Carpenters Local 626 (Strawbridge & Clothier)

National Labor Relations Board - Board Decisions

Feb 18, 1993

310 N.L.R.B. 500 (N.L.R.B. 1993)

500
310 NLRB No. 68
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. 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.
We correct the judge’s finding that Strawbridge & Clothier em-
ployee Michael Stipo made repeated attempts to call the union hiring
hall on July 16, 1991. The record shows that Stipo attempted to call
the hiring hall, but not repeatedly, on that date. This change has no
effect on our decision given the Union’s nonexclusive hiring hall ar-
rangement and the other circumstances in this case.
2 Where a union operates a nonexclusive hiring hall, no 8(b)(1)(A)
duty of fair representation attaches to its operation of that hiring hall.
Carpenters Local 537 (E.I. Dupont), 303 NLRB 419 (1991). Even
without an exclusive hiring hall arrangement, however, a union vio-
lates Sec. 8(b)(1)(A) where, as here, it discriminates against mem-
bers in retaliation for their protected activities. Id.; Teamsters Local
460 (Superior Asphalt), 300 NLRB 441, 441 and fn. 1 (1990); De-
velopment Consultants, 300 NLRB 479, 480 (1990).
3 Although the Respondent contends that it was merely an em-
ployee, rather than a manager, of the Employer who promised
McCaffrey and Stone the transfers, the record demonstrates that em-
ployee’s established authority to arrange for the hiring and transfer
of employees.
4 The judge’s proposed remedy makes McCaffrey and Stone whole
for their losses because of the 8(b)(1)(A) violation. Accordingly, we
do not need to change the remedy.
Local Union No. 626, United Brotherhood of Car-
penters & Joiners of America, AFL–CIO
(Strawbridge & Clothier) and Michael McCaf-
frey and Robert Stone. Cases 4–CB–6387 and
4–CB–6399
February 18, 1993
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
On August 12, 1992, Administrative Law Judge
Frank H. Itkin issued the attached decision. The Re-
spondent filed exceptions and a supporting brief; the
General Counsel filed cross-exceptions, a supporting
brief, and an answering brief; and the Respondent filed
an answering brief.
The National Labor Relations Board has delegated
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 de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions to the extent consistent with this decision and
to adopt the recommended Order as modified.
The judge dismissed the 8(b)(2) allegation that the
Respondent caused Strawbridge & Clothier (the Em-
ployer) to discriminate against members Michael
McCaffrey and Robert Stone. The General Counsel has
excepted and argues that all of the facts necessary for
an 8(b)(2) violation were established at the hearing on
the basis of testimony credited by the judge. We agree
with the General Counsel.
The judge found, and we agree,2 that the Respond-
ent violated Section 8(b)(1)(A) of the Act by changing
its hiring hall practices in order to retaliate against
members McCaffrey and Stone for their opposition to
Robert McCullough in his successful bid to be elected
the Respondent’s business agent. The judge specifi-
cally found that McCullough required the Employer to
forego its past right to request members by name when
calling the hiring hall and to stop its past practice of
transferring employee members from store to store
once they were referred. The Respondent’s actions
were in response to the Employer’s request for McCaf-
frey and Stone, as well as the Employer’s promise to
transfer them from one store to another once their ini-
tial work was completed.3
As the judge found, the Employer’s failure to trans-
fer McCaffrey and Stone to a second store was a direct
result of the Respondent’s unlawful actions. The judge
concluded, however, that there could be no 8(b)(2) vio-
lation without an exclusive hiring hall arrangement.
Because this case does not involve an exclusive hiring
hall, the judge dismissed this allegation. For the fol-
lowing reasons, we reverse the judge and find that the
Respondent violated Section 8(b)(2).
The judge correctly found that a union does not vio-
late Section 8(b)(2) by virtue of its operation of a non-
exclusive hiring hall. Development Consultants, 300
NLRB 479, 480 (1990). A union which operates a
nonexclusive hiring hall may, however, violate this
provision where it causes an employer to discriminate
against employees within the meaning of Section
8(b)(2). Id. (union violated Sec. 8(b)(2) by attempting
to cause an employer to terminate and refuse to recall
an employee). Cf. Carpenters Local 537 (E.I. Dupont),
supra (no 8(b)(2) violation in failure to refer because
union did not operate exclusive hiring hall and since
there is no evidence that union ‘‘caused or attempted’’
to cause employer to discriminate against employee
within the meaning of this Section).
Here, the Respondent required the Employer to
change its past practice and refrain from transferring
member employees among the different stores. McCaf-
frey and Stone were denied promised transfers as a di-
rect result of the Respondent’s action. In this manner,
the Respondent attempted to and did cause the Em-
ployer to discriminate against McCaffrey and Stone in
retaliation for their protected activity. Accordingly, we
find that, even absent an exclusive hiring hall, the Re-
spondent’s actions violated Section 8(b)(2).
