Carpenters Local Union No. 701

National Labor Relations Board - Board Decisions

Oct 5, 1966

160 N.L.R.B. 1612 (N.L.R.B. 1966)

1612 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL , on request , bargain in good faith on bargainable issues , including
sick leave, in the event our employees designate the above -named Union or any
other labor organization , their bargaining representative.
RAYTHEON COMPANY,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced , or covered by any other material.
If employees have any question concerning this notice or compliance with its pro-
visions, they may communicate directly with the Board 's Regional Office, 450 Golden
Gate Avenue, Box 36047 , San Francisco , California 94102, Telephone 556-0335.
Carpenters Local Union No. 701, United Brotherhood of Car-
penters and Joiners of America, AFL-CIO (Haas & Haynie
Corporation ) and John D. Collins . Case °?O-CB-11131. Octo-
ber 5, 1966
DECISION AND ORDER
On July 1, 1966, Trial Examiner Stanley Gilbert issued his Deci-
sion in the above-entitled proceeding, finding that the Respondent
had engaged in and was engaging in certain unfair labor practices,
within the meaning of the National Labor Relations Act, as amended,
and recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's Deci-
sion. Thereafter, Respondent filed exceptions and a supporting brief,
and the General Counsel filed a brief in support of the Trial Exam-
iner's Decision.
Pursuant to the provisions of Section 3 (b) of the Act, the National
Labor Relations Board has delegated its powers in connection with
this case to a three-member panel [Chairman McCulloch and Mem-
bers Jenkins and Zagoria].
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the excep-
tions and briefs and the entire record in this case, and hereby adopts
the findings, conclusions, and recommendations of the Trial Examiner.
[The Board adopted the Trial Examiner's Recommended Order
with the following modifications :
[1. Reletter the present paragraphs 2(b) and 2(c) of the Trial
Examiner's Recommended Order to read 2(c) and 2(d), respectively,
and insert the following as paragraph 2(b)
["(b) Preserve and, upon request, make available to the Board or
its agents, for examination and copying, all records and reports and
all other documents necessary to analyze the amount of backpay due
under the terms of this Order."
160 NLRB No. 121.
CARPENTERS LOCAL UNION NO. 701 1613
[2. The address and telephone number for Region 20, appearing at
-the bottom of the notice attached to the Trial Examiner's Decision,
is amended to read : 13050 Federal Building, 450 Golden Gate Avenue,
Box 36047, San Francisco, California 94102, Telephone 556-0335.]
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Based on a charge filed by John D. Collins on September 2, 1965, the complaint
herein was issued on December 27, 1965. The complaint alleges that Carpenters
Local Union No. 701, United Brotherhood of Carpenters and Joiners of America,
.AFL-CIO, hereinafter referred to as Local 701 or Respondent, violated Section
8(b)(2) and (1) (A) of the Act. Respondent, by its answer, denies that it committed
the unfair labor practice alleged in said complaint and alleges the affirmative defense
that the Charging Party "failed to exhaust administrative remedies provided for in
-the applicable collective bargaining agreement with respect to any alleged violation
.of any Hiring Hall arrangements or procedure."
Pursuant to notice a hearing was held in Fresno, California, on March 29, 1966,
before Trial Examiner Stanley Gilbert. Briefs were received from the General Coun-
sel and Respondent within the time designated therefor.
Upon the entire record 1 in this case and upon observation of the witnesses as
-they testified, I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE EMPLOYER
Haas & Haynie Corporation, a California corporation, is engaged in the general
-contracting and construction business. During the year preceding the issuance of the
.complaint, it had, in the course and conduct of its business operations, a gross vol-
ume of business which exceeded $500,000 and purchased and received goods valued
in excess of $50,000 which were transported to its place of business in California
.directly from States of the United States other than the State of California. Also
within the same period, it performed, in the course and conduct of its business
operations, services valued in excess of $50,000 for other enterprises located outside
the State of California.
As is admitted by Respondent, Haas & Haynie Corporation is, and at all times mate-
rial herein has been, an employer engaged in commerce and in operations affecting
,commerce within the meaning of Section 2(6) and (7) of the Act.
H. THE LABOR ORGANIZATION INVOLVED
As is admitted by Respondent, it is a labor organization within the meaning of
.Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICE
There are no contradictions in the record, the dispute being not as to the facts
but, rather, as to the inferences to be drawn therefrom.2
'A joint motion of the parties to correct the transcript of testimony is hereby granted
and the transcript is hereby corrected by incorporating the following changes:
Page 5, line 20, after "General Counsel's" insert "1(a) through"; page 18, line 21,
delete "he" and "told me" and insert "I told him" ; page 23, line 7, delete "would call"
and insert "had called" ; page 23, line 8, after "needed" insert "and they were on their
way" ; page 25, line 5, delete "General Counsel" and insert "Board"; page 25, line 12,
after "allege" insert "such"; page 26, line 15, delete "All" and Insert "But" ; delete second
"is", page 26, line 16, delete "not necessarily" and insert "a discriminatory"; page 26,
line 17, delete "an" before "act" ; delete "resulting from" and Insert "which occurred in
the" ; page 38, line 21, delete "FIEC" and insert "AGC."
