual causing
of, Koenig's discharge constituted lawful enforce-
ment of a union-security clause because of Koenig's
failure to pay periodic dues. Contrary to the judge,
the fact that Local 455 maintained, and presented
evidence to show, that it had not attempted to
cause Koenig's discharge, did not preclude it from
alternatively arguing that if it had attempted to
cause Koenig's discharge, such action was validly
taken. See generally 2A Moore, Federal Practice ar'
8.31-8.32 (2d ed. 1984); 5 Wright, Federal Practice
and Procedure § 1283 (1969). Therefore, we now
consider this argument.
The Board presumes that a union's attempts to
cause an employee's discharge are unlawful. Boiler-
makers Local 40 (Envirotech Corp.), 266 NLRB 432
(1983). A union may rebut this presumption by
showing that such attempts were made pursuant to
a valid union-security clause. Operating Engineers
Local 18 (Ohio Contractors), 204 NLRB 681 (1973).
In this case, in order to show that its efforts to
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cause Koenig's discharge were made pursuant to a
valid union-security clause, Local 455 had to show
at the least that its strike assessment that Koenig
refused to pay constituted "periodic dues" within
the meaning of Section 8(b)(2) and the second pro-
viso of Section 8(a)(3) of the Act. Local 455 failed
to make this showing.
The status of strike assessments in general is well
established. As early as 1955, a trial examiner's de-
cision, adopted in pertinent part by the Board, con-
tained the following statement: "The Act is specif-
ic, and the law is now well-settled, that the words
'dues and initiation fees uniformly required' [con-
tained in Secs. 8(a)(3) and (b)(2)] do not include as-
sessments, fines, penalties, or anything except dues
and initiation fees." Peerless Tool & Engineering Co.,
111 NLRB 853, 871 (1955), enfd. sub nom. NLRB
v. Die & Tool Makers Lodge 113, 231 F.2d 298 (7th
Cir. 1956), cert. denied 352 U.S. 833 (1956). The
union in that case was held to have violated Sec-
tion 8(b)(2) by causing the discharge of five em-
ployees for failing to pay a strike assessment.
Several years later, in Florence Brooks, 131
NLRB 756 (1961), enfd. as modified sub nom. Food
Fair Stores v. NLRB, 307 F.2d 3 (3d Cir. 1962), the
Board again adopted a trial examiner's decision
holding that a union violated the Act by threaten-
ing the discharge of employees under a union-secu-
rity agreement if they did not pay a strike assess-
ment. The trial examiner, marshaling the decisions
on point, noted that strike assessments and other as-
sessments had consistently been held not to consti-
tute "periodic dues" within the meaning of Sec-
tions 8(a)(3) and 8(b)(2). 131 NLRB at 771 & fns.
18-19.
In enforcing the Board's decision in that case,
the Third Circuit articulated the distinction be-
tween periodic dues and assessments as follows:
[T]he term "periodic dues" in the usual and
ordinary sense means the regular payments im-
posed for the benefits to be derived from
membership to be made at fixed intervals for
the maintenance of the organization. An as-
sessment, on the other hand, is a charge levied
on each member in the nature of a tax or some
other burden for a special purpose, not having
the character of being susceptible of anticipa-
tion as a regularly recurring obligation as in
the case of "periodic dues."
307 F.2d at 11. This formulation was adopted by
the Board in Teamsters Local 959 (RCA Service),
167 NLRB 1042, 1045 (1967).
In the present case, the record concerning the
nature, duration, and purpose of the strike assess-
ment is sparse. All that is shown is that the strike
assessment was implemented in April 1982 in the
amount of $2 a month, and the funds it generated
were to be kept separate from the union treasury
and used for strike and picket activities. There is
no indication whether the assessment was perma-
nent or was for a limited duration, nor does the
record show whether the assessment was adopted
because of, or in anticipation of, a particular strike.