AMENDED CONCLUSIONS OF LAW4
Substitute the following for Conclusion of Law 4.
‘‘4. The Respondent, for the reasons stated above,
prevented McCaffrey’s and Stone’s transfers from one
501CARPENTERS LOCAL 626 (STRAWBRIDGE & CLOTHIER)
of the Employer’s stores to another in violation of Sec-
tion 8(b)(2) of the Act.’’
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Local Union No. 626,
United Brotherhood of Carpenters & Joiners of Amer-
ica, AFL–CIO, New Castle, Delaware, its officers,
agents, and representatives, shall take the action set
forth in the Order as modified.
1. Insert the following as paragraph 1(b) and reletter
the subsequent paragraph.
‘‘(b) Causing or attempting to cause the Employer
to refrain from transferring employee members Mi-
chael McCaffrey and Robert Stone among its various
stores because they opposed Union Business Rep-
resentative Robert McCullough in an election for the
Union’s officers.’’
2. Insert the following as paragraph 2(e) and reletter
the subsequent paragraph.
‘‘(e) Sign and return to the Regional Director suffi-
cient copies of the notice for posting by all employers
utilizing its hiring hall, if willing, at all places where
notices to employees are customarily posted.’’
3. Substitute the attached notice for that of the ad-
ministrative law judge.
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 negotiate any agreement with Em-
ployer Strawbridge & Clothier which prohibits the Em-
ployer from requesting specific employee members of
the Union for referral for employment and also pro-
hibits the Employer from transferring employee mem-
bers among its various stores, in order to prevent em-
ployee members Michael McCaffrey and Robert Stone
from obtaining future employment opportunities with
the Employer, because McCaffrey and Stone had op-
posed Union Business Representative Robert
McCullough in an election for the Union’s officers.
WE WILL NOT cause or attempt to cause the Em-
ployer to refrain from transferring employee members
Michael McCaffrey and Robert Stone among its var-
ious stores because they opposed Union Business Rep-
resentative Robert McCullough in an election for the
Union’s officers.
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 rescind our agreement with Strawbridge &
Clothier whereby the Employer is prohibited from re-
questing specific employee members of the Union for
employment and from transferring employee members
from store to store; and notify in writing the Employer
that it is no longer prohibited from requesting specific
employee members of the Union for employment and
from transferring employee members from store to
store.
WE WILL make employee members McCaffrey and
Stone whole for any loss of earnings and other benefits
they may have suffered as a result of our conduct
found unlawful in the Board’s Decision, with interest,
as provided in the Board’s Decision.
LOCAL UNION NO. 626, UNITED BROTH-
ERHOOD OF CARPENTERS & JOINERS OF
AMERICAN AFL–CIO
Donna D. Richardson, Esq., for the General Counsel.
Thomas W. Jennings, Esq., for the Respondent Union.
Michael McCaffrey and Robert Stone, pro se, Charging Par-
ties.
DECISION
FRANK H. ITKIN, Administrative Law Judge. Unfair labor
practice charges and amended charges were filed in the
above cases on August 5 and 15, November 27, and Decem-
ber 2, 1991. A consolidated complaint issued on November
29, and was amended on December 16 and 18, 1991. Gen-
eral Counsel alleges that about July 17, 1991, Respondent
Union and Employer Strawbridge & Clothier negotiated an
agreement which prohibited the Employer from requesting
specific employee members of the Union for employment
and also prohibited the Employer from transferring employee
members among its various stores; this agreement prevented
employee members Michael McCaffrey and Robert Stone,
Charging Parties, from obtaining future employment opportu-
nities with the Employer; the Union engaged in the above
conduct because McCaffrey and Stone had opposed Union
Business Representative Robert McCullough in an election
for the Union’s officers; and, consequently, the Union’s con-
duct was based on arbitrary and discriminatory consider-
ations in violation of Sections 8(b)(1)(A) and (2) of the Na-
tional Labor Relations Act. Respondent Union denies vio-
lating the Act as alleged.
A hearing was held on the issues raised in Philadelphia,
Pennsylvania on April 6, 1992. Upon the entire record, in-
cluding my observation of the demeanor of the witnesses, I
make the following
FINDINGS OF FACT
Strawbridge & Clothier is admittedly an employer engaged
in commerce as alleged. Respondent Union is admittedly a
labor organization as alleged. Strawbridge, a Pennsylvania
corporation, has retail stores in Philadelphia and the nearby
502 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 Buckley was uncertain whether or not McCullough also dis-
cussed on this occasion the Employer’s ‘‘ability to ask for carpenters
by name’’ although Buckley would ‘‘certainly not deny’’ such a
‘‘conversation’’ took place.
Christiana and Concord Malls in the Delaware area. Harry
Buckley is employed by Strawbridge as manager of its car-
pentry and painting service department. In that capacity,
Buckley would ‘‘call Local 626 requesting help’’ and the
Union would ‘‘supply’’ ‘‘carpenters’’ ‘‘as required’’ to
Strawbridge’s retail stores in the Christiana and Concord
Malls.
