Carpenters Local Union 1243

National Labor Relations Board - Board Decisions

Mar 1, 1979

240 N.L.R.B. 1118 (N.L.R.B. 1979)

1118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Carpenters Local Union 1243, United Brotherhood of
Carpenters and Joiners of America, AFlICIO
(Arctic Slope, Alaska General Construction Compa-
ny) and Don Porter and Stephen Cough. Cases 19
CB 3024 and 19 CB 3080
March 1. 1979
DECISION AN[) ORDER
BY CIIAIRMAN FANNIN( ANI) M:MHI RS P NII )
ANt) TRI iS)AI
On May 12. 1978. Administrative Law Judge Jer-
rold H. Shapiro issued the attached Decision in this
proceeding. Thereafter. the General Counsel filed ex-
ceptions and a supporting memorandum and brief.
Respondent filed an opposition to the General Coun-
sel's exceptions and a brief in support of the Adminl-
istrative Law Judge's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions, memoran-
dum, and briefs, and has decided to affirm the rul-
ings, findings.' and conclusions of the Administrative
Law Judge and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the complaint be, and it hereby is, dis-
missed in its entirety.
I We agree with the Administrative Iaw .ludge's finding hat the ca.,e
cited in n. 8 of his [)eclsion are distinguishabl e froi, thi case "in l ciii
cant respects." We a.lso nole that one, of the cases cited, Ia il I Ilil C,)Y ifi
Na.sau ( Ount , New York. Brtherhondl .1a 1 ter, ond A I/hd rIht,. 4 I
('1) (fasau )tiSon of Ihe l1$[a er Paint'rr, A I 0l1itl a 5 Soli,, Si zttNo/,
('ountil, 1,1,. and \as111ul I)il tronl of the (iipri I)r rall ( 'io lrr i,. In, .
212 NI.RH 615 (19741 (hen Member f:lnning land Member Jenkin dissent-
ing,. was overruled suhsequenl Io the issualnce of the Adnitnistra iie l a
Judge's D)ecis in. See l)isti (,und , 2 , the Bllolthcrh*of ! i,,isr
and Allied Trade,. A4 F (0 (7lhe Parlmtnhi. Imr). 239 NI.RH 1378I i79
(Member Penello dissenting).
DECISION
SIAILMENI OF IHF. CASE
JFRRO[L.I) H SHAPIRO, Administrative Law Judge: The
hearing in this consolidated case, held April 4. 1978. is
240 NLRB No. 171
based on unfair labor practice charges filed by Don Porter
and Stephen Gough against Carpenters Local Union 1243,
United Brotherhood of Carpenters and Joiners of America,
AFL CIO. herein called Respondent. The charge in Case
19 CB 3024 was filed b Porter on October 17. 1977. and
the charge in Case 19 C'B 3080 was filed by Gough on
December 23. 1977. A consolidated complaint issued Janu-
ary 25, 1978. on behalf of the General Counsel of the Na-
tional Labor Relations Board, herein called the Board, by
the Regional Director of the Board. Region 19. alleging
that Respondent has engaged in unfair labor practices
within the meaning of Section 8(b}(2) and (I)(A) of the
National Labor Relations Act. as amended, herein called
the Act. Respondent filed an answer denying the commis-
sion of the alleged unfair labor practices.
Upon the entire record,. from my observation of the de-
meanor of the witnesses, and having considered the post-
hearing briefs. I make the following:
FIIN IN(;S o()t F(
I 1111 I MPI OYTR INVOI\ l)D
Arctic Slope. Alaska General Construction Company,
herein called Alaska General, and Fluor Alaska, Inc.,
herein called luor. are each engaged in the business of
general construction in the State of Alaska, and in this
connection each annually purchases and receives goods
and materials valued at over $50,000 directly from States
of the United States other than Alaska. Respondent ad-
mits. and I find, that Alaska General and Fluor each is an
employer engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act. I further find it will effectuate
the purposes of the Act to assert jurisdiction herein.
II RSPONiDNt'S SAlI S AS A IABOR() (OR(ANIZAIION
The complaint alleges. Respondent admits, and I find
that Respondent is a labor organization within the mean-
ing of Section 2(5) of the Act.
111 1tE ISSL
The essential question to be decided is whether, in refer-
ring job applicants Clifford Coates to Fluor and Elbert
DeFoor to Alaska (;eneral. without following the contrac-
tual hiring procedure governing the referral of job appli-
cants, the Respondent breached its duty of fair representa-
tion to all employees covered by said contractual hiring
hall arrangements and improperly encouraged union mem-
bership in violation of Section 8(b)(2) and (I )(A) of the
Act, or whether there was legitimate and substantial justifi-
cation for Respondent's conduct.
