Construction & General Laborers'

National Labor Relations Board - Board Decisions

Feb 26, 1975

216 N.L.R.B. 778 (N.L.R.B. 1975)

778 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Construction and General Laborers' Local Union No.
596 of the Laborers International Union of North
America (Leo J. Hood Mason Contractors, Inc.)
and Dmitry Hercenberg . Case 1-CB-2533
February 26, 1975
DECISION AND ORDER
BY MEMBERS JENKINS , KENNEDY, AND
PENELLO
On October 31, 1974, Administrative Law Judge
Herbert Silberman issued the attached Decision in
this proceeding. Thereafter, the General Counsel
filed exceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge, except
as modified herein, and to adopt his recommended
Order.
The complaint alleged that Respondent Union
violated Section 8(b)(1)(A) and (2) by causing the
discharge of Charging Party Hercenberg from a job
which Hercenberg had obtained outside the normal
hiring hall procedure, because of Respondent Un-
ion's purported permission to gain employment on
his own without utilizing the exclusive union referral
procedure. Respondent Union and Hood, the
construction company involved in this case, are
parties to a collective-bargaining agreement which
contains an exclusive hiring hall provision which
requires the Employer to inform the union office of
all work openings so that the Union can have the
first opportunity to refer applicants for such employ-
ment openings. Hercenberg had been looking for
work unsuccessfully. In the middle of February 1974
Hercenberg called the union office and spoke with
Karowski, the union's secretary-treasurer, about
obtaining work. The answer which Karowski gave to
Hercenberg's inquiry is at the heart of this case.
Hercenberg's testimony concerning that conversa-
tion, which was credited by the Administrative Law
Judge, was as follows:
A: Well, in substance, I called up the Union
hall and I asked Pete, how was the labor situation.
He says, not good at all. We talked about the
Montague Project, because that is a nuclear
project that is going up up the valley. And he
I Hoisting and Portable Engineers, Local 302 (West Coast Steel Works),
144 NLRB 1449 ( 1963).
says, maybe something will be breaking up there
before very long. I says, well, Pete, I have laid
around. I says I was sick all last winter. I says I
am going out, I am going out to find a job on my
own. I says, will you go along with me as far as
getting my book back and being reinstated in the
union is concerned if I find employment. He says
yes. As a matter of fact he then wished me luck.
It is not at all clear from this testimony that
Karowski and Hercenberg were talking about Her-
cenberg's finding employment on a union job. In
fact, it seems more probable that they were talking
about nonunion jobs. Otherwise , it is difficult to see
the point in Hercenberg's requesting Karowski's help
in getting his union book back and his being
reinstated in the Union if Hercenberg found "a job
on my own." Hercenberg wanted to make sure that
he could regain his good standing with the Union if
he worked on a nonunion project.
However, Hercenberg did not find a job with a
nonunion contractor. Instead, Hercenberg found a
job with Hood, a contractor who had an exclusive
hiring hall agreement with the Respondent Union.
Thereafter, Respondent asked Hood to discharge
Hercenberg. We agree with the Administrative Law
Judge's ultimate conclusion that Respondent was
merely enforcing its exclusive hiring hall provision by
requesting the discharge of Hercenberg, who had
obtained the job with Hood and was working in
contravention of that contractual provision. How-
ever, we do not adopt the Administrative Law
Judge's analysis and conclusion that Respondent
gave Hercenberg permission to find a job with a
union contractor, thereby circumventing the collec-
tive-bargaining contract. As set forth above, Hercen-
berg's credited testimony clearly indicated that the
two men were talking about Hercenberg's working
on a nonunion job and Hercenberg's request for help
in being reinstated in the Union in good standing
after he did so.
Since we have found that the Union did not give
Hercenberg permission to bypass its hiring hall
system and to obtain work on a project covered by
the contract, we need not pass on General Counsel's
contention that, by giving Hercenberg permission to
do so, the Union waived the provisions of the
contract and was therefore estopped from denying
the waiver because of Hercenberg's reliance on it to
his detriment.
