Kelly & Picerne, Inc.

National Labor Relations Board - Board Decisions

Jun 13, 1962

137 N.L.R.B. 594 (N.L.R.B. 1962)

594 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the morning of September 9 was unlawfully discriminatory, merely because the re-
grouping had placed them farther down on the hiring list.
F. The issue of the initiation fee
In July 1960, Local 982 raised its initiation fee from $25 to $125. General
Counsel urges that this increase was "excessive" and in violation of Section 8(b)(5)
of the Act.3
There is no dispute as to the fact of the increases. The Trial Examiner is unable
to agree with General Counsel's claim that the new fee is "excessive or discrimina-
tory under all the circumstances."
Evidence fully establishes that at the time Local 928 undertook to implement the
contract just reached, to set up and operate a hiring hall, a considerable increase
in its expenses was reasonably to be anticipated. It was then a small local-some
50 or 60 members. Despite the increase its membership appears to have about
doubled-and there is not the slightest evidence that any applicant was prevented
from joining because of the increase in the initiation fee.
It is undisputed, also, that ILA initiation fees for general cargo locals in the east
coast area range from $50 to $300, and at gulf coast ports from $200 to $500.
In short, the Trial Examiner does not believe General Counsel has presented
sufficient evidence to sustain this allegation of the complaint.
RECOMMENDATION
Having found that the preponderance of evidence fails to sustain the allegations
of the complaint as to unlawful acts on the part of any of the Respondents, the
Trial Examiner will recommend that the complaint be dismissed in its entirety.
n This section makes it an unfair labor practice for a labor organization "to require of
employees covered by an agreement authorized under subsection la) (3) the payment, as
a condition precedent to becoming a member of such organization, of a fee in an amount
which the Board finds excessive or discriminatory under all the circumstances. . . .
Kelly & Picerne , Inc. and Providence, Pawtucket and Central
Falls Carpenters' District Council a/w United Brotherhood of
Carpenters and Joiners of America . Case No. 1-CA-3169. June
.13, 1962
SUPPLEMENTAL DECISION AND ORDER
On May 15, 1961, the Board issued its Decision and Order in the
above-entitled case in which it found, inter alia, that the Respondent,
Kelly & Picerne, Inc., violated Section 8(a) (3) of the Act by subcon-
tracting its rough carpentry work and discharging its carpenters
because of their union membership and activities.'- To remedy this
violation, the Board ordered the Respondent to resume its rough car-
pentry operations and to offer reinstatement to these carpenters
without prejudice to their seniority or other rights, and to make them
whole for any loss of pay suffered as a result of the discrimination
practiced against them.
Thereafter, the Board petitioned the Court of Appeals for the First
Circuit for enforcement of its Order and, on February 14, 1962, the
court rendered its decision in this matter. In its opinion, the court
1131 NLRB 548.
137 NLRB No. 77.
KELLY & PICERNE, INC. 595
expressed concern that the above-mentioned aspect of our remedial
order might be susceptible of an interpretation that (1) Respondent
may not, at any future time, lawfully decide in the exercise of a sincere
and genuine business judgment to change its method of operations by
subcontracting its rough carpentry work, and (2) Respondent must
resume its rough carpentry operations beyond the extent necessary to
provide work for the discriminatees who accept Respondent's offer of
reinstatement. Accordingly, the court remanded this proceeding with
instructions that the Board clarify the intended breadth of this aspect
of the remedial order.
Paragraph II(b) of the Order requires that Respondent-
Resume its rough carpentry operations and offer to the employees
named in the Appendix reinstatement to their former or substan-
tially equivalent positions, without prejudice to their seniority or
other rights and privileges previously enjoyed, and make them
whole in the manner set forth in the section of the Intermediate
Report entitled "The Remedy."
This paragraph was in no way intended to enjoin or prohibit Re-
spondent, after the resumption of its rough carpentry operations and
the reinstatement of the discriminatees, and after the fulfillment of
its statutory obligation to bargain with the Union, from thereafter sub-
contracting this work for economic or other business reasons, provided
that the subcontract is otherwise lawfully motivated 2 Nor was it
intended to require Respondent to offer reinstatement, or award back-
pay, to any employee other than those specifically named in the Ap-
pendix to the Intermediate Report, or to resume the carpentry work
beyond the extent necessary to accommodate the reinstatement of em-
ployees who accept Respondent's offer of reemployment.
Accordingly, in conformity with the court's remand, paragraph
II(b) of the Board's Order in this case is hereby amended as follows:
Resume its rough carpentry operations and offer to those em-
ployees named in the Appendix reinstatement to their former or
substantially equivalent positions, without prejudice to their
seniority or other rights and privileges previously enjoyed, and
make them whole in the manner set forth in the section of the
Intermediate Report entitled "The Remedy"; however, nothing
herein shall be construed as enjoining or prohibiting Respondent,
after resumption of its rough carpentry operations and the re-
instatement of the discriminatees, and after fulfillment of its
statutory obligation to bargain with the above-named labor organi-
zation, from thereafter subcontracting this work for any lawfully
2 See N L.R.B v. Crompton -Highland Mills , Inc, 337 U S . 217, 224-225; Town d
Country Manufacturing Company, Inc., et at., 136 NLRB 1022.
596 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
motivated reason, and nothing herein shall be deemed to require
Respondent to resume those operations beyond the extent neces-
sary to accommodate the reinstatement of the aforementioned
employees who accepf Respondent's offer of reinstatement.
MEMBER RODGERS and BROWN took no part in the consideration of
the above Supplemental Decision and Order.
Plumbers Local Union No. 519, United Association of Journey-
men and Apprentices of the Plumbing and Pipefitting Indus-
try of the United States and Canada, AFL-CIO and Babcock
Company. Case No. M-CC-160. June 14, 1962
DECISION AND ORDER
On November 17, 1961, Trial Examiner Wellington A. Gillis is-
sued his Intermediate Report 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 there-
from and take certain affirmative action, as set forth in the Inter-
mediate Report attached hereto. Thereafter the Respondent filed
exceptions to the Intermediate Report and a supporting brief.
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the In-
termediate report, the exceptions and brief, and the entire record
in the case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner, only to the extent consistent with
the Decision herein.
1. We agree with the Trial Examiner that Respondent's Sunday
picketing of the Babcock and Pawliger homes at Fairway Park and
P.B.I. Homes, respectively, at a time when only salesmen and pros-
pective buyers were present, was secondary activity in furtherance of
the Respondent's attempt to secure recognition by Robertson, the non-
union plumbing contractor whose services were used in the construc-
tion of the homes, was for the purpose of coercing Babcock and
Pawliger to cease doing business with Robertson and, hence, was
violative of Section 8(b) (4) (ii) (B). We also agree with the Trial
Examiner that the Respondent's action in passing out handbills to the
public at these locations constituted "publicity, other than picketing"
which is protected under the second proviso to Section 8(b) (4), and
therefore was not violative of Section 8(b) (4) (i) or (ii) (B).1
'As no exceptions were filed to the Trial Examiner's finding with respect to Respond-
ent's handbilling at these locations , Member Rodgers finds it unnecessary to pass upon
this holding and adopts it pro foran¢.
137 NLRB No. 46.