Carpenters Local No . 1440

National Labor Relations Board - Board Decisions

Dec 4, 1970

186 N.L.R.B. 1091 (N.L.R.B. 1970)

CARPENTERS LOCAL NO. 1440 1091
Carpenters Local No. 1440, United Brotherhood of
Carpenters and Joiners of America , AFL-CIO
(The Kroger Company ) and James H. Baty. Case
26-CB-530
Upon the entire record made in this proceeding and my
observation of the witnesses who testified on the stand, I
hereby make the following:
FINDINGS OF FACT
December 4, 1970
DECISION AND ORDER
BY MEMBERS FANNING, BROWN , AND JENKINS
On June 25, 1970, Trial Examiner Max Rosenberg
issued his Decision in the above-entitled proceeding,
finding that Respondent had not engaged in certain
unfair labor practices within the meaning of the
National Labor Relations Act, as amended. Thereaf-
ter, the General Counsel filed exceptions to the Trial
Examiner's Decision and a supporting brief and the
Respondent filed an answering brief
Pursuant to the provisions of Section 3(b) of the
Act, the National Labor Relations Board has delega-
ted its power in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and
the entire record in the case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recommen-
ded Order of the Trial Examiner and hereby orders
that the complaint be, and it hereby is, dismissed.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
MAx ROSENBERG , Trial Examiner : With all parties
represented , this proceeding was tried before me in
Memphis, Tennessee , on April 28, 1970 on complaint of the
General Counsel of the National Labor Relations Board
and an answer filed thereto by Carpenters Local Union No.
1440, United Brotherhood of Carpenters and Joiners of
America , AFL-CIO, herein called the Respondent or the
Union .' At issue is whether Respondent violated Section
8(b)(2) and ( 1)(A) of the Act by certain conduct to be
detailed hereinafter . At the conclusion of the hearing, the
parties waived oral argument . Briefs have been received
from the General Counsel and the Respondent which have
been duly considered
The complaint, which issued on March 24, 1970, is based upon
charges and amended charges filed and served on February 18, 1970 and
1. BUSINESS OF THE EMPLOYER
The Kroger Company, herein called Kroger, is a
corporation engaged in the retail grocery business with
retail outlets in various States of the United States and, at
all times material herein, received annual gross revenues in
excess of $500,000. During the same period, Kroger has
been engaged in the retail grocery business at a store
located in Wynne, Arkansas, where, in the course and
conduct of its business operations, it annually purchases
and receives in the State of Arkansas, goods and products
valued in excess of $50,000 directly from points located
outside that State. During the times herein material, Kroger
has been engaged in the construction of a new store
building in Wynne, State of Arkansas, where, during the
past 12 months, it has purchased and received goods valued
in excess of $50,000 directly from points located outside the
States. The complaint alleges, the answer admits, and I find
that Kroger is an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Respondent is a labor organization within the meaning of
Section 2(5) of the Act.
111. THE ALLEGED UNFAIR LABOR PRACTICES
INVOLVED
The General Counsel contends that the Respondent
violated Section 8(b)(2) and (1)(A) of the Act when,
pursuant to an illegal arrangement or understanding with
Kroger, it caused and attempted to cause the latter to
discriminate against the Charging Party, James H. Baty, by
refusing to issue him a work permit and by informing
Kroger that Baty could not continue in its employ because
he lacked this document. The Respondent defends this
action on the ground, inter alia, that it did not prevent Baty
from toiling for Kroger.
It is undisputed and I find that W. B. Coleman is the
carpenter superintendent for Kroger and has held that
position for 5 years. At all times material herein, he has
been a member of Carpenters Local Union No. 345 located
in Memphis, Tennessee, which is a sister local of the
Respondent in this proceeding. On February 16, 1970,2
Kroger commenced erecting a new store in Wynne,
Arkansas, a project which lasted until April 3. On the
evening of February 13, he received a telephone call from
James H. Baty, the Charging Party, who had worked for
Coleman at another site about a year earlier, inquiring
about the prospects of obtaining employment at the Wynne
project Baty was a member of a sister Local No. 227 in
Adrian, Michigan, and did not hold membership in the
Respondent. During their conversation, Coleman revealed
March 19. 1970 respectively
2 Unless otherwise indicated, all dates herein fall in 1970
186 NLRB No. 146
1092 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that work was scheduled to commence on the morning of
February 16, and he advised Baty to report that morning
and procure a work permit from the Union which had
carpentry jurisdiction in the area.
