Laborers Union 534 (Butler County Contractors)

National Labor Relations Board - Board Decisions

Oct 24, 1984

272 N.L.R.B. 926 (N.L.R.B. 1984)

926 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Construction and General Laborers' Union Local
No 534, Laborers' International Union of
North America, AFL-CIO-CLC (Butler County
Area Contractors Association) and Darryl
Thomas
Construction and General Laborers' Union Local
No 534, Laborers' International Union of
North America, AFL-CIO-CLC (Danis Indus
tries Corporation, B G Danis Company, Build
ing Division) and Charles Baldwin Cases 9-
CB-5643 and 9-CB-5694
24 October 1984
DECISION AND ORDER
BY MEMBERS ZIMMERMAN HUNTER, AND
DENNIS
On 19 June 1984 Administrative Law Judge
Frank H Itkin issued the attached decision The
Respondent filed exceptions and a supporting brief,
and the General Counsel filed limited exceptions
and a supporting 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 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, Construe
tion and General( Laborers Union Local No 534,
Laborers International Union of North America,
AFL-CIO-CLC Middletown, Ohio, its officers,
agents and representatives 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
DECISION
FRANK H ITKIN Administrative Law Judge Unfair
labor practice charges were filed on July 27 and amend
ed on September 9 1983 in Case 9-CB-5643 A corn
plaint issued on September 22 1983 Unfair labor prac
lice charges were filed on September 19 and amended on
October 21 1983 in Case 9-CB-5694 A complaint
issued on October 28 1983 The proceedings were con
solidated and a hearing was conducted in Cincinnati
Ohio on January 18 1984 The General Counsel alleges
that Respondent Union violated Section 8(b)(1)(A) and
(2) of the Act by operating its exclusive hiring hall with
out using the objective standards of referral established
by the pertinent hiring hall contractual provisions by
threatening employees with loss of job referrals or other
loss of benefits if they filed charges with the Labor
Board and by failing and refusing to refer employee
members Darryl Thomas and Charles Baldwin to avail
able employment for arbitrary and irrelevant reasons
Respondent Union denies violating the Act as alleged
On the entire record including my observation of the
demeanor of the witnesses I make the following
FINDINGS OF FACT
Butler County Area Contractors Association (Associa
lion) is an organization of employers engaged in the con
struction industry and exists for the purpose of represent
mg its employer members in negotiating and administer
ing collective bargaining agreements with various labor
organizations including Respondent Union The Associa
tion and its employer members are admittedly employers
engaged in commerce as alleged Danis Industries Cor
poration B G Danis Company Building Division
(Danis) is also admittedly an employer engaged in corn
merce as alleged Respondent Union a labor organiza
ton operates a hiring hall facility for the referral of ap
plicants to various employers with construction sites or
projects in the Hamilton Ohio area The Union is signa
tory to the 1982-1984 Building and Construction Agree
ment of the Butler County Area Contractors Associa
tion (See G C Exh 2) And as James Ross business
manager for the Union acknowledged employers who
have not formally signed this agreement (G C Exh 2)
if [the Union] sends employees out to them do in fact
follow the terms of the agreement
The Union s referral procedures are set forth in article
II of the Agreement (G C Exh 2) Section 1 provides
that one key man may be recruited and employed di
rectly by the employer section 2 requires the Employer
to notify the Union of its need for all other workmen
and shall not recruit applicants directly or hire additional
persons not referred by the Union except as provided in
Section 1 above section 4 states that registration and
selection of applicants for referral to jobs shall be on a
non discriminatory basis section 5 reserves to the Em
ployer the right to accept or reject any applicants re
ferred or discharge any employees who subse
quently prove unsatisfactory section 6 requires the
Union to maintain a list of persons available and sec
lion 7 states Registration and referral of applicants shall
be in accordance with the following plan with speci
fled referral groups depending on stated qualifications
Section 8 of the agreement requires the Union to main
tam separate group lists which shall list the applicants
within each group in the order they registered as avail
able for employment section 9 states that the Union
shall refer applicants to the employer by first referring
applicants in Group A in the order of their places on
said list and section 9 also states
272 NLRB No 143
LABORERS LOCAL 534 (BUTLER COUNTY CONTRACTORS) 927
Upon a registrant being referred for employment
and actually employed on a job more than 5 days
such registrant s name shall be removed from the
