Laborers, Local 1177

National Labor Relations Board - Board Decisions

Jun 24, 1970

183 N.L.R.B. 1063 (N.L.R.B. 1970)

LABORERS, LOCAL 1177 1063
Laborers International Union of North America , TRIAL EXAMINER'S DECISION
Local 1177 (Nichols Construction Corporation)
and Sylvester Lavigne and Leroy Henderson.
Cases 15-CB-1023-1 and 15-CB-1023-2
June 24, 1970
DECISION AND ORDER
BY MEMBERS MCCULLOCH, BROWN , AND JENKINS
On March 24, 1970, Trial Examiner William J.
Brown issued his Decision in the above-entitled
case, 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.
Thereafter, the Respondent filed exceptions to the
Trial Examiner's Decision and a supporting brief,
and the General Counsel filed an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
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
Trial Examiner's Decision, the exceptions, the
briefs, and the entire record in the case, and hereby
adopts the findings,' conclusions,2 and recommen-
dations.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner and hereby
orders that Respondent, Laborers International
Union of North America, Local 1177, Baton
Rouge, Louisiana, its officers, agents, and repre-
sentatives, shall take the action set forth in the
Trial Examiner's Recommended Order.
' These findings are based , in part , upon credibility determinations of the
Trial Examiner to which the Respondent has excepted After careful
review of the record, we conclude that these credibility findings are not
contrary to the clear preponderance of all relevant evidence Accordingly,
we find no basis for disturbing these findings Standard Dry Wall Products,
Inc , 91 NLRB 544, enfd 188 F 2d 362 (C A 3)
' We agree with the Trial Examiner that the entire sequence of events
supports the inference that Business Agent Joseph , in the course of his Au-
gust 29 conversation with Job Superintendent Elrod, interfered with the
hiring of Henderson and Lavigne Moreover , in adopting the 8 (b)( I )(A)
and (2) findings , we also rely on the testimony of Elrod, as corroborated by
Shop Steward Johnson, that Joseph informed Elrod that all persons hired
had to have a referral.
WILLIAM J. BROWN, Trial Examiner: This
proceeding under Section 10(b) of the National
Labor Relations Act, as amended, hereinafter
referred to as the Act, came on to be heard at
Baton Rouge, Louisiana, on January 22, 1970. The
underlying charges of unfair labor practices were
filed September 3, 1969,' by the above-indicated
Charging Parties, hereinafter referred to as Hender-
son and Lavigne, and the complaint herein was is-
sued November 13 by the General Counsel of the
National Labor Relations Board acting through the
Board's Regional Director for Region 15. It alleged,
and the duly filed answer of the above-indicated
Respondent, hereinafter referred to as the Union,
denied, the commission of unfair labor practices
defined in Section 8(b)(1)(A) and (2) of the Act.
At the hearing the parties appeared and par-
ticipated, as noted above, with full opportunity to
present evidence and argument on the issues. Sub-
sequent to the close of the hearing, the General
Counsel and the Union filed briefs which have been
fully considered.
On the entire record herein and on the basis of
my observation of the witnesses, I make the follow-
ing:
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYER
I find, in accordance with the pleadings and
evidence, that Nichols Construction Corporation,
hereinafter referred to as Nichols, is a Louisiana
corporation with its principal office at Baton
Rouge, Louisiana. During the 12-month period
preceding issuance of the complaint herein, a
representative period, Nichols performed services
within the State of Louisiana valued in excess of
$50,000 for employers each of whom purchased
and received goods valued in excess of $50,000 and
delivered directly to such employers in Louisiana
from points outside the State of Louisiana. At all
material times Nichols has been engaged in per-
forming construction services on the Georgia
Pacific Company facility in Plaquemine, Louisiana,
in the course of which it purchased and recieved
goods valued in excess of $50,000 and shipped
directly to Nichols at such facility from points out-
side the State of Louisiana. I find, as the parties
agree , that Nichols is an employer engaged in com-
merce within the meaning of Section 2(6) and (7)
of the Act and that assertion of Board jurisdiction is
warranted.