2 General Counsel called two witnesses, the Charging Party (Collins) and George E.
Schonherr, who corroborated certain of Collins' testimony. The only witness called by
Respondent was Collins from whom the Respondent elicited testimony relating to its
defenses.
1614 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The only unfair labor practice alleged in the complaint is that Respondent "caused
Haas & Haynie to discriminate against John D. Collins by refusing to dispatch him
to Haas & Haynie, because of his lack of membership in Respondent."
Since 1949, Collins, a carpenter by trade, has been a member of various locals of
the United Brotherhood of Carpenters and Joiners of America, AFL-CIO, of which
Respondent is a local. In 1949, he became a member of Respondent and remained
a member thereof until 1960. In 1960, he transferred his membership to Local 25 in
Los Angeles. In 1961, he transferred to the Hanford Local where he remained for
5 or 6 months. Before the end of 1961, he transferred back to Local 701, the
Respondent, where he remained a member until May 1963. At that time he trans-
ferred to the San lose local, Local 316. On September 21, 1965, Collins transferred
his membership to Local 701, the Respondent herein. The incidents relating to the
issues herein occurred during the period when Collins was still a member of Local
316.
In April 1965, Collins moved to Sanger, California, which is located about 13
miles from Fresno. At the beginning of May, Collins registered on the out-of-work
list at the hiring hall3 operated by Respondent in Fresno, and he registered each
week thereafter as required in order to retain his position on the out-of-work list.
On Friday, August 20, 1965, Collins learned from a superintendent of Haas & Haynie
that he was going to call Respondent the following Monday for referral of two car-
penters. By this time, Collins' name was near the top of the out-of-work list. In,
anticipation that he would be dispatched to the Haas & Haynie job, Collins, on Sun-
day, August 22, 1965, called Robert Segress, business agent of Respondent, to inquire
as to the advisability of bringing his tools with him the next day when reporting to^
the hiring hall. Following is Collins' testimony, which was uncontradicted and is
credited, as to Segress' reply:
So he told me at that time that he couldn't give me a referral.
Q. Why not?
A. Because I wasn't a member of that Local Union, and I couldn't override
his men.
The next morning, August 23, 1965, Collins went to the hiring hall where Segress
announced the available jobs and then proceeded to call the roll. George Schonherr,
whose name was called first, was standing at the door of Segress' office when Collins'
name was called and during the time Collins was in the office. Following is Collins'
testimony as to what happened after his name was called:
A. I went in the office.
Q. Then what happened?
A. 1 signed the registration, and asked him about the jobs, and he said that
he couldn't give me a job because I wasn 't a member of that local union, and
he would not let me override his boys.
It was stipulated by the parties that Collins had reached the position of number 3
on the out-of-work list, that he was eligible for dispatch on August 23 to the Haas &
Haynie job, and that Segress refused to dispatch him to said job.
Schonherr testified that he overheard Segress say to Collins that he could not
give him the job and that Segress stated as his reason therefor that he, Segress, "had
to take care of his men first." This testimony of Schonherr which corroborates that
of Collins was uncontradicted and is credited.
It is further found that Collins was not dispatched to a job by Respondent until
September 27, 1965, after his membership had been transferred to Respondent.
Respondent offers three defenses to the allegation that it engaged in an unfair labor
practice by refusing to dispatch Collins to the Haas & Haynie job on August 23,
1965. Its defenses are as follows:
1. That Collins was at least 4 months arrears in his dues to Local 316, the
San Jose local in which Collins had his membership card at the time;
2. That Collins had at least 8 days of employment in the Respondent's terri-
tory since July 16, 1962, and therefore, under the union security clause in the
above-mentioned collective-bargaining agreement, "was required to assume
membership in Respondent or be subject to discharge"; and
8 Provided for in the "42 Northern California Counties Carpenters Master Agreement
and Hiring Procedures between the Northern and Central California Chapter, The Asso-
ciated General Contractors of America, Inc., and Other Contractors Associations and.
United Brotlierhod of Carpenters and Joiners of America (AFL-CIO)" execut(il June 16,
1965. Haas & Haynie Corporation was a party to the agreement.
CARPENTERS LOCAL UNION NO. 701 1615•
3. That Collins had not exhausted the administrative remedy provided in the
grievance procedure set forth in the said collective-bargaining agreement.