According to Buckley, under ‘‘the current procedure,’’ ‘‘I
call Local 626 requesting help, giving an approximate start
date and length of job duration’’; ‘‘I do not’’ ‘‘request car-
penters by name’’; and ‘‘when a job is complete’’ ‘‘we do
not’’ ‘‘transfer from one store to another.’’ Buckley noted
that this ‘‘current procedure’’ was first instituted about mid
July 1991. Previously, as Buckley recalled,
I would ascertain the amount of labor required . . . ,
discuss it [with the particular] local store carpenter ei-
ther in Christiana or Concord, and they would go about
the mechanics of getting the labor as needed.
Buckley explained how the ‘‘change’’ to the ‘‘current pro-
cedure’’ had occurred. About July 16, 1991, he had re-
quested store carpenter Michael Stipo to hire two carpenters.
Michael McCaffrey and Robert Stone were hired. Shortly
thereafter, Union Business Agent Robert McCullough tele-
phoned Buckley and, in an ‘‘excited’’ manner,
he [McCullough] requested that from now on . . . I
[Buckley] talk to him to solicit help for jobs [and] at
the end of a given job in one [store] we refrain from
transferring people to another facility.1
In addition, McCullough, by letter dated July 17, 1991
(G.C. Exh. 3), sent Buckley ‘‘a working agreement with Car-
penters Local 626,’’ advising Buckley:
For Local 626’s benefit administrator to accept and re-
tain any [fund] benefit contributions from your Com-
pany [for employee members] this agreement must be
signed.
The Employer thereafter executed a ‘‘letter agreement’’
which was ‘‘acceptable’’ to the Union.
Buckley recalled that previously, in May 1989, the Union
had requested his Employer to sign a ‘‘memorandum of
agreement’’ (G.C. Exh. 2); the Employer did not sign that
‘‘memorandum of agreement’’ although it thereafter com-
plied with the ‘‘terms and conditions’’ of the agreement in-
cluding ‘‘paying the fringes as they’re due’’; and the Union,
until mid-July 1991, had made no attempts to force the Em-
ployer to sign such an agreement or warn that ‘‘the Union
was unable to accept [payments of fund] benefits from
Strawbridge because there was no contract.’’
Michael Stipo testified that he is employed by Strawbridge
as a store carpenter; when he has other carpenters working
with him he is a foreman for the Employer; and that the
‘‘current procedure’’ used by the Employer ‘‘when hiring
members of Carpenters Local 626’’ is, as follows:
Right now Mr. Buckley and I will discuss whenever I
need a man or men, and he does the calling and hiring
of the men. He will call the Union Hall.
The Employer, under this ‘‘current procedure,’’ will not re-
quest ‘‘men by name’’ and will not ‘‘when one job is com-
plete . . . transfer men from one store to another.’’ Stipo
noted that, under the ‘‘prior procedure,’’ ‘‘we would call and
ask for men by name’’ for ‘‘renovation or any store work
we needed done’’; Stipo called ‘‘most of the time’’ speaking
with business agent McCullough ‘‘if possible’’; and ‘‘when
one job was complete’’ the Employer would ‘‘transfer the
men from one store to another.’’
Stipo testified that on July 16, 1991,
Mr. Buckley and I discussed [hiring two carpenters
from Local 626] . . . and we talked about hiring
McCaffrey and Stone. Stone was going to be trans-
ferred to Concord. And when McCaffrey and I would
be finished [at the Christiana store], we both would be
transferred to Concord to finish the renovation up there.
Stipo repeatedly telephoned the union hall later that day to
request employee members McCaffrey and Stone; however,
he was unable to speak with anyone there. Consequently, be-
cause Stipo ‘‘needed the two men for the [next morning], he
telephoned both McCaffrey and Stone, and asked them to
‘‘come in’’ and ‘‘we would call the Hall the next morning
to report’’ the hirings.
As Stipo further recalled, McCaffrey and Stone showed up
for work on July 17 and Stipo reported their hirings to the
Union’s assistant business agent Norman Harris who stated
that ‘‘there was no problem.’’ Shortly thereafter, Stipo re-
ceived a telephone call from Buckley advising him that busi-
ness agent ‘‘McCullough was upset.’’ Stipo telephoned
McCullough. McCullough then stated that he wanted
Strawbridge to sign a contract.’’ Stipo offered to ‘‘send the
men back.’’ McCullough replied: ‘‘Don’t send them back
. . . he didn’t want to get in trouble.’’ Stipo promptly re-
ported this conversation to Buckley. And, McCaffrey and
Stone then decided ‘‘to leave’’ the job.