Coleman further related and I find that he made it a
practice, whenever he moved into a new jurisdiction to
construct a store, to contact union members who were
known to him and direct them to visit the local union to
inform the business agent of the number of men whose
services Coleman would need. Coleman would then, upon
his arrival upon the scene, get in touch with the business
agent and confirm his work requirements.
I further find that, when Baty appeared at the site on the
morning of February 16, Coleman assigned him to unload
coolers from a trailer while Coleman proceeded to
telephone Edward Lee Montgomery, Respondent's busi-
ness agent, to arrange for the issuance of a work permit for
Baty.3 In response to Coleman's request in this regard,
Montgomery stated that he could not grant Baty a permit
because members of Respondent were then unemployed.
According to Coleman, Montgomery acquiesced in Cole-
man's plea to allow Baty to work for the balance of the day,
"but he [Baty] couldn't work the next day, because he
[Montgomery ] couldn't issue his permit " Following this
conversation, Coleman relayed Montgomery's decision to
Baty, with Coleman suggesting that Baty personally
telephone Montgomery After Baty completed the call and
reported to Coleman that Montgomery had refused to grant
a work permit, Coleman commented that "I can't work you
after today without a permit" because "I have got to go by
the union rules." At the end of the work shift, Superintend-
ent Coleman directed an employee named David Coleman,
who was a union member, to visit the union hall the
following morning and obtain a replacement for Baty.
David Coleman did so
Superintendent Coleman's testimony is uncontroverted
and I find that, until he telephoned Montgomery on Baty's
behalf, Coleman had no previous direct contact with
officials of Respondent regarding the Wynne project; that
at no time material herein did any contract or agreement
exist between Kroger and Respondent pursuant to which
the latter became the sole and exclusive agent for furnishing
carpenters to the former; and, that Coleman knew that he
could have hired and retained Baty at the site without the
permission of Respondent, without the production of a
work permit, and even without Baty being a member of any
labor organization. Moreover, Coleman further testified
and I find that he removed Baty from Kroger's employment
rolls, not because of any action or pressure by Respondent,
but solely because Coleman did not wish to offend the
internal rules of his own Local union and those of the
International organization.4 In this connection, Coleman
testimonially noted that it was his policy as carpenter
superintendent, as well as that of Kroger, to hire only union
members on any project and that, in deference to his Local
3 So far as appears on this record, this is the first and only instance
during Coleman's relationship with Respondent that he dealt directly with
union officials to obtain a work permit for an individual
4 A synthesis of Section 10(a) and (e) of the Union's bylaws and trade
rules, which apparently has a parallel in Coleman's Local rules, imposes
the duty upon carpenter superintendents "to see that all work done on the
union's strictures, he did not employ any carpenter on the
Wynne job who was not a member of the Union.
Baty's testimony regarding his efforts to obtain employ-
ment at the Wynne project generally parallels that of
Coleman Baty testified that, when he telephoned Mont-
gomery on the morning of February 16 to request a work
permit, Montgomery "said he couldn't give me a permit;
for me to work that day and not to come back next."
According to Baty, the sole reason advanced by Montgom-
ery for refusing to award a permit to the former was due to
the circumstance that union members were currently
unemployed. Baty further testified that, at the end of his
telephonic communication with Montgomery, he informed
Coleman of the contents of the discussion, at which
juncture Coleman remarked that Baty should work out the
shift and not return the next day.
In his testimony, Montgomery emphatically denied that
he informed either Coleman or Baty during their conversa-
tions on February 16 that Baty could not toil at the Wynne
project on and after February 17. Montgomery further
testified that, during his stewardship as business agent for
the Respondent which extended over some 24 years, it was
his consistent practice to deny a work permit to a carpenter
from a sister local so long as any of his members were out of
a job and that this was the sole reason why he denied such a
card to Baty. Like Coleman, Montgomery noted that the
Union and Kroger were not privy to any contract under
which the Union was vested with exclusivity in referring
men to the Wynne or any other Kroger project. He related
that he first became aware of the existence of the Wynne
store on February 16 when union member David Coleman
and two other members who were already working at the
site visited the union hall and requested that another man
be dispatched, and I so find.5 Rounding out his testimony,
Montgomery averred that he became aware that only
members of his Union were employed at the Wynne
project. He also recited that it was part of his duties as
business agent to insure that carpenters working on union
jobs within the Respondent's jurisdiction belonged to the
International union rather to his Union in particular.