Therefore, in applying the above-quoted definition
formulated by the Third Circuit in Food Fair, we
have little basis on which to determine whether the
strike assessment was for a "special purpose, not
. . .susceptible of anticipation as a regularly recur-
ring obligation" and thus constituted an assessment
or, rather, was for "the maintenance of the organi-
zation" and thus was encompassed by the definition
of periodic dues. The very fact that Local 455
called the obligation an assessment rather than dues
may tend to indicate that it was a temporary meas-
ure taken for a special purpose. Accordingly, we
conclude that Local 455, which has the burden of
rebutting the presumption of illegality in the dis-
charge of Koenig, has failed to show that the strike
assessment constituted "periodic dues." Thus, we
hold that Local 455's efforts to cause Koenig's dis-
charge did not constitute lawful enforcement of a
union-security clause.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Local 455,
United Brotherhood of Carpenters and Joiners of
America, AFL-CIO, its officers, agents, and repre-
sentatives, shall take the action set forth in the
Order.
DECISION
STATEMENT OF THE CASE
JAMES F. MORTON, Administrative Law Judge. The
complaint in this case alleges that Local 455, United
Brotherhood of Carpenters and Joiners of America,
AFL-CIO (Respondent), violated Section 8(b)(1)(A) and
(2) of the National Labor Relations Act (the Act) by:
1. Having attempted on March 30, 1983, to cause the
discharge of employee William Koenig.
2. Having attempted to cause and by having caused his
discharge on August 13, 1983.
3. Having, from August 16 through September 21,
1983, prevented Koenig from registering for job referrals
at its exclusive hiring hall and by having, during that in-
terval, refused to refer him to employment.
Respondent, by its answer, put those allegations in
issue.
Based on the entire record in this case, including my
observation of the demeanor of the witnesses, and the
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CARPENTERS LOCAL 455 (BUILDING CONTRACTORS)
briefs filed by the General Counsel and Respondent, I
make the following
FINDINGS OF FACT
I. LABOR ORGANIZATION STATUS AND COMMERCE
The pleadings establish that Respondent is a labor or-
ganization as defined in Section 2(5) of the Act and that
it operates an exclusive job referral system at its office in
Bridgewater, New Jersey, for journeymen carpenters
who are sent to J-Sac Construction Co., Inc. and other
employer-members of the Building Contractors Associa-
tion of New Jersey. The pleadings establish that those
employer-members are engaged as contractors in the
building construction industry and that their annual oper-
ations meet the Board's applicable standard for the asser-
tion of jurisdiction.
II. THE ALLEGED UNFAIR I.ABOR PRACTICES
A. Background
The Charging Party, Koenig, became a member of Re-
spondent in 1974 and has used its exclusive job referral
service to obtain employment as a journeyman carpenter.
In 1975, Koenig initiated inquiries into the status of vari-
ous union pension and welfare funds, including those in-
volving Respondent. Koenig also proposed amendments
to Respondent's bylaws in an effort to restrict certain
practices he deemed undesirable. He was elected vice
president of Respondent in 1978 and lost elections in
1980 and 1983 when he ran respectively for the posts of
recording secretary and business agent.
Counsel for the General Counsel has asked me to take
official notice of the Board's decision in Morlot Carpen-
try, 251 NLRB 773 (1980), which contains a lengthy ac-
count of Koenig's intraunion activities and to take offi-
cial notice also of a lawsuit he initiated against Respond-
ent in the U.S. District Court for the District of New
Jersey, Civil 79-2209, in which he accused its officials of
having unlawfully infringed on his rights as a union
member. Respondent's counsel stated at the hearing
before me that, not only did he not have any objection
to my taking official notice of those proceedings, but
also that Respondent was "powerfully irritated" at what
it viewed as Koenig's unwarranted attacks on its leader-
ship over the years.' I shall take official notice of the
matters as requested.
The last time that Koenig signed Respondent's out-of-
work book at its job referral hall was in April 1982.
