Carpenters Local 644 (Tousley-Iber Co.)

National Labor Relations Board - Board Decisions

Aug 22, 1984

271 N.L.R.B. 1125 (N.L.R.B. 1984)

CARPENTERS LOCAL 644 (TOUSLEY-IBER CO.)
Local 644, United Brotherhood of Carpenters and
Joiners of America, AFL-CIO (Tousley-Iber
Co.) and Edward W. Carroll. Case 33-CB-1829
22 August 1984
DECISION AND ORDER
BY MEMBERS ZIMMERMAN, HUNTER, AND
DENNIS
On 11 October 1983 Administrative Law Judge
Robert G. Romano issued the attached decision.
The General Counsel filed exceptions and a sup-
porting brief, the Respondent filed an answering
brief, and the General Counsel filed a brief in par-
tial support of the judge's decision.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings,' and
conclusions and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and hereby orders that the Respondent,
Local 644, United Brotherhood of Carpenters and
Joiners of America, Pekin, Illinois, its officers,
agents, and representatives, shall take the action set
forth in the Order.
MEMBER HUNTER dissenting in part.
I am in agreement with my colleagues' finding
that the Respondent Union violated Section
8(b)(1)(A) of the Act by unlawfully preferring in-
ternal union charges against member Carroll in re-
taliation for Carroll's filing of charges with this
Board.
However, I cannot agree with my colleagues'
adoption of the judge's dismissal of the 8(b)(1)(A)
and (2) charges relating to Tousley-Iber Co.'s fail-
ure to hire Carroll. In my judgment the evidence
clearly demonstrates that the Respondent Local
I We adopt the judge's finding that the Respondent's conversations
with Tousley-lber were not motivated by a desire to preclude Carroll
from being hired. Rather, we find that they were designed to prevent any
proclivity Tousley-lber might be developing to hire workers off the
street without affording the Respondent what it believed was contractual-
ly required, that is, advance notice and an opportunity to refer workers
from its hiring hall. It is clear that Carroll could have been referred in
this manner or that Tousley-lber had the right to reject referrals and then
to hire Carroll off the street. We also find, contrary to our dissenting col-
league, that the Respondent's failure to protest hirings of Carroll off the
street on three prior occasions does not prove a case of disparate treat-
ment when the Respondent did protest to Tousley-lber. Inasmuch as 50
percent of the Respondent's members were unemployed at the time of
the protest, we agree that the Respondent had a legitimate reason for its
action.
644 discouraged the Employer from hiring Carroll
and that this conduct was motivated by a desire to
retaliate against Carroll because of his dissident ac-
tivities within the Local.
The collective-bargaining agreement to which
Tousley-Iber and the Respondent were subject pro-
vides that an employer give notice to the union of
its intention to hire and its employment require-
ments. For 48 hours following this notice, the
union has an opportunity to refer qualified mem-
bers for employment. The employer is under no
obligation to hire those applicants referred by the
union. The Respondent presently interprets this
notice provision as precluding an employer from
hiring "off the street," i.e., not pursuant to the
Local's referral, prior to the expiration of the 48-
hour referral opportunity. The Respondent con-
tends that it was given the impression that Carroll
had been hired without the Employer first having
given the Local an opportunity to refer members
for employment. The judge found this interpreta-
tion of the referral procedures reasonable, although
there was evidence that the Employer's vice presi-
dent, Unes, did not agree that the contract provi-
sion limited his hiring authority in such a way. The
Employer's position, like the Union's, was based on
the explicit language of the contract, which pro-
vides in section I of article VII that the Employer
may hire from any source it desires without regard
to referral or clearance by the Union. In any event,
it is clear to me that the judge did not properly
weigh the evidence of the Respondent's failure in
the past to enforce its referral procedures with
regard to various hirings of Carroll.
It is apparent that prior to June 1982 Carroll had
been hired off the street at least three times. In
each of these situations the contractual referral pro-
cedures, as the Respondent now interprets them,
were not adhered to. The Local never protested
these hirings although each of the employers was
within the Local's jurisdiction. The first time the
Respondent invoked its "exclusive opportunity" in-
terpretation to block the direct hiring of Carroll
was in the present situation, and it followed, signifi-
cantly, the development of an intense personal ani-
mosity between Carroll and Vogel, the presi-
dent/business representative of the Respondent.
The credited evidence demonstrates that for
about 2 years prior to the filing of the charges in
this case a profound bitterness had been evolving
between Vogel and Carroll. In the summer of 1980
Carroll's criticism of Vogel's handling of a jurisdic-
tional dispute with another union culminated in a
vehement verbal confrontation between the two.
Shortly thereafter, the Local filed various intraun-
ion charges against Carroll in reaction to his use of
271 NLRB No. 185
1125
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
nonunion workers for a construction job at his
home. The initial charges covered the immediate
issue: use of nonunion labor in violation of the
International constitution. But Vogel personally
added charges that Carroll had engaged in willful
slander of the Local's business representatives (one
of whom was Vogel). Later, in the summer of 1981
Carroll, who had changed his local membership
due to employment out of state, applied for transfer
back to the Respondent Local. Vogel informed
Carroll that he had put the transfer issue before the
Local membership and that the members had voted
to deny Carroll's readmission. The Respondent was
later forced to accept Carroll's transfer because the
membership vote proposed by Vogel was in viola-
tion of the International constitution. In February
1982, in a letter directed to an official of the Inter-
national, Vogel described Carroll as "detrimental
to the brotherhood and everything the union stands
for."
All of the above occurrences clearly suggest
Vogel's burgeoning hostility toward Carroll prior
to the Respondent's conduct at issue here. In the
spring of 1982, Carroll assisted in the intraunion
campaign of a candidate seeking Vogel's position
as Local business representative. During the cam-
paign Carroll was unrestrained in his criticism of
Vogel. Shortly before the June election another
verbal confrontation occurred between Vogel and
Carroll on the issue of voter eligibility. About the
time that the Local elections were being held, Car-
roll approached Unes, the Employer's vice presi-
dent, seeking employment in Tousley-Iber's upcom-
ing construction project. To say the very least,
Unes was impressed with Carroll's qualifications
and conveyed to Carroll an interest in hiring him.
Carroll informed the Local's assistant business rep-
resentative that he had been hired by Tousley-Iber.
When the assistant reported this to Vogel, a meet-
ing was immediately arranged between the Local
officials and Unes.
At the meeting Unes denied that he had told
Carroll that he had been hired. Vogel declared that
hiring Carroll directly would constitute bypassing
the Respondent's notice-and-opportunity procedure
in violation of the contract provisions. Vogel
warned that Unes must utilize the procedure if he
wanted to hire men for the project, that hiring off
the street would lead to unnecessary distractions
and complications in the future. Unes stated that
under the provisions of the agreement he could
hire as he pleased, off the street or otherwise, that
he was not obligated to hire any referred Local
members. However, he subsequently agreed with
Vogel that it was in both their interests that the
project run smoothly.
When Carroll next contacted Unes he was told
that Local officials had raised objections to the
Employer's hiring him. Carroll confronted Vogel
with this information and Vogel declared that Car-
roll could be hired only through the referral proce-
dure. It is apparent that Vogel then stated that Car-
roll had had recent success in getting hired outside
the Respondent's jurisdiction, the clear implication
being that this was the route Carroll should take in
the future. When Carroll subsequently received an
out-of-state employment offer, he again contacted
Unes. Unes encouraged him to take the job.
On the circumstances of this case, I can reach no
other conclusion but that Vogel discouraged the
Employer from hiring Carroll in reprisal for his
dissident activities, particularly his conduct in the
Local election campaign. A union's retaliation
against a member for engaging in protected in-
traunion political activity violates Section
8(b)(1)(A). See, e.g., H. H. Robertson Co., 263
NLRB 1344, 1356 (1982); Betchtel Power Corp., 248
NLRB 1257, 1260 (1980). It is not especially rele-
vant whether Vogel expressly warned Unes not to
hire Carroll. It was communicated effectively that
the hiring of Carroll would be a troublesome issue,
that there would be problems with the construction
project. The effect of this threatening communica-
tion is evident in Unes agreement that things "run
smoothly" and in the subsequent withdrawal of his
expressed interest in hiring Carroll. When a union's
conduct indicates, expressly or implicitly, an intent
to arouse the employer's fear that the hire of an ap-
plicant will result in economic pressure against
him, that conduct is sufficient to find a violation of
Section 8(b)(2). Bricklayers Local 18 (Ferguson
Tile), 151 NLRB 160, 163 (1965).
The factual background for the immediate events
of June 1982-the earlier history of animosity be-
tween Vogel and Carroll, that the Respondent had
never protested before when Carroll was hired off
the street by employees within its jurisdiction-tips
the balance decidedly against the Respondent.
Under these circumstances the Respondent's con-
tention that it demanded that Unes utilize the
agreement's referral procedures out of concern for
its unemployed members is hardly convincing.
Also to be taken into account is Vogel's conduct
subsequent to the meeting with Unes. The implica-
tion in his remark concerning Carroll's success in
finding work outside the Respondent's jurisdiction
demonstrates his desire to get rid of a "troublemak-
er" and his animus toward Carroll's protected dissi-
dent activity. And there is the matter of Vogel's
filing intraunion charges in consequence of Car-
roll's Board charges relating to the Local's interfer-
ence with his being hired by Unes. The judge
1126
CARPENTERS LOCAL 644 (TOUSLEY-IBER CO.)
found, and I agree, that that conduct was retaliato-
ry and violative of Section 8(b)(1)(A). In weighing
the sequence of events, I fail to see how the judge
could find, in the midst of the overwhelming evi-
dence of the Respondent's animosity toward Car-
roll both before and after the incident in question,
that the pressure applied on the Employer by the
Respondent was legitimately motivated.
My colleagues are in agreement with the judge.
They find in particular that the Respondent's con-
duct was motivated by a desire to protect the job
opportunities of its membership and that the effect
on Carroll intended by the Respondent was merely
to limit him to the same opportunities as other
members. However, given the circumstances out-
lined above, I sincerely doubt that the Respondent
would have offered Carroll's name for referral in
any event, or that the Employer would have re-
quested Carroll. My colleagues simply ignore the
evidence of the Respondent's animosity and the
effect of its demands on the Employer. The Re-
spondent has not demonstrated that it would have
acted in the same way absent Carroll's protected
dissident activity. See Wright Line, 251 NLRB 1083
(1980). Viewed in the light of Vogel's hostility
toward Carroll, the unemployment rate of the
membership and the Respondent's arguable inter-
pretation of the referral provisions were convenient
handles in the Respondent's attempt to legitimize
its retaliatory action against Carroll.
I conclude that the Respondent manipulated the
referral provisions of the agreement and discour-
aged the Employer from hiring Carroll for pur-
poses of reprisal against a dissident member. In my
view, the evidence of unlawful motivation is more
than adequate to support this conclusion. Accord-
ingly, I would find the Respondent's conduct in
violation of Section 8(b)(1)(A) and (2) and I re-
spectfully dissent from my colleagues' failure to so
find.
DECISION
STATEMENT OF THE CASE
ROBERT G. ROMANO, Administrative Law Judge. This
case was heard before me at Peoria, Illinois, on April 18
and 19, 1983. The charge in Case 33-CB-1829 was filed
on July 12, 1982,' by Edward W. Carroll, an individual
charging party (Carroll), against Local 644, United
Brotherhood of Carpenters and Joiners of America,
AFL-CIO (Respondent or Local 644). Complaint issued
on February 10, 1983 (amended April 18), alleging viola-
tions of Section 8(b)(1)(A) and (2) of the Act. With ex-
tension of time granted, Respondent filed timely answer
All dates herein are in 1982 unless otherwise shown. The General
Counsel's unopposed motion to correct the record is granted.
on February 28 1983 (amended April 18), denying the
commission of any unfair labor practices.
The complaint alleges that Respondent, on June 14, at-
tempted to cause and caused Tousley-lber Co. to refuse
to employ Carroll for reasons other than Carroll's failure
to tender periodic dues and initiation fees uniformly re-
quired as a condition of acquiring or retaining member-
ship in Respondent, in violation of Section 8(b)(l)(A)
and (2) of the Act. The complaint further alleges that it
was because Carroll had engaged in protected activity
not approved of by Respondent; that in mid-June Re-
spondent told member-job applicants that it had caused
Employer Tousley-lber Co. not to hire Carroll; that it
would not permit Carroll to work in Respondent's area;
and that Respondent had then urged Carroll to leave Re-
spondent's area to find work, all in violation of Section
8(b)(1)(A). Finally, the complaint alleges that about July
15 Respondent brought internal union charges against
Carroll because Carroll had filed the instant charges in
Case 33-CB-1829, in further violation of Section
8(b)(1)(A).
The parties are in agreement that Respondent does not
operate an exclusive hiring hall, but are otherwise in dis-
pute as to precise import of the current contract's hiring
hall referral provisions; and, as well, as to the scope of
arrangements, practices, and understanding that are con-
tended to have been operative thereunder. Finally the
case presents the above issues for resolution in context of
contended internal union antagonisms existing between
Carroll and Local business representatives, and in back-
ground of a nonexclusive referral system operating at a
time when substantial numbers of individuals using the
hall were long time unemployed.
On the entire record, including my observation of the
demeanor of the witnesses, and after due consideration of
the briefs filed by the General Counsel and Respondent
Local 644 about May 23, 1983, I make the following
FINDINGS OF FACT
I. JURISDICTION
Jurisdiction is not in issue. The complaint (as amended
at the hearing) alleges, Respondent by answer (as similar-
ly amended) admits, and/or the parties have stipulated
that Tousley-lber Co. (Employer or Iber), a Nevada cor-
poration, is engaged in the business of general contract-
ing in commercial, industrial, and institutional buildings
and multifamily dwellings; and that during the past 12
months, representative of material period herein, in the
course and conduct of its business operations, Iber pur-
chased and caused goods and materials valued in excess
of $50,000 to be transferred from States other than the
State of Illinois, and to be delivered directly to Iber's
jobsites located in and near Peoria, Illinois. I find that
Iber is an Employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act, and that
Local 644 is a labor organization within the meaning of
Section 2(5) of the Act.
- - -
1127
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
11. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
1. The collective-bargaining agreements; and parties
thereto
The material collective-bargaining agreement was ef-
fective from May 1, 1980, through April 30, 1983. The
agreement was made and entered into by and among six
multiemployer associations, insofar as pertinent, inclusive
of the Greater Peoria Contractors and Suppliers Associa-
tion, Inc. (the Association) in behalf of themselves and
their Employer-members (Iber being one such member
of the Association), and the Central Illinois District
Council of Carpenters, AFL-CIO (District Council) for
itself and in behalf of its seven affiliated (and contiguous)
Local unions, insofar as pertinent, being inclusive of Re-
spondent Local 644 (Pekin) and Local 183 (Peoria).
The city of Pekin is located 10 miles south of Peoria.
Local 644's northern border is contiguous with Local
183's southern border. Local 644 and Local 183 have
their main offices located in Pekin and Peoria, respec-
tively. Iber is a party to the Association's and the Dis-
trict Council's contract, as are Local 644 and Local 183.
2. The officials involved
Neal Tousley is one of the principal owners of Iber;
and Richard Unes is Iber's vice president in charge of
operations and also apparently a part owner. Carl Wil-
liams was Iber's assigned general superintendent on
Iber's multiunit highrise and lowrise buildings at its
Courtside Place project in Pekin in Local 644's jurisdic-
tion.
Gene Davis is secretary-treasurer and general agent of
District Council. Darrell Vogel is the president of Local
644, and he has been business representative of Respond-
ent Local 644 since 1975. Bert Van Horn, appointed by
Vogel (though with final approval of Respondent's exec-
utive board) for a successive 3-year term, is an assistant
business representative of Local 644. Van Horn, a
member of Local 644 for 31 years, was also a local union
trustee for 23 years. Additionally, both Vogel and Van
Horn served as trustees on the Union's pension board
which (trust fund) affairs were directed by an equal
number of union and employer trustees. Don Shaw, sup-
ported by Carroll, ran unsuccessfully in opposition to
Vogel for business representative in a June 1982 election.
3. The contract's pertinent provisions
a. In general
In the contract's preamble, employer and union have
pledged themselves, "to the highest degrees of harmony
and good faith in the performance of this agreement."
The contract covers all carpentry work inclusive of
"Journeyman, Apprentices, Pile Drivers, Millwrights and
Lathers." (Art. I, sec. 3.) Union security is provided for
in the form of agreements (art. III) that all employees are
"obligated to become members of the Union after the
7th, but not later than the 8th day of employment"; to
further, "maintain their membership in the Union as a
condition of continued employment"; and there is also
provision in the contract for check off of union dues.
In article VI, general working conditions, there is a
provision that the Employer recognizes "the sole right of
the Local Union, which has jurisdiction where the job-
site is, to appoint a Steward"; and who (with apparent
limited exception to described minor jobs) also "shall be
a member of the Local Union who has jurisdiction
where the work is to be performed." Depending on the
number of employees who are working as carpenters or
millwrights (as distinguished from certain others, e.g.,
from pile drivers), there is further provision for designa-
tion of a foreman (over a crew of 2-6 individuals), a
Senior foreman (8-10), and general foreman (22-33).
There are provisions applying as to instructions to be
given by general foreman to senior foremen, rather than
crew when 33 are employed. Employment of carpenters
in number beyond 33 repeats the above process. The
above foremen are by contract nonsupervisory, working
foremen.
b. The written referral provisions
The contractual referral provisions, as to the meaning
of which the parties are in conflict, are set forth below,
in their entirety:
ARTICLE VII
Hiring and Notice
Section 1. Responsibility for Hiring. The Em-
ployer shall have the sole and exclusive responsibil-
ity for hiring and may hire from any source it de-
sires without paying heed to membership in the
UNION or referral or clearance therefrom.