Stipo, as he further recalled, telephoned the Union Hall on
July 17 and explained to business agent McCullough that he
‘‘needed the two men for the next morning . . . and would
like to have Stone and McCaffrey because they had worked
with [him] in the past.’’ McCullough responded:
‘‘Strawbridge wasn’t getting anyone until they signed their
contract.’’ Stipo understood that the Employer could no
longer ‘‘call the Union Hall and name request men’’ as it
had done in the past. Previously, Stipo had repeatedly tele-
phoned the Hall and requested both McCaffrey and Stone,
usually speaking with McCullough. His ‘‘name requests’’
were ‘‘honored’’ and, further, he would ‘‘transfer carpenters
from store to store.’’
Stipo explained that on June 19, 1991, some 4 weeks be-
fore the above incident, the Union had elected its officers.
During the Union’s election campaign, Stipo, Stone, and
McCaffrey had ‘‘openly’’ opposed McCullough in his bid to
be elected as business agent.
Robert Stone testified that he has been a member of Local
626 for 31 years; he is also a trustee for the Union; he ob-
tains work referrals from the Union; and, in addition,
503CARPENTERS LOCAL 626 (STRAWBRIDGE & CLOTHIER)
2 See R. Exhs. 2 through 5 and Tr. 170 to 178. Counsel for Re-
spondent Union and McCullough claimed that the above exhibits
‘‘show the sharp reduction in hours for the last ten years and par-
ticularly the last two years in available work within the geographic
jurisdiction of the Union . . . .’’ The Union concededly had been
‘‘experiencing these lows . . . over the last eight to ten years
. . . .’’
I [Stone] also visited jobs and, if there’s work available
and I can procure it on my own, I advise McCullough
that the job is there and get his okay to go to work.
Stone has worked for Strawbridge in the past ‘‘on several oc-
casions,’’ with the ‘‘okay’’ of McCullough.
Stone testified that on July 16, 1991, he ‘‘got a message
. . . from Stipo . . . asking [him] if [he would] like to go
to work for Strawbridge’’ at the Christiana store. Stone tele-
phoned Stipo and was instructed to ‘‘be there in the morning,
but you’ll have to call McCullough and tell him that you’re
going to work there.’’ Stone thereafter reported for work at
the store on July 17. Assistant Business Agent Harris was
there and said that it ‘‘would . . . be okay if I [Stone] went
to work’’ and ‘‘he [Harris] said he would take care of noti-
fying McCullough that I was going to work at Strawbridge.’’
Later, ‘‘there were numerous phone calls’’ to the union hall
and Stone ‘‘decided to go back to the Union Hall to find out
what McCullough really had to say and whether we could go
to work or not.’’
Stone and McCaffrey went to the union hall on July 17.
Stone testified:
He [McCullough] let us know at that particular time
that if there was no contract we weren’t supposed to go
to work for [Strawbridge], and that our [fund] benefits
couldn’t be paid because of no contract. And, in the
course of the conversation, I [Stone] noticed that he
[McCullough] was over aggravated, and I asked him
. . . how come you’re so mad. . . . At this time he
says, well, you know what you did to me at election
time. . . . And, I said, no, what? . . . And he said,
well, if you don’t know . . . you’re dumber than I
think you are.
Stone had openly supported McCullough’s opponent during
the recent union election some 4 weeks earlier.
Stone acknowledged on cross-examination that
McCullough did not ‘‘specifically’’ tell him ‘‘not to go to
work’’ at Strawbridge. Stone added: ‘‘I didn’t want to work
without getting my full pay or full benefits.’’ He therefore
did not return to the Christiana store on July 17. However,
on the ‘‘night of the 17th McCullough called . . . and said
it was okay to go back to work for Strawbridge . . . he had
worked out a deal . . . an agreement.’’ Stone returned to the
job on July 18.
Stone, when hired on July 17, had been advised by Stipo
that he would first work at the Christiana store for about 1-
1/2 weeks and then would be transferred to the Concord
store to work some 4 to 6 weeks. As counsel for the Union
acknowledged (Tr. pp. 107 to 109), Stone ‘‘was allowed to
finish up what he was doing at the time’’ at the Christiana
Mall but was not ‘‘transferred’’ to the Concord Mall as a re-
sult of the ‘‘agreement’’ reached.
Michael McCaffrey testified that he has been a member of
Local 626 for 32 years; he too obtains employment by refer-
rals from the union hall and ‘‘soliciting his own work’’; he
was hired on July 16, 1991, by Stipo for work at
Strawbridge; he arrived at the job on the morning of July 17;
he later heard of a telephone call and some ‘‘concern about
collecting benefits’’; and, consequently, he and Stone left the
job and went to the union hall. There, he was told by Busi-
ness Agent McCullough: ‘‘there is no contract . . . there is
no work.’’
McCaffrey further recalled:
I [McCaffrey] asked him [McCullough] again . . . what
can I do to go to work. And he says you can’t go to
work because they’re not going to take the benefits
. . . [and] someone could bring me up on charges if I
go to work. . . . Stone asked why he [McCullough]
was so mad, and he said you know what you did to me
this election . . . .