Koenig was then referred to work as a carpenter with J-
Sac Construction Co., Inc. (J-Sac). He has worked stead-
ily with J-Sac since except for an extended vacation
I One of the areas of dispute between Koenig and Respondent's leader-
ship has to do with the legality of Respondent's action in increasing its
union dues from $16 to $18 a month with the additional $2 to be used as
a strike fund. Koenig has refused to pay that extra $2 each month. Coun-
sel for the General Counsel argues in her brief that the $2 strike assess-
ment does not constitute "periodic dues" as that term is used in Sec.
8(b)(2) of the Act. It is unnecessary to make a finding thereon as Re-
spondent does not contend that it ever sought Koenig's discharge by
reason of his failure to pay periodic dues in accordance with a valid
union-security clause. Rather. Respondent's position simply is that it, at
no time, ever sought to cause or caused Koenig's discharge.
period at one point and for the period involved in this
case during which he was allegedly discriminated against
by reason of Respondent's alleged unlawful conduct, i.e.,
August 16-September 21, 1983.2
As noted above in footnote 1, Koenig has been con-
testing the legality of Respondent's actions in having im-
plemented a $2 monthly increase in union dues to be
used as a strike fund. In early 1983 (all dates hereafter
are for 1983 unless noted otherwise), Koenig was advised
by Respondent's financial secretary that he would be
dropped from its membership rolls if he continued to
refuse to pay that $2 monthly assessment. He refused to
make such payments although he did continue to tender
to Respondent $16 each month, as regular dues.
B. The Alleged Unlawful Attempt on March 30
Joseph Cusumano, president of J-Sac, testified that, in
early April, he received a letter dated March 30 from
Respondent's business representative, George H. Clark,
which read:
This letter is to inform you that Mr. William
Koenig is not presently a member of the United
Brotherhood of Carpenters and Joiners of America.
Cusumano testified that, upon receipt of that letter, he
spoke with Clark and, in essence, told Clark that J-Sac
did not want to get involved in any dispute between
Koenig and Respondent. According to Cusumano, he
told Clark that, as Koenig was a good carpenter, he
would continue in J-Sac's employ. Cusumano further tes-
tified that Clark responded that Koenig is no longer a
union member.
Clark testified for Respondent as follows respecting his
conversation with Cusumano. He recalled clearly that
Cusumano called him, not on April 1 but on April 5. He
informed Cusumano then that, in accordance with the
March 30 letter, Koenig was no longer a member of Re-
spondent. Cusumano then asked if that meant that he had
to let Koenig go. Clark told him that he did not but that
Respondent, probably in accordance with its procedures.
would return to J-Sac the portion of the dues it remitted
which J-Sac had deducted from Koenig's wages. Clark
made a reference to "a decision that [J-Sac would] have
to make further down the road." The reasons that Clark
had sent the March 30 letter were to notify J-Sac that
Koenig was no longer a member of the Union, and to
enable J-Sac to return to Koenig any dues that it had de-
ducted from Koenig's wages.
I credit Cusumano. Clark's explanation for having sent
the March 30 letter makes little sense to me. If Clark
were genuinely concerned solely with Koenig's getting a
prompt refund of his union dues, he would have made
that unequivocally clear in the letter itself, if only to
ensure that there would be no delay. Clark would have
me accept his account that he waited until April 5 and
2 J-Sac has moved its employees, including carpenters referred by Re-
spondent, from one jobsite to another without giving notice thereof to
Respondent or to other buildings trades unions. There is no conlention
by Respondent before me that it sought to take any action against Koerig
because J-Sac followed that practice.
1101
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
until Cusumano telephoned him to apprise Cusumano of
the purpose of his letter. In crediting Cusumano, I also
note that he has no reason to antagonize Clark especially
as Clark is the one who refers carpenters to J-Sac from
Respondent's hiring hall. 3
Respondent asserts that, as the letter does not contain
a request for Koenig's discharge, and as there is no other
independent evidence of such a request, I must dismiss
the complaint allegation that Respondent sought Koen-
ig's discharge on March 30. It is now well settled how-
ever, that an attempt by a union to cause the discharge
of an employee can be inferred from the surrounding cir-
cumstances and need not be established only by an ex-
press demand therefor. 4 Respondent does not assert that
the March 30 letter was sent pursuant to the union-secu-
rity provisions of its contract with J-Sac. The reason it
proffered for sending it was not credited, as discussed
above. The credited evidence is that Cusumano under-
stood the letter to be an attempt by Respondent to inter-
fere with Koenig's employment as a carpenter by J-Sac.