Section 2. No Obligation to Refer. The UNION
shall have no obligation to refer prospective em-
ployees to the EMPLOYER but may do so if it de-
sires.
Section 3. Legal Authorization. The EMPLOY-
ER is exclusively engaged in the building and con-
struction industry and the parties have elected to
come under the provisions of Section 8(f), Part 3 of
the National Labor Relations Act, as amended,
which permits the parties to make an Agreement re-
quiring the EMPLOYER to:
(a) Notify the UNION of opportunities for em-
ployment provided, however that the EMPLOYER
reserves the right of recall of former employees
who are members of the Central Illinois District
Council of Carpenters and have been employed by
the EMPLOYER within the previous twelve (12)
months.
(b) Give the UNION an opportunity to refer
qualified applicants for employment.
Section 4. Procedure. In the application and ad-
ministration of Section 3 of this Article, the follow-
ing shall govern:
(a) The EMPLOYER shall advise the UNION of
all available openings and job requirements at least
forty-eight (48) hours prior to the EMPLOYER'S
fulfilling such job requirements.
1128
CARPENTERS LOCAL 644 (TOUSLEY-IBER CO.)
(b) Pre-Job Conference. No EMPLOYER cov-
ered by this Agreement shall commence a job until
the pre-job conference has been held. Such pre-job
conference shall be held not less than seventy-two
(72) hours before a job commences. If there is a
need for additional men after the job has started,
then a conference shall be held before the additional
hiring commences, if the UNION elects. At the pre-
job conference, the EMPLOYER shall advise the
UNION of its requirements as to the workmen re-
quired in the respective classifications, the probable
starting date, duration of the job and the working
schedules.
(c) The UNION shall be given an opportunity to
refer qualified applicants for employment.
(d) Men so referred shall not be given preference
of priority by the EMPLOYER over non-referred
men and the EMPLOYER shall have the sole and
exclusive right of accepting or rejecting the men so
referred.
(e) Nothing herein shall prohibit the EMPLOY-
ER from hiring or recruiting workmen from any
source it desires.
Section 5. Severability and Invalidity. It is the in-
tention of the parties hereto to comply with the
provision of the National Labor Relations Act, as
amended, and in the event this Article is declared to
be unlawful, then it shall become inoperative and
void and the parties shall immediately meet to nego-
tiate a legal mutually acceptable substitute. The
other legal provisions of the Agreement shall not be
affected thereby.
c. The attendant referral arrangements, practices and
understandings
All the business agents of the several affiliated locals
are under the direction of the District Council's general
agent Davis. Davis has acknowledged that it was not
contractually necessary that an employer obtain its car-
penters through the Union's hall. However, Davis also
testified that a contractor's (initial) hiring off the street
was not part of the procedure. Apart from the practice
of a contractor based in one local's jurisdiction bringing
certain current or regular employees with the contractor
to a jobsite in another local's jurisdiction, discussed infra,
Davis confirmed that a contractor had the right under
the contract to recall (directly) individuals who had
worked for that employer within the past 12 months; and
that the contractor also had the right under the contract
to accept or to reject a man who was referred to the
contractor by the Local union hall. Nonetheless Davis
has testified that under the contract's provisions, and
with an asserted further reliance on contended support-
ive holding of a prior arbitration award, that he obtained
some 6 years earlier, that a contractor had to give the
(Local) union the first opportunity to refer qualified men
when needed; be additionally given 48-hour notice (op-
portunity to refer), if the union demanded it; and that it
was after the contract procedures were exhausted that
the contractor could then hire from any source on his
own.
The arbitration award itself was not offered in evi-
dence. Nonetheless Davis testified that the underlying
circumstances were that he had promised an individual
stewardship on a certain small (two-man) job, but when
the individual reported to the job the individual learned
that the employer had already hired two men off the
street. According to Davis, when the individual reported
that circumstance to Davis, Davis contacted the employ-
er and was told by the employer that it could hire
whomever it pleased. Davis replied, "Fine, but we will
arbitrate it," and the Union did. Davis asserts the Union
won the arbitration and the individual was awarded the
I day's lost pay. Although the General Counsel has
sought to argue that the award was made because the
Union had contractual right to designate the steward,
Davis has testified essentially that was not the issue arbi-
trated, and that there never was a question raised that
the Union could designate who was to be the steward. In
any event, Davis has testified credibly that he had taken
repeated occasions in meetings held since, to review (at
least his view of) the above-hiring hall procedures with
all his business agents; that he had issued standing orders
to all the business agents that they were to have the
prejob conference with an employer on every job; and
that they were going to enforce the hiring hall proce-
dures as Davis viewed them.
As noted, the locals affiliated in the District Council
share varying contiguous jurisdictions. Although it is
rather common for a contractor to work primarily
within the jurisdiction of one given local where it is
based, from time to time such a contractor will also have
occasion to have construction work in another local's ju-
risdiction. Vogel has denied that when such a contractor
came into another local's jurisdiction that there was an
understanding that there would be an automatic 50-50
split in the employment opportunities on a job between
the two affected locals. Vogel rather testified that when
he called a prejob conference (in that circumstance) with
a contractor he asked that the contractor refer to him for
the men needed. Van Horn corroborated that if a con-
tractor was from out of town the Union asked that the
foreman, steward, and all other men be referred from
Local 644. However, Van Horn added that if a contrac-
tor has an international agreement he is allowed to bring
in his superintendent and one foreman. Van Horn also
testified that Iber had the right to bring its own men to a
job who could act as foremen, which it held out it was
going to do, and did (at least initially).
In that respect, Vogel has consistently acknowledged
that he would prefer that Local 644 supply all men re-
quired by a contractor for a jobsite in his Local's juris-
diction. However, Vogel has also as candidly acknowl-
edged that a 50-percent split (in the manning) is what
may eventually work out as the best that Local 644 can
get, as his employers were essentially all contractors
based in Peoria. Thus, the practice Vogel described he
stood on, was, that after the contractor came to a jobsite
within Local 644's jurisdiction with the employees the
contractor brought, the contractor had to use Local
644's hall, as any additional men should come from the
Local hall where the contractor was working; and that
1129
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the contractor had to give him 48-hour notice (opportu-
nity) to fill the additionally required jobs. Van Horn cor-
roborated Vogel that they had 48 hours from a contrac-
tor's request for men to refer qualified men for employ-
ment; and, if they could not, the contractor could then
hire whomever it pleased. Neither Vogel nor Van Horn
have contested the right of the contractor to hire direct-
ly individuals employed by the contractor in the prior 12
months; or that a contractor could reject an individual
when referred by Local 644. Indeed Van Horn has testi-
fied emphatically that if a contractor asked him for a
man by name, that man would be sent.
Local 644 is a diversified local, with a little over 500
members. Although there is but one journeyman card,
the skills of its members are varied, covering, inter alia,
carpentry work (house, trim, mill and cabinetry, form
and drywall); millwright work (machinery or turbine);
and other carpentry specialties such as roofing, shingles,
and carpet trim. Local 644 does not utilize an out-of-
work list in making its referrals, and had not in the 5
years Van Horn has been a business agent. Van Horn,
who has been a houseman for 31 years, handles essential-
ly all housework and residential work requests, while
Vogel generally handles the millwright work. Van Horn
testified that he knows the (carpentry) people and their
individual skills, and Vogel does similarly the mill-
wrights. On first arrival, a new man will explain his cre-
dentials; and the business agent will in any event find out
the individual's skills the first time the man is referred.
Van Horn testified credibly that he comes to work
daily at 6:15 a.m. in order to handle contractor calls and
to be able to get the men out to the jobsite by 8 a.m. A
lot of individuals will come to the hall every day and
wait for a referral. When a contractor calls, the contrac-
tor many times specifies what particular type skill he
wants, e.g., a trim, or shingleman; and Van Horn will
send the contractor what the contractor wanted, as they
have to make money, or the Union is not going to be in
business. Van Horn acknowledged that sometimes he
will call a man at home and refer him to a job.
During the times material herein, Van Horn testified
that 50-percent of its membership was unemployed. Car-
roll has conceded that was possible; and Shaw, called as
a witness by the General Counsel, on cross-examination
confirmed essentially that it was a good 50 percent that
was unemployed, and had been for the past 2 years.
There is no question Vogel and Van Horn otherwise
have made selective referrals on that account. Vogel
thus testified that the ones who had run out of unem-
ployment were the ones the Local tried to get out first.
Van Horn confirmed that he knew who the ones who
were out of unemployment were, as out-of-work individ-
uals regularly come in to have their unemployment cards
signed. The individuals would tell the business agents
when they had run out of unemployment compensation.
I additionally credit the union witnesses who have testi-
fied that wives would regularly call the business agents
at the hall, home, even hospital, about the effects of the
above of losing everything. I further find that Local 644,
in the last few years, had resultingly engrafted in the op-
eration of its hiring hall system a practice whereby it
generally would attempt to first refer qualified individ-
uals who had run out of unemployment compensation.
Vogel also acknowledged that he had a good idea of
who is working; who has had a great deal of work in the
recent past; and, as well, who has been on the bench (not
working) for a long time.
The Union does keep a running list of all the men it
refers, showing the date, employer, job, and individuals
referred. How long an individual remained on a job,
Vogel could not tell; except that the Union's steward
does make a weekly report showing the names of the in-
dividuals working on the given job, the foreman and the
steward, and the Local membership identification of all
those thus shown employed on the project that week.
There is no allegation of an improper operation of its
hiring hall, other than is alleged in regard to Carroll as
an individual.
B. The Development of Conflict Between Carroll and
Local 644
1. Carroll's union membership and employment
history
After completing a 4-year apprenticeship, Carroll
worked for 23 years as a journeyman carpenter. Carroll
was initially a member of Peoria Local 183 for 7-8 years
before becoming a member of Pekin Local 644 in 1963
or 1964. Vogel, who first became acquainted with Car-
roll at work some in 1969, was first elected business rep-
resentative of Local 644 in 1975. Vogel has been periodi-
cally reelected, last in June 1982. Carroll has never held
an elective union office, though he had earlier served on
Local 644's examining board, on being appointed to it by
Chuck Lewis, who was president of Local 644 at the
time. Vogel has been president for 10 years.
Carroll has performed the various types of carpentry
and millwright work. Carroll also asserted that he has
worked in supervision (apparently hourly) for the last
15-18 years, though the former would appear the more
likely as Carroll related that he had worked for Power
Systems under Lewis in 1966-1967, as a millwright, in-
stalling a turbine in a powerhouse at an E. D. Edwards
plant. In any event there is no issue raised as to Carroll's
technical qualification as a journeyman carpenter, nor as
to his ability to perform as a working foreman. Nonethe-
less, Carroll asserts that he has had problems with Local
644 ever since its former business representative Roger
Gooler got out; and he has related the start of his diffi-
culties with Local 644 as being over for whom he had
voted.
Carroll's testimony as to the prior existing practice on
securing employment was that there were two ways an
individual could get work. Carroll asserted, you can go
to the hall and sit there day after day, and if they like
you, they will send you to work; or, you can go look for
your own work. Thus Carroll testified, you can go to a
contractor and present yourself to let the contractor
know what you can do; and, if he is interested, he can
hire you. While Respondent does not appear to contend
there were internal restrictions placed on a union
member as far as his looking for work on his own, it
does join issue, as noted above, on the effect of the latter
1130
CARPENTERS LOCAL 644 (TOUSLEY-IBER CO.)
in relation to the hiring hall's operation and its governing
procedures and practices, specifically in regard to the
Union being nonetheless afforded an opportunity to refer
qualified men, before an employer actually hired a man
off the street. In contrast, Carroll has testified that he
had several times previously obtained employment on his
own, directly from a contractor.
Vogel's recollection was that Carroll had worked for
Baldwin Associates (Baldwin) for a period of about 4
years, which would have essentially covered Vogel's ini-
tial term as business representative. Vogel testified that
he had assumed that his predecessor in office had re-
ferred Carroll to the Baldwin jobsite in Havana, Illinois,
which was in Local 644's jurisdiction, because he knew
Carroll had worked there as a general foreman. Vogel
however acknowledged that he did not know how Car-
roll had obtained that job. The record is clear Vogel had
not referred Carroll to it. Carroll has testified, thus with-
out direct contradiction, that he got the job as general
carpenter foreman at the Baldwin jobsite in Havana
through Furin and Cowen, a contractor. Carroll's recol-
lection was that he had worked there in 1976-1979.
Vogel testified I find, credibly, that the Baldwin job
started before he became business representative.
It is uncontested that Carroll obtained his next job,
with Atlantic Plant Maintenance (Atlantic) for work at
its Powerton (nuclear) jobsite, through a referral ob-
tained from Vogel. Vogel additionally testified credibly
that Carroll worked at Powerton as a foreman, and then
as a general foreman. Carroll confirmed that he was re-
ferred to Atlantic and worked there for 2-3 months
before sustaining an injury on the job which occasioned
his being off work for a period of 9-10 months. In pass-
ing, I do not find Carroll's assertions as to having had
difficulties with Local 644 since Gooler left, or in
Vogel's initial term, as supported by the evidence, or
convincing. I conclude it to be an unsupported embel-
lishment.
Carroll's next job was with Heinz Construction Co.
(Heinz) on a maintenance contract that Heinz had ob-
tained at a Caterpillar plant, or foundry, located at Ma-
pleton, Illinois, also within Local 644's jurisdiction. Car-
roll has testified that he obtained that job directly with
Frank Heinz, and that he worked there from December
1979 to December 1980 as a general foreman for the car-
penters and millwrights. Vogel has acknowledged that
he had not referred Carroll to that job, but has testified
(seemingly describing his own knowledge that a personal
friendship existed between Carroll and Heinz) that Car-
roll knew the owner, presumably Frank Heinz. Vogel
otherwise testified that Hennis Corporation (Hennis) was
also working the same jobsite. Hennis was installing a
bucket conveyor system. Hennis also employed mill-
wrights and ironworkers. There was a confrontation be-
tween Carroll and Vogel on this jobsite, not as to Car-
roll's obtaining work there, but as to Vogel's perform-
ance as business representative in regard to certain mill-
wright-ironworkers work jurisdictional disputes.
2. The millwrights-ironworkers work disputes; the
evidenced beginning of Carroll-Vogel
confrontations
According to Vogel there were numerous work juris-
dictional disputes between millwrights and ironworkers
at this jobsite; and as Vogel described it in recollection,
it seemed like he was over there constantly. Some of the
disputes involved Heinz, and Vogel had occasion to talk
to Carroll every time Vogel was there. (In that regard
the District Council's "By-Laws and Working Rules," in
"Working Rules," section 11, provides: "No member
shall surrender any part of any work included in our ju-
risdiction of work to any craft until ordered to do so by
a representative of the Local Union or District Council."
However, section 9 thereof additionally provides: "Any
member willfully obstructing a Business Representative
or Steward in the lawful discharge of his duties shall be
in violation.")
Vogel has acknowledged that on one such occasion a
shouting match over a work dispute had developed be-
tween Carroll and him in the parking lot by the Heinz
job trailer. Carroll's version is that the incident had oc-
curred about July-August 1980. The millwrights had just
lost a dispute with the ironworkers after a discussion of
the dispute in the superintendent's office. Carroll relates
that 3 months earlier he had been told by an ironwork-
ers' business agent that the disputed work (chute work
from machine to machine) belonged to the millwrights.
Carroll acknowledged that he was a little bit hostile over
the loss because he felt they had been losing as much
work as anybody could possibly lose. According to Car-
roll he told Vogel at this time that it was horseshit to be
losing all this work after the ironworkers had already
told them it was their work. Carroll's account is that
Vogel told Carroll he was bull headed, that Vogel also
called Carroll a union radical, and that Vogel asked Car-
roll why Carroll could not realize that Vogel had a job
to do.
Vogel's version is essentially similar, except he felt
that Carroll always thought disputed work was mill-
wright work; and Vogel asserts that was not always the
case. On this occasion Vogel told Carroll that who the
work belonged to was a matter of opinion; and that Car-
roll told Vogel that the work should not be taken over
by the ironworkers. Vogel replied that he had rules he
had to follow on that. In that regard, Vogel has testified
without contradiction that he had filed on all the work
disputes he could, but that he had always gone through
the general office as he was required to do under the
contract without work stoppage. Vogel did not think
Carroll had cursed at him, but Vogel has acknowledged
that he on this occasion had called Carroll bullheaded
and a union radical.
On cross-examination Carroll initially asserted that he
was fairly familiar with certain written agreements be-
tween the millwrights and ironworkers concerning juris-
dictional matters, that he thought there was one on the
chute or hopper, from machine to machine, but that he
was not sure it was in effect.
Davis has relatedly testified that he was involved over
the phone with the Mapleton jurisdictional dispute over
1131
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the metal chutes, though he did not know how it was
eventually settled. However, Davis did otherwise expli-
cate that there had been an earlier letter of understand-
ing that divided the work, but did so in such a way that
you could interpret it 10 different ways, and it solved
nothing. Davis testified, without contradiction, that the
letter of understanding between the carpenters, mill-
wrights, and ironworkers had been abrogated 5 years
earlier. Davis also testified that at the time of abrogation
his international advised the carpenters to take their best
hold, and he presumed the ironworkers international had
advised ironworkers to do the same.