II. THE STATUS OF RESPONDENT
The pleadings and evidence establish and I find
that the Union is a labor organization within the
purview of Section 2(5) of the Act.
' Dates hereinafter , unless otherwise noted, relate to the calendar year
1969
183 NLRB No. I 1 1
1064 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE UNFAIR LABOR PRACTICES that they were going to work on the Georgia Pacific
job the following morning and Joseph replied that
that was up to them but that he would be on the job
the following morning.
On the following morning, that of August 29,
Henderson and Lavigne were among the early ar-
rivals at the worksite where they first met Albert
Johnson, the union steward on the job, who asked
them if they had referrals; they replied that they did
not but that Elrod had told them to report in any
event. Soon thereafter Elrod came and commenced
to sign them up, then decided to check with
Steward Johnson, who in turn stated that he could
not accept them on the job without referrals unless
the matter were cleared with Joseph at the business
office. The matter was held in abeyance pending
the expected arrival of Joseph on the job.
On Joseph's arrival he talked with his steward
and Elrod, according to his testimony and that of
Johnson and Elrod, only about the matter of the
Company transferring men on the payroll and not
specifically about Henderson and Lavigne. I find
this testimony incredible in view of the obvious im-
portance of their employment both in the minds of
Elrod and Joseph, particularly in the light of the
events of the preceding day, and in the light of El-
rod's admission that he told Henderson and Lavigne
that he would have put them to work but for the
fact that they did not have referrals, notwithstand-
ing his previous promise of employment with or
without referral. In any event, it is clear that, after
the discussion between Joseph and Elrod, the latter
informed Henderson and Lavigne that, although he
wanted to hire them he could not do so without a
referral and that Joseph would not let them work.
Following the events at the jobsite on the morn-
ing of August 29, Henderson and Lavigne met with
Joseph at a nearby grocery store. Joseph testified
that he told them at that occasion that if Nichols
wanted them they should either call the hall or give
them a letter. He also testified that Henderson and
Lavigne claimed some prior right to the Georgia
Pacific project because it was a bond issue job and
located in their home parish, Iberville. Henderson's
account of this meeting, essentially corroborated by
Lavigne, is that Joseph expressed regret at having
to deny them referrals due to his desire to curtail
the permitted practice of company transfer from
job to job of men already on the payroll. I credit
the accounts of Henderson and Lavigne.
On that afternoon Henderson went again to the
union office and spoke to Joseph, who denied
refusing him a referral and claimed that he did no
more than explain the procedures. He told Joseph
that only within the last 2 months he had shopped
his own job and secured a referral later (G. C. Exh.
3, referral dated July 8, 1969). I find the evidence
to indicate that the normal practice of the Union in
cases where a man has shopped his own job is to
issue him a referral in cases where the employer
either calls in or writes asking clearance for the
particular employee and that this is confirmed by
Nichols' work on the Georgia Pacific project in
Plaquemine commenced sometime about August
15. Before the commencement of work on that job
there had been a campaign for election of union of-
ficers resulting in the election on or shortly prior to
July 3, of David Joseph as business agent of the
Union. In the campaign preceding the election,
Henderson and Lavigne had openly supported
Joseph's opponent, Joseph Stone Joseph ultimately
conceded, though initially denying, knowledge of
Lavigne's campaign activity on behalf of Stone;
furthermore, although Joseph denied knowledge of
Henderson's sympathy in the election, I credit Hen-
derson's testimony that he told Joseph that he was
supporting Stone and actively campaigned for
Joseph's opponent in Joseph's presence. I conclude
that at material times Joseph knew of Henderson's
and Lavigne's active support of his opponent in the
July election.
Terms and conditions of employment of Nichols'
workmen on the Georgia Pacific project are
governed by the provisions of a written agreement
between the Union and the Baton Rouge Chapter,
The Associated General Contractors of America,
Inc., (G. C. Exh. 2) which contains maintenance
of membership and 8-day union-shop clauses.