The merits of these defenses are the only issues herein .4
Analysis and Conclusions
It is well established that it is a violation of Section 8(b) (2) and (1) (A) of the
Act for a union operating a hiring hall such as that operated by Respondent herein
to refuse to dispatch an applicant in order to give preference to its own members.
The first two defenses raised by Respondent constitute what Respondent contends
are lawful reasons for its refusal to dispatch Collins. However, it appears from the
record, and it is found, that both said reasons were afterthoughts and that neither
was the stated reason nor the actual reason for said refusal. It is clear from the
uncontradicted and credited testimony, and it is found, that the stated and actual
reason was in order for Respondent to give preference to its own members.
No mention was made to Collins at the time, nor at any time prior thereto, that
he was in arrears in his dues to Local 316, or that he was required to become a
member of Respondent Local. There is no showing that at the time Segress was
even aware of the fact that Collins was in arrears in his dues. Neither is there any
showing that, at the time of its refusal to refer Collins, Respondent was relying
on its interpretation of the union security provision in the collective-bargaining
agreement .5
Even in the course of the hearing Respondent's counsel did not appear to place
any reliance on said interpretation, for he stated that it would have been an unfair
labor practice for the Union to have refused to refer Collins on August 23 had his
dues in Local 316 been paid up to date.
In view of the above finding of the stated and actual reason for Respondent's
refusal to refer Collins, no purpose would be served in passing on the issues of
whether either of the reasons advanced herein by Respondent would have made its
refusal lawful, had either or both been the stated and actual reason.
It is concluded that Respondent refused to dispatch Collins to the Haas & Haynie
job in order to give preference to members of the Respondent and that such conduct
was violative of Section 8(b) (2) and (1) (A) of the Act.
The third defense raised by Respondent is that it would not effectuate the policy
of the Act for the Board to intervene in the circumstances of this case before Col-
lins has "exhausted his administrative remedy" (by processing a grievance under the
+There is no contention that the piovisions in the contract ielatiug to union security
and the hiring hall are unlawful, nor weie such issues litigated
s Respondent aigues from said interpretation of the union security provision that be-
cause Collins had worked more than 8 days in Respondent's territory since July 16, 1962,
he was required to be a member of Respondent and, therefore, no purpose would have
been served to dispatch him, since he would have been immediately subject to discharge
The union-security provision on which Respondent relies is contained in the contract
which was executed on July 16, 1965, and which purported to continue in effect the
union-security provision in the previous contract which had been executed on July 16,
1962. The pertinent portion of the provision is as follows
(1) Every person pertorining woik covered by this agreement who is a member of
the Union and in the employment of an individual employer on work covered by
this agreement on the effective date of this subsection IV (A) shall, as a condition of
employment or continued employment, remain a member in good standing of the
Union in the appropriate local union of the Union. Every other person covered by
this agreement and employed to perform work covered by this agreement shall be
required, as a condition of employment, to apply for and become a member of and
to maintain membership in good standing in the Union in the appropriate Local
Union of the Union which has territorial jurisdiction of the area in which such per-
son is performing work on or after the expiration of eight (8) days of employment
on such work following the beginning of such employment of the effective date of
this revised subsection IV (A) whichever is latei. Membership in any such Local
Union shall be available to any such person on the same terms and conditions gen-
erally applicable to other members. This revised subsection shall be effective upon
the date of signature of this agreement '(July 16, 1962) and shall be operative only
to the extent permitted by Section XIV of this agreement
The record discloses that, although Collins had never worked fot Haas & Haynie, he had,
subsequent to July 16, 1962, worked more than 8 days for other employers who were
parties to the aforementioned bargaining agreement and were in the territorial jurisdiction
of Respondent.
1616 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
grievance procedure provided in the aforesaid collective-bargaining agreement)
There is no merit in this contention and the cases cited by the Respondent in sup-
port thereof have no applicability to the circumstances of this case. The instant case
is not one which involves a dispute between an employer and a labor organization
as to an interpretation of their collective-bargaining agreement which provides for
arbitration of such a dispute. It is my judgment that, in the circumstances of this
.case, to require Collins to exhaust his "administrative remedy" would in no way
effectuate the policy of the Act, but on the contrary the disposition of his charge
herein and the complaint issued thereupon is deemed necessary in order to effectu-
ate the policy of the Act. See Local Union 469, Plumbers, 149 NLRB 39, 45-46.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICE UPON COMMERCE
The conduct of Respondent set forth in section III, above, occurring in connec-
tion with the operations of Haas & Haynie described in section I, above, has a close,
intimate, and substantial relation to trade, traffic, and commerce among the several
States and tends to lead to labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
It having been found that Respondent engaged in an unfair labor practice, it will
be recommended that it cease and desist therefrom and that it take certain affirma-
tive action which is deemed necessary to effectuate the purposes of the Act.