Later that same evening, as McCaffrey explained on cross-
examination, McCullough telephoned him and said ‘‘that [an]
agreement had been made and go to work’’ for Strawbridge.
As noted, under this ‘‘agreement’’ McCaffrey could not
‘‘transfer’’ from one store job to another as had been per-
mitted in the past.
Robert McCullough testified that he has been business rep-
resentative for the Union since 1977; his Union has some
650 ‘‘active’’ members ‘‘looking for work or working’’; and
the Union refers members to jobs for which they are quali-
fied ‘‘sending out [first] the ones that have been out [of
work] the longest.’’ McCullough noted that the Union and
various employers have established, under their collective-
bargaining agreements, health and welfare and pension funds
jointly administered by Union and employer trustees; the
funds are maintained by contributions made pursuant to the
terms of the collective-bargaining agreements; and to be eli-
gible to get, for example, medical benefits from the appro-
priate fund a member must work a minimum number of
hours during a certain period of time. McCullough asserted
that the Union, faced with hard economic times in the labor
market, ‘‘was trying to spread’’ the available ‘‘work around’’
and maintain benefit ‘‘eligibility’’ for its members during the
pertinent time period.2
McCullough was asked ‘‘why’’ the problem with
Strawbridge ‘‘surfaced’’ or ‘‘came to a head’’ in July 1991,
as demonstrated by the above testimony. He responded:
Well the situation was that we at the trustees’ meeting
several times have been asked by employer trustees do
we have anybody that isn’t signatory to the collective
bargaining agreement. And I have stated over the years
that we have two or three that I know of. And I just
happened to at that particular time request a collective
bargaining agreement be signed by the three people [in-
cluding Strawbridge] that had no collective bargaining
agreement [and] were hiring men off and on from the
Union Hall for the benefits.
McCullough concededly had been having ‘‘a running battle
with Strawbridge over the years with regard to whether or
not they were going to sign a contract or agreement.’’
Strawbridge had refused to sign such a contract although it
504 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
had agreed to make fringe benefit contributions and pay con-
tract wages for a number of years. (Cf. R. Exh. 6.)
Elsewhere, McCullough suggested that his confrontation
with Buckley on July 17, 1991, was at least in part because
Stipo had ‘‘called the men directly.’’ He then added that he
had called Buckley on July 17 ‘‘to inform him that we would
need a collective-bargaining agreement signed’’ and appar-
ently the ‘‘direct’’ hiring of Stone and McCaffrey had re-
freshed his ‘‘recollection that Strawbridge had yet to sign the
agreement.’’ He then added that ‘‘I’d have to get an agree-
ment signed so the benefits could be accepted’’ in accord-
ance with his understanding of the applicable law. He then
added that he had sent identical letters to employers
Strawbridge, A. Pomerantz & Co. and William T. Smack
Co., Inc. on July 17 enclosing an ‘‘agreement’’ to be signed
and warning that the administrator would not ‘‘accept and re-
tain benefit contributions from your company’’ unless the
agreement was ‘‘signed.’’ (See G.C. Exh. 3 and R. Exhs. 7
and 8.) He acknowledged, however, that at the particular
time neither Pomerantz nor Smack ‘‘employed’’ any ‘‘mem-
bers of Local 626.’’
McCullough also asserted that he spoke to McCaffrey and
Stone on July 17 at the Union’s hall and
I told them that . . . I had no problem with them going
to work. I just had to inform them that there is a possi-
bility that [their] benefit payments may not be accepted
by the administrator.
McCullough admittedly had never similarly warned these
two employees in the past when they worked for
Strawbridge. Further, McCullough insisted that ‘‘I never
brought [the Union] election up during the whole conversa-
tion.’’ He later added: ‘‘I can’t remember if they made [the
statement or a related statement] or not. They may have. I
don’t know. I can’t remember.’’ He could ‘‘not really’’ ‘‘re-
call’’ ‘‘what could have been said.’’
And, McCullough asserted that ‘‘I got an agreement with’’
Strawbridge shortly after the above incident in 1991. (Cf. R.
Exhs. 9, 10, and 11.) Pomerantz and Smack—the two other
employers contacted by the Union even though they did not
then employ its carpenters—never signed any ‘‘agreement’’
with the Union.
McCullough denied, inter alia, attempting to apply the
Union’s ‘‘no transfer rule’’ ‘‘in an inequitable or discrimina-
tory manner so as to work to the disadvantage of . . . Stone
and McCaffrey.’’ He reluctantly admitted telling Buckley on
July 17 that Stipo ‘‘could no longer call the Hall for men.’’