For the reasons set forth above, we find that the
Respondent Union was seeking to enforce the hiring
hall provisions of its contract with Hood, and,
accordingly, we shall dismiss the complaint.'
216 NLRB No. 142
CONSTRUCTION & GENERAL LABORERS' 779
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the complaint
herein be, and it hereby is, dismissed in its entirety.
DECISION
STATEMENT OF THE CASE
HERBERT SILBERMAN , Administrative Law Judge: Upon
a charge filed by Dmitry Hercenberg, on March 20, 1974, a
complaint was issued on May 3, 1974, alleging that
Construction and General Laborers Local Union No. 596
of the Laborers International Union of North America,
herein called the Union , has engaged in and is engaging in
unfair labor practices within the meaning of Section
8(b)(1)(A) and (2) of the National Labor Relations Act, as
amended . Respondent filed an answer denying generally
that it had engaged in the alleged unfair labor practices. A
hearing in this proceeding was held on September 4 and 5,
1974, in Northampton, Massachusetts. Pursuant to permis-
sion granted the parties at the hearing, briefs were filed on
behalf of General Counsel and Respondent.
Upon the entire record in the case and from my
observation of the witnesses and their demeanor; I make
the following:
FINDINGS OF FACT
I. JURISDICTION
The complaint alleges and the Respondent admits that
the Union is a labor organization within the meaning of
Section 2(5) of the Act. The events which give rise to this
proceeding concern, among other things, transactions
between the Union and Leo J. Hood Mason Contractors,
Inc., herein called the Company, which is a Massachusetts
corporation engaged in masonry construction at various
locations throughout the Commonwealth. The Company
maintains its principal office and place of business in
Springfield, Massachusetts. In the conduct of its business,
the Company performs services exceeding $50,000 in value
annually for building contractors each of whom purchases
materials in excess of $50,000 annually directly from
sources outside the Commonwealth of Massachusetts and
is engaged in commerce . The complaint alleges , the answer
admits, and I find that the Company is an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
During the times material hereto the Union and the
Company have been parties to a collective-bargaining
agreement which in article II, section 6, contains the
following exclusive hiring hall provisions:
(a) The Employer recognizes that the Local Union
having jurisdiction over the area is the established and
prime source of skilled and dependable labor, neces-
sary and required to perform the kind of work covered
within the laborers' jurisdiction and that the Local
Union is ready, willing and able to furnish workmen to
perform the work covered by this Agreement.
(b) The Employer reserves and shall have the right to
rehire any employee who has been an employee of the
company; provided said employee has worked for the
Employer during the period of four (4) months
preceding the date of hiring. The Employer shall
furnish the Union, upon request, the name and address
of said employee.
(c) When the Employer has exhausted the rehiring of
former employees as stated in Section 6(b) above, then
the Employer must inform the Union office of all work
opportunities and openings . The Union shall be given
the first opportunity to refer applicants for such
employment openings.
(d) The Employer reserves and shall have the right to
accept or reject any applicants referred by the Local
Union. The Employer reserves and shall have the right
to transfer laborers to any job site in the jurisdiction
area of the Local Unions.
(e) The Employer, in requesting referrals, shall
specify to the Local Union, (a) the number of
employees required, (b) the location of the project, (c)
the nature and type of construction involved, (d) the
work to be performed and (e) such other information as
is deemed essential by the Employer in order to enable
the Union to make proper referral of applicants.
(f) Selection of applicants for referral to jobs shall be
on a nondiscriminatory basis and shall in no way be
affected by union membership, by-laws, rules , regula-
tions , constitutional provisions or any other aspects or
obligation of union membership policies or require-
ments.
(g) In the event that the Union is unable to fill the
requisition of the above Employer for employees within
a twenty-four (24) hour period, excluding Saturdays,
Sundays and Holidays, after such requisition is made
by the Employer, the Employer may employ applicants
directly at the job site.