I (iellel.i (o lscI's " lotion toi Correct I ranscript" is granted
CARPENTERS LOCAL UNION 1243 1119
IV. THE AI.IE(i-D UNFIAIR l ABOR PRA( Ii( S
A. The Facts2
Respondent's office is located in Fairbanks, Alaska. Its
geographical jurisdiction is the largest of any local union
affiliated with the United Brotherhood of Carpenters and
Joiners of America. Respondent's principal official, Ed
Perkowski. serves as its business manager and secretary-
treasurer. He is assisted in administering the organization
by three assistant business representatives: Don Warner,
"Whitey" Krause, and Joe Voelker.
The employers involved in this case, Alaska General and
Fluor, are members of the Alaska Chapter, Associated
General Contractors, Inc., herein called AGC, and are
bound by the terms of the collective-bargaining agreement
between Respondent and AGC effective July' 1, 1977.
through June 30, 1978. The agreement grants Respondent
the authority to operate an exclusive hiring hall and sets
forth the rules under which the hiring hall is to be operat-
ed. These rules include a system of priority pursuant to
which applicants for employment are divided into three
groups. First preference in referral is given to applicants
who satisfy the criteria for inclusion in group 1, second
preference goes to those who qualify for group 2, and then
the group 3 applicants are dispatched. Applicants regis-
tered in group I are dispatched in the order in which the)
register until the list is exhausted, then those in group 2 are
dispatched in a similar fashion until that list is exhausted.
and finally those registered in group 3 are dispatched. The
agreement further provides that an employer may request
Respondent to dispatch a particular applicant if said appli-
cant was previously employed by the employer and is regis-
tered in group 1. There is no provision in the agreement
which permits Respondent to deviate from the contractual
hiring hall procedures if it desires to dispatch an applicant
as steward. The sole provision in the collective-bargaining
agreement (art. 14, sec. 3) which pertains to stewards reads
as follows:
Section 3. Stewards.
(a) The Business Agent shall notify the employers
of the name of the steward in their employ.
(b) The relationship of Stewards being unique in
that employer-employee relationships such as safety.
working conditions, etc., are practiced by this individ-
ual and therefore the Steward is subject to more pres-
sure and placed in an unusual position with the parties
to the extent that his employment needs extraordinary
protection, therefore, it is agreed by the parties that
Stewards shall be retained in their employment
The facts are undisputed. he are based on the parti,' stipulation iand
the uncontradicted testimon' of Respondent's official'.
Respondent's h laws pro vide that its executive cointil ee shall cerilfs a
list of competent stewards and, when applicants are referred from the out-
of-work list. if a certified steward is not included among thoe being re-
quested for referral, "the dispatcher will drop down the list to tile 1Lnamle of
a Certified Steward" and dispatch him out of order a, steward Ihil pr. . i-
sion, howeer, has not been enforced for several ,ears because, hen the lit
of certified stewards was maintained, it creaited s much anll osit an;IlinC
those who were included and those who Acre excluded that the lit was
discontinued.
throughout the contract so long as their trade and
ability will cover the demands of the job. Prior to ter-
minating of any job Steward, the Employer or his
agent shall forthwith notify the Business Representa-
tive of Local 1243, and when mutually agreed he shall
be terminated. It is not the intent of the above para-
graph to deprive the Employer of the right to termi-
nate the steward for cause.
(c) There shall be at least one Steward employed on
any one job at all times when Carpenter work is being
performed .
(d) The Steward shall designate starting and pickup
times by use of his timepiece and, in addition to his
work as a journeyman, be allowed ample time during
the work day to conduct such Union duties that can-
not be handled off the job. These duties shall include,
but not be limited to, taking a weekly report of all
Carpenters employed, checking newly dispatched Car-
penters, caring for the tools and effects of any injured
Carpenters. notifying the Business Representative of
injuries and transmitting to the Business Representa-
tive all complaints and grievances emanating from the
job.
