Hospital Building & Equipment Co.

National Labor Relations Board - Board Decisions

Sep 18, 1985

272 N.L.R.B. 112 (N.L.R.B. 1985)

112 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Hospital Building & Equipment Company and David
M. Ruff Case 7—CA-22278
18 September 1985
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN AND HUNTER
On 11 April 1984 Administrative Law Judge
Phil W Saunders issued the attached decision The
Respondent filed exceptions and a supporting brief,
and the General Counsel filed an answering brief
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, 1 and
conclusions 2 and to adopt the recommended
Order
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Hospital
Building & Equipment Company, St Louis, Mis-
souri, its officers, agents, successors, and assigns,
shall take the action set forth in the Order
The Respondent has excepted to some of the judge s credibility find
ings The Board s established policy is not to overrule an administrative
law judge s credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are Incorrect Standard Dry
Wall Products, 91 NLRB 544 (1950) enfd 188 F 2d 362 (3d Cir 1951)
We have carefully examined the record and find no basis for reversing
the findings
2 The judge ciling Gulton Electro Voice Inc , 266 NLRB 406 (1983),
stated that supersernoray accorded to union officials who are not in
volved in policy making functions was unlawful While his reliance on
Gulton is correct a more accurate reading of the holding in Gulton is that
no supersemority benefits may be extendig to union officials who are not
involved in grievance processing or other on the job contract adnunistra
lion or steward like duties See also Harvey Hubble Inc , 268 NLRB 620
(1984)
DECISION
STATEMENT OF THE CASE
PHIL W SAUNDERS, Administrative Law Judge Based
on a charge and amended charge filed on June 21 and on
August 2, 1983, by David M Ruff, the Charging Party
or Ruff, a complaint was issued on August 5, 1983,
against Hospital Building & Equipment Company (the
Company or Respondent) alleging a violation of Section
8(a)(1) and (3) of the Act Respondent filed an answer to
the complaint denying it had engaged in the alleged
matter and, subsequent to the hearing, both the General
Counsel and Respondent filed briefs in this matter
On the entire record in the case, and from my observa-
tion of the witnesses and their demeanor, I make the fol-
lowing
FINDINGS OF FACT
I THE BUSINESS OF RESPONDENT
Respondent is a corporation organized under the laws
of Delaware, and at all times material has maintained its
principal office and place of business in St Lows, Mis-
souri, and also has various jobsites in the State of Michi-
gan where it is engaged as a general contractor in the
building industry constructing and renovating hospitals
and medical facilities, and providing other related serv-
ices Respondent's jobsite, located at Port Huron, Michi-
gan, is the only facility involved in this proceeding
During the 12-month period ending June 30, 1983, Re-
spondent, in the course and conduct of its business oper-
ations, performed services valued in excess of $50,000,
for Saratoga General Hospital and Port Huron General
Hospital, both of which have gross annual revenues in
excess of $250,000 and are directly engaged in com-
merce In the course of performing construction services
for these two hospitals, Respondent purchased and
caused goods and materials valued in excess of $50,000
to be shipped to both of the Michigan hospital jobsites
directly from points located outside the State of Michi-
gan
Respondent is now, and has been at all times material,
an employer engaged in commerce within the meaning
of Section 2(2), (6), and (7) of the Act
II THE LABOR ORGANIZATION INVOLVED
It is alleged in the complaint that Local 463, Laborers
International Union of North America, AFL-CIO (the
Union or Local 463) is, and has been at all times materi-
al, a labor organization within the meaning of Section
2(5) of the Act Respondent has insufficient knowledge
to either admit or deny this allegation
The record in this case shows that the Union's mem-
bership is comprised of employees who elect the officers
in charge of running the Union's affairs The Union also
engages in collective bargaining with employees, includ-
ing employees of Respondent Further, the Union pro-
cesses grievances on behalf of the employees it repre-
sents
I find the Union is a labor organization within the
meaning of Section 2(5) of the Act
III THE UNFAIR LABOR PRACTICES
It is alleged in the complaint that, at all times material,
James E McGraw is a supervisor of Respondent within
the meaning of Section 2(11) of the Act and its agent,
that Frank Burns is an agent of the Union within the
meaning of Section 2(13) of the Act, that about March
23, 1983, Respondent, by its agent James E McGraw, in-
formed the Charging Party that he was to begin working
for Respondent on the following day as a laborer, that
about March 23, 1983, the Union, by its agent Frank
Burns, requested that Respondent not hire the Charging