When he mentioned that matter to Clark, Clark did not
offer any assurances or explantion but simply repeated
that Koenig was no longer a member of Respondent. In
that context and in view of the subsequent events of
August 16, discussed below, the cryptic statement as set
out in the March 30 letter had but one aim-bringing
about Koenig's discharge from employment by J-Sac.
Turning now to the issue as to whether such a request
was lawful, I note the well-settled law that the Board
will infer or presume that the effect of a union's attempt
to cause an employee's discharge unlawfully demon-
strates its power to affect the livelihood of the employee
and that that inference may be overcome, or that pre-
sumption rebutted, by showing either that the interfer-
ence with employment was done pursuant to a valid
union-security clause or by showing that the action was
necessary to the union's effective performance of its
function of representing its constituency. 5 Respondent
does not seek to rebut that presumption by contending
that its action was taken pursuant to a valid union-securi-
ty clause and has offered no evidence to show that its
sending the March 30 letter "was necessary to the effec-
tive performance of its function of representing its con-
stituency." 6 In its brief however, Respondent asserted
3 Cusumano also testified, in effect, that he would have had no recol-
lection of his discussions with Clark but for the fact that he, Cusumano,
had been in the hearing room when Koenig testified and had heard
Koenig's related account, That testimony is not a basis to discount Cusu-
mano's version of his conversation with Clark. as it is clear to me that
Cusumano was not parroting earlier testimony, by Koenig but was relat-
ing his own independent recollection of it, recently refreshed. Moreover,
Cusumano's candor in conceding that his memory had to be refreshed, if
anything, enhances his credibility.
4 Local 980. Teamsters (Auburn Constructors). 268 NLRB 894 (1984):;
Bricklayers Local 6 (Key Waterproofing), 268 NLRB 879 (1984).
5 Operating Engineerr Local 18 (Ohio Contractors Assn.), 204 NLRB 681
(1973), rev on other grounds 496 F.2d 1308 (6th Cir. 1974). See also Boil-
ermakers Local 40 (Envirozech Corp.), 266 NLRB 432 (1983).
6 In its brief Respondent argues that, as Koenig has failed to pay the
$2 strike assessment, Respondent's actions are "excused under the (B)
proviso of Section 8(a)(3)" of the Act. In substance, Respondent is con-
tending that any unlawful act it committed must be excused because
Koenig failed to pay what Respondent considers "periodic dues" owed
by him. The law gives no such license to Respondent. If Respondent's
contention is that its March 30 letter to Cusumano was in reality a re-
that there is evidence that Koenig "was an independent
contractor relative to J-Sac" and that Koenig had en-
tered into an essentially independent contract relation-
ship with the purpose of "avoiding all union hiring hall
procedures." There is virtually nothing in the record in
this case which would support a finding that Koenig was
an independent contractor or that he was involved in a
conspiracy with J-Sac to avoid using Respondent's hiring
hall procedures. There is even less evidence that Re-
spondent, by any of its actions toward Koenig, including
its March 30 letter, was seeking to protect its hiring hall
procedures. 7
It is readily apparent to me, and I so find, that Re-
spondent, in sending the March 30 letter, was seeking to
punish Koenig for his persistence in opposing the $2
strike assessment and for engaging in other protected ac-
tivity. As Respondent has not rebutted General Coun-
sel's prima facie showing and as the totality of the evi-
dence discloses that Respondent's motives were as just
stated, I must conclude that its March 30 letter was an
attempt to cause J-Sac to discharge Koenig in contraven-
tion of the purposes of the Act.