This case involves Respondent's referral of applicant
Coates to Fluor and applicant DeFoor to Alaska General
as stewards in disregard of the bargaining agreement's pro-
cedures which govern job referrals.4 The essential facts are
as follows:
Coates' Referral
On August 6. 1977, Coates was dispatched by Respon-
dent as a journeyman carpenter to pump station 8. one of
several pump stations used to boost the flow of oil along
the Alyeska Oil Pipeline. Previously, in June 1977, major
construction on the Alyeska Oil Pipeline had been com-
pleted, and in July 1977 the oil began to flow through the
pipeline. Thereafter, in July 1977, an explosion at pump
station 8 destroyed the pump and the turbine building and
severely damaged other sections of the station. Fluor was
awarded the contract to rebuild the station. Initially, there
was a dispute between Fluor and the several labor organi-
zations who represented the different crafts over which
agreement should govern the work jurisdiction of the sev-
eral crafts. Some of the unions wanted to apply the terms
of the agreement which had governed work assignments
during the postconstruction phase of the pipeline, other
unions and Fluor wanted to use the Trans-Alaska Pipeline
Project Agreement which had been used to determine work
assignments when the pump stations were initially built,
and other unions wanted to negotiate a new jurisdictional
agreement. It was ultimately concluded by the parties that
the project agreement would govern work assignments
among the several trades in the reconstruction of pump
station 8.
On August 6, 1977. Fluor placed its initial request with
Respondent for carpenters to work at pump station 8. It
4 [lie efci s Insolsed in this ca e re excepiona l inasnmuch a Repon-
dent. in dispatching enplo ee s toi ohs as stewards. rarel) des ataes from the
iiorill icntrac l tual referr al prtocedure.
CARPENTERS LOCAL UNION 243
1120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
placed an open call for two carpenters and for a carpenter
foreman whom it requested by name.5 Respondent dis-
patched the foreman plus two other carpenters, one of
whom was Coates. On this date, August 6, there were qua-
lified applicants registered on the out-of-work list with
more priority than Coates, yet they were not dispatched.
The parties stipulated, "Coates was not dispatched ahead
of these employees by oversight, but as a result of a specific
determination by Assistant Business Agent Voelker that
Coates should be dispatched to act as steward [at pump
station 8] based on Voelker's opinion that Coates had been
an effective steward in the past when working at Pump
Station 6 for the same employer."
The circumstances which prompted Voelker to dispatch
Coates, even though the employer had not asked for him
by name and there were other applicants ahead of him on
the out-of-work register, including some who were quali-
fied to act as steward, are as follows. Coates, a highly com-
petent journeyman carpenter, has the reputation of being
one of Respondent's 10 best carpenters. He is considered
to be a level-headed and reasonable person. Shortly prior
to his dispatch to pump station 8, Coates had worked I- 1/2
years for Fluor at pump station 6, where he served as Re-
spondent's steward. This station is similar to pump station
8. Fluor's general superintendent at pump station 6, Tony
Carbonne, was assigned the same position at pump station
8. The construction of pump station 6 had involved quite a
number of jurisdictional disputes among the unions, in-
cluding Respondent, who represented the various trades on
that job. Coates, as Respondent's steward on this job, suc-
cessfully resolved these disputes with Superintendent Car-
bonne without having to seek the assistance of Respon-
dent's officials. And, as described supra, the highly unusual
circumstances under which pump station 8 was being re-
built indicated there was a substantial likelihood Respon-
dent would be involved in jurisdictional disputes with other
trades.
DeFoor's Referral
DeFoor was dispatched by Respondent to work for
Alaska General at Camp Lonely, Alaska, which is situated
in an area known as Petroleum Reserve No. 4 (PET 4).
Alaska General has a contract with Husky Oil Company to
build and maintain camp facilities at PET 4 for Husky Oil,
which has a contract with the United States to explore for
oil at PET 4.
Camp Lonely, 550 miles from Fairbanks, is in a remote
part of Alaska's North Slope, isolated from any other com-
munity. It has no telephone service, but depends upon ra-
dio and a single radiophone. If a person wants to visit PET
4, it takes several days to arrange for the visit and several
more days to arrange for air transportation into the area.
In November 1976, DeFoor was dispatched by Respon-
dent to Camp Lonely, where he worked several months for
Alaska General as a carpenter and was Respondent's job
steward. He was designated steward because the job need-
ed, and DeFoor had the reputation of being, a good stew-
The collective-bargaining agreement permits an employer to request a
foreman b) name regardless of his place on the out-o[f-work list
ard.6 DeFoor, in fact, performed extraordinarily well as
steward. However, in the summer of 1977 work at PET 4
stopped temporarily because of the summer thaw. In the
fall of 1977 work resumed at PET 4, and on October 3.
1977, Alaska General made its initial request to Respon-
dent for carpenters. It requested four carpenters, including
DeFoor, whom it called for by name. DeFoor was not a
group I registrant: hence, he was not eligible to be dis-
patched. Despite the substantial number of employees
ahead of DeFoor on the out-of-work register and his ineli-
gibility to be called for by name, Respondent dispatched
him and designated him as its steward on this job. Respon-
dent dispatched DeFoor in disregard of the terma of the
governing collective-bargaining agreement's referral proce-
dure because DeFoor was a well qualified steward who had
previously done a good job as steward at PET 4 when the
job was last in operation.