3. The initial union charges preferred against
Carroll for use of a nonunion contractor on his
personal residence; and related considerations
Part of Van Horn's duties is to regularly check on job-
sites, including residential jobsites. District Council
working rules, section 16 requires a "member performing
work for himself" to notify the local business representa-
tive; and section 17 places certain time limitations on
building a house for himself without permission. The
District Council's Objects section 2, in pertinent part
provides ". . . to assist our members in procuring em-
ployment." Van Horn testified that on October 17, 1980,
he visited a residential jobsite (Carroll's home) at which
a room addition was being constructed. When Van Horn
inquired of the carpenters doing the work if they carried
union cards, Van Horn was directed to talk to the lady
inside, who at that time emerged from the house. Van
Horn introduced himself to Mrs. Carroll, and, on inquir-
ing if the men doing the work were union, Van Horn
was told by Mrs. Carroll that she had initially called a
Local 644 contractor, but he was too busy. Van Horn
then told Mrs. Carroll that his problem was with Ed
Carroll, not you. On his return to the hall, Van Horn re-
ported the incident to Vogel.
Carroll's version is that it was a screened front porch
that was being put on his house. He explained that he
had recently sold a piece of property and had to have a
tax writeoff. Carroll confirmed that his wife had initially
called several union contractors but could not get one,
and that the contractor she had contracted with had said
that he would go either way she wished. Carroll asserted
that he lived by a blacktop, not in the woods, and he
was not trying to hide it. However, Carroll testified he
had decided at the time that he was having enough prob-
lems with the Union, and that if he got a nonunion con-
tractor out there maybe he could get some results from
the International, and have them come down and see
what was going on.
Van Horn testified that when he reported the incident
to Vogel, Van Horn suggested to Vogel that before they
writeup the man, that they give Carroll the opportunity
to withdraw the nonunion people, so they do not have a
problem. Vogel then placed a call to Carroll at Heinz.
Van Horn testified that Vogel in his presence asked Car-
roll if he would remove the nonunion people. When Car-
roll said he would not, Vogel told Carroll, "We will
have to write you up," and that Carroll told Vogel to do
what he had to do.
Carroll has confirmed receiving the prior call from
Vogel at Heinz' office, including its warning nature, viz.,
that Vogel was going to prefer charges if Carroll did not
remove the nonunion people. Carroll has otherwise testi-
fied that he told Vogel at that time, "if you get the iron-
workers away from our work at Mapleton, I will get the
people away from my house."
Van Horn, on cross-examination, acknowledged that
he could not hear Carroll, and did not know if Carroll
had also made mention of Vogel's getting the ironwork-
ers at Mapleton off millwright-claimed work, though
Van Horn has testified definitively that he heard Vogel
say, "Are you telling me I have to do what I have to
do," and that Carroll said, "Yes." In regard to the iron-
worker removal remark in the Vogel-Carroll conversa-
tion, Vogel was not questioned by the parties when
called initially by the General Counsel under section
611(c), and he was not subsequently recalled by Re-
spondent to offer testimony in denial. I find that Carroll
made that statement to Vogel, though I entertain some
reservation he did so at that time.
On October 21, 1980, Van Horn initially preferred in-
ternal union charges against Carroll with the District
Council, under the United Brotherhood's Constitution
and bylaws, A section 55 (13), "Violating the Obliga-
tion." The charge made specified, "Failure to employ
only union labor, when the same can be had"; and it de-
scribed essentially the facts of Van Horn's visit to Car-
roll's residence; his report to Vogel; and his own aware-
ness of Vogel's warning conversation with Carroll and
Carroll's refusal to remove the "unfair" contractor.
On October 31, 1980, Vogel also preferred charges
against Carroll, charging Carroll (generally) with viola-
tions of A section 55(1) and (5) in addition to (13). Sec-
tion 55(1) would effectively charge Carroll with "caus-
ing dissension among the members of the United Broth-
erhood"; and section 55(5) would charge Carroll with
"willful slander or libel of an officer or any member of
the United Brotherhood."
Although Van Horn was unable to testify definitively
as to Carroll's full conversation with Vogel, Van Horn
did testify that Carroll had later appeared before the Dis-
trict Council's executive board, the union body which
would determine in the first instance whether a constitu-
tional course (trial) on the charges would be followed.
Van Horn testified without contradiction that Carroll
said nothing to them about the Mapleton jurisdictional
disputes, but rather that Carroll had told that body at the
time that he had not removed the "unfair contractor" be-
cause he wanted the Union to organize them. The execu-
tive board directed the charges take the constitutional
course; and in due course the trial was held. Carroll was
found guilty on all counts.
Carroll acknowledged that he did testify before the
District Council. Carroll confirmed that he did not tell
the District Council that his reason for using the "unfair
contractor" was to bring attention to the ironworkers'
dispute. Nor did Carroll deny Van Horn's account of
what he did say before the executive board. Finally, Car-
roll conceded at hearing that in using the nonunion con-
tractor he had violated his contract (union obligation).
1132
CARPENTERS LOCAL 644 (TOUSLEY-IBER CO.)
Carroll also acknowledged that he was aware that he
could have appealed to the International, and that he did
not.
On January 5, 1981, the designated trial committee re-
ported its findings of guilty to the delegate body. On
January 6, 1981, Davis confirmed to Carroll, in writing,
that Carroll had been found guilty, and had been fined
$100 on each violation (a total of $400); and additionally
that the District Council's delegate body had voted (on
each charge) "to debar you from participating in any
local union activities, rights or privileges of a member,
except for paying dues for a period of five (5) years." As
noted, Carroll did not appeal, and he thereafter paid the
$400 in fines. Carroll testified that he understood there-
from that he was not allowed to attend union meetings
or to vote on internal union issues. However, when ques-
tioned concerning his involvement in the union elective
process itself, Carroll asserted, "I think you are [there]
going into my civil rights; and, I have a right to speak
about anything I want to."
As noted, Carroll's job at Heinz ended about Decem-
ber 1980. Local 644 was about to enter, indeed if it had
not already entered, a period of generally high area un-
employment for Local 644 members. Apparently in early
1981 Carroll learned of a chance to go to work for Al-
berici Construction (Alberici) in St. Louis, Missouri.
(From Carroll's testimony that he had worked 9-10
months in 1981 on jobs he found by himself, it would
appear it may have been earlier than May, that he ob-
tained employment with Alberici.) In any event on May
6, 1981, Carroll transferred his union membership from
Local 644 to Local Union 602, located in St. Louis, Mis-
souri. Carroll worked for Alberici in St. Louis at two
jobsites (McDonnell-Douglas and Chrysler) for approxi-
mately 3 months until about the end of July. Carroll was
supposed to work further for Alberici on a General
Motors jobsite starting in mid-August 1981, but in the in-
terim Carroll obtained still other employment with Beld-
ing Corporation (Belding) as an assistant millwright su-
perintendent at Belding's Hormel Meat Packing Plant
jobsite, starting about August 1-3, 1981, with work to
extend on that job through the end of the year.
4. Carroll's difficulty in transferring his membership
back from St. Louis Local 602 to Pekin Local 644;
the question of claimed union acceptance of Belding
pension fund contributions as a favor to Carroll
Carroll has 16 or 17 years vested in Local 644's pen-
sion, which Carroll has described as being one of the
best pension plans in the country. Insofar as the pension
plan was concerned, Carroll related he had not worked
long enough in St. Louis, but his view otherwise was
that the hours he was to work in Minnesota would be
wasted. In any event, Carroll was able to make an ar-
rangement with Belding that they would take care of his
pension and health and welfare contributions. Carroll's
understanding apparently was that to qualify for Local
644's pension he had only to be a member of Local 644,
as well as have the certain number of years, and consec-
utive hours. Carroll testified that his pension payment
contributions were refused until he eventually got his
card back in Local 644. It would appear from Carroll's
lack of knowledge whether Belding was under contract
with Local 644, that he did not consider that as a factor
in the Union's refusal of contributions made in his behalf.
Carroll testified that he had St. Louis Local 602 trans-
fer his membership card back to Local 644; and it was
about mid-August (confirmed by Vogel) that Carroll
called Vogel on it. According to Carroll, Vogel said that
they would have to wait for the next union meeting to
come up, and would vote on it to see what was going to
take place. Vogel informed Carroll when Carroll should
call back to find the result.
Vogel confirmed that he had presented question of
Carroll's request to transfer his card back into Local 644
to the local union membership at a local union meeting
(probably in September); and he testified that the mem-
bership voted not to accept Carroll. When Carroll did
call back as directed, Carroll was informed (I find) by
Vogel that the Local had voted not to accept his card.
Carroll relates Vogel told him that his book was sup-
posed to have been mailed back to St. Louis, though he
later accused Local 644 of throwing it in the garbage
can.
The record reveals that by letter to Carroll dated De-
cember 5, 1981, with copies to Davis and to Internation-
al Vice President Sigurd Lucassen, International General
Representative John Pruitt informed Carroll relative to
Carroll's apparent earlier complaint of October 29, 1981,
that Local 644 had failed to accept his clearance card,
and to return his dues book, because Pruitt had been
unable to locate Carroll's dues book, but that Pruitt had
been informed it had been mailed on September 1, 1981,
to Carroll's Austin, Minnesota address. Pruitt's letter to
Carroll then advised:
If by chance you have not received your dues book
please contact LU 602 and obtain a duplicate. Also
request a new clearance card and present both your
dues book and clearance card to Gene Davis, Sec-
retary of the Central Illinois District Council of
Carpenters. If your dues book and clearance card
are in good order your transfer will be made with-
out further delay.
As noted, Carroll was employed by Belding in Austin,
Minnesota, from mid-August through December 1981.
Davis testified, with documentary support, that on De-
cember 29, 1981, Carroll had personally brought his card
by the District Council office, and that on that day
Davis approved Carroll's clearance into Local 644. In
regard to Carroll's visit to his office, Davis also testified
that he had a material discussion with Carroll at that
time about work opportunities.
Thus, Davis recalled that he told Carroll that it was a
bad time for Carroll to be clearing back in as there was
no work in Peoria, or in Pekin and that the times were
worse than Davis had ever seen them. Davis told Carroll
that he did not know what they were going to do for the
rest of the winter, and that the summer did not look any
better. There is conflict between Davis and Carroll as to
what Carroll said in reply.
Davis' version is that Carroll told Davis that he real-
ized that, but he was only there because his living ex-
I 1133
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
penses would be cheaper. According to Davis, Carroll's
exact words were, "I have got resumes out throughout
the country, and I expect to be called by some of those
(contractors) in the near future"; and that Carroll had
said, "so I am just here to live a little cheaper while I am
getting answers from my resumes." Davis also recalled
that they had discussed the work around the country,
that Carroll had talked about the work in St. Louis
(though Davis did not recall Carroll's mention of Minne-
sota), and that Carroll had said he had run out of work
there and he had come back to live in his home until he
got another job, or reply from the resumes.
On rebuttal Carroll's version was that they had talked
about the work both in the St. Louis and Minnesota
areas, and that Carroll had said there was little work
coming up in St. Louis, but that Minnesota was in bad
shape also. However, Carroll testified that to his knowl-
edge resumes were not discussed. Carroll otherwise
denied he had told Davis that he had resumes out all
over the country, and that in fact he did not have re-
sumes out all over the country at that time. Carroll also
denied he said he was here only to live a little cheaper.
It will be recalled that Carroll acknowledged that it
was possible that 50 percent of Local 644 was out of
work. Whether Carroll had mentioned resumes as Davis
has specifically recalled, or in some other manner, later
or not at all, and Davis has confused a recollection of
similar conversation with someone else, I am wholly
convinced that their discussion otherwise centered on the
material circumstances of a severe lack of work opportu-
nities in the local area (and elsewhere) at the very time
Carroll was returning to Local 644, and that Carroll was
fully aware of that circumstance.
Van Horn testified that he had been a trustee of the
pension board since 1964. According to Van Horn, Beld-
ing had not signed a contract with the Union, which
Van Horn asserted was a requirement for the Union to
accept contributions from Belding on behalf of Carroll.
Nonetheless, Van Horn testified that Vogel felt that any-
body that worked should be credited with his hours; and
Van Horn further testified that Vogel had subsequently
called a meeting of all the trustees, who had then voted
unanimously to accept the contributions from Belding on
behalf of Carroll, as a favor to Carroll though there was
a question of legality in doing so. Respondent has con-
tended that the same is evidence that Local 644, and
Vogel in particular, did not harbor ill will towards Car-
roll at this time. There is some ambiguity in the evi-
dence.
No documentary evidence was offered as to when the
trustee meeting was precisely held. Van Horn's original
recollection was that it was about the end of 1981 when
the trustee meeting occurred. He later clarified the meet-
ing had to have been after Carroll's card was cleared
(December 29, 1981), but was uncertain as to it being
after Carroll's card was actually deposited with Local
644 (January 13, 1982). Van Horn testified with convic-
tion, however, that the meeting was held at a time when
Belding had not signed a contract. Van Horn otherwise
testified that he thought the meeting could have been
held in January, conceivably February. The General
Counsel offered no evidence on the matter, and no union
witness confirmed the date.
5. Vogel's continuing internal union inquiry on
Carroll's membership in Local 644, in early
February; and other matters evidenced as being of
contemporaneous concern to Vogel
Apparently on February 2 Carroll, after International
contact, had presented to Vogel a certain hospital bill
with a claim for payment by Local 644. In any event, it
is clear that on February 3, 1982, Vogel wrote Lucassen
in regard to Lucassen's correspondence with Carroll to
explain the Local's view. After first reviewing the prior
circumstance that charges had been earlier brought
against Carroll for hiring a nonunion carpenter to work
on his house, and of other charges (as described in the
letter) of Carroll's willful slander of Vogel and Van
Horn, and that findings of guilty were made on all the
charges. Vogel's letter then raised a question on the
matter of Carroll's membership in Local 644, as follows:
I have been President of Local #644 for ten
years and my procedure and that of previous Presi-
dents has been as follows. If the member's book is
in order a motion is made to accept the book and to
seat the Brother. This is how Mr. Carroll's case was
handled. When the verbal vote was taken the nays
won. I then called for a standing vote and the
motion was again defeated. Does the Local have
the right to vote against a clearance card, when the
Brother is detrimental to the Brotherhood and com-
pletely against everything the Union stands for?
Vogel's letter went on to address Local 644 obligation
on the hospital claim, and equally significantly to address
the matter of Carroll's involvement in union affairs, and
particularly in regard to Vogel, as follows:
At his trial, Mr. Carroll's sentence included that
he would not be allowed to participate in any union
activities for a period of 5 years. He was in my
office yesterday informing me that you said that I
or the Local was responsible for his hospital bills
because we had not accepted his clearance card. I
disagreed and will not allow Union funds to be used
for this.
He is also getting involved in our general elec-
tions this May and June including my office, which
is in direct violation of his sentence of January,
1981. If I can prove this, he will be charged again.
If this happens, I will attempt, thru [sic] the Central
States District Council, to take his book permanent-
ly.
These are the facts in this case as I see them.
By letter dated February 22, 1982, Lucassen replied to
Vogel denying that he had made the statements Vogel
indicated had been attributed to him by Carroll about
Local 644's obligation to make payment of Carroll's hos-
pital bills; but offering assumption that Carroll may have
alluded to the health and welfare programing doing so,
the letter then noting: "We both know eligibility for
1134
CARPENTERS LOCAL 644 (TOUSLEY-IBER CO.)
such programs are set by the Trustees and are adminis-
tered uniformly to all participants whether they be mem-
bers of the Local Union or not."
Vogel was further informed by Lucassen that with
regard to Carroll's prior charges and penalties it was
Carroll's responsibility to see that he did not get in fur-
ther problems, but that a copy of Vogel's letter and Lu-
cassen's reply would be sent to Pruitt with direction that
Pruitt contact Carroll to see that Carroll in fact complied
with the rules of his membership.
In regard to the question Vogel had raised on Carroll's
transfer of membership back to Local 644, Lucassen in-
formed Vogel that under section 46G of the constitution,
no local membership action is required, the only action
required is that the local be advised of any newly
cleared-in members.2 At the hearing Vogel testified that
he had written to inquire of Lucassen on that as they
had been doing it that way for 25 years, but all of a
sudden they were not doing it right. Vogel additionally
testified that when he was directed to change it, he did.
There was no attack made on Vogel's claim of what had
been the longstanding voting practice on seating a
member, albeit, in material time, an erroneous practice. I
credit Vogel in that regard and I accordingly will not
rely on the mere circumstance that an issue of an accept-
ance of Carroll's transfer was put to the membership in
contravention of the constitution as evidencing Vogel's
personal animosity towards Carroll, particularly with his
recent action in effecting trustee acceptance of Belding
pension contributions on Carroll's behalf.
Finally Lucassen's reply to Vogel otherwise also mate-
rially informed Vogel:
I would also like to bring to your attention, there
are certain rights that an individual member has
under federal law, and I would hope that you will
review these rights for your own protection.
In the latter regard, it is observed that Respondent
contends that the "rights" of an "individual member" re-
ferred to by Lucassen were as to those alluded to in the
preceding paragraph regarding the local admission with-
out approval of membership, rather than as to Vogel's
complaint over Carroll's suspected initiation of a role in
opposition to Vogel's reelection, a subject of Vogel's
later July charges and alleged unfair labor practice, dis-
cussed infra. In passing, I conclude and find that Re-
spondent's argument that would limit meaning to relation
on seating Carroll without membership approval is not
persuasive.
2 Sec. 46G of the constitution, as amended January 1, 1982, in evi-
dence provides:
On entering a Local Union a member with a Transfer Card shall
present same with Dues Book to the Local Union Office. If the Card
and Dues Book are in order, and the identity of the member estab-
lished to whom the Card is granted, the member shall be admitted to
the Local Union as a member thereof, provided there is no strike or
lockout in effect in that district, and the membership shall be so noti-
fied at the next regular meeting.
6. Carroll's support of a challenger to Vogel's
reelection as business representative
Donald L. Shaw was a member of Local 644 from the
late 1960s through March 1, 1983. Shaw held prior office
in Local 644 as a sergeant-at-arms and he later, in the
mid-1970s ran unsuccessfully for the office of recording
secretary. The 1982 nominations for office in Local 644
were held on May 12, and the election was held as
scheduled on Saturday, June 5. Another member of
Local 644, Ron Giles, placed Shaw's name in nomination
to run against Vogel for the office of business representa-
tive, only. Vogel ran unopposed for the office of presi-
dent.