C. The Alleged Unlawful Acts of August 16
Koenig learned that Clark had written Cusumano on
March 30 as related above and he appealed his expulsion
from membership in Respondent to the president of Re-
spondent's International. As a consequence, the expulsion
was stayed and Respondent was directed to treat Koenig
as if he were still a member. Koenig continued in J-Sac's
employ. On August 8, he was notified that the Interna-
tional had denied his appeal and that his expulsion from
Respondent's membership was effective, retroactive to
March 18.
Koenig testified respecting a discussion he had on
August 16 with Cusumano. His account was offered for
its truth and no objection thereto was interposed. Koenig
related that Cusumano was obviously upset that day
when he informed Koenig that Respondent business
agent Clark had called him and had said that the Interna-
tional had ruled that Koenig was no longer a member of
Respondent and that he, Cusumano, would therefore
either have to lay Koenig off or else Respondent would
pull its members off J-Sac jobs. Cusumano then laid
Koenig off.
quest that J-Sac discharge Koenig pursuant to the union-security provi-
sions of the contract J-Sac has with Respondent, I must reject that con-
tention as there is no evidentiary support for it in the record and as it
appears that Respondent business agent Clark has denied that that was
ever his aim.
I It appears that Koenig, on his days off from his employment as a
journeyman carpenter with J-Sac, occasionally did residential carpentry
work, glazing work, and perhaps other work which is not related to the
unit work performed by journeyman carpenters referred by Respondent
to building construction sites. It further appears that J-Sac moved Koenig
around to different jobsites and once let him take an extended leave of
absence. However, the uncontroverted evidence is that established
custom and practice has permitted J-Sac to transfer employees from one
jobsite to another and that it can call back to its employ any carpenter
laid off within a 6-month period of the date of recall. More significantly
however, and as noted above, there is no evidence that Respondent's
March 30 letter was aimed at redressing any of those alleged wrongs.
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CARPENTERS LOCAL 455 (BUILDING CONTRACTORS)
Cusumano's account of the discussion he had with
Clark before he laid off Koenig corroborated Koenig's
testimony that Clark had said that Koenig was no longer
a member by reason of the International's ruling. Cusu-
mano also related that Clark told him that he, Cusu-
mano, could use Koenig "in the office" or "in the back
woods" and that he, Clark, can always provide J-Sac
with good journeymen. Cusumano testified further that,
were it not for that discussion with Clark, he would not
have laid Koenig off. Cusumano acknowledged that his
memory was refreshed by his having heard Koenig's tes-
timony, given earlier.
Clark testified that he had a conversation with Cusu-
mano on August 17 about a nonunion contractor which
had underbid J-Sac on a job. Clark related that, in the
course of that August 17 discussion, Cusumano informed
him that he was laying Koenig off because work was
slow and that he would soon lay off the union steward.
Clark further testified that, on August 18, Cusumano
called him and asked if he could employ Koenig "on a
bank job out in the woods" and that Clark informed him
that he could employ him wherever he chose "and the
only difference would be in arbitration on our contract,
which would be up to the general office, because it was
all being handled at that time in appeals at the general
office, insofar as his expulsion." On cross-examination,
Clark was asked about the testimony just quoted. In par-
ticular, he was asked what kind of a grievance could Re-
spondent have filed which would give rise to arbitration
under the contract. Clark replied that any such grievance
would have related to J-Sac's "employment of someone
who was not in the Union, who has been expelled from
the Union [in that J-Sac] has a man working that's re-
placing someone who would be out there that's a Union
member, making wages and feeding his family."
I credit the accounts of the General Counsel's wit-
nesses over Clark's. The account given by Clark seems
implausible. Clark's account also reveals that Respondent
was very much opposed to J-Sac's having in its employ
an expelled member, Koenig, particularly as one of its
own members could be working in his stead.