(h) When an Employer requests a certain number of
laborers through the Union office and these laborers
appear on the job shift or work, at the time requested,
ready for work and with a card from the Union office
showing that they came to fill the request, then they
must be put to work or paid not less than four (4)
hours' time , unless prevented from working on account
of bad weather or conditions which could not have
been reasonably anticipated by the Employer.
In charge of the administration of the hiring hall on
behalf of, the Union is its business manager, Stanley
Czaporowski, who is assisted by the Union's secretary-
treasurer , Peter Karowski.
The instant controversy developed from the circum-
stance that in mid-February 1974 Dmitry Hercenberg
telephoned the Union's offices and spoke with Peter
Karowski about obtaining work. Karowski informed
Hercenberg that the labor situation then was bad. After
further conversation Hercenberg said, "I am going to find
780 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a job on my own . . . [W ] ill you go along with me as far as
getting my book [union membership book] back and being
reinstated in the union is concerned if I find employment."
Karowski answered affirmatively and wished Hercenberg
luck.'
B. The Pleadings
The issues framed by the complaint are narrow. The
Union is alleged to have restrained and coerced Hercen-
berg in violation of Section 8(b)(1)(A) by:
(a) In or about the month of February 1974,
Respondent by its agent Peter Karowski granted
Hercenberg permission to gain employment on his own
without utilizing the union referral procedure.
(b) On or about March 13, 1974, Respondent by its
agents Stanley Czaporowski and Peter Karowski
attempted to cause , and caused , Hood to discharge
Hercenberg from the Hampshire College site in
Amherst, Massachusetts because of withdrawal of
consent of Respondent to Hercenberg's continued
employment.
The complaint then alleges a violation of Section 8(b)(2)
based upon the foregoing and the further circumstance
that: "On or about March 13, 1974, Respondent by its
agents Stanley Czaporowski and Peter Karowski attempted
to cause, and caused, Hood [the Company ] to discharge
Hercenberg from the Hampshire College site in Amherst,
Massachusetts."
It is noted that not in issue in this proceeding is whether
the quoted hiring hall provisions or their administration
are in any manner improper or unlawful. Therefore, it is
unnecessary to analyze the testimony adduced by General
Counsel purporting to establish that the Union's represent-
atives from time to time countenanced deviations from the
referral provisions of the collective -bargaining agreement
or that there may have been some disparity between the
Union's treatment of Hercenberg and of other employees
who were hired in contravention of the referral provisions
of the agreement.2
I I do not credit Karowski 's testimony that in their conversation he
specifically informed Hercenberg that permission to obtain employment
without a referral from the hiring hall was limited to employment with
employers who do not have a collective-bargaining agreement with the
Union.
In the administration of the hiring hall, the policy has been to give
preference in referrals for jobs to persons who are present in the hiring hall
when the Union receives a request for laborers from a contractor.
Hercenberg testified that in their telephone conversation Karowski advised
him to report to the union hall, as do other applicants for employment, if he
wished to be referred to a job. The relevant testimony is as follows:
Q. During that conversation, did Mr. Karowski tell you that you
would have to come to the union hall and take your chances with the
referral cards?
A. He did say that to me
JUDGE SILBERMAN : He said that , you say?
THE WITNESS : Yes, that I would have to take my chances.
7 Thus , contrary to General Counsel , the question of whether Respond-
ent "failed to adequately inform Hercenberg and other job applicants of the
necessary steps to be taken to acquire and hold a job" is not an issue in this
case . Also, not an issue is whether "Respondent misinformed Hercenberg
C. The Discharge of Hercenberg
On March 7, 1974, Hercenberg and another individual,
Frank Robert Costigan, were hired as mason tenders by
the Company's mason foreman, John Hunter, to work at
the Hampshire College project in Amherst, Massachusetts.