It also provides that the member employers
shall use the Union as a source of manpower when
in need of employees, the Union agreeing to furnish
qualified men in sufficient numbers to meet em-
ployer requirements. The agreement also permits
the employer to transfer its employees from job to
job within the Union's territorial jurisdiction as long
as they remain on the employer's payroll.
Sometime prior to August 28, Henderson, who
had been out of work for a considerable period,
vistied Austin Elrod, Nichols' general superinten-
dent on the Georgia Pacific project, and was
promised a job on the project when the weather
cleared. By August 28 the weather had cleared and
Henderson and Lavigne went to the jobsite. Ac-
cording to Henderson's account, he and Lavigne
asked Elrod for work, telling Elrod, in response to
his question, that they were union members; they
were told by Elrod that he wanted them to get
referral slips but if they did not he would hire them
anyway, and that they should report for work the
following day Lavigne's testimony corroborated
that of Henderson on this point. Elrod's account es-
sentially confirms their account of the events at the
jobsite on August 28.
Following their talk with Elrod, Henderson and
Lavigne proceeded to the union office at Baton
Rouge where they first spoke with Dispatcher Earl
Little and later with Joseph and received what can
only be regarded as a runaround ultimately ter-
minating in Little's refusal, in Joseph's presence, of
referrals. At the conclusion of this conversation at
the union hall, Henderson and Lavigne told Joseph
LABORERS , LOCAL 1177
Joseph's own testimony. In the instant case, it is
clear to me that on the morning of August 29 Elrod
asked for clearance for Henderson and Lavigne.
There is no question as to the paid up and good
standing status of Henderson and Lavigne, and it
must be concluded that the refusal of Joseph to
clear them on the morning in question had some
basis other than their dues and membership stand-
ing in the Union, conceivably though not necessari-
ly, based on their known and substantial opposition
to Joseph's recent successful campaign for the of-
fice of business agent . I conclude that Joseph's
refusal of assent to their employment on the Geor-
gia Pacific project of Nichols constituted an unfair
labor practice within the scope of Section
8(b)(1)(A) and (2) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent labor organiza-
tion set forth in section III, above, occurring in con-
nection with the operations described in section I,
above, have a close, intimate, and substantial rela-
tionship to trade, traffic, and commerce among the
several States and tend to lead to labor disputes
burdening and obstructing commerce and the free
flow thereof.
V. THE REMEDY
In view of the finding set forth above to the effect
that the Respondent labor organization has engaged
in certain unfair labor practices affecting commerce
it will be recommended that it be required to cease
and desist therefrom and from like or related unfair
labor practices and take such affirmative action as
appears necessary and appropriate to effectuate the
policies of the Act, including the posting of notices
at the union hall and the making of Henderson and
Lavigne whole for loss of earnings2 due to its
refusal to permit them to work on the Georgia
Pacific project as outlined above.
On the basis of the foregoing findings of fact and
upon the entire record in this case, I make the fol-
lowing:
CONCLUSIONS OF LAW
1. Nichols is an employer engaged in commerce
within the meaning of Section 2 ( 6) and (7) of the
Act.
2. The Union is a labor organization within the
purview of Section 2 (5) of the Act.
3 Backpay shall be computed in accordance with the principles of F W
Wool% orth Company, 90 NLRB 289, and Isis Plumbing & Heating Co, 138
NLRB 716
' In the event no exceptions are filed as provided by Section 102 46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, recommendations, and Recommended Order herein
shall, as provided in Section 102 48 of the Rules and Regulations, be
1065
3. By refusing on August 28 and thereafter to
issue job referrals or otherwise assent to the em-
ployment of Henderson and Lavigne on the Geor-
gia Pacific project of Nichols Construction Cor-
poration on a basis other than their failure to pay or
tender the uniform dues and fees required as a con-
dition of acquiring or retaining membership in the
Union, thereby causing Nichols to discriminate
against them in violation of Section 8(a)(3) of the
Act, the Union has engaged in unfair labor prac-
tices defined in Section 8(b)(1)(A) and (2) of the
Act.