He denied telling Buckley that he could not ‘‘name request’’
carpenters. Elsewhere, he admitted that ‘‘at some point’’ he
did ‘‘talk to [Buckley] about requesting men by name.’’ And,
he admitted telling Buckley that Buckley ‘‘could not transfer
men from store to store.’’ Elsewhere, he admitted that ‘‘em-
ployers who are signators’’ to the Union’s ‘‘agreement’’ are
‘‘permitted’’ to ‘‘transfer employees from project to project’’
when ‘‘work is plentiful.’’ He added that if such employers
‘‘have steady personnel’’ ‘‘we have no reason . . . to deny
them a transfer as long as they are regular employees.’’ He
also added that ‘‘any contractor can name request’’ and
‘‘sometimes I do [honor these name requests] and sometimes
I don’t.’’
I credit the testimony of Buckley, Stipo, Stone, and
McCaffrey as detailed above. Their testimony is in signifi-
cant part mutually corroborative. Their testimony is also sub-
stantiated by admissions of McCullough and his counsel.
And, they impressed me as trustworthy and reliable wit-
nesses. On the other hand, I find the testimony of
McCullough to be vague, evasive, contradictory and con-
fusing. I do not find him to be a trustworthy or reliable wit-
ness. In particular, I reject as incredible his denial that he
had attempted to apply the Union’s ‘‘no transfer rule’’ ‘‘in
an inequitable or discriminatory manner so as to work to the
disadvantage of . . . Stone and McCaffrey.’’ On the con-
trary, as discussed below, I find instead that his conduct dur-
ing the pertinent sequence of events was in retaliation against
employee members Stone and McCaffrey because they had
openly supported his opponent during the recent union elec-
tion.
Discussion
As stated in Operating Engineers Local 18 (C. F. Braun
Co.), 205 NLRB 901, 910 (1973), enfd. 500 F.2d 48 (6th
Cir. 1974):
It is settled law that a labor organization which under-
takes to operate a hiring hall pursuant to contract or
other arrangement with employers as the exclusive
source of recruitment of employees is obligated to refer
job applicants without regard to their union . . . loyalty
or lack of it . . . . It is also settled that the activities
of employees . . . to oust the incumbent union leader-
ship and elect new union officers . . . are concerted ac-
tivities protected by Section 7 of the Act . . . . Ac-
cordingly, a union violates Section 8(b)(2) and
8(b)(1)(A) by refusing to refer or otherwise causing an
employer to discriminate against an employee because
he has engaged in the foregoing protected activities
. . . . Of course, an express demand by a union that
an employer discriminate against an employee is not re-
quired in order to find a violation of Section 8(b)(2).
Conduct of union representatives which is tantamount
to a request to discriminate with respect to the terms of
an individual’s employment and reasonably calculated
to bring about that result violates the Act . . . . [Cita-
tions and quotations omitted.]
And, in Laborers Local 135 (Bechtel Corp.), 271 NLRB 777,
780 (1984), the Board explained:
It is well established that discriminatory referrals from
an exclusive hiring hall violate Section 8(b)(2) . . . .
Similarly, a union violates Section 8(b)(1)(A) when it
refuses to refer individuals from a nonexclusive referral
hall based on discriminatory reasons including, as here,
internal union politics . . . . In either event the remedy
for the discrimination is the same . . . full backpay
. . . . [Citations and quotations omitted.]
See also Development Consultants, 300 NLRB 479 (1990);
and Operating Engineers Local 478 (Stone & Webster), 274
NLRB 567 (1985).
505CARPENTERS LOCAL 626 (STRAWBRIDGE & CLOTHIER)
3 Although Strawbridge’s department manager, Buckley, was
‘‘under the impression that [he] must hire carpenters from Local
626,’’ he acknowledged that there is nothing in the Union’s contract
‘‘that smacks of what we call . . . an exclusive hiring hall’’ and in
fact ‘‘the contract specifically permits the Employer to hire from the
street.’’ See Tr. 40 to 41.
In the instant case, the Union had for many years referred
carpenters to the Employer from its hiring hall.3 The Em-
ployer was permitted to request specific employee members
and later transfer these employees from store to store upon
the completion of work at one location. The fact that the
Employer had refused in the past to execute a contract with
the Union was not deemed by the Union to be an obstacle
to the maintenance of this referral arrangement. And, specifi-
cally, the Union had permitted the Employer under this ar-
rangement to ‘‘name request’’ employee members McCaffrey
and Stone for referral and transfer from one store to the other
upon completion of work.
However, during June 1991, McCaffrey and Stone had
openly campaigned against Union Business Agent
McCullough in his bid to be reelected. McCullough was re-
elected on June 19. And, on July 17, when the Employer
again ‘‘name requested’’ McCaffrey and Stone to perform
carpentry work at its various stores, McCullough suddenly
balked at this prior practice. The Employer was required in-
stead to execute an agreement with the Union which, as fore-
man Stipo credibly testified, changed the ‘‘prior procedure.’’
The Employer could no longer ‘‘name request’’ employee
members and transfer them from store to store. I find and
conclude on this record that the Union caused this sudden
change in its referral ‘‘procedure’’ in retaliation against em-
ployee members McCaffrey and Stone because of their oppo-
sition to McCullough’s reelection as business representative.