Carroll participated in the first day of the road work
in Shaw's campaign after his nomination by helping
Shaw in one 5-hour period contact a number of union
members in Havana, Illinois. Carroll also contributed $20
to Shaw's stamp and envelope fund. Carroll additionally
made phone calls and spoke to two or three members at
a jobsite. In all Carroll spoke to 18-24 members in
Shaw's behalf. Immediately prior to the election Carroll
became directly involved with Vogel in taking a position
directly contrary to that being advanced by Vogel on an
issue of voting eligibility of members who were delin-
quent in payment of their dues.
Thus in early June, with the election upcoming in but
a few days, some members of Local 644 were in arrears
in their dues payments by as much as 5 months. Vogel
testified that Carroll thought that Vogel was telling the
members a "bunch of bull" when he informed the mem-
bers that they had to square (pay) up their dues in full to
be able to vote in the election. Vogel relates that Carroll
told member Dave Shallenburger that it was not neces-
sary for Shallenburger to square his dues all the way up
to be able to vote, but to pay them only up to 3 months.
Carroll confirmed that Shallenburger had come to
Shaw's home while Carroll was there, and that Shallen-
burger was 3-4 months in arrears on dues payments at
the time. According to Carroll, Shallenburger wanted to
vote, but did not have the money to pay his dues in full.
Carroll told Shallenburger that Carroll did not think he
could vote unless he paid up 1-2 months. Carroll's ver-
sion is that he told Shallenburger that he would call Lu-
cassen, and did so that same day. After Carroll spoke to
Lucassen, he and Shallenburger then went to Vogel's
office and Carroll told Vogel that Lucassen had said a
member had to pay only up to 2 months (in arrears).
Vogel then called Davis to find out what he should do.
According to Carroll Davis also spoke to Carroll. Davis
asked Carroll, "What the hell are you doing getting in-
volved in something like this?" Carroll's version is that
he told Davis, "Well, the young man asked me a ques-
tion and it deserved an answer." According to Carroll,
Davis then told him "it was none of his g-d- busi-
ness."
Vogel confirmed that Carroll had come to Vogel and
told him that Carroll had called Lucassen, and that Lu-
cassen had said that a member had to pay only up to 3
months and could vote. However, Vogel did not recall
Shallenburger as being present. As noted, Vogel con-
firmed that he called Davis, but did not think Carroll
1135
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was present at the time; and Vogel testified affirmatively
that he was not present when Carroll had called Davis.
Davis, in contrast, recalled that he had a conversation
with Carroll just prior to the election, in which Carroll
had made inquiry on what it took to vote in the election.
When Davis at first told Carroll that he did not know
what he meant, Carroll specifically asked Davis "how
far does a guy have to be paid up in his dues to vote?"
Davis replied he has to be a member in good standing.
Davis recalled that Carroll then asked, "What if a guy is
5 months in arrears and pays 2-3 months, can he go in
and vote?" Davis then replied, "No, the Constitution is
clear, he has to pay all his arrears in full just to be enti-
tled to vote." Davis then asked Carroll if he was getting
messed up, or told Carroll that he hoped Carroll was not
getting himself mixed up in this election. Carroll replied,
"No, there is a bunch of guys out in the parking lot
asking me, and I have to answer them." Davis then said,
"I hope you realize what you are doing, you know the
penalty you are under." Carroll replied he was only
giving them information. Davis testified definitively that
Vogel had not begun this conversation.
Davis further recalled that Carroll had called him
back the very same day. Carroll at this time told Davis
that Davis was wrong; that Carroll had called Lucassen
who had told him that if the members paid up to being
less than 3 months in arrears, they should be able to
vote. Davis testified that he then told Carroll that he did
not care what Lucassen said; that Lucassen could not
override the constitution, and that it took the vote of the
convention to override the constitution. Davis further
told Carroll that if he was asked on election day, that
would be his same decision.
Vogel testified that when Carroll questioned him,
Vogel called Legal Counsel Robert Pleasure in Washing-
ton, D.C. Pleasure advised Vogel that when a member
falls in arrears that far, after 3 months, "you have got to
square all the way to the front before you can vote."
(The seemingly pertinent carpenters constitution and
laws, sec. 44 L provides: "A member who owes three
months' dues or who has not squared his or her coverage
in full . . . is not in good standing and is not entitled to
vote.") Vogel relates that he then called Carroll and told
Carroll he was wrong. Davis testified that Vogel had
called him to find out if Davis was aware of Carroll's
conversation with Lucassen. Again, Davis denied Carroll
was put on the phone at that time. Vogel confirmed he
had called Davis, without further inquiry being made of
Vogel by any of the parties as to the nature of their con-
versation. All these conversations had occurred in the 1-
2 days prior to the election. In this instance I credit
Davis' and Vogel's account.
C. The Alleged Violations
1. Iber operations in Pekin; the Courtside place high
rise
Unes is in charge of manpower needs for Iber insofar
as material in both Peoria and Pekin. Unes has been a
member of Local 183 for 25 years though he had not
worked with tools for a number of years. Vogel relates
that Iber had not had work in Pekin Local 644's jurisdic-
tion for some 4-5 years before having in the material
time two small jobs and a high rise. Vogel described the
smaller jobs as being that of an office building, and also a
small addition for Sheerex Chemical (Sheerex) at its
Duck Creek Power Station. Vogel was not personally
aware that Iber had earlier had a fourth job in Local
644's jurisdiction, some remodeling work at a Lum's res-
taurant, about February, 1982. Van Horn however was
aware of it; and that Wiley Holmes, a member of Local
644, had worked there, which was confirmed by Unes.
Iber's Courtside Place, Pekin high rise project for
family and elderly, was apparently composed of a 13-
story, I 110-unit high rise, and five 50-unit low rise build-
ings (collectively the Courtside or Pekin high rise
project). The Courtside project was financed by HUD.
It had been in the works as an Iber project, apparently
on invitational bid, for about 18 months before construc-
tion was actually begun in September 1982.
In that regard, Van Horn recalled that it was even a
year before, in September 1981, that he and Vogel had
been first invited to a prejob meeting with Iber officials
to discuss the Courtside project. Vogel was unable to
attend, but Van Horn attended the meeting with Unes
and Williams.
Unes has staffed close to 100 jobs for Iber in the last
10 years. Unes acknowledged that under the contract he
has with the District Council it states that when he goes
into another local's jurisdiction he has to call that Union
for men, depending on the size of the job; and he ac-
knowledged that the first man referred is automatically
their appointed steward. In confirming that the meeting
with Van Horn took place, Unes asserted there had been
then an initial agreement reached with Van Horn for a
50-50 split, viz., that Unes would hire 50 percent of the
required work force from his guaranteed 40-hour men
(generally from Peoria Local 183) and use 50 percent of
referrals from Local 644. Van Horn however has testi-
fied that there was no agreement then actually reached,
with Unes insisting on a 50-50 split, and with Van Horn
asking for 70-30. Van Horn did testify that Unes had in-
troduced Williams at the time as the prospective superin-
tendent, and (from the start) had advised that his own
regular Paddock (of Local 183) would be the first on the
jobsite and (as foreman) would run the low rise. Van
Horn testified that there were thereafter many schedules,
with one delay after another, because of HUD problems,
city council problems, etc., and no one knew when it
would start. Nonetheless Vogel has acknowledged that
as of May 1982 he was aware Iber had the job and that
construction would likely start in a few months.
2. Carroll's inquiries of Unes about employment at
the Courtside Place high rise
Carroll recalled it as being about the first week in June
that he went to see Unes and spoke to him in the Peoria
shop. Carroll inquired about Iber's Pekin high rise. Unes
told Carroll that he did not know when it would start.
Carroll acknowledged that he was not concerned with
whether the high rise project had been prejobbed. Car-
roll asserted that his understanding of a prejob was that
it was to review the rules and regulations of the job, and
1136
CARPENTERS LOCAL 644 (TOUSLEY-IBER CO.)
not necessarily on manning issues of how many men and
what the manning was going to be. Although Carroll
had never attended a prejob conference, in the light of
contract provisions, his general background, and length
of service in the industry, I find Carroll's responses in
this prejob area were simply something less than frank
and candid. I rather find the fact to be, that which he
otherwise acknowledged, viz., that he was simply not
concerned at the time with whether Iber's high rise
project had been prejobbed by Local 644.
According to Carroll he was applying with Iber for a
job as a carpenter, foreman, or general foreman. Carroll's
version is that he told Unes of his qualifications, and told
Unes that he had three letters verifying that he had done
all types of carpenter-millwright work and that the com-
panies he had worked for were satisfied. Carroll relates
he offered the letters to Unes, "and he said, no, it was
not necessary to see my letters, he thinks I know what I
am talking about and he will use me on that Pekin job.
He also told me to get ahold of Carl Williams that was
going to be superintendent down there. He said, if you
see Carl, introduce yourself and let him know that I
hired you." (Carroll acknowledged that he never subse-
quently contacted Williams.) According to Carroll he
told Unes that Carroll would probably have two business
agents who would be upset about Unes hiring him; that
Unes then told Carroll he would hire whomever he
wanted to on that job; and that Unes told Carroll Unes
would call Van Horn in an hour or so and notify them
that Carroll was going to be used on that job. Unes told
Carroll to keep in touch because he did not know when
the job would start. According to Carroll, in the same
conversation they also had discussed a Mossville mainte-
nance job that Iber had, and that Unes had said if he had
work there, he would put Carroll to work today at
Mossville as he needed good people there.
Unes recalls three or four meetings with Carroll in
Iber's Peoria office or warehouse, and two or three
phone calls. (I conclude and find there were six contacts
in all.) Unes confirms that Carroll came to his Peoria
office one day about 6:30 to 7 a.m. about the first week
in June. Carroll had heard the Pekin high rise was going
to start and he wanted to know if there was any chance
of employment. Unes said there were no promises and no
guarantees in this market; that they did not have a con-
tract yet, and that he had some of his own people that he
wanted to staff the job with. Unes categorically has
denied that he told Carroll that he would hire Carroll.
Unes relates that Carroll also mentioned Mossville, and
wanted to know if Iber had any work up there. Unes
told Carroll that they had a time and material contract
there, but they had not done any work up there. Unes
again denied that he told Carroll that he would hire Car-
roll at Mossville if he had work. Unes testified that Car-
roll had never worked for Iber before.
According to Unes' recollection Carroll came back the
next day and brought with him some letters of recom-
mendation to show Unes. Unes testified that he did in-
quire of Carroll from whom the letters were, and Carroll
named Belding and one or two others. However, when
Carroll then asked if Unes wanted to read the letters,
Unes said no, he was not concerned, and did not want to
see them. Unes again denied that he had told Carroll that
he would hire Carroll.
In the latter regard, however, it is to be observed that
Unes acknowledged that at no meeting with Carroll did
Unes ever tell Carroll not to come back, or that Iber
would not employ him. (Unes has testified throughout all
six contacts with Carroll that he had never told Carroll
either that he would hire, or would not hire Carroll.)
Unes denied there was a reason why he did not tell Car-
roll not to come back. Although Unes has also denied
telling Carroll to try calling him in a few weeks, he testi-
fied significantly that: "I may have told Carroll to try
calling."
3. Carroll's report to Van Horn on his expected
employment by Iber
Carroll related that after his first visit with Unes he
waited the hour or so and then went in to see Van Horn.
Carroll asked Van Horn if anyone had called for him to
go to work. Van Horn said no, and Carroll left. On the
next day Carroll returned to the Union's office and asked
Van Horn if he had heard anything from Tousley-lber,
Carroll then told Van Horn, "I was up there and the
man hired me for the high rise," and Van Horn replied,
that he did not.
Van Horn related only one conversation with Carroll
about the Tousley-Iber job in early June. Van Horn re-
called that Carroll came into his office and asked to use
the phone. Van Horn had a problem at Iber's Sheerex
job, as Iber people had come into Local 644's jurisdic-
tion and were not paying dues checkoff, industry fund,
or pension fund to Local 644 under the contract. Van
Horn had stepped over to the nearby pension office. Van
Horn related that after Carroll made his phone call, he
came out of the office over to Van Horn and told Van
Horn that he would be receiving a call from Unes, that
they were going to hire him. Van Horn testified he only
said, "Oh," as that was contrary to proper procedure.
Van Horn reported the incident to Vogel, and he told
Vogel he was going to set up a meeting with Unes.
Vogel confirmed receiving a report from Van Horn that
Carroll had claimed he was hired by Iber for the Court-
side high rise job, Vogel testified Van Horn's report of
Carroll's statement did not surprise him.
4. Van Horn and Vogel meeting with Unes
Van Horn set up a meeting with Unes the same day;
and Vogel and Van Horn met with Unes in Iber's Peoria
office. Unes placed their meeting as being 4 or 5 days
after Carroll's second visit to Unes. Vogel described the
purpose of the visit as being in part to talk to Unes about
the arrangements for Iber's obtaining carpenters for the
high rise; and in part to discuss with Unes fringe pay-
ment delinquency on Iber's Sheerex job, inasmuch as
Local 644 had observed six Peoria men working there
who had not paid dues checkoff to Local 644, as appar-
ently required under the contract.
Van Horn related that when they broached the
Sheerex problem to Unes, he assured them that it would
be taken care of, explaining that the office girl had
thought the Sheerex jobsite was in Peoria. On the sub-
1137
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ject of the hiring for the high rise, Vogel related that he
asked Unes how many men he was going to bring to the
high rise. A limit on the job had not been set. Unes told
Vogel that he had 15-20 men on his payroll, and that he
intended to use them all on the job. Vogel's recollection
was that he then asked Unes if he had hired Carroll, and
Unes replied that he had not hired anybody. Pointing to
sections of the contract, Vogel told Unes that the Pekin
Local would refer the men to him, and that he told Unes
specifically that Unes should not be hiring them off the
street and bypassing the union hall. Vogel also told
Unes, "if you start hiring them off the street, your phone
will be ringing off the wall, and you won't be able to
sleep at night." Unes replied, "You are exactly right."
Vogel said it would be quite a problem considering how
bad the work is, and also that it is the only job running.
Vogel told Unes that he should refer to the hall "if he
wanted to hire men." Unes responded that, technically,
he did not have to hire anyone from the Pekin Local,
except the steward, and he could hire anyone he wanted.
John Luft, a member of Local 644, had previously
been referred to Iber by Local 644; and he had become a
steady employee of Iber. Vogel relates that Unes then
asked if Vogel had anymore men like the one (Luft)
Unes had gotten from Local 644. Vogel replied yes; and
Unes said he would like to have some of those. Vogel
then inquired about minorities, and Unes replied he
thought he would have to have some. Vogel replied he
had some. At this point Unes said he would take 50 per-
cent from Local 644. Vogel said 70-30. Although Vogel
has acknowledged that Unes did not buy it (the higher
percentage favoring Local 644) at the time, Vogel also
testified that that was the way it ended up, as the job
peaked about 35 men, Unes brought 15 to Pekin, and he
(Local 644) referred about 20 men. (Actually Vogel es-
sentially referred but three men, the steward, the minori-
ty, and one other man, with Van Horn referring all the
others from September 1982 through January 1983, at
which time Van Horn was hospitalized.) Van Horn's es-
timate was 12 (Unes) men of a 35 peak.
Van Horn's recollection of the discussion of Carroll at
this meeting was that Unes mentioned he had had a visi-
tor to his office, naming Carroll. When they asked if
Unes had hired Carroll, Unes said no, he did not have a
signed agreement on the job for one thing; and that he
would go through the hall. Van Horn denied that either
he or Vogel had told Unes not to hire Carroll. What
Van Horn asserts he told Unes was that if Unes hired it
would have to be through the Union hall, though Van
Horn told Unes that Carroll did not have call back
rights. Van Horn confirmed that Vogel told Unes that
Carroll would have to go through the referral hall.
Van Horn denied that he told Unes that Carroll had
told him that he had been hired. In that regard, howev-
er, Van Horn also testified and evidenced some degree of
hostility in doing so that he did not know what Carroll
had believed at the time. Van Horn did acknowledge, as
did Vogel, that he had not spoken before to any contrac-
tor who had hired Carroll about Carroll or about hiring
Carroll. According to Van Horn, their conversation oth-
erwise covered Unes not having a signed agreement with
the city; that apparently the city was dickering over
ground price; and that Unes hoped to get the project
started before winter. However, Unes also again con-
firmed who the superintendent and foreman were.
Vogel also acknowledged that he did not discuss Car-
roll's prior work experience with Unes nor state that he
would be happy to refer Carroll, explaining that Unes
did not ask. Vogel denied that when he spoke to Unes he
had no intention of referring Carroll. Vogel candidly tes-
tified that he was aware that Carroll had not worked for
6 months, and that he felt Carroll had had his share of
work in the last couple of years. He also testified that
Carroll had not spent any more time on the bench than
anyone else. Vogel otherwise testified that he would
have sent Carroll, or anyone else, if Unes had asked for
him by name.
Unes was called as a subpoenaed and seemingly reluc-
tant witness by Respondent, though questioning by the
General Counsel established that the affidavit of Unes
had been made available to Respondent prior to hearing.