Party, and that Respondent hired instead another em-
272 NLRB No 24
HOSPITAL BUILDING CO

113
ployee in place of the Charging Party, that the Union en-
gaged in the conduct described above because the
Charging Party was not an official of the Union and the
Union wanted the preferential treatment given to offi-
cials of the Union, and that about March 23, 1983, Re-
spondent, by its agent James E McGraw, notified the
Charging Party that he was not to report to work be-
cause of the Union's request It is alleged that by the acts
described above Respondent did discriminate in regard
to the hire or tenure or terms or conditions of employ-
ment of its employees, thereby encouraging membership
in a labor organization, and thereby did engage in, and is
engaging in, unfair labor practices affecting commerce
within the meaning of Section 8(a)(1) and (3) and Section
2(6) and (7) of the Act
Respondent is a general contractor specializing in con-
struction of hospitals, and has a fixed-price contract to
design and build additions to the Port Huron Hospital,
the facility here in question This construction project
started in February 1983 and is scheduled for completion
sometime in 1985 i
A collective-bargaining agreement between the Union
and Respondent was not executed until about April 29,
1983, and it contained a referral clause Prior to the exe-
cution of the agreement, Respondent paid its laborers on
this project prevailing wages and was engaging in discus-
sions with the Union as to contract proposals In fact,
during the interim, Respondent substantially adhered to
the Union contract with Port Huron Construction Con-
tractors Association insofar as its laborer employees'
wages, hours, and other working conditions were con-
cerned, and Frank Burns, business manager for the
Union, serviced such agreements on behalf of the laborer
employees 2
Commencing about February 19, 1983, Respondent ac-
cepted applications for jobs at the Hospital site, and be-
tween early 1983 and March 22, 1983, the Charging
Party spoke several times about the possibility of em-
ployment with Respondent's carpentry foreman James
McGraw, and during such visits the the Charging Party
and McGraw conversed about cement pouring tech-
niques and both agreed on the proper procedures for
each type of job except the pouring of columns 3
1 Specifically, Respondent contracted to construct all vertical supports
including walls, shafts, and staircases of an addition to the Hospital's
structure, and the nature of the work to be performed by Respondent
was carpentry and cement pouring
2 It should be noted that the carpenters on this project were covered
by a separate collective bargaining agreement not at Issue herein, and this
contract covered employees such as James McGraw The collective-bar
gaining agreement for laborers, ultimately signed by Respondent and the
Union on April 29, 1983, provided that the first laborer referred to the
project shall be the steward and shall be chosen by the Union Such em
ployee has the only seniority (R Exh 2, at 18) of any laborer on this
project In the case at hand, Joseph Mondok a nonunion official, was the
first laborer at Port Huron Hospital and began work the week ending
March 1, 1983 The second laborer was R Davis who had worked for
Respondent for several years on other projects
3 Between the commencement of its operations at the Hospital site and
March 22, 1983, Respondent hired Robert Ruff, carpenter, Michael
White, carpenter, Clyde Winters cement finisher Joe Mondok, laborer
steward, and R Davis, laborer foreman Mondok and Davis were re
ferred to Respondent through the Union s referral procedure
On March 23, 1983, the Charging Party, David Ruff,
went to the Hospital jobsite to apply for work with a
contractor other than Respondent (Ceco Corporation),
but was told that this contractor would not need another
employee at this time, but while Ruff was at the jobsite,
Respondent's carpentry foreman McGraw approached
him and asked if he had been hired The Charging Party
responded that he had not, and McGraw then asked Ruff
if he would like to start working for Respondent the fol-
lowing day, and Ruff replied that he would McGraw
then introduced the Charging Party to Respondent's la-
borer foreman and instructed the foreman to take the
Charging Party into Respondent's office and have him
fill out income tax withholding forms, and Ruff went
into the office and completed the necessary paperwork 4
Later that day, Business Manager Frank Burns came
to the Hospital site and engaged McGraw in a conversa-
tion Burns asked McGraw if he had hired the Charging
Party McGraw responded that he had and had also told
Ruff to begin working the following day Burns then in-
formed McGraw that he already had selected someone
else for the job by the name of Butch Gill McGraw
again stated that he had already hired the Charging
Party and that Ruff had filled out his paperwork Burns
then told McGraw to tear up the paperwork and that he
could hire someone else Burns and McGraw then went
into Respondent's trailer, but a few minutes later they