These unlawful arbitrary and discriminatory considerations
for Union conduct prevented the two employee members
from obtaining future employment opportunities, in violation
of Section 8(b)(1)(A) of the Act.
For, as explained in Operating Engineers Local 478 (Stone
& Webster), supra,
A union violates Section 8(b)(1)(A) of the Act by re-
straining and coercing an employee because of an em-
ployee’s dissident union activities. . . . When union
conduct adversely affects employment opportunities, it
visits economic sanctions upon an employee within the
definition of the words ‘‘restraint and coercion’’ . . . as
used in Section 8(b)(1)(A) . . . .
Thus, as employee member Stone credibly testified, on
July 16 he ‘‘got a message . . . from Stipo . . . asking
[him] if [he would] like to go to work for Strawbridge’’ at
the Christiana store. Stone telephoned Stipo and was in-
structed to ‘‘be there in the morning, but you’ll have to call
McCullough and tell him that you’re going to work there.’’
Stone thereafter reported for work at the store on July 17.
Assistant Business Agent Harris was there and said that it
‘‘would . . . be okay if I [Stone] went to work’’ and ‘‘he
[Harris] said he would take care of notifying McCullough
that I was going to work at Strawbridge.’’ Later, ‘‘there were
numerous phone calls’’ to the union hall and Stone ‘‘decided
to go back to the Union Hall to find out what McCullough
really had to say and whether we could go to work or not.’’
Stone and McCaffrey went to the union hall on July 17.
Stone testified:
He [McCullough] let us know at that particular time
that if there was no contract we weren’t supposed to go
to work for [Strawbridge], and that our [fund] benefits
couldn’t be paid because of no contract. And, in the
course of the conversation, I [Stone] noticed that he
[McCullough] was over aggravated, and I asked him
. . . how come you’re so mad. . . . At this time he
says, well, you know what you did to me at election
time. . . . And, I said, no, what? . . . And he said,
well, if you don’t know . . . you’re dumber than I
think you are.
Finally, on the ‘‘night of the 17th McCullough called [Stone]
and said it was okay to go back to work for Strawbridge
. . . he had worked out a deal . . . an agreement.’’ Stone,
when hired, had been advised by Stipo that he would first
work at the Christiana store for about one and a half weeks
and then would be transferred to the Concord store to work
some 4 to 6 weeks. As counsel for the Union acknowledged
(Tr. pp. 107 to 109), Stone ‘‘was allowed to finish up what
he was doing at the time’’ at the Christiana Mall but was
not ‘‘transferred’’ to the Concord Mall as a result of the
‘‘agreement’’ reached.
Employee member McCaffrey also credibly recalled being
told by McCullough on July 17:
[T]here is no contract . . . there is no work. . . .
[McCaffrey] asked him [McCullough] again . . . what
can I do to go to work. And he says you can’t go to
work because they’re not going to take the benefits
. . . [and] someone could bring me up on charges if I
go to work. . . . Stone asked why he [McCullough]
was so mad, and he said you know what you did to me
this election . . . .
Later that same evening, McCullough telephoned McCaffrey
and said ‘‘that [an] agreement had been made and go to
work’’ for Strawbridge. As noted, under this ‘‘agreement’’
McCaffrey could not ‘‘transfer’’ from one store job to an-
other as had been permitted in the past.
Respondent Union argues that the Union’s conduct placed
in issue here was for lawful and legitimate reasons. Thus, as
Union Business Representative McCullough asserted, the
Union, faced with hard economic times in the labor market,
‘‘was trying to spread’’ the available ‘‘work around’’ and
maintain benefit ‘‘eligibility’’ for its members during the
pertinent time period. McCullough, however, could not
credibly explain ‘‘why’’ this problem with Strawbridge sud-
denly ‘‘surfaced’’ or ‘‘came to a head’’ in July 1991. The
Union concededly had been ‘‘experiencing these lows . . .
over the last eight to ten years . . . .’’ And, the Employer
had refused to sign an ‘‘agreement’’ with the Union for a
number of years although it had fully complied with Union
benefit and fund provisions. McCullough elsewhere asserted
that ‘‘I just happened to at that particular time request a col-
lective bargaining agreement be signed by the three people
[including Strawbridge] that had no collective bargaining
agreement [and] were hiring men off and on from the Union
Hall for the benefits.’’ McCullough, however, acknowledged
that the two other employers cited by him did not then em-
506 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 Counsel for General Counsel has failed to sustain her burden of
sufficiently establishing an exclusive hiring hall arrangement on
which to predicate an 8(b)(2) finding. I would therefore dismiss this
allegation of the complaint.
5 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended 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 purposes.
ploy any of his Union’s members and apparently those two
employers have never signed such an ‘‘agreement.’’ He then
added that ‘‘I’d have to get an agreement signed so the bene-
fits could be accepted’’ in accordance with his understanding
of the applicable law, although apparently this had not been
an obstacle in the past to the acceptance of fringe benefit
payments from Strawbridge.