Unes essentially confirmed that they wanted to know if
he had hired Carroll and that he had replied, "No, I
don't even have a contract, how could I"; and he assert-
ed that was the only conversation he had had about Car-
roll. Unes otherwise confirmed he had received a call
from Van Horn wanting to talk about Sheerex benefits;
and to the best of his knowledge Van Horn also had
asked him then if he had hired Carroll and he had an-
swered then. At the hearing, Unes did not have present
recollection whether Van Horn had asked the question
over the phone or in the visit, though the General Coun-
sel established that in his prior affidavit Unes had related
that Carroll's name was not mentioned in the meeting
with Vogel and Van Horn. Unes said his statement
would have to be correct. On the other hand, Unes has
earlier stated the question probably did come up in the
meeting, though he had testified also that he did not
know whether it did. No evidence was offered whether
or not Unes had, in affidavit, recorded the Van Horn
phone discussion. Unes otherwise asserted essentially that
if it did come up in the meeting, his answer would have
been the same, "I could not have hired the man without
a contract." Unes did testify that in the meeting with the
union officials it was said that they wanted the job to run
smoothly; and he said he would also, and that he did not
foresee any problems.
Unes otherwise confirmed Vogel that he had told
them during their discussion that technically all he had
to do was hire one man out of their Local. Unes did con-
firm that he has on occasion gone into another Local's
jurisdiction and hired only one man, though the details
thereof, e.g., job size, etc., do not appear on record. Sig-
nificantly, although testifying that he had had a prior
agreement with Van Horn to a 50-50 split, Unes essen-
tially confirmed Vogel also that the percentage in use of
Local 644 members was higher in testifying that the job
peaked at 30 give or take a few, with all but 9 being
members of Local 644. Unes also corroborated Van
Horn to the extent of confirming that Carroll had not
worked for Iber before.
1138
CARPENTERS LOCAL 644 (TOUSLEY-IBER CO.)
5. Unes' subsequent conversation with Carroll
Carroll's recollection was that in the first visit with
Unes, Unes had told him to keep in touch because he did
not know when the job would start. According to Car-
roll, it was in his second visit with Unes, in the office,
when Carroll asked Unes how things were going, Unes
informed him of the visit of Vogel and Van Horn. Thus,
according to Carroll, Unes told him, "Your two business
agents were up here raising hell about me hiring you."
Carroll relates that Unes said at that time that he still
would hire whomever he wanted to, and if they com-
plained too much, he would hire one man from the
Pekin Local, and one man only, and that would be the
steward out of the hall. Only after a leading question as
to problems discussed did Carroll additionally testify
(and without corroboration) that Unes told him that
Vogel and Van Horn told Unes that Carroll would
create problems on the job.
Unes' version is that there was another meeting or
phone call from Carroll. Carroll asked him what was
happening or new. Unes replied nothing happened yet.
Unes testified (only) that during the conversation Unes
mentioned that the business agents had been in to see
him.
6. Carroll's confrontation of Vogel, with Shaw as
witness
Carroll relates that he drove to Pekin about the first
week in July and spoke to Vogel, and that he asked
Shaw, who was in the hall at the time, to come in as a
witness. According to Carroll he asked Vogel, "Did you
and Van Horn go up to Unes' office and try to stop
them people from hiring me?" Vogel replied, "Yes, I
did." When Carroll said, "You can't do that," Vogel re-
plied, "The hell I can't." Carroll acknowledges a shout-
ing match then developed. Vogel's version is essentially
similar except that Carroll first spoke to him alone, and
then got Shaw, and Vogel denied that Carroll had stated
Vogel had tried to keep Iber from hiring Carroll, but
from having hired Carroll for the high rise. Vogel's ver-
sion is thus that Carroll first came into his office alone
and wanted to know if Vogel had gone up and seen Iber
about Carroll not getting hired. Vogel told Carroll he
had told Unes that Unes could not hire Carroll without
going through the union hall. (Vogel was supported by
Van Horn that the statement was earlier said to Unes.)
Vogel added, "That is what I stood on." It was then, ac-
cording to Vogel, that Carroll went out and brought
Shaw back in as a witness; and Vogel told him the same
thing. Carroll then said that Vogel could not do that;
and Vogel acknowledged that he had then replied, "The
hell I can't." Vogel, however, also testified that he told
Carroll (in Shaw's presence) that Unes did not have the
right to hire him off the street without referring to the
hall first.
Shaw, called as a witness by the General Counsel,
placed the incident about the last week in June. Shaw re-
lates that he was in the hall, as usual, waiting for a job
referral. He confirms that Carroll approached him and
asked him to go into Vogel's office to witness something.
Shaw's recollection is that Carroll asked Vogel, "Did
you go up to Iber and try to talk them out of hiring me
on the job?"; that Vogel replied, "Yes,"; that Carroll
then said "you can't do that"; and that Vogel had re-
plied, "the hell I can't." However, Shaw testified further,
and substantially corroborated Vogel, that Vogel had
said something like he had 24 hours to man the job, or
words to that effect. It is clear enough from the above,
and I conclude and find, that Vogel's statements to Car-
roll at this time were not in nature admissions that he
had sought to prevent Unes from hiring Carroll at all,
but an acknowledgment to Carroll that he had taken the
described action with Unes to prevent Unes' reported
hire of Carroll off the street in circumvention of Unes'
prospective referring to the hall for referral of required
men when the job started.
Carroll's version is that Shaw then asked Vogel, "Am
I benched?" and Vogel said no. Shaw then asked Vogel,
"Well why can't I get a job out of this hall?" According
to Carroll, Vogel then said, "The people won't let me
hire you, or put you to work." Carroll relates he then
asked if he was benched; and Carroll said Vogel's reply
was, "Why don't you go out of town and go to work,
you don't have any problems getting a job out of town."
Carroll said he had a job right here for Tousley-lber.
Carroll also testified that he had not previously been
looking for a job out of town, and as earlier noted,
denied the January conversation in regard to resumes as
reported by Davis, and suggestive of the contrary.
Shaw confirmed that he had asked Vogel if he was
benched (meaning that the Union would not put Shaw
out on a job) and that Vogel said no. Vogel in initially
admitting to Shaw's colloquy about being benched added
that he told Shaw that he had never benched anyone in
this union hall; and (initially) that as far as he knew that
ended the conversation. Shaw additionally testified that
he then said, "Well, it seems like I have an awful hard
time getting a job in this local." (Shaw explained he was
partly affected in making the inquiry by the circumstance
that Shaw had worked on an annual maintenance job the
year before and been promised to be recalled by the su-
perintendent. Shaw later learned the superintendent was
himself no longer with that company.) According to
Shaw, Vogel replied that if he were to put Shaw to
work he would catch all kinds of hell. Shaw testified
that though the statement kind of floored him he did not
pursue it, as he thought he better not bring it up any-
more. (The record does not reveal whether Shaw had
run out of unemployment compensation at this time.)
When asked about the remark directly, Vogel testified
that maybe he did tell Shaw that he would "catch all
kinds of hell" if he put Shaw to work, though adding
that he did not know what exactly was said, and also as-
serting that he did put Shaw to work since, so he did not
know what the difference was. I find Shaw's recollec-
tion, essentially acknowledged by Vogel, is more reli-
able. However, Shaw's recollection of subsequent refer-
ral in October or November was mistaken. The Union's
record of referrals, in evidence, reveals that Shaw was
one of 11 men referred to Atlantic Plant Maintenance on
September 13, before the first referral to the high rise of
John H. Gay, appointed steward on September 14, and
1139
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
indeed significantly before the start of several subsequent
referrals there in succeeding months commencing on Oc-
tober 8. The complaint does not allege that the Union
had unlawfully failed to refer Shaw earlier nor that
Vogel's remark was itself coercive. However, the Gener-
al Counsel in brief contends the latter was fully litigated
and now seeks an 8(b)(1)(A) finding thereon.
The complaint does allege that Vogel told job appli-
cants Carroll and Shaw that Vogel had caused Iber not
to hire Carroll, and also that Vogel would not permit
Carroll to work in the Local's area and that Vogel had
urged Carroll to leave the Local area to find work.
Again, testifying as the first witness, on severally di-
rected inquiry thereon, Vogel acknowledged that maybe
he had told Carroll that Carroll did not have trouble get-
ting work out of town; that maybe Carroll had said he
should not have to go out of town or something like
that; and that Carroll probably did say he should be able
to find work right here, and Vogel supposed also that
Carroll did say he had found work right here at Iber.
Despite Vogel's nonevasive and candid responses above,
Vogel was not asked whether he had initially told Car-
roll, "Why don't you go out of town and go to work,"
as was later asserted by Carroll. It is thus rather signifi-
cant that Shaw's testimony was only that Carroll had
first said he should not have to go out of town to work;
and that Vogel then replied that apparently Carroll did
not have any trouble finding work out of town. I pre-
liminarily find that there is directly conflicting accounts
in the General Counsel's own evidence (Carroll and
Shaw) on Vogel urging Carroll to go out of town and
find work. I further preliminarily conclude and find that
evidence is not convincing that Vogel had unlawfully
urged Carroll to do so, and in that connection, I observe
there appears a complete lack of evidence to support al-
legation that Vogel told Carroll and/or Shaw that he
would not permit Carroll to work in Local 644's area.
7. The controverted Davis-Carroll conversation
Davis testified that he had a conversation with Carroll
around the last week in June, though later clarifying it
had to be about the third or fourth week in June. Carroll
called Davis and said that he had a job at Tousley-Iber
and that Vogel and Van Horn were not going to allow
Carroll to go to work for them. Davis asked where the
job was, and relates that Carroll said the high rise in
Pekin. According to Davis he then told Carroll that job
was months off and asked Carroll if he meant he was
hired that day. Davis said Carroll replied, "Well no";
and when Davis then asked when Carroll was going to
go to work, that Carroll had then said, "Well they prom-
ised to keep me in mind when the job started." According
to Davis he then told Carroll, "You know better than
that"; and he reminded Carroll that when Davis and
Carroll were running work, "That is what we do to get
rid of people when we don't want to talk to them." (On
cross-examination Davis clarified it more as being a
polite action taken when "I don't want to talk to you at
the time.") Davis relates that Carroll at this time said,
"Oh well you know how it is"; and Carroll then started
talking about his civil rights were being violated; and
that Davis and/or they was not going to get away with
it, that he was going to an attorney. Davis did not have
anything to do with that. Davis otherwise relates that he
did promise Carroll he would check it out with them.
On rebuttal Carroll denied that the above conversation
took place. Carroll testified that he did not at any time
complain to Davis about Vogel's contact with Iber; and
otherwise related, "I don't have that much faith in Mr.
Davis, and I don't think it would do any good to speak
with him."
According to Davis he did contact Vogel that same
day. Davis asked Vogel if Carroll had told Vogel that he
had been promised a job. Vogel replied yes. Davis asked
if Vogel had had a prejob. Vogel replied that Van Horn
had met with them once, that the job was months away
from starting, and that it was too early to have a prejob.
Davis instructed Vogel to make sure he did have one
and to review the hiring procedure when he did, per the
standing instruction. A prejob conference was subse-
quently held on August 24, discussed infra. In the interim
there were other developments.
8. The uncontroverted Carroll contact of Unes
about intent to file charges
Carroll visited Unes again at the office. Carroll told
Unes that he was going to file a grievance or a charge
against the Union with the NLRB. Unes asked Carroll
why he was filing a charge against the Union. Carroll
said the Union was stopping him from getting a job not
only with this company, but with many other companies.
Unes told Carroll he did not care what Carroll did as
long as he did not get Unes involved; that he would not
want any problems on the job; that Carroll said Tousley-
Iber would not be involved; and that Unes said as long
as Carroll did not involve him he did not care, or that he
could care less. Carroll did not contest this conversation;
and otherwise acknowledged there was another instance
in which he had been promised a job, which he did not
get, but thought it was because of the Union, but could
not prove.
9. The unfair labor practice charges, and internal
union charges, and cross-charges
As noted, the charge herein was filed by Carroll on
July 12 against Local 644, notably naming Vogel on its
face as trying to keep Iber from hiring him for arbitrary
reasons. A copy of that charge was served on the Union
on July 13. By letter dated July 15, Vogel filed his own
internal union charges against Carroll with the District
Council. Vogel's written charges made at the time, in the
main, best speak for themselves:
i. Violation of his sentence of January 5, 1981
which restricted him from any union activity what-
soever for a period of five years.
On or about June 3, 1982, prior to our local elec-
tion, Mr. Caroll was seen on various job sites incit-
ing the membership to vote against me in the up-
coming general election and to vote for his candi-
date. He also called the General Office of the
United Brotherhood and was informing members of
Local #644 that it was not necessary to square their
1140
CARPENTERS LOCAL 644 (TOUSLEY-IBER CO.)
dues to be intitled [sic] to vote in the election. This
is clearly the duty of the Financial Secretary.
2. Section 55, Paragraph I of the Constitution
and By-Laws of the United Brotherhood. Mr. Car-
roll caused dissension among the members by accus-
ing me as President of Local #644 of not working
for their best interests in the case of pension in-
creases which he felt should have been much more.
Mr. Carroll also stated that as President of Local
#644, I did not properly invest our pension funds
wisely.
3. Section 55, Paragraph 13 of the Constitution
and By-Laws of the United Brotherhood. Violating
the Obligation. Mr. Carroll is not obedient to au-
thority and charitable in judgement [sic] of his
Brother members.
At the hearing, Vogel additionally testified that his
charge of Carroll not being obedient to authority was
made in reference to Carroll's membership pledge, that
Carroll was too headstrong, would not listen, and had
argued with Vogel about every job. In regard to his charge
of Carroll not being charitable in judgment, Vogel as-
serted that Carroll did not have many good words to say
about any of his brother members, Vogel asserting Car-
roll had been found guilty of that earlier. Vogel did testi-
fy that the fact Carroll had recently called the Interna-
tional on the eligibility question had nothing to do with
Vogel's charge of Carroll's violation of his sentence.
However, in that regard, Shaw's recollection of the
recent Carroll-Vogel confrontation recounted that Vogel
had therein told Carroll he had a direct or hot line to the
International. Although Vogel otherwise asserted that all
of Carroll's misconduct had occurred by early June, he
also related that Carroll was already getting involved in
(union) politics clear back to February 1982.
On July 16, Carroll filed his own cross-charges against
Vogel and Van Horn with Davis and the District Coun-
cil, copy to the United Brotherhood. Carroll's handwrit-
ten charges specified:
On or about the Ist of July violated the follow-
ing:
Section 55, paragraph I (one), 5 (five), 6 (six) and
13 (thirteen).
Darrell Vogel and Bert Van Horn found out
Dick Unes of Tousley-Iber Co. was going to give
me a job on highrise in Pekin. They then went to
see Dick Unes and tried to talk him out of hiring
me. Also seems strange after Darrel Vogel found
out I had gone to the National Labor Relations, on
this matter, I found in my mail box today a new set
of charges preferred by Darrel Vogel today.
If he feels these charges are true why were they
not filed before they went to see Dick Unes.
As earlier noted section 55(1) relates to causing
dissension, section 55(5) willful slander of a
member, and section 55(13) violating the obligation
(which Carroll viewed as the prevention of him
from working for Iber). Section 55(6) relates to
charge of defrauding the United Brotherhood.
10. Carroll's interim acceptance of other
employment and transfer of his membership out of
state
Carroll relates that about mid-July he had started con-
tacting certain individuals about employment and was in-
formed that Furin and Cowen had successfully bid a job
in Colorado. Carroll then obtained employment with
Furin and Cowen and has worked in Colorado since the
end of July. Carroll testified that he sought the employ-
ment elsewhere because his unemployment was then run-
ning out, and because he did not feel that he had much of
a chance of getting a job around Pekin with the business
agent trying to harass him or keeping the people from
hiring him. The record is clear that on July 26 Carroll
transferred his membership out of Local 644 to Local
510 in Berthoud, Colorado.
It is, however, also uncontested that one evening,
about 5:30 p.m., Unes had received a phone call from
Carroll. Carroll told Unes that he had a job out of State.
However Unes testified that Carroll wanted to know if
anything had happened on the high rise. Unes told Car-
roll that if he had a job out of State, he had better take
it, because as of that date they did not have a contract to
start; and that he did not know when he would get start-
ed on the Pekin job.
11. The subsequent prejob conferences
On August 24, an Iber-carpenter prejob conference
was held on the high rise. Present were Neal Tousley,
Unes, Vogel, and Van Horn. The various subjects dis-
cussed are in evidence, including the parties holding
their positions on staffing. Insofar as appears additionally
material, Unes otherwise told Local 644 that Iber would
treat them fairly and would pull their (regular) people
off the jobsite when needed on other jobs. A request was
made by Iber to use Luft as steward, but the Union held
to making that appointment themselves, though giving
Iber Local 644's assurance that the steward appointed
would be well qualified for the job, as they wanted a
smooth job, just like Iber did.
On September 1, a later prejob conference was held
with all the building trades, with fuller details of the job
provided all, including that project completion date was
December 1983 and with identification of subcontractors.
The actual contract with the owner had been signed
some time around the first part of September.
Carpenter Steward John Gay was subsequently re-
ferred on September 14. The first Iber regulars were on
board by week ending September 22. By week ending
October 1, Vogel had referred one minority (Reuben
Watts) and one other member close to retirement (Edwin
Tribbett) who worked only a week and a half. All other
referrals in 1982 were made by Van Horn, inclusive of
and on Iber's request for Pat Ryan, and for Jim Booth
who had not worked for Iber before, but was a personal
friend. While not appearing on the referral list, Van
Horn testified that Wiley Holmes, a member of Local
644, was a callback by Iber, and with corroboration of
Unes, who testified credibly that Holmes had worked for
Iber in the prior year. Van Horn otherwise generally tes-
tified, and credibly so, that everyone requested by Iber
1141
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by name was referred, and that Carroll was never so re-
quested by name, by Unes.
Finally, in evidence are all the weekly summaries of
individuals who worked the Courtside Place Project
from September 1982 through March 1983. While they
portray variance from Vogel and Unes' earlier summa-
ries, they support and warrant a finding now made that
Local 644 members generally enjoyed greater than 50
percent of the work done.