B. Conclusionary Findings
I am persuaded that the instant case is governed by Ash-
lev. Hickham-Uhr Co., 210 NLRB 32 (1974). There the
Board held that a union's conduct in demanding that an
experienced steward be placed on a potentially trouble-
some jobsite did not violate Section 8(b)(1)(A) and (2) of
the Act. In dismissing the complaint, the Board found that
the union was motivated by a legitimate and valid concern,
despite its awareness that its conduct would cause the lay-
off of the charging party. The Board explained: "Not every
encouragement of union membership is unlawful ....
Thus, when the circumstances do not involve an objective
of furthering, requiring, or conditioning employment on
union membership as such, the illegality, if any, must be
found in those actions by a union that impinge upon the
employment relationship which are arbitrary, invidious, or
irrelevant to legitimate union interests." Ashley, Hickham-
Uhr Co.. supra at 33.
In the instant case, the stipulation of the parties and the
uncontradicted evidence presented by Respondent estab-
lishes that Respondent's referral of Coates and DeFoor
was, in effect, in furtherance of a legitimate and valid con-
cern for placing experienced stewards on potentially trou-
blesomejobsites. Coates was dispatched to pump station 8
because he had been an effective steward in the past when
employed on a similar job for the same employer with the
same job superintendent, and there was a substantial likeli-
hood that Respondent, due to the unusual circumstances
surrounding the job, would need the services of a steward
with Coates' past experience. DeFoor was dispatched to
PET 4 because he had previously performed competently
as steward on this job and, due to the job's remote location,
it was essential that the employees be represented by a
steward with DeFoor's experience, particularly in view of
the potential for jurisdictional disputes on this job.
Based upon the foregoing, I find that the record estab-
lishes that, in referring Coates and DeFoor, Respondent
acted here in furtherance of a valid statutory objective of
I'here are several different trades working at PT 4, thus creating the
potentl;ll for jurisdiction al disputes. Also. the general contractor. usky Oil.
whose emploNees are not represented by a labor union. employs employees
to perform the identical ork a those represented by Respondent
CARPENTERS LOCAL UNION 1243 1 12 1
providing effective collective-bargaining representation for
the benefit of all unit employees and that any discrimina-
tion created by the Respondent's conduct is simply an inci-
dental side effect of this more general benefit accorded to
all employees. 7 Since Respondent acted here in furtherance
of a valid objective for the benefit of all bargaining unit
employees I find that it did not violate Section 8(b)( I )(A)
and (2) of the Act by referring Coates and DeFoor as al-
leged in the consolidated complaint. 8 Accordingly. I shall
Whether Respondent's conduct as or a not in derogatilon f the
meaning and intent of the goserling collectcse-bargaining iarecrmenil 1 1il
controlling here. as here. there is nsufficient eidence thalt the Iclelil r ilce
and substantial justliicatlon advanced hb Respondent Ifor it cnd ruc u as
pretextual or was a mask for unlawful moti iatlon See .4shlehi. li /ii-hn l h
(.. 210 NLRB 32 33 (1974).
In reaching this conclusion. I have carefulls cornsidered the case' rhled
upon bh the General Counsel (li.*al Irl'on Y' ,I A.,oilau (i nl. N*
recommend that the consolidated complaint be dismissed
in its entirety.
Upon the foregoing findings of fact. conclusions of law.
and the entire record. and pursuant to Section 10(c) of the
Act. I hereby issue the following recommended:
ORDER 9
The consolidated complaint is dismissed in its entirety.
),l. i, . 212 I R B 61i ( 174): BltJid/i1g aulirell I[rl A Driclrc. ( haii
fi,'cri. lic i t/lpitr'. 1i,,cc , , , h ' , I iict'ttciioit rlc SBrcrherhc, ic/ i I c'cl. st er,
( lltchulci. If 1lrchcilo ,l , rd on Helpcri , 4 ntrtcru (f qr1[. In ). 229 Nl RB
147 11
9
77j. and )i,rlt'ia (oopcratccc I, . 219 NLRB 5h6 (1975). and find
thern tO he dstin guilhable friom Ihe instant situatioln n significant respectls.
Ili Ihe enl et rio exception, are filed as prolvided h\ Sec 102.46 ofr the
Rules alid Regulaio s rof the National l.ahor Relations Board. the findings.
conculsions and recoimmended Order herein shall. as prorvided in Sec.
10248 cXf the Rules and Regulations. he adopted b) the Board and hecome
iis findir . cOncluslions. and Order, and a1ll objections theret) shall he
deeiced va llscd for all pilrp, ses