came back out and McGraw then told Ruff he was sorry
he could not hire him
The following day, Marvin ("Butch") Gill, the Union's
sergeant-at-arms, was sent to the jobsite by the Union
and was hired by Respondent It also appears that the
Charging Party thereafter applied for work with Re-
spondent, but has not been offered employment with Re-
spondent since March 23, 1983, but Gill worked several
weeks thereafter for Respondent
The allegation that Frank Burns s an agent of the
Union is in dispute This record shows that Frank Burns
has served as the Union's business manager, an elected
position, intermittently for about 13 years His responsi-
bilities, as set forth in the Uniform Local Union Constitu-
tion of the Laborers Inteoational Union of North Amer-
ica (G C Exh 2), and as described in the record, are
those traditionally assigned to union business agents
Thus, he is responsible for servicing the Union's collec-
tive-bargaining agreements with employers including Re-
spondent, he processes grievances, he visits jobsites to
meet with stewards and to resolve problems such as
those between members and their supervisors and juris-
dictional disputes, and he meets with employer r,present-
atives concerning interpretation of contractual provi-
4 Counsel for Respondent points out that it is common practice of the
carpentry foreman to solicit Interest of workers on behalf of management,
and McGraw, having never worked in the Port Huron area or under the
union rules, was not attempting to hire in countervention of the laborer
agreement between the Union and the Contractors Association of Port
Huron since Respondent was not a member as of this date, but by mad
vertence or happenstance, and in a rush to get the Port Huron Hospital
project off the ground McGraw solicited Ruff's Interest for employment
which would have been for a period of a couple of days Respondent did
not actually sign its collective bargaining agreement with the Union until
April 29, 1983
114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sions, including referral procedures, and the requirement
of the respective projects Finally, pursuant to the
Union's constitution, Burns is chiefly responsible for the
operation of Local 463 and he is "the recognized repre-
sentative of the Local Union" (G C Exh 2 at 15) I find
that Burns is an agent of the Union
The allegation that James McGraw was a supervisor
and/or agent of Respondent within the meaning of Sec-
tion 2(11) of the Act during the material period herein is
also in dispute
Respondent submits that the position and duties of
James McGraw, as carpenter foreman, were not suffi-
cient to satisfy the statutory test of a supervisor—that
Eddie Kirby, as superintendent on the job, was the only
one who had authority to hire and fire employees Fur-
thermore, argues Respondent, McGraw was an hourly
paid union carpenter working under a separate collec-
tive-bargaining agreement for carpenters from that of the
Laborers Union, and McGraw had only leadman duties
in directing the laborers under him in that these were
carpenter and laborers helpers Respondent also points
out that the number of Respondent employees on the
jobsite on March 23, 1983, included the following (1)
project superintendent, (2) mechanical superintendent, (3)
project engineer, (4) secretary, (5) carpenter leadman
McGraw, (6) laborer Mondok, (7) laborer Davis, and the
only true supervisor at the jobsite was Eddie Kirby He,
alone, could hire or fire or lay off and, as supported by
the testimony of McGraw and Kirby, Respondent also
notes that prior to Kirby becoming a full-time superin-
tendent at the Port Huron jobsite, an assistant superin-
tendent, John Parr, was present Under the law, it is
clear that employees who exercise control over less ca-
pable employees are not supervisors and that, while
McGraw may have exercised hiring and firing powers
on other projects for Respondent, he did not do so in his
position at the Port Huron Hospital—McGraw did not
act Independently in carrying out his duties
In making my findings as to McGraw, it is noted that
he was hired by Respondent in 1980 and has worked for
them, off and on, since that time As indicated, prior to
February 1983, McGraw worked at other Respondent's
jobsites, both as a foreman and as superintendent When
he worked as foreman on other jobsites, McGraw had
the authority to discipline and to hire, and McGraw was
not told, when he was transferred to the Hospital site,
that his job duties would change
At the Hospital site here in question, it is clear from
this record that McGraw had the authority to recall em-
ployees from layoff, to discipline employees, and to
assign overtime whenever it became necessary McGraw
was also responsible for discussing misunderstandings
with the Union, for designing and placing all form work
and prints, for directing employees as to what work
needed to be done and how to do it, and for maintaining
time records on other employees Moreover, it is clear
that McGraw was on the Hospital site every workday