list until such time as his employment has been ter
minated at which time he shall be registered at the
bottom of the appropriate list under which he is en
titled to register If a registrant upon being referred
in regular order refused to accept the referral such
registrant s name shall be placed on the bottom of
the appropriate list 1
iSection 13 provides that the order of referral set forth
above shall be followed except (A) in cases where em
ployers require and call for employees possessing special
skills and abilities in which cases the Union shall refer
the first applicant on the register possessing such special
skills and abilities and (B)
In cases where an employer requests by name
any registrant not working who has been employed
by the requesting employer at any time 'during the
previous six months the Union shall immediately
refer that registrant to that employer If he has been
employed by any other employer he cannot be re
called unless he has been layed off for five (5)
working days or more from last employer
Employees Darryl Thomas and Charles Baldwin have
been members of the Union for about 10 or more years
they have utilized the Union s hiring hall for referrals
and they have been classified as in the highest group and
placed on list A General Counsel contends (Br 4)
that employees Al Smith and Denver Harris were im
properly referred to employers by the Union instead of
employees Thomas and Baldwin Thus employee
Smith s referral card shows that Smith was referred to
employer Danis on August' 22 1983 Smith had last
worked at Danis on January 5 1983 some 7 months
earlier Smith on August 22 was admittedly not on the
Union s A list although both employees Thomas and
Baldwin were then registered on the A list According
to Business Manager Ross Danis the Company called
and requested Smith and when the Company called
and requested him [Smith] nobody had a chance but that
man In addition employee Thomas testified that he
was present at the union hall on August 22 1983 Smith
was then referred to Danis as a call back and the
Danis job was not offered to Thomas And Baldwin
similarly testified that he too was present at the hall on
August 22 when Smith was sent to Danis as a call
back —the Danis job was also not offered to Baldwin 2
1 Sec 12 notes that the Union and its personnel undertake no obliga
non to search for or by no means locate any Applicant who is not
physically present in the Union hall at the specified referral times
2 Maurey Black project supenntendent for Danis testified that he
called the union hall and asked for both Al Smith and Denver
Hams Black however elsewhere testified in part as follows
Q Were those [Al Smith and Denver Hams] the only two people
you were willing to accept to do the work you had to do9
A Probably not no
Q Was either Mr Hams or Mr Smith made the steward on that
job9
A No they were not 1 ,
Also see the testimony of Union Secretary Treasurer Robert Rumgay
(Tr 153-154) and Steward Orville Garland (Tr 156-161)
The Union s referral of Hams to the Danis job as
Business Manager Ross acknowledged was effected in
the same manner as Mr Smith
In other words [Harris] was called by Danis for the
job and was then appointed to that job without
going down the entire list of names on the referral
list
Hams was referred to the Danis job on August 29 1983
He last worked for Danis on June 14 1982 some 14
months earlier Further both Thomas and Baldwin as
they testified were on the A list when this referral
was made and apparently were present at the union hall
Thomas and Baldwin occupied higher positions on the
A list however the particular work was not offered
to them Business Manager Ross acknowledged in effect
that the above referral practices utilized in the cases of
Hams and Smith— within six months or if he s request
ed by name —were not isolated occurrences
Business Manager Ross also acknowledged that he re
ferred employee Carl Logan for work at CBI Company
on June 27 1983 despite the fact that employee Thomas
occupied a higher position on the list Thomas at the
time was present and available at the hall Ross testified
Q Mr Ross is it not a fact that at times you will
refer individuals out to jobs as a favor to them
A As a favor? You wouldn t look at it as a
favor
Q Let me ask that question again Is it not true
that at times you will refer employees out as a
favor for example if an employee is in financial dif
ficulties?
A Well most of the time they go to the con
tractmg contractor helps him Then there s other
times that I have to go and see like they need a
week for unemployment Like you had one sitting
right there that needed three weeks for unemploy
ment I went to the contractor had him keep him
three, weeks That s not favoritism that s help
That s what a business agent s for to help a laborer
Q Mr Ross have you in fact ever helped out
an employee by sending him out to the job so that
he could get out of certain financial difficulties that
he had?