The credited evidence discloses that, on August 16,
Respondent, by its business agent Clark, informed J-Sac
that Koenig was no longer one of its members, that it
could employ him in the office or in the woods but that
if it attempted to keep him as a carpenter it would be
subjected to secondary pressures. In context and for the
same reasons discussed above respecting the import of
the March 30 letter, I find that Respondent by Clark
thereby had attempted to cause J-Sac to lay off Koenig
and that, as Koenig was immediately laid off, Respond-
ent did in fact cause his layoff.
It is evident too from the totality of the evidence that
Respondent's action towards Koenig in sending the letter
on March 30 and also in having caused his layoff on
August 16 was motivated by its hostility towards Koenig
for having opposed the $2 monthly strike assessment and
for having over the years vigorously opposed the leader-
ship of Respondent. Such discriminatorily motivated ac-
tions directly interfere with employees' Section 7 rights
and unlawfully induce employees to continue their sup-
port for Respondent.
D. Alleged Refusal to Permit Koenig to Use
Respondent's Referral Hall
Koenig sought reconsideration of the International's
denial of his appeal. In mid-September he was advised
that he was successful as the International vacated its
denial. On September 14, he attempted to attend a union
meeting but was denied entry. That effort did not pertain
to any related attempt by him then to use Respondent's
referral hall. He was then still on layoff status from J-
Sac.
On September 16, he visted Respondent's referral hall
and left with Respondent's receptionist a copy of the In-
ternational's letter which effectively had reinstated him
as a member of Respondent.
On September 19, Koenig returned to the referral hall
and asked Respondent's assistant business agent to tele-
phone Cusumano and inform him that Respondent had
no objection to Koenig's working for J-Sac. Koenig was
informed that business agent Clark was away and that
the matter would have to await his return. On September
21, Clark returned and told Cusumano, "I don't under-
stand it. I don't know what those guys are doing in
Washington, but Koenig is back in the union, so if you
want him, you got him." The reference to the "guys in
Washington" obviously is to the officials of Respondent's
International who reinstated Koenig to membership.
Koenig was then put back to work by J-Sac.
The complaint alleges that, from about August 16 to
September 21, Respondent unlawfully prevented Koenig
from signing its out-of-work book at its hiring hall and
unlawfully refused to refer him to work from its hiring
hall during that interval. There is no evidence that
Koenig sought to sign the out-of-work book. There is no
evidence that he was seeking referrals during that inter-
val. The evidence rather is that he was attempting to get
his job back with J-Sac. He was shortly thereafter rein-
stated as a J-Sac employee, as related earlier. The mone-
tary losses he suffered as a result of his unlawful layoff
are to be remedied as provided for below.
The General Counsel's basic contention respecting the
third alleged unlawful act set out in the complaint is that
Respondent's overall conduct made it clear to Koenig
that it would have been futile for him to sign the out-of-
work book. In effect I view this observation as an im-
plied request for a broad remedial order against Re-
spondent. In that regard, I note that the Board recently
had occasion, inter alia, to modify a notice to members
after it had determined that a union had unlawfully
caused an employer to discharge an employee. But, in
that case, the Board did not modify the recommended
order and the Board did not provide for a broad order. 8
I shall follow that precedent.
CONCLUSIONS OF LAW
1. Respondent is a labor organization within the mean-
ing of Section 2(5) of the Act.
2. J-Sac Construction Co., Inc. and the Building Con-
tractors Association of New Jersey are employers en-
' Bricklayers Local 6, supra at fn 5
1103
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
gaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
3. By attempting on March 30, 1983, to cause J-Sac to
discharge its employee, William J. Koenig, Respondent
has violated Section 8(b)(l)(A) and (2) of the Act.
4. By attempting to cause and by having caused J-Sac
to lay Koenig off from August 16 to September 21, 1983,
Respondent has violated Section 8(b)(1)(A) and (2) of the
Act.
5. Respondent did not prevent Koenig from signing
the out-of-work book at its hiring hall and did not refuse
to refer him to employment from its exclusive hiring
hall; the complaint allegations that it had unlawfully
done so shall be dismissed for insufficient evidence.
6. The unfair labor practices found above in Conclu-
sions of Law 3 and 4 are unfair labor practices affecting
commerce within the meaning of Section 2(6) and (7) of
the Act.