Hunter put Hercenberg and Costigan to work without
complying with the provision of the collective-bargaining
agreement which requires "the Employer [to] inform the
Union office of all work opportunities and openings [so
that the] Union shall be given the first opportunity to refer
applicants for such employment openings." Also, neither
Hercenberg nor Costigan was referred to the job by the
Union and neither one informed the Union that they had
secured employment with the Company.
The following week, on March 13, Union Representa-
tives Czaporowski and Karowski visited the Hampshire
College site and observed Hercenberg and Costigan at
work. Hunter was informed by Czaporowski that he was in
violation of the contract and had to get rid of the two men.
Hunter protested that he was pleased with their work and
wanted to retain them and further that it had not been his
practice to hire through the hall. The union representatives
threatened to place a picket line at the jobsite if
Hercenberg and Costigan continued to work there.3
At noontime, because it was so cold that Costigan and
Hercenberg could not continue their work, Hunter told
them to leave and suggested that they go to the union hall
and try to straighten out the problem concerning their
employment at the project. Costigan and Hercenberg
visited the union hall that afternoon but were unable to
persuade Czaporowski and Karowski to let them work at
the Hampshire College Project. The next day they were
informed by Leo Hood, the principal official of the
Company, that they were terminated.4
D. Conclusions
It is well settled that nondiscriminatory hiring hall
provisions are permissible, Local 357, International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and Helpers
of America (Los Angeles-Seattle Motor Express] v.
N.L.R.B., 365 U.S. 667 (1961), and it is not unlawful for a
union to enforce them. The Company violated its contrac-
and others ." Such questions were not pleaded and were not fully litigated at
the hearing . Accordingly, the thesis of International Union of Electrical,
Radio and Machine Workers, AFL-CIO, Frigidaire Local 801 [General
Motors Corporation, Frigidaire Division ] v. N.L.R.B, 307 F.2d 679, 683
(C.A.D.C ., 1962), cert . denied 371 U.S. 936 ( 1962), as explicated in General
Counsel's brief, that fair dealing which is demanded of unions in their
relationships with employees requires that the union inform the employee
what he must do to protect his job rights under an existing union -security
arrangement, if sought to be extended to this case , would be outside the
scope of the pleadings and beyond any of the issues which Respondent
reasonably should have been prepared to defend against at the trial.
3 With reference to his meeting with the union representatives on March
13 Hunter testified , "They were talking about their practice . In other words,
they made me aware of what their contract read They said that I could not
hire anybody unless they come up with a referral card . And I said I am not
aware of this business , because I have never done it."
4 Hood testified that before he terminated Hercenberg and Costigan he
called the union hall and was told that he "was supposed to hire through the
hall." Hunter testified that Hood then informed him that the contract
required the Company to hire men through the union hall and that is why
the Company had to terminate Costigan and Hercenberg.
CONSTRUCTION & GENERAL LABORERS' 781
tual obligations by hiring Hercenberg and Costigan
directly and General Counsel seemingly admits that,
absent countervailing circumstances , the Union lawfully
could insist upon their termination. Thus, the complaint
does not allege that Costigan , who was hired and
discharged at the same time and under the same circum-
stances as Hercenberg , was the victim of any unlawful
conduct on the part of the Union.
The purported countervailing circumstance here is that
in mid-February Karowski informed Hercenberg that there
would be no objection if he were to seek employment
independently, and such permission (for the purposes of
this discussion I assume that Karowski had apparent, if not
actual , authority to give such permission ) was withdrawn
after Hercenberg found employment. General Counsel in
her brief 'acknowledges that Respondent could withdraw
the permission given to Hercenberg to find his own job,
but argues that "the withdrawal of permission had to come
before Hercenberg had acted to his detriment ... .