A Probably 95 percent of the Local
Q Have you done this by sending out an em
ployee out of his position on the list?
A No When you re back there and you got a
one or two day job the other members let him do
that I don t even have to do that If you got 40 la
borers standing back there in the hiring hall and
you got a two day job and one of them needs that
for a week for their unemployment the rest of them
lets him go So I don t have to do that as a favor
they do it among theirselves
Q Mr Ross you indicated that you sent Mr
Logan out to a job at CBI this was in June of 1983
Prior to the time you sent him out to that job at
928 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CBI hadn t Mr Logan come to you and indicate
that he was about to lose his house?
A Trailer
Q His trailer? He couldn t make the payments on
it without a job? The essence—
A He needed six weeks for unemployment
Q Could you explain that he needed six weeks
work?
A Right
Q In order to again be eligible for unemploy
ment?
A Right
Q And is that the reason then that you sent him
out to CBI?
A Part of it yes But I had used Carl Logan as a
steward prior at Armco Steel And use the same
stewards—I used the same stewards that was used
there 30 years ago I had made no new stewards
Q Now when you sent out Mr Logan is it not
a fact that you went out of order of the referral list
in sending him out to help him?
A No as a steward I m not out
Q Okay Is it your position then that you can
send out a steward at any time whether or not you
are going in order of the referral list?
A I am going as I inherited that Local which it
was ran that way for 30 years I m going as past
practice of the Local 534
Q And your understanding of this past practice
is that when it comes to sending out a steward you
do not have to follow the referral list in its order
isn t that correct?
A You take the laborer with experience and the
ones that s interested in being a steward
Q Well when you decide that you re going to
appoint somebody as a steward you are saying then
that it s your position that you do not have to go
right down the list If a job comes up at CBI and
you want to appoint somebody as steward at CBI
you can disregard the list and pick a person you
feel is qualified to be the steward out there?
A That s the way I inherited Local 534
Cf art II Referral Procedure and art X Stewards and
Grievance Procedures G C Exh 2 3
Employee Thomas further related statements made to
the assembled umon membership about September 1983
Some 30 or 40 persons were then present at the union
hall According to Thomas Union President Larry Rice
warned the membership
[W]ho files these charges had better know
what they are doing because they can come, back
3 As G C Exh 6 shows employee James Crawford was referred by
the Union to the Al Neyer job on May 10 1983 as steward Employee
Thomas as he testified was present at the union hall on that occasion
and occupied a senior position on the list
Business Manager Ross also acknowledged that applicants usually
must be present at the hall to be referred Cf art II sec 12 Ross further
acknowledged that laborers from his Local seek their own employment
directly without the Union s permission —contractors may similarly
hire employees directly Cf art II sec 2
and use against you where you turned down work
for unemployment
Employee Baldwin similarly recalled Union President
Rice stating to the assembled members the day after
unfair labor practice charges had been filed
[lit would hurt us—they could turn us in on our un
employment Any of you damn guys that
went down here they could go against your unem
ployment if you file the charges
And employee George Mosley recalled that Union
President Rice
said that somebody had come , down here to file
charges we better be damn sure that we know
what the hell we was talking about before we come
down here and filed charges because it will go
right back on the unemployment
Union President Larry Rice admitted stating to the
membership inter aim
Be careful when you go [to the NLRB] to pulling
too much stink in here because you re going to hurt
a whole lot of people if it gets back to the unem
ployment office and they find out we have all
turned down two days work 4
Discussion
In Operating Engineers Local 406 262 NLRB 50
(1982) the Board held that any departure from estab
lished exclusive hiring hall procedures which results in a
denial of employment to an applicant falls within that
class of discrimination which inherently encourages
union membership breaches the duty of fair representa
tion owed to all hiring hall users and violates Section
8(b)(1)(A) and (2) unless the union demonstrates that its
interference with employment was pursuant to a valid
union security clause or was necessary to the effective
performance of its representative function And in Op
erating Engineers Local 450 267 NLRB 775 (1983) the
Board noted
In these circumstances—i e Respondent has de