4. The aforesaid unfair labor practices affect
commerce within the meaning of Section 2(6) and
(7) of the Act.
RECOMMENDED ORDER
On the basis of the foregoing findings of fact and
upon the entire record in this case, it is recom-
mended that the Union, its officers, agents, and
representatives, shall:
1. Cease and desist from:
(a) Causing or attempting to cause Nichols or
any other employer to discriminate against Hender-
son and Lavigne in violation of Section 8(a)(3) of
the Act.
(b) In any like or related manner restraining or
coercing employees in the exercise of the rights
guaranteed them in Section 7 of the Act, except to
the extent that such rights may be affected by an
agreement lawfully entered into pursuant to the
proviso to Section 8(a)(3) of the Act.
2. Take the following affirmative action which
appears necessary and appropriate to effectuate the
policies of the Act.
(a) Make Henderson and Lavigne whole for loss
of earnings suffered as a result of the discrimination
against them in the manner set forth in the section
above entitled "The Remedy."
(b) Notify Henderson, Lavigne, and Nichols, in
writing, that it has no objections to employment of
Henderson and Lavigne on the Georgia Pacific or
any other job.
(c) Post at its business office copies of the at-
tached notice marked "Appendix."3 Copies of said
notice, on forms provided by the Regional Dirgctor
for Region 15, after being duly signed by the
Union's president and business agent, shall be
posted by it immediately upon receipt thereof, and
be maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all
places where notices to members are customarily
posted. Reasonable steps shall be taken by it to in-
adopted by the Board and become its findings , conclusions , and order, and
all objections thereto shall be deemed waived for all purposes In the event
that the Board's 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 be changed to read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board -
1066 DECISIONS OF NATIONAL
sure that said notices are not altered, defaced, or
covered by any other material.
(d) Forward to the Regional Director for trans-
mittal to and posting by Nichols at its Georgia
Pacific jobsite, if Nichols is willing to so post,
signed copies of the attached notice marked
"Appendix."
(e) Notify the Regional Director for Region 15,
in writing, within 20 days from the receipt of this
Decision, what steps have been taken to comply
herewith.'
' Iii the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read "Notify the Regional Director for
Region 15, in writing, within 10 days from the date of this Order, what steps
Respondent has taken to comply herewith "
APPENDIX
NOTICE
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
To Members of local 1177, Laborers Interna-
tional Union of North America, AFL-CIO, and
to applicants for laborers' jobs at the Georgia
Pacific job:
WE WILL NOT cause or attempt to cause
Nichols Construction Corporation to refuse to
hire or to discharge or in any other manner dis-
criminate against Sylvester Lavigne and/or
Leroy Henderson, or any other employee or
LABOR RELATIONS BOARD
applicant for employment , in violation of Sec-
tion 8 ( a)(3) of the Act.
WE WILL NOT in any like or related manner
restrain or coerce employees in the exercise of
rights guaranteed under the Act.
WE WILL reimburse and make Sylvester
Lavigne and Leroy Henderson whole for loss
of pay suffered as a consequence of our having
caused Nichols Construction Corporation to
refuse to hire them.
WE WILL notify Nichols Construction Cor-
poration , in writing , that we have no objection
to the employment of Sylvester Lavigne and/or
Leroy Henderson on the Geougia Pacific pro-
ject.
Dated By
LOCAL 1177, LABORERS
INTERNATIONAL UNION OF
NORTH AMERICA,
AFL-CIO
(Labor Organization)
(Representative ) (Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecu-
tive days from the date of posting and must not be
altered, defaced, or covered by any other material.
Any questions concerning this notice or com-
pliance with its provisions may be directed to the
Board 's Office, T 6024 Federal Building (Loyola),
701 Loyola Avenue, New Orleans, Louisiana
70113, Telephone 504-527-6361.