On the basis of the facts chronicled above, the only
conflict in the evidence relates to the testimony of Coleman
and Baty that they were informed by Montgomery on
February 16 that Baty would be allowed to work that day
but that he should not return to the project thereafter, and
Montgomery's flat denial that he ever uttered such a
statement. The General Counsel urges that Coleman's and
Baty's testimony should be credited on this score, and that
a finding should be made that the Union, by Montgomery's
utterances, thereby caused Kroger to terminate Baty's
employment. Even were I to resolve the issue of credibility
in the General Counsel's favor, his requested finding would
hardly be critical to the resolution of the legal issue posed in
light of the testimony drawn from Coleman, the General
Counsel's own witness, that he barred Baty from the project
after February 16, not because of any pressures put upon
job coming under the jurisdiction of the Brotherhood is performed by
members of the Brotherhood and not by any one else "
Coleman also testified that he had hired David Coleman and the other
two carpenters directly and in advance of the start of the project without
seeking or obtaining referrals from the Union
CARPENTERS LOCAL NO. 1440
him by the Union , but solely because of his desire to abide
by the rules of Coleman 's Local union and those of the
International Moreover , there is no probative evidence in
this record of any threat by Montgomery of economic
action against Kroger , assuming he made the foregoing
statement , if Baty continued to be employed by Kroger
without a permit 6
Conclusions
It is the General Counsel's contention that ]"an arrange-
ment, a practice , and a tacit, but well defined , understanding"
existed between Kroger and the Union whereby Kroger
agreed to retain in its employ only those carpenters who
had a permit from the Union , and that the Union's refusal
to grant a work permit to Baty and Montgomery's
statement that Baty should not return to the Wynne project
after February 16 thereby caused Kroger to discriminate
against Baty in violation of Section 8(b)(2) and ( 1)(A) of the
Act. I find no merit in this contention because, in my
opinion, I am not convinced that the evidence unfolded on
this record is sufficient to warrant the conclusion that the
parties were at any time bound by any arrangement,
practice , or understanding whereby Kroger was obligated
to hire or retain only those carpenters who were referred by
the Respondent holding permit cards . In his testimony,
Coleman clearly acknowledged that he was empowered, if
he so chose , to hire and employ any carpenter at the Wynne
site without the permission of Respondent , without the
production of a work permit, and even without the man
being a member of any labor organization Moreover,
Coleman admitted that it was his custom and practice,
when a project was scheduled for construction , to contact
union members known to him , rather than the Union
b See Teamsters , Chauffeurs, Helpers and Taricab Drivers Local Union
327, affiliated with International Brotherhood of Teamsters Chauffeurs,
Warehousemen and Helpers of America (Breeko Industries), 167 NLRB No
1093
directly, when he needed help, and that he followed this
course of hiring only union members because of his
personal desire to abide by his Local union 's bylaws and
not because of any compact with or pressures from
Respondent Moreover , even if Montgomery informed
Coleman that Baty should not be continued in his
employment at the Wynne site , I have heretofore found
that this information did not carry with it the threat of a
strike or other economic sanctions in the event that
Coleman deigned to keep Baty in Kroger 's employ without
a work permit.
For the foregoing reasons, and upon the entire record
made in this proceeding , I conclude that the General
Counsel has failed to carry the burden of establishing that
an exclusive referral arrangement, practice, or understan-
ding existed between Kroger and the Respondent . I further
conclude that the Respondent 's refusal to provide Baty
with a work permit for employment at the Wynne project at
Coleman's request did not violate Section 8(b)(2) and
(1)(A) of the Act. I shall therefore recommend that the
complaint be dismissed in its entirety.7
CONCLUSIONS OF LAW
1 The Employer is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. Respondent is a labor organization within the
meaning of Section 2(5) of the Act.
3. Respondent has not violated Section 8(b)(2) and
(1)(A) of the Act.
RECOMMENDED ORDER
IT Is HEREBY ORDERED that the complaint herein be, and
it hereby is, dismissed in its entirety
141atp 3
7 Ibid Local 626, United Brotherhood of Carpenters and Joiners of
America, AFL-CIO (Food Fair Stores, Inc), 142 NLRB 1238