signed specific hiring hall procedures—we believe
Board precedent compels finding a violation of the
Act when Respondent departs from those proce
dures We believe Respondent s failure to
follow its referral system procedures is such an arbi
trary departure from its hiring hall rules
4 Much of the evidence summarized above is not materially disputed
There are however some conflicts in testimony I credit the mutually
corroborative and complete testimony of Thomas Baldwin and Mosley
They Impressed me as trustworthy and reliable witnesses Black whose
testimony is noted supra was at times unclear and uncertain in his testi
many Likewise the testimony of Ross Rum gay Garland and Rice was
at times confusing unclear incomplete and vague Insofar as the testimo
ny of Black Ross Rumgay Garland and Rice conflicts with the testimo
ny of Thomas Baldwin and Mosley I am persuaded here that the latter
witnesses are more trustworthy and credible
LABORERS LOCAL 534 (BUTLER COUNTY CONTRACTORS) 929
In the instant case it is clear that Respondent Union was
acting under an agreement and/or arrangement with the
association and the employers involved herein requiring
the exclusive referral of all employees through the
Union s hiring hall facility See generally Plumbers Local
17 224 NLRB 1262 (1976) enfd 575 F 2d 585 (6th Cir
1978) and cases cited It is equally clear that Respondent
Union has adopted specific objective hiring hall proce
dures which as the evidence of record shows it has ar
bitranly and without justification refused to follow
Thus as found above Respondent Union ignored the
priority positions of employee members Thomas and
Baldwin on the exclusive referral list and instead referred
employee member Smith to the Danis job Smith was not
even on the referral list Smith according to Business
Manager Ross was referred out of turn to Danis because
he was a call back However the specific referral pro
cedures as contained in General Counsel Exhibit 2 arti
cle II section 13 permit such an exception where an
employer requests by name any registrant not working
who has been employed by the requesting employer at
any time during the previous six months Smith last
worked for Danis some 7 months earlier In a like vein
Respondent Union also referred employee member
Harris to Danis out of turn as a call back Harris how
ever last worked for Danis some 14 months earlier
Further Respondent Union referred employee member
Logan to the CBI job Thomas had a senior position on
the referral list Business Manager Ross in an attempt to
justify this violation of specific referral procedures
claimed that Logan needed six weeks for unemploy
ment and couldn t make the payments on a trailer
The credible evidence of record does not sufficiently
show any such exception or adequate criteria for such a
claimed exception to the specific referral procedures of
General Counsel s Exhibit 2 article II Further Business
Manager Ross shifting attempt to justify this referral
out of turn by calling Logan the steward is also im
proper The steward provisions of the pertinent agree
ment (art X) do not provide for such an exception to the
referral procedures (art II) In any event the appoint
ment of a steward cannot be used as a device to evade
specific referral procedures 5
The record further shows that Respondent Union and
its business manager Ross have ignored specific provi
mons of article II prohibiting inter aim employee mem
bers from seeking their own employment directly and
prohibiting contractors from hiring directly (Cf art II
sec 2) And finally as the credited evidence shows the
Union s president Rice clearly threatened employee
members with reprisals if they filed charges with the
Board when he admonished the assembled members it
would hurt us [the members] they could turn us in
on our unemployment you re going to hurt a whole
lot of people Such statements in context clearly
tend to impinge on employee members Section 7 rights
5 Likewise employee member Crawford s referral out of turn as a so
called steward is again a violation of the specific referral procedures con
tamed in art II
CONCLUSIONS OF LAW
1 The Association and Danis are employers engaged
in commerce as alleged
2 Respondent Union is a labor organization as alleged
3 Respondent Union has violated Section 8(b)(1)(A)
and (2) of the Act by operating its exclusive hiring hall
facility without using the objective standards of referral
established by the pertinent hiring hall contractual provi
mons by failing and refusing to refer employee members
Darryl Thomas and Charles Baldwin to available em
ployment on the basis of arbitrary and irrelevant consid
erations and by threatening employee members with re
pnsals if they file unfair labor practice charges with the
Board
4 The unfair labor practices found affect commerce as
alleged
REMEDY
To remedy the unfair labor practices found above Re
spondent Union will be directed to cease and desist from
engaging in such conduct or like or related conduct and