However, General Counsel does not explain with respect to
the alleged violation of Section 8(bx1XA) in this case why
there should be any difference whether permission was
withdrawn before or after Hercenberg found a job. I
perceive no difference.5
The nature of the commitment purportedly made by
Karowski in February was that if Hercenberg should find
an employer who was willing to hire him under circum-
stances that would constitute a breach of the applicable
collective-bargaining agreement , Respondent would en-
dorse, or at least condone, such employment. Thus,
Hercenberg, as well as Karowski, was party to an
understanding directed towards inducing a breach of
contract between an employer and the Union for the
benefit of Hercenberg and to the disadvantage of other
persons seeking employment under the referral provisions
of the collective -bargaining agreement . It is anomalous
that General Counsel argues that the repudiation by
S Hercenberg 's opportunity to obtain employment through the Union's
hiring hall with the Company or with any other employer was not affected
by his layoff on March 14. If the Union thereafter had discriminated against
Hercenberg by refusing to refer him to a job when he was entitled to a
referral in accordance with the procedural operations of the hiring hall, the
Union then would have violated the Act. No such violation is alleged in this
case.
6 It must be again emphasized that there is no issue in this case that the
Union 's administration of the hiring hall has been improper or unlawful.
r In Local 357, supra, the Court pointed out at 674: "There being no
express ban of hiring halls in any provisions of the Act, those who add one,
whether it be the Board or the courts , engage in a legislative act. The Act
deals with discrimination either by the employers or unions that encourages
or discourages union membership ." And further at 675: "When an
employer and the union enforce the agreement against union members, we
cannot say without more that either indulges in the kind of discrimination to
which the Act is addressed ." Lastly, at 677, that with respect to hiring halls
the Board's "power ... is restricted to the elimination of discrimination."
Respondent of such an illicit arrangement is a violation of
the Act. While Karowski's conduct should not be con-
doned, neither is the Charging Party, whose complaint is
that he has been denied more favorable treatment than
other applicants for employment, in court with clean
hands .6
I have read General Counsel's brief carefully and I am
not persuaded by her arguments. It was neither alleged nor
proved that the demand for Hercenberg's discharge was
because he was not a paid-up member of the Union or
because of any other illegal consideration.? As enforce-
ment of a hiring hall provision is a "union action .. .
necessary to the effective performance of its function of
representing its constituency," 8 the Respondent, by caus-
ing the dismissal of Hercenberg because he was hired by
the Company in contravention of the terms of their
contract, did not thereby violate Section 8(b)(1)(A) s
Further, as the termination of Hercenberg in these
circumstances does not constitute discrimination within
the meaning of Section 8(a)(3), the conduct on the part of
the Union in causing such termination is not a violation of
Section 8(bx2).10
Upon the basis of the foregoing findings of fact and
upon the entire record in the case, I make the following:
CONCLUSION OF LAW
The Union has not engaged in the unfair labor practices
alleged in the complaint.
Upon the basis of the foregoing findings of fact,
conclusion of law, and the entire record in this proceeding,
and pursuant to Section 10(c) of the Act, I hereby issue the
following recommended:
ORDER 11
The complaint is dismissed in its entirety.
Thus, in administering an exclusive hiring hall , a union does not violate
Section 8(b)(2) and (1)(A) of the Act unless it punishes or retaliates against
an employee for engaging in an activity protected by Section 7 of the Act
8 International Union of Operating Engineers, Local 18, AFL-CIO
[William F. Murphy], 204 NLRB 681 (1973), remanded 496 F.2d 1308 (C.A.
6, 1974).
9 Marquette Cement Manufacturing Company, 213 NLRB No. 33 (1974).
10 Master Stevedores Association of Texas, Houston Maritime Association,
Inc. and their Employer-Members, 156 NLRB 78 (1966), cited by General
Counsel , is inapposite because there the applicant was discnrmnated against
because of nonmembership in the Union.
ii In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusion, and recommended Order herein shall, as provided in Sec. 102.48
of the Rules and Regulations, be adopted by the Board and become its
findings, conclusion, and order , and all objections thereto shall be deemed
waived for all purposes.