for the entire day, unlike his superiors Eddie Kirby and
Bill Stewart, who were on the site only 1 day per week
and once every other week, respectively In fact,
McGraw estimates he spent 90-100 percent of his time
each day directing the work of other employees
It is further submitted that McGraw possessed the au-
thority to hire employees, and a good deal of McGraw's
testimony at the hearing concerning this authority, par-
ticularly his denials thereof, is suspect First, McGraw's
oral testimony conflicted with the statements set forth in
his pretrial affidavit As indicated, McGraw initially tes-
tified at the hearing that Respondent's regional manager
Bill Stewart said nothing to him about his hiring author-
ity when he was made carpentry foreman for Respond-
ent's operations at the Hospital site and that hiring "is
never one person's decisions," but this testimony was
contrary to McGraw's affidavit wherein he stated that
Regional Manager Stewart had told him to "get who
you need" on the hospital job and, concerning the hiring
of employees prior to March 23, 1983, stated
I got these people except the mason and carpenter
White by calling the respective trade union halls
and asked for referrals The mason and carpenter
White were hired off the street Both the carpenter
and the laborer simply sent out took the exact
number of people I asked for and I hired them
These people that were referred to me were inter-
viewed by me specifically and were not interviewed
by anyone else before they started working
After they were hired I told them they were hired
and had then filled out [sic] W-4 tax forms
Further, as also pointed out, McGraw exhibited a pro-
pensity to shift his testimony on other aspects of hiring
critical to this case McGraw initially testified that the
March 23 conversation, here in question, was the first
time he had ever heard his (Gill's) name, but later
McGraw testified that as of March 23 he knew Gill was
a member of the Union because Gill had applied for em-
ployment with Respondent in February Moreover,
McGraw conceded that it was "common practice" for
foremen to do the hiring on a jobsite, and admitted that
this was his practice at the Port Huron General Hospital
site In his affidavit McGraw stated that Regional Man-
ager Stewart told him to get whom he needed to work
at the Hospital site, and he called the Carpenters' and
Laborers Union to have prospective employees sent to
the jobsite, but that he hired a mason and a carpenter
"off the street" McGraw, alone, interviewed the individ-
uals referred to him by the respective unions and he
hired them Given this authority, together with those re-
sponsibilities enumerated supra, McGraw's supervisory
position for Respondent is duly established, and I so find
There is one overriding issue of credibility in this case
David Ruff testified about the conversation he heard be-
tween McGraw and Burns on March 23, and stated that,
on this occasion, Burns informed McGraw that he had a
man who had poured a lot of concrete, would be a good
employee for the job, that his name was Butch (Marvin)
Gill, and that Gill was an executive board member
Shortly thereafter, McGraw informed Ruff that he could
not hire him
Herbert Dandron, a union member who was also at
the jobsite looking for work on March 23, testified that
he heard McGraw ask Ruff if he wanted to go to work,
that Ruff replied in the affirmative, and accordingly the
HOSPITAL BUILDING CO 115
W-2 forms were then filled out Dandron stated that
shortly thereafter Frank Burns appeared on the site and,
when the discussion between Ruff, Burns, and McGraw
reached the point relative to Ruff going to work the next
day, Burns stated that he could not do so as he had "a
board member" who came first, and McGraw then in-
formed Ruff that he could not hire him and that they
had "tore up" his W-2 forms
James McGraw testified as to his recollection of the
events on March 23
Q To your recollection did you have a conversa-
tion with Mr Burns on March 23, 1983?
A Yes
Q To your recollection what was said during the
conversation?
A He asked me if I had hired David Ruff and I
told him yes I just put him for the following day
Frank told me that he already had the third man
picked out for that job who was Gill I told him I
had already signed David up I said "What about
him?" He said "Well don't worry about him," he
will take care of him I would gather from that him
being the laborer business agent that he figured he
would put him on another job someplace
Q Do you recall anything else what was said')
A Other than I told Frank that made no differ-
ence to me which one was hired other than I
needed a good concrete man Frank told me that
Gill was a good concrete man
Q Do you recall if Mr Ruff said anything
during that conversation')
A Mr Ruff wanted it clarified by Frank Burns if
he was telling him he couldn't go to work on that
jobsite Frank told him "Don't worry about it I will
take care of you" So I gathered from that he was
going to put him someplace else to work
Q Was Ed Kirby on the jobsite on March 23,
1983?