It having been found that Respondent discriminatorily restrained Collins from
being employed by Haas & Haynie on August 23, 1965, and it being further found
that Respondent did not refer Collins to a job until September 27, 1965, it will be
recommended that Respondent make him whole for any loss of pay suffered by him
as a result thereof by payment to him of a sum of money equal to the amount he
normally would have earned as wages during that period, together with interest at
the rate of 6 percent per annum, less his net earnings during said period.
Upon the basis of the above findings of fact and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
By failing and refusing to refer John D . Collins for employment in order to give
preference to its own members thereby causing and attempting to cause Haas &
Haynie Corporation to discriminate against Collins in violation of Section 8(a)(3)
of the Act, Respondent engaged in an unfair labor practice within the meaning of
Section 8 (b)(2) and (1) (A) of the Act.
RECOMMENDED ORDER
Upon the basis of the above findings of fact, conclusions of law, and the entire
record in the case and pursuant to Section 10(c) of the National Labor Relations
Act, as amended, it is ordered that Respondent, its officers, agents, successors, and
assigns, shall:
1. Cease and desist from:
(a) Refusing to grant to John D. Collins, or to any other person, a job referral
to which they are entitled under the Act.
(b) In any like or related manner, causing or attempting to cause Haas & Haynie
Corporation, or any other employer, to discriminate against employees or prospec-
tive employees, including John D. Collins, in violation of Section 8(a)(3) of the
Act.
2. Take the following affirmative action necessary to effectuate the policies of the
Act:
(a) Make John D. Collins whole for any loss of earnings during the period from
August 23 to September 27, 1965, as provided in the section of this Decision en-
titled "The Remedy."
(b) Post in its offices and hiring hall in Fresno, California, copies of the attached
notice marked "Appendix." 6 Copies of said notice to be furnished by the Regional
6In the event that this Recommended Order is adopted by the Board, the words "a
Decision and Order" shall be substituted for the words "the Recommended Order of a
Trial Examiner" in the notice. In the further event that the Board's Order is enforced
by a decree of a United States 'Court of Appeals, the words "a Decree of the United States
Court of Appeals Enforcing an Order" shall be substituted for the words "a Decision
and Order."
PLAYBOY OF MIAMI, INC. 1617
Director - for Region 20, after having been duly signed by a representative of
Respondent , shall be posted immediately upon receipt thereof, and be maintained by
it for 60 consecutive days thereafter , in conspicuous places, including all places
where it customarily posts notices to its members and other persons using the hiring
hall and referral services of Local No . 701. Reasonable steps shall be taken by
Respondent to insure that such notices are not altered , defaced, or covered by any
other material.
(c) Notify the Regional Director for Region 20,,in writing , within 20 days from
the date of receipt of this Decision , what steps Respondent has taken to comply
herewith?
7In the event that this Recommended Order is adopted by the Board , this provision
shall be modified to read : "Notify the said Regional Director , in writing, within 10 days
from the date of this Order, what steps the Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL MEMBERS OF CARPENTERS LOCAL No. 701, UNITED BROTHERHOOD
OF CARPENTERS AND JOINERS OF AMERICA, AFL-CIO, AND PERSONS USING ITS
HIRING HALL
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify you that:
WE WILL NOT refuse to grant to John D. Collins, or any other person, a job
referral to which they are entitled under the Act.
WE WILL NOT in any like or related manner cause or attempt to cause Haas &
Haynie Corporation , or any other employer, to discriminate against employees
or prospective employees , including John D . Collins, in violation of Section
8(a)(3) of the Act.
WE WILL make John D. Collins whole for any loss of pay he may have suf-
fered as a result of our discrimination against him in refusing to grant him a
job referral to which he was entitled under the Act.
CARPENTERS LOCAL UNION No. 701 UNITED BROTHERHOOD
OF CARPENTERS AND JOINERS OF AMERICA, AFL-CIO,
Labor Organization.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced , or covered by any other material.
If members have any question concerning this notice or compliance with its pro-
visions, they may communicate directly with the Board's Regional Office, 500 Union
Street, 327 Logan Building, Seattle, Washington 98101 , Telephone 583-4583.
Playboy of Miami, Inc. and Amalgamated Clothing Workers of
America, AFL-CIO, Local No. 694. Case 1f-CA-3313. Octo-
ber 6, 1966
DECISION AND ORDER
On May 18, 1966, Trial Examiner Arthur Christopher, Jr:, issued
his Decision in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices, and recommending -that it cease and desist therefrom and
take certain affirmative action, as set forth in the attached Trial
Examiner's Decision. He also found that the Respondent- had- not
160 NLRB No. 128.
25 7-551-67-vol 160-103