12. The disposition of the internal union cross-
charges
Minutes of the regular meeting of the District Council
held on August 2 were introduced by the General Coun-
sel. After reciting process of other trials, the minutes per-
tinently provide:
Communications.
1. A letter from the attorney representing Broth-
er Ed Carroll objecting to the charges filed by
Brother Darrel Vogel as being untimely was read.
After discussion a motion was made and seconded
to dismiss the Charges. Motion carried.
The executive board meeting of same date pertinently
provided:
Charges preferred by Brother Ed Carroll against
Business Representative Darrell Vogel and Bert
Van Horn were read. The accuser was not present.
Both of the accused appeared in their defense and
were excused. A motion was made and seconded to
dismiss the charges for lack of merit. Motion car-
ried.
Essentially Carroll relates that his attorney had in-
formed him that the Union was going to drop its charges
against Carroll, and the attorney advised Carroll to do
the same. In agreeing to do so, Carroll thought his attor-
ney had handled it, but he did not know that and he ac-
knowledged that he, personally, did not notify the Union
he was dropping the charges. Essentially, Vogel testified
that he did not drop his charges against Carroll, but that
his charges were dropped by the District Council which
said they were too late; and Vogel otherwise testified
that he thought Carroll's charges against him were
thrown out. Although Davis had testimonially supported
a June report by Vogel that he could prove that Carroll
was campaigning during the election, had interfered with
election process, and had stated his intent to bring
charges against Carroll, Davis also testified that only the
constitutional complaints of Vogel against Carroll were
later dismissed as being untimely. Davis explained there
is no time limit on Vogel's contended violation by Car-
roll of his earlier sentence. Those charges, according to
Davis, as contained in paragraph one of Vogel's charges
were in fact dropped.
Contentions
The General Counsel essentially contends that Re-
spondent operates a nonexclusive hiring hall system that
permits covered employers to hire workers directly, and
that it permitted Carroll to solicit work on his own from
Iber. The General Counsel argues that Carroll had, over
the years, repeatedly obtained similar employment direct-
ly from contractors within Respondent's jurisdiction; and
that Carroll should be here credited that Unes had hired
Carroll, over Unes' denial. The General Counsel further
contends that the evidence of Vogel and Van Horn's
subsequent communications with Unes, the report of
Unes to Carroll about the business agents' visit and their
conversations with Unes, and Vogel's own subsequent
admissions to Carroll, warrant that findings be made that
Vogel and Van Horn attempted to cause, and did cause,
Iber to refuse to employ Carroll.
It is the General Counsel's essential contention that
Vogel and Van Horn have acted in that unlawful manner
because of a personal animosity they bore for Carroll.
The General Counsel's argument is that the animosity
developed over the years toward Carroll's largely pro-
tected concerted activities, inclusive of Carroll's exercise
of a right to speak freely concerning internal union af-
fairs, Carroll's right to criticize the incumbent union
leadership, and Carroll's support of opposing candidates
in the June election. The General Counsel would point
to instances of prior hostility evidenced in the work dis-
putes, the early charges brought by Van Horn and
Vogel, Vogel's own subsequent failure to follow Interna-
tional Constitution provisions regarding Carroll's transfer
of his membership, and Vogel's revealed February plan
to file, and July-activated filing of charges against Car-
roll because of Carroll's protected activities in opposition
to Vogel's candidacy for election, and Carroll's contin-
ued contact of the International. The General Counsel
centrally contends that Respondent's asserted defense of
attempting to enforce its collective-bargaining referral
system on examination is revealed as a mere pretext, and
in that connection the General Counsel argues that Re-
spondent has unsuccessfully met its burden to rebut the
prima facie case made by the General Counsel.
Otherwise especially noteworthy of argument is the
General Counsel's advanced reliance on Carroll's (uncor-
roborated) account of Unes informing Carroll that the
business agents had told Unes that Carroll would create
problems on the job. In contrast, it is the General Coun-
sel's contention that a close analysis of Davis' testimony
as to a third or fourth week in June phone contact by
Carroll about the Iber job would reveal that Davis had
embellished his testimony about that conversation in
such manner as to detract overall from his original direct
testimony, namely, Carroll's admission to him that Unes
had merely "promised to keep him in mind" when the
job started. The argument is made that (Davis' relations
made) that the conversation covered Carroll's claim that
his civil rights were being violated by the Union and that
they would not get away with it because he was getting
an attorney, warrant Davis' version to be wholly dis-
counted, and Carroll's unequivocal denial of having had
any such conversation with Davis about the subject of
his Iber employment difficulty, credited. Finally in that
regard, the General Counsel asserts Davis' testimony
must itself be evaluated on the basis of Davis being a
hostile and biased witness as, is argued, evidenced from
1142
CARPENTERS LOCAL 644 (TOUSLEY-IBER CO.)
Davis' own reactions to Carroll's report of calling the
International on voting eligibility; his judgmental state-
ment that Carroll's involvement with voter elibigility
had violated Carroll's sentence of suspension of member-
ship rights; and Davis' subsequent assistance (advice)
given Vogel in regard to the timing of Vogel's filing of
additional charges against Carroll.
Finally the General Counsel contends that a conclu-
sion is inescapable from the timing of Vogel's July 15 in-
ternal union charges belatedly brought against Carroll,
following on the heels of Carroll's instant unfair labor
practice charges filed on July 12, in light of clear hostili-
ty of Vogel to the protected activities of Carroll evi-
denced contextually therein, that Vogel has filed the
charges with the District Council in retaliation against
Carroll because he had recently filed the instant unfair
labor practices, thereby filing the union charges in viola-
tion of Section 8(b)(1)(A).
Respondent contracontends that the evidence warrants
findings that Iber not only never hired, but never intend-
ed to hire Carroll. Respondent would rely on Davis' tes-
timony of admission by Carroll that he had not been
hired, but only promised he would be kept in mind. Re-
spondent also argues that Carroll, who by his own ac-
count of already being hired, has asserted that he had
been directed by Unes to contact Williams, but never
contacted Williams, but rather continued to contact
Unes, has not acted as if he had been already offered a
job by Unes.
Otherwise Respondent essentially contends that Re-
spondent in any event could lawfully attempt to enforce
the referral provisions of its collective-bargaining agree-
ment; and that Vogel and Van Horn in their approach of
Unes in regard to Carroll's employment, were acting rea-
sonably, with a sole concern therein, because Carroll had
made the claim that he had been hired (in effect) "off the
street" and not through referral by the Union.
Respondent does not dispute that there have been
prior disagreements between Carroll, Vogel, and Van
Horn. Nonetheless Respondent argues that the evidence,
when taken as a whole, does not support a conclusion
that Vogel and Van Horn on that account attempted to
cause Iber to discharge Carroll because of irrelevant or
invidious considerations. Respondent thus argues that
Vogel's initiating the meeting, and Vogel's and Van
Horn's voting (as trustees) to accept Carroll's payments
into the pension fund (despite a question of legality, be-
cause Vogel felt anybody that worked) should be cred-
ited with the hours worked, should be sufficient to dispel
any inference of malicious motive, and serve to establish
that, despite their not being the best of friends with Car-
roll, they nonetheless, in capacities of business represent-
atives (or trustees) always treated Carroll fairly and did
not seek to harm Carroll's economic interests.
Respondent would further have evaluated its other re-
lated contentions: that there was no evidence offered
that Unes had ever requested a referral of Carroll; and
that, indeed, prior to the start of the Pekin high rise
project Carroll had himself already taken other employ-
ment out of state, a fact of which Unes was well aware
and had encouraged. In arguing that Respondent has not
prevented Carroll's employment by Unes, Respondent
observes that Unes, in encouraging Carroll that he
should take the out-of-state job gave no indication he did
so for the reason he could not hire Carroll, but has relat-
ed it solely as being because Unes still did not have the
long-delayed contract to start the high rise project.
Moreover, Respondent argues further that there was no
evidence presented that Carroll had exhibited any contin-
ued interest in working for Iber thereafter, that Van
Horn has testified without contradiction that Carroll had
never thereafter called Respondent to make himself
available for referral by the Union to Iber. Thus Re-
spondent makes the additional argument that, by going
to Colorado in late July and not informing Respondent
that he was available for referral, Carroll has effectively
abandoned any opportunity to be employed by Iber.
Analysis, Conclusions, and Findings
The central protagonists in this controversy are clearly
Carroll and Vogel. It is essentially their conduct in June
and July which has formed the subject matter of the in-
stant complaint. Their credibility considerations, in gen-
eral, are stark contrast to one another. As to Carroll, I
have discerned instances in which Carroll's recollections
of events appear rather clearly to have been overstated
and/or been accusatory in relating the facts, e.g., as is
observable in the comparison of Shaw's version of the
witnessed Carroll-Vogel discourse being more corrobora-
tive in several respects of Vogel's early admissions,
rather than Carroll's assertions as to the discourse. An
effect thereof is to render Carroll's other testimony, par-
ticularly where in conflict with others, questionable, and
particularly so on the few, but material, occasions where
his testimony was elicited only after leading questions.
Nonetheless, the weight of record evidence as to the dis-
agreements between Carroll and Vogel is appreciable. In
contrast, Vogel, called first by the General Counsel, as a
section 611(c) witness, was discernibly candid, nonhesi-
tant, and nonevasive in answering all questions put to
him, whether or not the subject area was one that fa-
vored his position. It is abundantly clear that Vogel had
not "minced" words earlier with Carroll, Unes, Shaw,
and others, and the frankness of his hearing testimony
has reflected those circumstances. In evaluating all the
testimony, particularly as to Carroll and Vogel, it would
appear appropriate to reflect at the outset the wise admo-
nition of Judge Learned Hand in Universal Camera, 190
F.2d 429, 431 (1951), that "nothing is more difficult than
to disentangle the motives of another's conduct-motives
frequently unknown even to the actor himself."
The first clear evidence of a disagreement between
Carroll and Vogel relates back to the July-August 1980
work jurisdictional disputes that occurred between mill-
wrights and ironworkers. Carroll believed that Vogel
was regularly proving to be ineffective as a business rep-
resentative in failing to opt to take stronger action to
preserve what Carroll viewed was millwright work reg-
ularly being lost. Vogel in turn, viewed Carroll as a
headstrong union radical who would not readily accept
the business representative's opinion when it differed
from his own, nor accept that Vogel in any event had
orderly procedures in such matters that he had to follow.
1143
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The right to criticize union leadership is clearly protect-
ed by Section 7 of the Act, NLRB v. Electrical Workers
(IUE), 454 F.2d 17, 21 fn. 6 (1972). It is significant how-
ever in that regard that neither Vogel nor Local 644
sought to take any immediate internal union action
against Carroll because of Carroll having held to those
differing opinions, nor because of Carroll's early forceful
expressions of an attitude critical of Vogel's performance
as business representative. Carroll's subsequent open and
continued use of a nonunion contractor in Local 644's ju-
risdiction months later was quite another matter. That
was a member action which the business representatives
upon learning of it, under force of their own governing
membership regulations, could not ignore.
It seems reasonable to infer from Carroll's initial state-
ment to Vogel (undenied by Vogel) that there was a
connection between Carroll's continued use of a non-
union contractor on his residence addition, and contin-
ued millwright work loss, that Vogel recognized Car-
roll's action as being essentially a designed embarassment
to him personally, if not immediately, certainly after Car-
roll had made such remark while refusing to remove the
problem upon the personal request of Vogel to do so.
Carroll has acknowledged that his use of a nonunion
contractor violated his obligation. I thus have no doubt
and I find that Vogel would likely view that circum-
stance as a radical attack on his own institutional status;
and I further find Vogel essentially reacted in turn by
bringing the entire matter to a head, by not only prefer-
ring as required internal union charges on that act in
derogation of membership obligation, but by preferring
charges simultaneously that Carroll was engaged in con-
duct creating unwarranted dissension in the Union, and
conduct constituting willful slander of the business repre-
sentatives. Whether Carroll later advanced his admitted
purpose in that respect to the District Council executive
board, or trial committee, or thought better of it all, and
offered in explanation only the altered claim that he
wanted the Union to organize the nonunion contractor,
the fact clearly is that following internal union constitu-
tional procedures, at District Council level, Carroll was
found guilty of the charges preferred.
Carroll was not expelled from membership, but he was
fined. He also received a sentence from the delegates to
the District Counsel in form and effect restrictive of his
local union membership, and designed to silence him
from participation in internal local union affairs for a
period of 5 years. While there is no question of the likely
continued existence of a strained relationship thereafter
between Carroll and Vogel, the initial charges brought
by Vogel (and Van Horn) against Carroll, in my view,
were not simple instances of retaliation on Vogel's part
to Carroll's prior criticism of Vogel so much as Vogel's
upholding internal union regulation on membership obli-
gation. The sentence, imposed in early 1981, was under-
stood by Carroll to preclude his attendance and voting
on issues at local meetings, but not to extend to his right
to individually participate in general elections, to contin-
ue to be critical of incumbent officials and to support
other candidates in opposition to them. However, when
Carroll found work outside the state he left the area, for
the interim, voluntarily transferring his membership out
of Local 644.
In regard to Carroll's later effort in August-September
1981 to transfer his membership back into Local 644, in
light of the uncontradicted testimony that a vote on
motion to seat a transferring member had been the prac-
tice in Local 644 not only under Vogel, but under other
presidents, for 25 years, I am not persuaded by the Gen-
eral Counsel's argument that it should be concluded that
the revealed departure from constitutional procedures in
this instance has independently evidenced the high
degree of animosity that Vogel held towards Carroll. To
the contrary, on this record, I am more convinced that
Vogel was generally shown observant of superior au-
thority, as he understood it. This is not to say that Vogel
held no continuing animosity towards Carroll; though it
is to be fairly observed that, with the vote of the mem-
bership taken, the membership's view was known to
Vogel to be against a seating of Carroll. Nonetheless, on
Vogel's part, when directed to change the local transfer
procedure, he promptly did so.
While I have had reservations on the matter, stemming
from the record's lack of clarity as to the timing of
Vogel's actions taken in pursuit of a trustee meeting, and
the eventual trustee acceptance of Belding's pension and
health and welfare contributions as evidencing that
Vogel acted professionally towards Carroll with good
will, the weight of the record evidence, as presented, in
the end predominates sufficiently to warrant findings
now made that the action favored Carroll; that favorable
trustee action was initiated and pressed by Vogel; that it
was not an action required; and that the action in that
regard more probably than not was begun, if not com-
pleted, in January.
There is no doubt strained relationships continued be-
tween Carroll and Vogel. However, I do conclude and
find that it was Carroll's presenting of a certain hospital
bill (for services provided in the interim while Carroll's
attempted transfer had not been effected) to Vogel for
payment by Local 644, with Carroll's (incorrect) asser-
tion that Lucassen had directed it, that prompted Vogel's
early February letter written to Lucassen.
Vogel made the local's position known to the Interna-
tional that he would not utilize local union funds for that
purpose. However Vogel also took that occasion to ap-
prise the International of Carroll's prior conduct as a
member, and to request (and reasonably so under the cir-
cumstances) a clarification on the Local's prior long-
standing procedure on voting to seat members. It is note-
worthy that Vogel's presenting of the question was in
terms of a vote taken on a brother that the Local had
deemed "detrimental," and "completely against every-
thing the Union stands for." However, even more reveal-
ing of Vogel's personal attitude and concern, Vogel re-
lated that he suspected Carroll of violating his outstand-
ing sentence in "getting involved in our general elec-
tions," and that, if Vogel could prove it, he would
charge Carroll again, and this time attempt to take Car-
roll's book through the District Council. Early and clear
antagonism is evidenced to Carroll's active participation
in the June general election. Contrary to Respondent, I
1144
CARPENTERS LOCAL 644 (TOUSLEY-IBER CO.)
conclude and find that Lucassen in his February letter
response, inter alia, warned Vogel that in that latter re-
spect Carroll as a member had certain Federal rights that
Vogel should review for his own protection. The record
evidence would indicate that Vogel followed that coun-
sel, at least through June election, when Carroll involved
himself in voter eligibility issues at Local, District Coun-
cil, and International levels.
With regard to the complaint allegations, at the outset
I have found no evidence that would warrant a finding
that Vogel told Carroll (and Shaw) that the Union
would not permit Carroll to work in Local 644's area as
is alleged in the complaint. I shall accordingly recom-
mend the complaint allegation to that effect be dismissed.
Similarly Carroll's assertion that it was in response to his
own question if he were benched that Vogel had re-
sponded, "Why don't you go out of town and go to
work," was not only not corroborated by Shaw, but
Shaw's own recollection was such as to rather show the
nature of the remark was essentially otherwise. It was
when Carroll had broached the subject initially that he
should not have to go out of town and find work that
Vogel had rejoined that Carroll apparently did not have
any trouble finding work out of town, which remark was
essentially acknowledged initially by Vogel. Consequent-
ly, it is further concluded and found that there is insuffi-
cient and/or unpersuasive evidence presented to warrant
a finding that Vogel had thereby coercively urged Car-
roll to leave Respondent's area to find work as has been
alleged in complaint. Accordingly, it will be similarly
recommended that this complaint allegation be dismissed.
With regard to the main complaint allegations that Re-
spondent attempted in mid-June to cause or caused Iber
not to employ Carroll, there are a number of related fac-
tual disputes. There is the underlying dispute over the
meaning of the hiring hall provisions, nature of attendant
practices, and the propriety of Vogel's and Van Horn's
actions. There is also a dispute of fact whether Carroll
was ever actually told he was hired, or even issues raised
as to whether or not Carroll was promised to be hired.
Finally there are independent issues raised as to whether
or not Carroll, in any event, effectively abandoned op-
portunity to be hired, or be referred, by his earlier ac-
ceptance of employment out of state.