A No
Q Was Bill Stewart on the jobsite that day?
A No
Q Did the union send someone out to work for
you the next day?
A Yes
Q Who was that?
A It was Gill
JUDGE Who')
WITNESS Gill
By Ms Syx
Q Did Mr Gill hold a position in the union?
A I guess he does That is what I heard
Q What position did you think he held?
A I really didn't know at the time I didn't even
know he was an officer of the local
JUDGE You heard later that he was an officer of
the local?
WITNESS Later, yeah The first time I had ever
heard the man's name
By Ms Syx
Q How long did Mr Gill work for you?
A It was quite a while It seems to me we kept
him on there quite steady for a while Two or three
weeks or something like that
Respondent's superintendent Eddie Kirby testified that
on March 23, 1983, he did not know that Marvin Gill
occupied any position with the Union However, Kirby
did not participate in this discussion and, in fact, was not
present during the conversation here in question
Frank Burns testified that he had received a message
from his steward to the effect that the Respondent was
going to hire a laborer starting Monday morning, and he
then told Marvin Gill to meet him at the jobsite here in
question Burns' testimony is as follows
I got there at a quarter to eight and Mr Gill got
there approximately the same time Mr Jim
McGraw and Mr Dave Ruff came out of the office
and Mr Jim McGraw said "I hired this man," and I
said "No, you didn't hire this man you hired this
man that has the referral slip " Well he says "Is that
the way it is?" I said "That is the way you people
wanted it instead of hiring at the gate and this is the
way I want it" He says "What do you want me to
do with Mr Ruff's W-2 form?" I said "I could care
less what the hell you do with it, tear it up, throw it
away I don't care but this man is going to work"
With that Dave says "Is there any reason,
Frank?" I says "Yes, Dave, you are a member and
we have a referral system and this job is going to be
referred and this is the way your membership voted
on this and this is why we are doing it this way"
We passed in our local do you want referral or do
you want the contractors to come in and hire off
the street The [sic] voted to in the referral system
So with that I went back to my office and Mr
Ruff come in and asked my secretary if I was in
She said he is in his office, his office is just around
the corner I invited him in and he says "Frank, I
am not happy" I said "Dave, if you think I'm
happy I don't like this any more than you do but
this is the way the membership wants it and this is
what I have to do It was voted and passed the re-
ferral system" Well he says why was he sent out
there I said "Well Butch Gill is the sergeant-at-
arms plus he is going to be my assistant steward"
So he said "At least, Frank, you were man enough
to explain your feelings" He shook my hand and he
left and I thought maybe he is satisfied I said
"Dave, I will send you out just like anybody else,
no hard feelings," and with that I thought we had a
good understanding
Burns stated that his referral system started about 10
years ago, and when he asked at what time he quit refer-
ring executive board members, Burns replied that he
stopped doing so when Local 463 was put under trustee-
ship in May 1983
Burns also testified that at the time here in question
McGraw did not know that Marvin Gill was a union of-
116 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ficer, 6 that he referred people based on their qualifica-
tions, and that he continually endeavored to send the
best qualified people
With the admission of Frank Burns that he did not
quit referring executive board members until May 1983,
and based on his later statement to Ruff in his office that
Marvin Gill was the sergeant-at-arms, I find the testimo-
ny of Ruff and Dandron to be credible and, accordingly,
Foreman McGraw was aware on March 23 that Ruff's
employment was being denied because he was not an of-
ficial of the Union and the Union wanted and insisted on
preferential treatment to its union officials.6
Counsel for Respondent argues that McGraw was
simply in the process of implementing the referral system
pushed by Burns, and the decision to hire Marvin Gill
had nothing to do with Gill's status with the Union, and
furthermore, the subsequent discussions with Burns,
McGraw, and the Charging Party indicated acquiescence
by all parties as to whom would be laborers on the
project. Counsel also points to Burns' testimony to the
effect that he was unaware of a bar against favoring
union officials, but this factor was never an issue in that
he simply placed the best available laborer on the job
who had been previously unemployed for a long period.