to post the attached notice Affirmatively Respondent
Union will be directed to make employee members
Thomas and Baldwin whole for any loss of earnings and
benefits which they may have suffered by reason of Re
spondent s unlawful failure and refusal to refer them as
found unlawful herein Backpay will be computed in the
manner set forth in F W Woolworth Co 90 NLRB 289
(1950) with interest as prescribed in Florida Steel Corp
231 NLRB 651 (1977) See generally Isis Plumbing Co
138 NLRB 716 (1962)
On these findings of fact and conclusions of law and
on the entire record I issue the following recommend
ed 6
ORDER
The Respondent Union Construction and General La
borers Union Local No 534 Laborers International
Union of North America AFL-CIO-CLC its officers
agents and representatives shall
1 Cease and desist from
(a) Causing or attempting to cause employers to dis
criminate against employee members Darryl Thomas and
Charles Baldwin or any other employee members job
applicants or registrants by discriminatorily refusing to
refer them to the Association Danis or the Association s
employer members pursuant to the operation of its ex
elusive hiring hall and referral system
(b) Operating its exclusive hiring hall and referral
system in a discriminatory or arbitrary manner and with
out using the objective standards of referral established
by Respondent s hiring hall contractual provisions
(c) Threatening employee members with reprisals if
they file unfair labor practice charges with the National
Labor Relations Board
5 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
930 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(d) In any like or related manner restraining or coerc
ing employees in the exercise of the rights guaranteed
them by Section 7 of the Act
2 Take the following affirmative action necessary to
effectuate the purposes and policies of the Act
(a) Make employee members Thomas and Baldwin
whole for any loss of earnings and benefits which they
may have suffered by reason of Respondent s discrimina
tory refusal to refer them as found unlawful in the
Board s decision with interest as provided in the
remedy section of the Board s decision
(b) 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
(c) Post at its business offices hiring hall and meeting
places in the Middletown Ohio area copies of the at
tached notice marked Appendix 7 Copies of said no
tees on forms provided by the Regional Director for
Region 9 after having been signed by Respondent s au
thonzed representative shall be posted by Respondent
immediately upon receipt and maintained for 60 consecu
tive days in conspicuous places including all places
where notices to members and employees are customan
ly posted Reasonable steps shall be taken by Respondent
to ensure that said notices are not altered defaced or
covered by any other material
(d) Additional copies of the attached notice marked
Appendix shall be signed by an authorized representa
tive of Respondent and forthwith returned to the said
Regional Director for posting by the Association its em
ployer members and Danis and other employer parties
to the exclusive hiring hall and referral system if said
employers are willing at their places of business where
notices to their employees and members of Respondent
are customarily posted
,
7 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
tonal 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
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re
spondent has taken to comply
APPENDIX
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT cause or attempt to cause employers to
discriminate against employee members Darryl Thomas
and Charles Baldwin, or any other employee members
job applicants or registrants by discriminatorily refusing
to refer them to the Butler County Area Contractors As
sociation Danis Industries Corporation B G Danis
Company Building Division or the Association s em
ployer members pursuant to the operation of our exclu
save hiring hall and referral system
WE WILL NOT operate our exclusive hiring hall and re
ferral system in a discriminatory or arbitrary manner
and without using the objective standards of referral es
tablished by our hiring hall contractual provisions
WE WILL NOT threaten employee members with re
pnsals if they file unfair labor practice charges against us
with the National Labor Relations Board
WE WILL NOT in any like or related manner restrain or
coerce employee members applicants or registrants in
the exercise of their rights guaranteed in Section 7 of the
National Labor Relations Act
WE WILL make employee members Thomas and Bald
win whole for any loss of earnings and benefits which
they may have suffered by reason of our discriminatory
refusal to refer them as found unlawful by the Board
with interest as provided m the Board s Decision and
Order
CONSTRUCTION AND GENERAL LABORERS
UNION LOCAL No 534 LABORERS INTER
NATIONAL UNION OF NORTH AMERICA
AFL-CIO-CLC