To begin with, in arguing that under the contract Iber
could hire employees directly, the General Counsel has
specifically stressed article VII, section I recitement that
the Employer, "may hire from any source it desires
without paying heed to membership in the UNION or
referral or clearance therefrom"; its section 4 Procedure
(d) provision that "Men so referred shall not be given
preference of priority by the EMPLOYER over non-re-
ferred men", and procedure (e) provision "Nothing
herein shall prohibit the Employer from hiring or re-
cruiting from any source it desires." As evidencing the
practice thereunder, the General Counsel would rely on
Unes' confirming assertion that he technically did not
have to hire any workers from Local 644 other than a
steward; and also, Carroll's assertion that his own em-
ployment history was that he had long sought and ob-
tained his own jobs, directly.
Respondent contracontends that the General Counsel
has incorrectly argued that article VII, section 4 proce-
dure gives the employer a right to hire employees "off
the street," that that section cannot be thus read out of
context, but that it must be read in conjunction with the
rest of section 4. Respondent thus specifically contends
that the use of the word "shall" in earlier subsections
4(a) and (c) rather make it mandatory that an employer
notify the Union of all available openings and job re-
quirements and that it also give the Union an opportuni-
ty to refer qualified applicants for those jobs. Respondent
argues that these sections can only thus be read as pro-
hibiting an Employer from hiring off the street until the
Union has been given the 48 hours to make referrals, as
Respondent argues Davis has testified in explaining his
view and the instructions repeatedly given all business
agents as to the operation of the existing hiring hall pro-
cedures. That is unquestionably what Vogel (and Van
Horn) also stood on.
It is thus Respondent's contention that subsection 4(e)
was meant to give the employer the right to hire from
any source he desires only after the Union has been
given the opportunity by the employer to make required
referrals; though acknowledging it was also meant to rein-
force and clarify the employer's reserved right to accept or
reject referrals from the union.
Respondent would have the additional argument ob-
served that if the General Counsel's interpretation (that
would permit an Employer to hire whomever it wants
to) be deemed correct, it renders section 3(a) of the
hiring hall provisions itself superfluous, as there would
be no need for an employer then to have specifically re-
served the right to hire former employees. In passing, it
is observed that there is at least a surface allure to the
latter argument (on recognized principle of contract in-
terpretation) as an election of choice in an interpretation
of a contract in manner simultaneously ignoring or ren-
dering meaningless other provisions of the contract and
resulting in unlawful action, over an arguable interpreta-
tion that gives account to all provisions and results in
lawful conduct, would not appear warranted. The Board
has heretofore held that a union may hold employees to
a compliance with established practices built on reasona-
ble interpretations of the hiring hall contractual agree-
ment. Teamsters Local 525 (Nelson Construction Co.), 193
NLRB 724, 725 (1971).
Respondent specifically argues that a union does not
commit an unfair labor practice when it tries to enforce a
valid hiring hall provision. See, e.g., Longshoremen Local
1277-1 (Hellenic Lines), 228 NLRB 1, 4 (1977); and Car-
penters Local 1849, 161 NLRB 424 (1966). Notably both
involved enforcement of exclusive contract referral sys-
tems. On the matter, see also Teamsters Local 357 v.
NLRB, 365 U.S. 667, 675-676 (1961). In that regard, the
General Counsel has countered with able and pertinent
argument that if Respondent's referral procedures here
are to be deemed the Employer's required exclusive
source of workers, as Vogel and Van Horn (so the Gen-
eral Counsel argues) have appeared to assert, Respondent
would surely then be liable to countless numbers of its
members for having operated an exclusive referral hall in
1145
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a "haphazard" manner, Plumbers Local 513 (Master
Plumbers), 264 NLRB 415, 416 fn. 3 (1982). (The latter
case is also one notable in its addressing of Local Unions'
actions where work in one local's severely depressed ju-
risdictional area was slow.) It is to be observed that
Vogel, Van Horn, and Davis have all stopped short of
any assertion that an employer had to accept any specific
union referrals. Though Unes simultaneously has ac-
knowledged that he had to refer to the Union for men,
Unes has also consistently held to the position that he
technically only had to hire the steward.
In summary, Davis and Vogel essentially emphasize
the timely notice of work requirements and 48-hour re-
ferral opportunities; and Unes, while acknowledging ex-
istence thereof, rather emphasizes the Employer's re-
served hiring provisions. Insofar as advanced before me,
it would appear the parties to the contract have made an
effort to prescribe for themselves in writing, essentially,
a hybrid referral system, one that provides certain de-
sired features of an exclusive hiring hall operation, at
least to the extent of providing the Union certain con-
tractual rights to timely notice of an employer's work re-
quirements and timely opportunity to refer while provid-
ing a local (and traveling) employer with a ready source
of local skilled workers on request, but which at the
same time by force and/or limitation of contractual
terms would appear, seemingly as agreed by the parties,
not to go so far as to have bound employers to a local
union's hiring hall necessarily, or actually serving, as
their exclusive source of referral, e.g., to require hiring
of the crew from a local hall, though it does place on
employer the pledge of an utmost harmony and good
faith in that regard (use). Whether the practice thereun-
der was such as to affect an exclusive hiring hall, or not,
is but another factual question.
Addressing the practice thereunder, first the sole evi-
dence presented of direct employer hire is that of Car-
roll's assertions that there were two ways an employee
could obtain employment, viz., either through the hall or
by direct contact of an Employer; and a claim urged by
the General Counsel that the same is established by Car-
roll's lengthy history of obtaining work from employers
directly. There was no other evidentiary support of that
position offered, and notably not by Shaw, who for him-
self has always sought union referral by daily presence at
the hall. It is immediately observed that, of the three
projects at which Carroll had obtained employment in
Local 644's jurisdiction during Vogel's entire tenure, the
first at Baldwin was for 3 or 4 years, and that project
had begun before Vogel was in office as business repre-
sentative and was employment Vogel (reasonably) be-
lieved had been the result of a referral by his predeces-
sor; the second to Atlantic was obtained by Carroll as a
result of direct Vogel referral; and the last before the
questioned Iber contact, to Heinz, involved employment
by an (uncontested) personal friend of Carroll. That is
hardly clear and convincing evidence that an existing
practice was that all members were free at all times to
arrange their own employment with covered employers,
without regard to the contractual advantages the hiring
hall provided.
Shaw in contrast always reported to the hall for refer-
ral. However, neither is the test of an exclusive hiring
hall whether an employee has always used the hall to
obtain referral to a job, but rather, whether the Employ-
er was bound by contract or by practice to use the hall as
the exclusive source for its employment of employees.
Cf. Laborers Local 889, 251 NLRB 1581 supra. Though
on scope and degree of union acquiescence in contrac-
tors direct hire see Plasterers Local 121 (Associated Build-
ing), 264 NLRB 192 (1982). (Not involved in this case is
any question of the departure by one employer-member
of an employer association so bound.)
Though acknowledging in prior years Iber had regu-
larly used Local 644's hall to fill its requirements, Unes
has consistently maintained that Iber was not so bound
by contract; and it is fairly clear from the early Septem-
ber 1981 meeting of Unes and Van Horn, the contact of
Unes by Vogel and Van Horn in June 1982, and their
subsequent prejob conferences that these parties proceed-
ed essentially from reliance and points of emphasis on
different provisions of their agreed hiring hall system,
namely employer's right to hire versus union opportunity
to refer. I need not determine herein which, or to what
degree both, are right or wrong under their contract.
Nor need I rely on any Davis' claim of an arbitration
support (particularly where such was not produced). It is
my view that the Union's claim that the Employer's obli-
gation to provide notice, and union opportunity to refer,
and which thus precludes premature employer hiring off
the street is at least a reasonable and arguable position
taken under the apparent terms of this contract. Cf.
Teamsters Local 525 (Nelson Construction), 193 NLRB
724 (1971); see Ford Motor Co. v. Huffman, 345 U.S. 330,
338 (1953).
Moreover, from those same party contacts described,
it seems clear to me that the parties essentially have
sought to arrive at acceptable understandings within that
hiring hall relationship, e.g., on the number of Iber regu-
lar employees that would be brought to the project in
Local 644's jurisdiction, thus affecting the number of
jobs to be eventually available to Local 644's hall for re-
ferral. True, an agreed percentage was never firmed up.
However, from review of the steward reports in evi-
dence, it would appear further revealed that in practice
Iber's regulars were not all brought to the job when the
job started, but periodically over several weeks; and
albeit the mix of Local 644 and Local 183 members was
kept generally within the parameters of their mutually
discussed percentages, the developing meld of employ-
ments presumably related more directly to mutually ac-
ceptable treatment of the development of the job require-
ments.
In short, in my view, "harmony and good faith" was
evidenced as being brought to play to bridge the differ-
ence in the provisions the parties respectively stood on;
just as, in my view, Iber's assurance to the Union at a
later prejob conference that it would remove its out of
town regulars when opportunities arose for their employ-
ment in their own jurisdiction may fairly also be ob-
served to have evidenced interplay of that same, mutual-
ly obligated pledge of utmost "harmony and good faith"
1146
CARPENTERS LOCAL 644 (TOUSLEY-IBER CO.)
in their use of the hiring hall operation. I cannot say
such considerations do not evidence, on the Union's part,
union action and sufficient rationale of representation of
constituency as to overcome adverse inferences, or pre-
sumptions that its actions have unlawfully encouraged
union membership. Operating Engineers Local 18 (Ohio
Contractors), 204 NLRB 681 (1973), revd. on other
grounds 496 F.2d 1308 (6th Cir. 1974).
The Board has permitted contractual parties to special-
ly and widely arrange hiring hall systems to meet their
varying recruitment needs, e.g., to arrange an exclusive
hiring hall system that has allowed members, upon regis-
tering as being out of work, to go out and obtain their
own work with covered employers, but to preserve the
hiring hall as an exclusive system by requiring that each
successful individual be nonetheless referred out by the
hall by requiring that an employer then request referral
of that particular individual by name, cf. Painters Local
487 (American Coatings), 226 NLRB 299 (1976); or to
provide for a hiring hall's wholly optional use (thus non-
exclusive) but with a system which otherwise provided,
inter alia, special referral arrangements for permanent
employees, or employees who regularly work for a par-
ticular employer, cf. Laborers Local 889 (Anthony Fer-
ranti & Sons,), 251 NLRB 1579, 1580 (1980).
Although the instant contract's hiring hall provisions
encompass certain provisions frequently found to be
present in an exclusive referral system, namely, its provi-
sions that advance notice be given by the Employer to
the Union on all of Employer's job requirements, and for
a period of time to be then afforded by the Employer to
the Union for the Union to make referrals of qualified in-
dividuals using its hall for employment in those jobs, the
contract also contains permissive and nonexclusive hiring
provisions as are clearly evidenced in section 1, with a
controlling reaffirmance in section 4(e), especially with
the specific confirmation in sec. 4(d) that the Employer
is not obligated to extend any preference in employment
to any individual referred by the Union to fill a job over
an individual not so referred.
In agreement with the General Counsel I conclude
and find the contract itself clearly describes a nonexclu-
sive hiring hall system, and that the practice was consist-
ent therewith. However, I do not go so far as certain of
the General Counsel's arguments would then appear to
otherwise lead, namely, that the Employer's obligations,
here contractually indicated as undertaken, to provide
the Union with notice and an opportunity to make refer-
rals to available jobs, are themselves, thereby rendered
meaningless, or unenforceable, because of the nonexclu-
sive nature of the referral system's hiring provisions.
It is clear that a union may seek to enforce the integri-
ty of an exclusive hiring hall. Cf. Birmingham Country
Club, 199 NLRB 854 (1972). It seems to me that a union
may seek as well to act to preserve lawful advantages it
has obtained by contract in filling employment opportu-
nities, although that advantage be less than service as an
exclusive source of referral, e.g., act to preserve the in-
stant notice and opportunity to timely refer, so long as it
does not exceed that objective. It is not for me to pass
on the wisdom of a union-stated objective, where it is
discernibly of contract and related to the lawful concerns
of unit employees, cf. Musicians Local 10 (Shield Radio
Products), 153 NLRB 68, 84 (1965); and, in that respect,
it can hardly be questioned that a preservation of a
worker's opportunity to be at least considered in the
filing of available jobs with a contracted employer is of
legitimate concern to the instant unit employees; particu-
larly, where at least half are unemployed, and their force
composed of many who have run out of the supporting
stay of unemployment compensation benefit. Iber's prior
use of the hall, and particularly its intended use for its
Pekin high rise project from as early as September 1981,
would appear to support the same result. See, Sheet
Metal Workers Local 96 (Cotton, Inc.), 222 NLRB 756,
758 (1976); and see also Boilermakers Local 40 (Envirotech
Corp.), 266 NLRB 432 (1983), for discussion of other in-
stances of reasonable acts permitted a union to promote
efficiency and integrity of a hiring hall in the representa-
tion of its constituency.
In a lawful, nonexclusive hiring hall system and prac-
tice, such as we have here, the Union has a duty to act
in an evenhanded manner toward all its members, Plas-
terers Local 121, supra, 264 NLRB at 194 and not on
considerations or classifications which are irrelevant, in-
vidious, or unfair, Laborers Local 300 (Memorial Park De-
velopment), 235 NLRB 334, 352 (and see cases cited
there) (1978), enfd. 613 F.2d 203 (9th Cir. 1980). In the
operation of a hiring hall a union also may not treat a
certain member disparately, because the member has en-
gaged in activities which are protected by the Act,
Crouse Nuclear Energy Services, 240 NLRB 390 fn. 2
(1979); and specifically protected is a member's criticism
of union administration, political opposition to a union
official, or dissident activities in general, cf. H. H. Rob-
ertson Co., 263 NLRB 1344, 1356 fn. 12 (1982), and see
cases cited therein.
Carroll's acceptance of employment out of State in
late July, at a time when Iber's contract to start the
Pekin high rise had not as yet been signed, does not
eliminate the need to address and resolve the allegations
that Respondent had earlier caused or attempted to cause
Iber not to hire Carroll in violation of Section 8(b)(1)(A)
and (2), though it might arguably affect a remedy for
any violation to be found therein.
The first factual issue raised and argued by the parties
is as to whether Unes ever actually hired Carroll. To
support conclusion Unes hired Carroll, the General
Counsel relies on Carroll's assertions to that effect, and
would overcome any technical hearsay objection thereon
by "corroborative circumstances" authority of American
Chain Link Fence Co., 255 NLRB 692, 693 fn. 4 (1981),
enfd. as modified 670 F.2d 1236 (Ist Cir. 1982), or, ap-
parently, its use to corroborate "other evidence" that
conduct is unlawful, RJR Communications, 248 NLRB
920, 921 (1980). I have essentially no quarrel with either
proposition cited, but with the warrant to find them ap-
plicable and controlling in this case.
Unes has categorically denied he hired Carroll, with
supportive assertion how could he, as he had no con-
tract. The indisputable fact is Iber had no contract, and
did not have a signed contract for 2 or 3 additional
months. Carroll's assertion that in doing so Unes had
1147
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
told Carroll to tell Superintendent Williams that he was
hired, is itself not credited, as I am convinced that, if
Carroll had been actually directed to talk to Williams, he
would have found Williams and done so immediately. I
have similar difficulty in any ready acceptance of Car-
roll's further assertion that he had thereafter told Unes
that he probably had two business agents who would be
upset about Unes hiring him. First there is the unlikeli-
hood of an applicant of still-anticipatory work raising an
issue of prospective union turmoil for an employer if it
hired him; and as well, there is an inherent inconsistency
of Carroll's immediate report on the subject of Iber's hire
to Van Horn. I find Van Horn's testimony of Carroll's
telling him that Van Horn would be receiving a call
from Unes as they were going to hire him, was far more
plausible, and more likely accurate, especially in the light
of the mutually consistent testimony of Vogel and Van
Horn that Unes shortly thereafter directly denied he had
hired Carroll.
On the other hand, I have no doubt that Carroll at the
time reasonably had believed he was going to be hired as
a result of his having had the several contacts with Unes;
their prior specific discussions of his work experiences;
Unes' interest in whom Carroll's letters of recommenda-
tion were from; and Unes' admitted direction of Carroll
to try calling back. In the latter regard, although I credit
Unes that he had never actually told Carroll he would or
would not hire him, I do not accept the additional asser-
tion of Unes that there was no reason that he had not
told Carroll not to continue to contact him. Rather, I
find the more plausible import of that encouraged cir-
cumstance is that Unes had recognized in Carroll's de-
scribed work experience, identification of, and willing-
ness to demonstrate prior employer approval, a prospect
of a valuable employee for Iber hire. Unes admitted di-
rection to Carroll to "try calling," is reasonably to be in-
ferred as being with design to keep Carroll's prospective
applicancy for employment with Iber viable. In short
Carroll would quite reasonably believe that Unes had as
much as said he was going to be hired, or promised he
was going to be hired; which brings us squarely to the
issue of the conduct and motivation of Vogel in contact-
ing Unes when it was reported to him by Van Horn that
Carroll was claiming Iber had hired him for the Pekin
high rise, a project long delayed and not prejobbed.
Before evaluating those material considerations, it is ob-
served that Vogel, who did not mince words, viewed the
report from Van Horn and broached the subject to Unes
in terms of a question whether Unes had hired Carroll.