Counsel for Respondent also argues that the question
of whether Respondent hired Gill or Ruff was not
grounded on favoring a union officer because of the
simple fact that Gill was not a union officer—that the
sergeant-at-arms is simply an honorary post without any
power in policy-making decisions. Moreover, if the
Union was pushing or attempting to force employers to
accept its officers instead of other union members, it
would have placed Gill on the Port Huron job as the
5 Burns stated that the Union's executive committee is composed of six
members, but Gill, as the sergeant-at-arms, was not a member of the ex-
ecutive committee and that his job is not a policy-making position
' It should be noted at this time that all facts found herein are based on
the record as a whole and on my observation of the witnesses The credi-
bility resolutions herein have been derived from a review of the entire
testimonial record and exhibits with due regard for the logic and proba-
bility, the demeanor of the witnesses, the weight of the evidence, admit-
ted facts, reasonable Inferences, and the teaching of NLRB v Walton
Mfg Ca, 369 U S 404 (1962) As to those testifying in contradiction of
the findings, their testimony has been discredited, either as having been in
conflict with the testimony of reliable witnesses or because It was in and
of Itself incredible and unworthy of belief All testimony has been reviewed
and weighed in the light of the entire record As pointed out, McGraw's
testimony is suspect for the reasons set forth supra in connection with his
hiring authority, and It appears that McGraw structured his testimony to
avoid or to deny anything unlawful in connection with his hiring and
subsequent refusal to employ the Charging Party Burns' testimony is also
suspect for several reasons Thus, has statement that he did not refer Gill
because of Gill's union position conflicts with his testimony concerning a
conversation with the Charging Party which occurred in Burns' office
right after the March 23 incident at the Jobsite Further, Burns' testimo-
ny, in general, evidenced a desire on his part to tailor his testimony in a
way that would place the Union's conduct in a favorable light Burns
conceded that the Union's conduct could be deemed a breach of Its duty
of fair representation; that a lawsuit could be filed in distnct court on this
matter, and that the Union presently could incur liability He offered eva-
sive and confusing testimony concerning the Union's contracts with Re-
spondent, he offered conflicting and nonresponsive answers to questions
concerning supersemonty given union officials, and he testified that he
was personally familiar with the skills and experience of each of the
Union's 520 members, without reference to files or notes, and, as also
pointed out, the last-named item clearly is cntical for the lawfulness of
the Union's conduct lunges on how the Union determined which mem-
bers would be given a job
No. 1 laborer—which is the steward—to protect his se-
niority since this is the only protected laborer under the
Union's agreement with the Port Huron General Con-
tractors Association (see R. Exh. 2). Furthermore, main-
tains Respondent, there is an abundance of evidence to
support the argument that Gill was placed on the job
based on his skills and the skills needed for the laborers
at the Port Huron project, and had nothing to do, what-
soever, with Gill's status as a union official.
Conclusions
The central issue in the instant case is simply whether
Respondent favored a union official. Generally, of
course, employers and unions are not to encourage or
discourage union membership or to grant preference to a
union official in hiring.
Based on the facts previously set forth herein—David
Ruff had been hired by Respondent on March 23, 1983,
and he would have begun working for Respondent on
the following day except for Respondent's participation
and acquiescence in the Union's unlawful request—de-
manding that Respondent replace the Charging Party
with Marvin Gill, the Union's sergeant-at-arms.
As indicated, there is some conflict in the record con-
cerning the type of referral arrangement to which Re-
spondent and the Union had agreed and, although the
parties had no written agreement as of March 23, the
contract to which Respondent substantially adhered (R.
Exh. 2) contained the following clause.
When requested, the Union agrees to furnish com-
petent employees upon notification to the Business
Manager, Secretary or Business Agent of the Union.
The employers retain their right of freedom of se-
lection of employees from among all applicants [art.
II, sec. 2].
According to Eddie Kirby, Respondent's project super-
intendent, there were no oral agreements between the
parties, and therefore it would appear that Respondent
and the Union had a nonexclusive referral arrangement
as the Union would not necessarily have to be Respond-
ent's first and primary source of employees.7
As indicated, it is quite apparent that the Union and
Respondent had a nonexclusive referral arrangement and,
under this situation and circumstances, the Union caused
Respondent to discriminate in favor of an individual pre-
ferred by the Union, and thereby openly demonstrated
the Union's power over employees and their livelihoods.