THE REMEDY
Having found that Respondent has engaged in unfair
labor practices in violation of Section 8(b)(1)(A) and (2)
of the Act, I shall recommend that Respondent be or-
dered to cease and desist therefrom and to take certain
affirmative action designed to effectuate the policies of
the Act.
Since I have found that Respondent unlawfully caused
J-Sac to lay off Koenig, I shall recommend that Re-
spondent make Koenig whole for any loss of earnings
suffered by him as a result of the discrimination against
him. Loss of earnings shall be computed in the manner
set forth in F. W. Woolworth Co., 90 NLRB 289 (1950),
and Florida Steel Corp., 231 NLRB 651 (1977). See gen-
erally Isis Plumbing Co., 138 NLRB 716 (1962).
I shall also recommend that Respondent be ordered to
expunge from its files any reference to Koenig's unlawful
layoff, and to notify him, in writing, of its actions as well
as to inform him that his unlawful layoff shall not be
used as a basis for future action against him. Further-
more, I shall recommend that Respondent be required to
ask J-Sac to remove from its files any reference to Koen-
ig's unlawful layoff and notify him that it has asked J-
Sac to do so. See R. H. Macy & Co., 266 NLRB 858
(1983).
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed9
ORDER
The Respondent, Local 455, United Brotherhood of
Carpenters and Joiners of America, AFL-CIO, its offi-
cers, agents, and representatives, shall
1. Cease and desist from
(a) Causing or attempting to cause J-Sac Construction
Co., Inc. to lay off or otherwise discriminate against Wil-
liam J. Koenig for arbitrary, invidious, or discriminatory
I 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 swaived for all pur-
poses.
reasons, including the fact that he has engaged in activi-
ties protected by the Act.
(b) In any like or related manner restraining or coerc-
ing employees in the exercise of the rights guaranteed
them in Section 7 of the Act.
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act.
(a) Make William J. Koenig whole for any loss of pay
he may have suffered as a result of the discrimination
against him in the manner set forth in the section entitled
"The Remedy."
(b) Post at its business office copies of the attached
notice marked "Appendix."' ° Copies of the notice on
forms provided by the Regional Director for Region 22,
after being signed by Respondent's authorized represent-
ative, shall be posted and maintained by it for 60 consec-
utive days in conspicuous places including all places
where notices to members are customarily posted. Rea-
sonable steps shall be taken by Respondent to ensure that
the notices are not altered, defaced, or covered by any
other material.
(c) Forward a sufficient number of signed copies of
the notice to the Regional Director for Region 22 for
posting by J-Sac at its place of business, in places where
notices to employees are customarily posted, if J-Sac is
willing to do so, and ask J-Sac to remove any reference
to Koenig's unlawful layoff from J-Sac's files and notify
him that it has asked J-Sac to do this.
(d) Notify the Regional Director in writing within 20
days from the date of this Order what steps Respondent
has taken to comply.
'o 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 Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board."
APPENDIX
NOTICE To 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 was
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILl. NOT cause or attempt to cause J-Sac Con-
struction Co., Inc. to lay off or otherwise discriminate
against William J. Koenig based on arbitrary, invidious,
or discriminatory reasons including the fact that he has
engaged in activities protected by Section 7 of the Act.
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 make William J. Koenig whole for any loss
of pay he may have suffered as a result of our discrimi-
nation against him, with interest.
WE WIl L notify J-Sac Construction Co., Inc., in writ-
ing, and furnish a copy of such notification to William J.
1104
CARPENTERS LOCAL 455 (BUILDING CONTRACTORS) 1105
Koenig, that we have no objection to his employment by from its files, any reference to his layoff and that we will
said Employer. not use the layoff against him in any way.
WE WILL notify William J. Koenig that we have re-
moved from our files, and have asked J-Sac to remove LOCAL 455, UNITED BROTHERHOOD OF
CARPENTERS AND JOINERS OF AMERICA,
AFL-CIO