I reject as incredible these and related shifting and belated
reasons for the Union’s conduct. I find instead that the real
reason for the Union’s conduct was to retaliate against em-
ployee members Stone and McCaffrey because they had en-
gaged in the statutorily protected activity of opposing
McCullough in his bid to be reelected as business agent. The
Union’s conduct in the instant case was motivated by arbi-
trary and discriminatory considerations, in violation of Sec-
tion 8(b)(1)(A) of the Act. Moreover, I reject any contention
here that the Union would have, regardless of the protected
activity of Stone and McCaffrey, pursued its challenged con-
duct for lawful or legitimate reasons. On the contrary, this
record amply demonstrates that the failure of the Employer
to execute an agreement over the years had not resulted in
any Union action and only became a problem because the
employee members had opposed the incumbent business
agent during the recent Union election.4
CONCLUSIONS OF LAW
1. Respondent Union is a labor organization as alleged.
2. Strawbridge is an employer engaged in commerce as al-
leged.
3. Respondent Union and Employer Strawbridge nego-
tiated an agreement which prohibited the Employer from re-
questing specific employee members of the Union for refer-
ral for employment and also prohibited the Employer from
transferring employee members among its various stores; this
agreement prevented employee members Michael McCaffrey
and Robert Stone from obtaining future employment opportu-
nities with the Employer; the Union engaged in the above
conduct because McCaffrey and Stone had opposed Union
business representative Robert McCullough in an election for
the Union’s officers; and, consequently, the Union’s conduct
was based on arbitrary and discriminatory considerations in
violation of Section 8(b)(1)(A) of the National Labor Rela-
tions Act.
4. General Counsel has failed to prove a violation of Sec-
tion 8(b)(2) of the Act and these allegations of the complaint
will be dismissed.
5. The unfair labor practices found above affect commerce
as alleged.
REMEDY
To remedy the unfair labor practices found above, Re-
spondent Union will be directed to cease and desist from en-
gaging in such unlawful conduct or like or related conduct
and to post copies of the attached notice. Affirmatively, to
effectuate the policies of the Act, Respondent Union will be
directed to restore the status quo ante by rescinding its agree-
ment with Strawbridge whereby the Employer was prohibited
from requesting specific employee members of the Union for
employment and from transferring employee members from
store to store; notify in writing the Employer that it is no
longer prohibited from requesting specific employee mem-
bers of the Union for employment and from transferring em-
ployee members from store to store; and make employee
members McCaffrey and Stone whole for any loss of earn-
ings and other benefits they may have suffered as a result
of the Union’s conduct found unlawful herein, backpay to be
computed as described in F. W. Woolworth Co., 90 NLRB
289 (1950), with interest as prescribed in New Horizons for
the Retarded, 283 NLRB 1173 (1987). Respondent Union
will also be directed to preserve and, on request, make avail-
able to the Board or its agents for examination or copying
all hiring hall records, dispatch lists, referral cards and other
documents necessary or useful in analyzing and computing
the amount of backpay and compliance.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended5
ORDER
The Respondent, Local Union No. 626, United Brother-
hood of Carpenters & Joiners of America, AFL–CIO, New
Castle, Delaware, its officers, agents, and representatives,
shall
1. Cease and desist from
(a) Negotiating any agreement with Employer Strawbridge
& Clothier which prohibits the Employer from requesting
specific employee members of the Union for referral for em-
ployment and also prohibits the Employer from transferring
employee members among its various stores, in order to pre-
vent employee members Michael McCaffrey and Robert
Stone from obtaining future employment opportunities with
the Employer, because McCaffrey and Stone had opposed
Union Business Representative Robert McCullough in an
election for the Union’s officers.
(b) In any like or related manner restraining or coercing
employees in the exercise of their rights guaranteed in Sec-
tion 7 of the National Labor Relations Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Rescind its agreement with Strawbridge whereby the
Employer is prohibited from requesting specific employee
members of the Union for employment and from transferring
employee members from store to store; and notify in writing
the Employer that it is no longer prohibited from requesting
specific employee members of the Union for employment
and from transferring employee members from store to store.
(b) Make employee members McCaffrey and Stone whole
for any loss of earnings and other benefits they may have
suffered as a result of the Union’s conduct found unlawful
in the Board’s Decision, with interest, as provided in the
Board’s Decision.
(c) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
507CARPENTERS LOCAL 626 (STRAWBRIDGE & CLOTHIER)
6 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
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.’’
and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
(d) Post at offices in New Castle, Deleware, copies of the
attached notice marked ‘‘Appendix.’’6 Copies of the notice,
on forms provided by the Regional Director for Region 4,
after being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent immediately upon re-
ceipt and maintained for 60 consecutive days in conspicuous
places including all places where notices to employee-mem-
bers and applicants 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.
(e) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.