Moreover, the discriminatory aspect of the Union
demand lies in the fact that the true reason for Burns' in-
sistence that Gill replace the Charging Party was Gill's
7 Business Manager Burns asserted that, in practice, the Union had an
exclusive referral arrangement Burns testified that he and Respondent's
regional manager Steward had "set up" a referral system when Respond-
ent moved onto the Jobsite and that the union membership had voted for
it Subsequently, however, Burns "qualified" this description and stated
that the referral system was "pretty exclusive" and that he "would be
lying . if [he said] it was a hundred percent" and that the only agree-
ment between Respondent and the Union regarding the referral was the
wntten contract
HOSPITAL BUILDING CO 117
position as a union official, previously detailed and dis-
cussed herein
Frank Burns testified that the reasons he felt Gill
should be working in place of Ruff was because Gill was
qualified to do concrete pouring, the task for which Ruff
had been hired, and because, in the back of his mind, he
intended to make Gill assistant laborer steward, and not
because Gill was the sergeant-at-arms As indicated,
these purported reasons for giving Gill preference fail
for the following reasons First, Burns conceded and ad-
mitted that the Charging Party was "very capable" of
pouring cement Thus, absent an unlawful reason for
doing so, and absent an exclusive referral arrangement, it
is questionable why Burns would urge McGraw to put
Gill to work in place of the Charging Party Further, as
of March 23, there were only two laborers on the job-
site—the laborer foreman and an employee who served
as steward—thus one must question why, at this time,
the Union would need to place a second steward on the
job given this small employee complement Next, Burns
testified he was told by the International Union that ex-
ecutive board members of the local could be given first
priority in referral and that he gave these officers prefer-
ence until May 1983 As previously noted, Burns told
McGraw, at the time he demanded that the Charging
Party be replaced by Gill, that Gill was on the executive
board Later, however, he testified that the sergeant-at-
arms does not sit on the board It is submitted, and I
agree, that the reasons for Burns' assertion that Gill sat
on the executive board was that he felt such would justi-
fy a preferential referral due to the International's direc-
tive However, under Gulton Electro-Voice, 266 NLRB
406 (1983), the Union's objective of according supersen-
iority to the recording and financial secretaries was an
unlawful one, in view of the fact that the occupant of
those positions does not participate in the Union's policy-
making functions In the instant case, it is clear that the
sergeant-at-arms, Marvin Gill, does not sit on the execu-
tive board, and quite obviously does not participate in
the administration of collective-bargaining agreements
Certainly, Burns' testimony that he had in the back of his
mind some future idea or plan in making Gill an assistant
steward does not elevate Gill's status during the period
and circumstances in question here to that of an employ-
ee responsible for grievance processing and on-the-job
contract administration 8
Even assuming, arguendo, that the referral practice
was an exclusive one, the conduct here in question was
still unlawful 9 It is also well established that a union is
' t
8 See also Otis Elevator Ca, 268 NLRB 180 (1983), and Houdaille In
dust ries, 268 NLRB 1468 (1984)
9 There is no 8(b)(1)(A) and (b)(2) allegation in the complaint, nor is
there any contention by the parties that there be any remedy against the
Union based on its conduct in this dispute It is, of course, well settled
that a union violates Sec 8(b)(2) and (1)(A) of the Act where it causes or
attempts to cause an employee s employer to demonstrate against him in
violation of Sec 8(a)(3) such as bringing about the termination of the
employee s employment (or by failing or refusing to refer him for em
ployment or reemployment), and where It coerces and restrains the em
ployees in the exercise of rights guaranteed in Sec 7, because the em
ployee politically or personality wise opposes the Incumbent union ad
ministration It is also clear that an employer who participates in or lends
itself to such actions similarly violates Sec 8(a)(3) and (1) of the Act R-
M Framers, 207 NLRB 36 (1973), Tracy Towing Line, 166 NLRB 81
obligated to operate an exclusive referral system based
on objective criteria, and in a nondiscriminating manner
In the instant case, it appears that subjective, rather than
objective, standards were utilized by the Union in deter-
mining that Gill, rather than the Charging Party, should
be given the job here in question Thus, neither the
Charging Party's nor Gill's place on the out-of-work list,
appears to have been taken into consideration Rather,
according to the Union, the referral was based on Burns'
determination that Gill was "more than qualified," but