With regard to Carroll's assertion that Unes later had
reported to him that the business agents had told Unes
essentially that Carroll would cause trouble on the job,
that statement was not corroborated by Unes as either
said to Carroll, or as said to Unes by either business
agent. Vogel testified generally that Carroll's prior work
experiences were not discussed with Unes. Wholly apart
from the observed testimonial deficiency in which Car-
roll's assertion initially arose, on leading question, it is to
be observed that the statement, insofar as it would be
argued as attributable to Respondent, would involve
double hearsay inference. I reject it as competent evi-
dence of Vogel's stated motivation, and I, in any event,
credit Vogel's general testimony to the contrary. I find
that Vogel did not discuss Carroll's prior work experi-
ences, good or bad, with Unes. Moreover because of the
inherent plausibilities of record for Vogel having made
the remark at the time, and despite Vogel's acknowledg-
ment of Unes' earlier protestation that he had not hired
Carroll, I credit Vogel's specific testimony that what he
told Unes exactly was that Unes should not be hiring
them off the street and bypassing the Union, and if you
start hiring them off the street, your phone will be ringing
off the wall, and you won't be able to sleep at night. "
The General Counsel correctly would have it ob-
served that a finding of "cause or attempt to cause"
under Section 8(b)(2) of the Act does not require a direct
or expressed threat of retaliation, as it has long been ob-
served: "It is enough that the union's conduct reveals an
intent to arouse the employer's fear that the hire or re-
employment of an applicant will result in economic pres-
sure against him." Bricklayers Local 18 (Ferguson Tile
Co.), 151 NLRB 160, 163 (1965).
The instant case consideration is made a close one not
because of the obvious relation of the latter remark in
part to Unes prior contact with Carroll, but the case of
unlawful Respondent conduct affecting Carroll's employ-
ment opportunity is one made close by other findings
herein made: that in February Vogel was expressly dis-
pleased with Carroll's suspected intention to become in-
volved with the general election (then believed to be in
contravention of sentence); that Vogel was aware of
Carroll's more recent support of Shaw, who was running
in opposition to Vogel; that Carroll had very recently
(early June) had a confrontation with Vogel over the
matter of voter eligibility in which Carroll had revealed
to Vogel that he had again contacted the International
(Lucassen) over a matter Vogel then regarded as a
matter that should have been handled by the Local's
treasurer; that Vogel had contacted Davis to ensure he
knew about Carroll's contact of the International; and fi-
nally by virtue of the nature of my findings hereinafter
made in relation to other related complaint allegation.
Although the issue is not one free from doubt, I con-
clude and find that the General Counsel's evidence has
failed to predominate and to persuade me that Vogel's
approach of Unes, at this time, was motivated to prevent
Iber's hire of Carroll rather than to prevent any proclivi-
ty Unes might then be developing to start hiring men off
the street, bypassing the hall, without affording the
Union the contractually provided advance notice when
the jobs actually became available, and a realistic oppor-
tunity at that time to make referrals to them. There is
supporting and credible evidence to the effect, and no
credible evidence to the contrary, that Unes did not re-
quest that Carroll be referred; that neither Vogel nor
Van Horn told Unes they would not refer Carroll. Al-
though Vogel's assertion that he would have referred
Carroll if Unes had requested it may be regarded as of
little evidentiary weight because of its self-serving
nature, the fact is that all others requested by name, in-
cluding a personal friend, were referred and that Unes
did not request Carroll's referral. In that respect, al-
though Carroll was never subsequently referred, the fact
1148
CARPENTERS LOCAL 644 (TOUSLEY-IBER CO.)
also is that by the time Unes had occasion to man the job
months later Carroll had much earlier taken a job else-
where; and Carroll had not indicated to either Unes or
Respondent a continuing interest in a later referral to the
Pekin high rise project when it started. Moreover, at the
time of this incident, Carroll had not run out of unem-
ployment; and it only seems reasonable to conclude that
members generally, and Carroll in particular, would have
by that time been fully aware of the Local's engrafted
practice to refer the latter category of employee out first.
Finally, that very category, if not serviceable as an ob-
jective criteria for referral, at least describes a classifica-
tion whose use and application would not reflect a dis-
parate treatment of Carroll as an individual because of
his failure to qualify.
For all of the above reasons, but principally and in the
main because of the nature of Vogel's actual statements
made to Unes relating directly to the Union's contractual
hiring hall claims and union member employment needs,
I am persuaded that was Vogel's motivation in approach-
ing Unes at this time albeit involving inquiry on Iber's
hiring Carroll off the street which Carroll had both oc-
casioned and brought to light. In short, in my view,
Vogel's obligation as business representative to protect
and preserve contractual work opportunities for other
unit employees who were out of work under the above-
described conditions was not hostage to the circumstance
of any disagreeable relationship he had with Carroll; and
indeed, if he had not acted, or if Iber had continued as
with Carroll, other unit employees would have necessari-
ly suffered disadvantage, curable by notice to them of
that circumstance, and likely personal action (direct job
seeking) by them. It appears to me the result is the same
whether it is to be concluded that the General Counsel's
evidence simply did not make out unlawful coercion or
if it be construed that a prima facie case was initially
shown (based on Vogel's evidenced prior and continued
displeasure with Carroll over union matters and Vogel's
contact of Unes at a time when Carroll enjoyed prospect
of employment), that the same was successfully met by
evidence that Vogel could have responsibly acted as rep-
resentative of all unit employees in essentially no other
way than by contacting Unes directly about the Employ-
er's suspected premature hiring off the street in deroga-
tion of the contract's advantages to the Union's constitu-
ency, Wright Line, Inc., 251 NLRB 1083 (1980), enfd.
662 F.2d 899 (lst Cir. 1981). Accordingly, it will be rec-
ommended that the complaint allegation that Respondent
in mid-June caused or attempted to cause Iber to refuse
to employ Carroll in violation of Section 8(b)(1)(A) and
(2) be dismissed.
The complaint lastly alleges and the General Counsel
contends that about July 15 Respondent brought internal
union charges against Carroll because Carroll had filed
the instant charges. Respondent defends that Vogel's in-
ternal union charges were shown previously planned,
and thus has argued they were not filed in retaliation;
and even if determined to have been retaliatory, further
argues they do not constitute an unfair labor practice, es-
sentially because the charges were dismissed by the Dis-
trict Council's executive board, with Respondent stating
reliance on Board approved holding in Transport Workers
Local 100 (Liberty Coaches), 230 NLRB 536, 539 (1977).
There a union's appeal committee had ruled, in a case
that presented no question of expulsion or threat to do
so, that, "A member's right to complain to the National
Labor Relations Board is protected by law regardless of
the merits of the complaint and thus charge by Brother
McGarvey is dismissed. " The Administrative Law
Judge held there was not a violation of the Act, and the
Board approved.
The Board has stated that "[A] fundamental policy of
the Act includes unrestricted access to its processes and
no private organization should be permitted to prevent
or regulate access to the Board." Shoe Workers (Inde-
pendent) (United States Shoe Corp.), 208 NLRB 411, 417
(1974). NLRB v. Marine Workers, 391 U.S. 418, 425
(1968), the Supreme Court had earlier agreed with the
Board that the overriding public interest makes unimped-
ed access to the Board the only healthy alternative,
except and unless plainly internal affairs of the Union are
involved; and, at 425 specifically held, "the proviso in §
8(b)(1)(A) that unions may design their own rules re-
specting 'the acquisition or retention of membership' is
not so broad as to give the union power to penalize a
member who invokes the protection of the Act for a
matter that is in the public domain and beyond the inter-
nal affairs of the Union."
In Scofield v. NLRB, 394 U.S. 423, 429 fn. 6 (1969), the
Supreme Court later observed:
As part of the bill of rights of union members,
the Landrum-Griffin Act guaranteed freedom of
speech and assembly "Provided, That nothing herein
shall be construed to impair the right of a labor or-
ganization to adopt and enforce reasonable rules as
to the responsibility of every member toward the
organization as an institution and to his refraining
from conduct that would interfere with its perform-
ance of its legal or contractual obligations." Pub. L.
86-257, Tit I, § 101(a)(2), 73 Stat. 522, 29 U.S.C. §
411 (a)(2).
The Court also noted 394 U.S. at 430, applying further
the view of NLRB v. Marine Workers, supra:
Under this dual approach, § 8(b)(1) leaves a
union free to enforce a properly adopted rule which
reflects a legitimate union interest, impairs no policy
Congress has imbedded in the labor laws, and is
reasonably enforced against union members who are
free to leave the union and escape the rule.
Thereafter the Board has declared its understanding of
the Supreme Court's charge to it in Scofield, supra, as
being: "the duty of determining the overall legitimacy of
union interests," and that it "take into account all Feder-
al policies," inclusive of the rights of a union member
guaranteed by the Labor-Management Reporting and
Disclosure Act, "to participate fully and freely in the in-
ternal affairs of his own union." Cf. Carpenters Local 22
(Graziano Construction), 195 NLRB 1, 2 fn. 5 (1972). As
earlier noted, in other context, the Board has approved
finding that a member's criticism of union administration,
political opposition to a union official, or dissident activi-
1149
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ties in general are each and all specifically protected by
the Act, cf. H. H. Robertson Co., 263 NLRB 1344, 1356
fn. 12, supra.
The initial charges preferred by Van Horn and Vogel
in October 1980 would appear as charges reasonably
shown related to circumstances permissibly encompassed
within the Scofield, supra institutional and contractual
concern cases. However, the sentence later imposed de-
barred Carroll "from participating in any local union ac-
tivities, rights or privileges of a member, except for
paying dues for a period of five (5) years."
The facts of Vogel's February and preelection displea-
sures with Carroll, earlier marshalled, need not be re-
peated beyond recalling that on February 3 Vogel had
explicitly propounded to Lucassen an intent to file
charges before the District Council and to seek to take
Carroll's book permanently, if Vogel was able to prove
what he then suspected, namely that Carroll was becom-
ing involved in the June general election. There is no
question that Vogel had then viewed such conduct on
the part of Carroll as being in violation of Carroll's sen-
tence. On February 22, Lucassen, in clear effect, directed
Pruitt to speak to Carroll to ensure Carroll was comply-
ing with the rules of his membership: However, Lucas-
sen also, in effect, specifically instructed Vogel that there
were certain membership rights under Federal law that
Carroll enjoyed that Vogel should review for his own
protection. Carroll thereafter described his restriction as
applying to local union attendance and voting on issues
at meetings, but otherwise broadly asserted his civil
rights allowed him to speak out about anything. I cannot
accept that Vogel was left, or remained, in the dark as to
what Carroll's Federal rights (generally delineated
above) were. In that connection I note that Vogel, prior
to the election, neither placed nor expressed any restric-
tion on Carroll's various election activities in support of
Shaw, of which, in general, I have no doubt he was
aware.
Vogel was aware of Carroll's involvement in eligibility
matters at both Local and International level. From
Vogel's contact of Davis concerning the latter, it is more
likely than not that he was also aware of Carroll's con-
tact with the District Council on that subject matter. In
any event, Vogel did not seek to restrict Carroll from his
activities during Vogel-Carroll discourses. Vogel did not
ask Carroll to let the treasurer handle it. Though I have
no doubt that Carroll's propensity to call the Internation-
al played on his mind, as is evidenced by his later "hot
line" comment to Carroll in Shaw's presence. Nonethe-
less, the fact is no charges were brought by Vogel before
Carroll filed the instant unfair labor practice charges. By
that time Vogel had already been successful in being re-
elected. Vogel's internal union charges then followed
only 2 days after the Local was served a copy of Car-
roll's charges. Many constitutional items then charged by
Vogel were stale under the constitution. I conclude and
find that the General Counsel has made out a very
strong prima facie case that the internal union charges
were filed by Vogel at this time because of Carroll
having recently filed his unfair labor practices, in short,
were in nature retaliatory.
Respondent did not recall Vogel to testify on this par-
ticular (or any) matter. Respondent's defense is simply
based on Davis testimony that Vogel had communicated
with him after the election about having proof that Car-
roll had violated his sentence and expressed an intent to
file charges. Davis also testified as to having alerted
Vogel to certain ministerial meeting and notice consider-
ations, with advice to Vogel that he had plenty of time
to file them. The defense offering, in my view, even if
credited is wholly inadequate.
Not only is the timing relationship of Vogel's internal
union charges to Carroll's filing of unfair labor practices
itself self-obvious, much of Vogel's complaint was on
constitutional matters, e.g., of causing dissension by
being critical of Vogel's handling of certain (other) pen-
sion matters, and of Carroll not being obedient to author-
ity and charitable in judgment. All were subsequently de-
termined stale under the constitutional requirements. I
cannot accept that Vogel would not have known that.
Even as to other (dropped) matters bearing on Carroll's
sentence, such matters had certainly been known for
some time before the charges were filed on them. More-
over Vogel has revealed much as to presence of other
motivation when he answered at hearing that Carroll has
never been obedient to authority; and that Carroll had
argued with Vogel about every job.
That Vogel was frustrated over Carroll's construction
of Vogel's actions to enforce the hiring hall provisions to
the advantage of unit employees generally, by Carroll's
filing of an unfair labor practice accusing Vogel of per-
sonally having prevented Iber from hiring Carroll indi-
vidually "because of arbitrary reasons" (e.g., Carroll's
conduct in opposition to Vogel and his involvement with
voting eligibility) would appear likely. That Vogel filed
the internal union charges at this time in retaliation for
Carroll having filed the unfair labor practice-of that I
have no doubt. It is accordingly concluded and found
that in violation of Section 8(b)(l)(A) Respondent filed
internal union charges in regard to union political activi-
ty and/or otherwise against Carroll, because Carroll had
earlier filed unfair labor practices with the Board.
Unlike the case situation in Transport Workers Local
100, supra, on which Respondent would rely, there was
here no such definitive adjudication of membership right
in disposition of internal union charges. I find violation
of 8(b)( )(A) coercion and restraint has occurred, and
remedy therefor is required. The General Counsel's re-
maining request is that finding be made that Vogel's
remark to Shaw that if Vogel put Shaw to work, Vogel
would catch all kinds of hell, was fully litigated, a coer-
cive remark, and itself violative of Section 8(b)(1)(A). I
find the incident was a matter fully litigated. However,
in my view of the entire circumstances the remark was
at best left ambiguous. Vogel was a generally credible
witness. He testified that he specifically told Shaw he
had never benched a man. Although Vogel's other
remark may have startled Shaw, Shaw had raised the
question because he had been anticipating a request for
his services by name. However, other circumstances had
occasioned his not being called at the time. Moreover he
neither alerted Vogel to that consideration, not pursued
1150
CARPENTERS LOCAL 644 (TOUSLEY-IBER CO.)
inquiry as to what Vogel meant. The fact is the remark
is equally applicable of meaning that if Vogel preferen-
tially referred his election opponent Shaw out over
others, presumably inclusive of some of those who had
supported him, his action would not be left unquestioned.
With the affirmative statement made to Shaw in the same
conversation that he had never benched a man in the
Union, in my view, more was required for it to be objec-
tively viewed as coercive. I decline to make the urged
finding.
CONCLUSIONS OF LAW
1. Respondent Local 644, United Brotherhood of Car-
penters and Joiners of America, AFL-CIO is a labor or-
ganization within the meaning of Section 2(5) of the Act.
2. Touisley-Iber Co. is an employer and a person en-
gaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
3. By the action of Respondent's President and Busi-
ness Representative Darrell Vogel, preferring internal
union charges on July 15, 1982, against its member
Edward Carroll in regard to political activity and/or
otherwise, because Carroll had earlier filed an unfair
labor practice charge against Respondent on July 12,
1982, Respondent has restrained and coerced members-
employees in violation of Section 8(b)(1)(A) of the Act.
4. Respondent has not violated the Act in any other
manner as alleged in the complaint; or, as has been raised
by the General Counsel herein as a matter fully litigated
and in violation of Section 8(b)(1)(A), viz., by the certain
remark of President and Business Representative Vogel
made to member Don Shaw, in June 1982.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall order that it cease and
desist therefrom and that it take certain affirmative
action designed to effectuate the policies of the Act. I
shall among other things order that Respondent com-
pletely expunge from its records all references and other
evidence pertaining to the July 15, 1982, internal union
charges placed against Edward Carroll.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed 3
ORDER
Local 644, United Brotherhood of Carpenters and
Joiners of America, AFL-CIO, Pekin, Illinois, its offi-
cers, agents, and representatives, shall
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 waived for all pur-
poses.
1. Cease and desist from
(a) Restraining and coercing any member-employee in
violation of Section 8(b)(l)(A) of the Act by filing inter-
nal union charges against a member in regard to intraun-
ion political activity and/or otherwise, in whole or in
part because that member has filed unfair labor practices
against Respondent with the National Labor Relations
Board.
(b) In any like or related manner restraining or coerc-
ing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act.
(a) Completely expunge from its records all references
and other evidence pertaining to the July 15, 1982 inter-
nal union charges filed against Edward Carroll, and
notify Ed Carroll of such action in writing.
(b) Post at its Pekin, Illinois business office, and at all
of its meeting halls wherever located, copies of the at-
tached notice marked "Appendix." 4 Copies of said notice
on forms provided by the Regional Director for Region
33, after being duly signed and dated by Respondent's
representative, shall be posted by it immediately upon re-
ceipt thereof, and be maintained by Respondent for 60
consecutive days thereafter, in conspicuous places, in-
cluding all places where notices to members are custom-
arily posted. Reasonable steps shall be taken by Respond-
ent to ensure that said notices are not altered, defaced, or
covered by any other material.
(c) Notify the Regional Director for Region 33, in
writing, within 20 days from the date of this Order what
steps the Respondent has taken to comply herewith.
4 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 we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT retaliate against or restrain or coerce
any member-employee by placing internal union charges
against a member in regard to his lawful intraunion polit-
ical activity and/or otherwise, in whole or in part be-
cause that member has filed unfair labor practices against
this Union with the National Labor Relations Board.
1151
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT in any like or related manner restrain or
coerce any member-employee in violation of their Sec-
tion 7 rights under the Act.
WE WILL completely expunge from our records all
references and other evidence pertaining to the July 15,
1982, internal union charges placed against Edward Car-
roll; and WE WILL notify Edward Carroll of such action
in writing.
LOCAL 644, UNITED BROTHERHOOD OF
CARPENTERS AND JOINERS OF AMERICA,
AFL-CIO
1152