then Burns conceded the Charging Party was indeed ca-
pable of performing the work
In the final analysis, I am in agreement that Respond-
ent has presented no credible evidence that there was
any reason, other than the Union's demand, for the
Charging Party being told not to report to work after he
had been hired Thus, it is concluded that, but for the
Union's unlawful request, the Charging Party would
have been permitted to work for Respondent on March
24, 1983, and that Respondent clearly participated and
acquiesced in a demand which was unlawful on its face,
thereby itself discriminating in violation of Section
8(a)(1) and (3) of the Act Loft Painting Co, 267 NLRB
74 (1983), Carpenters District Council (Daniel Construction
Co ), 227 NLRB 72 (1976)
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that it cease
and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act
It having been found that Respondent discriminatorily
discharged David Ruff, I shall recommend that Respond-
ent offer him immediate and full reinstatement to his
former or substantially equivalent position, without prej-
udice to seniority or other rights and privileges, and
make him whole for any loss of earnings he may have
suffered by reason of the discrimination against him by
payment of a sum of money equal to that which he
would have normally earned from the date of his dis-
charge, less net earnings, during said period All backpay
provided shall be computed with interest on a quarterly
basis, in the manner described by the Board in F W
Woolworth Co, 90 NLRB 289 (1950), and with interest
thereon computed in the manner and amount prescribed
in Florida Steel Corp, 231 NLRB 651 (1977) See also Isis
Plumbing Co, 138 NLRB 716 (1962)
CONCLUSIONS OF LAW
1 The Respondent is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the
Act
2 The Union is a labor organization within the mean-
ing of Section 2(5) of the Act
3 James McGraw is an agent of Respondent and
Frank Burns is an agent of the Union within the meaning
of Section 2(11) and (13) of the Act
(1967), enfd 417 F 2d 865 (2d Cir 1969), cert denied 397 U S 1008
(1970)
118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4 By engaging in conduct described in section III,
above, Respondent has engaged in and is engaging in
unfair labor practices within the meaning of Section
8(a)(1) and (3) of the Act
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed"
ORDER
The Respondent, Hospital Building & Equipment
Company, St Louis, Missouri, its officers, agents, succes-
sors, and assigns, shall
1 Cease and desist from
(a) Encouraging membership in Local 463, Laborers
International Union of North America, AFL-CIO, or
any other labor organization, by discharging employees
or otherwise discriminating against them in regard to
their hire or tenure of employment or any other term of
employment, except as authorized by Section 8(a)(3)
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act
2 Take the following affirmative action which is nec-
essary to effectuate the policies of the Act
(a) Make whole David Ruff in the manner set forth in
the section of this decision entitled "The Remedy"
(b) Offer David Ruff immediate and full reinstatement
to his former job or, if that job no longer exists, to a sub-
stantially equivalent position, without prejudice to his se-
niority and other rights and privileges previously en-
joyed
(c) Preserve and, on request, make available to the
Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order
(d) Post at its office and work project in Port Huron,
Michigan, copies of the attached notice marked "Appen-
10 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
dix "" Copies of the notice, on forms provided by the
Regional Director for Region 7, after being signed by
Respondent's authorized representative, shall be posted
by Respondent immediately upon receipt and maintained
for 60 consecutive days in conspicuous places including
all places where notices to employees are customarily
posted Reasonable steps shall be taken by Respondent to
ensure that the notices are not altered, defaced, or cov-
ered by any other material
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps Respondent
has taken to comply
" 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 EMPLOYEES
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 discharge or otherwise discriminate
against employees in encouraging membership in Local
463, Laborers International Union of North America,
AFL-CIO, or any other labor organization, except as
permitted by Section 8(a)(3) and Section 8(f) of the Na-
tional Labor Relations Act
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of
rights guaranteed them by Section 7 of the Act
WE WILL offer to David Ruff immediate and full rein-
statement to his former job or a substantially equivalent
one and make him whole for any loss of earnings he may
have suffered as a result of the discrimination against
him
HOSPITAL BUILDING & EQUIPMENT COMPANY