Loc. # 42 (Catalytic Construction Co.)

National Labor Relations Board - Board Decisions

May 23, 1967

164 N.L.R.B. 916 (N.L.R.B. 1967)

916 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Local # 42 of the International Association of
Heat and Frost Insulators and Asbestos
Workers, AFL-CIO (Catalytic Construction
Company) and Marshall Persinger, An
Individual . Case 4-CB-1243
May 23, 1967
DECISION AND ORDER
BY MEMBERS BROWN, JENKINS, AND ZAGORIA
On December 19, 1966, Trial Examiner Frederick
U. Reel issued his Decision in the above-entitled
proceeding, finding that Respondent had not
engaged in the unfair labor practices alleged in the
complaint and recommending that the complaint be
dismissed in its entirety, as set forth in the attached
Trial Examiner's Decision. Thereafter, the General
Counsel filed exceptions and a supporting brief, and
Respondent filed a brief in rebuttal.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National 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 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 and the briefs,
and the entire record in the case, and hereby adopts
the findings, conclusions, and recommendations of
the Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner and
hereby orders that the complaint herein be, and it
hereby is, dismissed in its entirety.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
FREDERICK U. REEL, Trial Examiner: This proceeding,
heard at Wilmington, Delaware, on October 17, 1966,
pursuant to a charge filed the preceding March 16, and a
complaint issued July 29, presents questions as to whether
the Respondent, herein called the Union, has violated
Section 8(b)(1)(A) and (2) of the National Labor Relations
Act, as amended, in administering contracts providing for
an exclusive hiring hall.
Upon the entire record, and after due consideration of
the briefs filed by General Counsel and by the Union, I
make the following:
FINDINGS OF FACT
I. THE LABOR ORGANIZATION AND THE EMPLOYERS
INVOLVED
The Union, a labor organization within the meaning of
164 NLRB No. 123
Section 2(5) of the Act, represents asbestos workers in the
construction industry in the State of Delaware , and has
contracts with a number of construction companies in the
area, at least one of whom , Catalytic Construction
Company, a Delaware corporation , performs services
valued in excess of $50,000 outside the State , and is an
employer engaged in commerce within the meaning of the
Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Hiring Procedures Set Forth in the Contracts
The Union's contracts with the various construction
companies provide that the employer shall obtain
employees through the Union, and shall not hire directly
unless the Union has failed to refer the required number of
employees within 48 hours after the employer requested
them. The employers reserve the right to reject any
applicant for employment. The contracts further provide
that union members hired thereunder shall retain their
membership while employed, but contain no other
provision requiring union membership. The hiring
procedures, set forth in sections 3 and 4 of article VII of
the contracts, read as follows:
3. The Union shall select and refer applicants for
employment without discrimination against such
applicants by reason of membership or non-
membership in the Union and such selection and
referral shall not be affected in any way by rules,
regulations, by-laws, constitutional provisions or any
other aspect or obligation of Union membership
policies or requirements. All such selection and
referral shall be in accordance with the following
procedure.
4. The Union shall maintain a register of applicants
for employment established on the basis of the groups
listed below. Each applicant for employment shall be
registered in the highest priority group for which he
qualified.
GROUP A. All applicants for employment who have
four or more years' experience in the trade, are
residents of the geographical area falling within the
jurisdiction of the Union and who have passed a
journeyman's examination given by Local 42.
GROUP B. All applicants for employment, who
have four or more years' experience in the trade, are
residents of the geographical area falling within the
jurisdiction of the Union and who have passed a
journeyman's examination given by any duly
constituted Local Union of the International
Association of Heat, Frost and Asbestos Workers and
who have been employed for a period of at least one
year in the last four years under a collective
bargaining agreement between the parties to this
addendum.
GROUP C. All applicants for employment who have
four or more years' experience in the trade and who
have passed a, journeyman's examination given by a
duly constituted Local Union of the International
Association` of Heat, Frost and Asbestos Workers.
GROUP/6 All applicants for employment who have
worked at the trade for more than four years.
GROUP E. All applicants for employment as
LOC.# 42 (CATALYTIC CONSTRUCTION CO.) 917
Improvers and who are residents of the geographical
area falling within the jurisdiction of Local 42.
GROUP F. All other applicants for employment as
improvers.
B. The Practical Operation of the Hiring Provisions
The hiring hall and classification system, described
above, has been in effect since 1963, and is administered
by the Union's business agent. The present business
agent, Theodore W. Ryan, testified that all applicants for
employment must sign the registration book at his office,
and do so anew each time they are out of work. He in turn
maintains lists of applicants by classification (group A,
group B, etc.) and these lists, together with the hiring
provisions quoted above, are posted in the hall outside his
office.
When Ryan receives a request for employees, he fills it,
if possible, from the class A men registered and
unemployed, and if that category is exhausted from class
B men, or in other words from residents in the area who
have passed either this Union's or another local's
journeyman examination. After those classes are
exhausted, Ryan will telephone to business agents of other
locals in cities such as Baltimore, Philadelphia,
Washington, and other cities in the area to advise them of
the openings for class C men. He testified that if any of the
class D men are present in the hiring hall he will refer
them to jobs before calling his fellow business agents, but
that he does not normally look up class D men unless they
are actually in the hall at the strategic moment. According
to Ryan, of the 80 class D men in his registration book,
only about 5 left telephone numbers. He remembered
calling two such men in February 1965, but none since.
The class C men report to the union hiring hall before
being sent to the jobsite, and normally sign the registration
book, but on occasion to save time Ryan will print their
names in the book after they have left the hall and are en
route to the job.
The class A men are all members of the Union. This
membership consists of approximately 95 mechanics or
journeymen and approximately 20 improvers. An improver
becomes a journeyman by passing the Union's
examination after serving 4 years as an improver. The
examination is authorized in each individual cafe at a
union meeting on motion duly made and seconded and
passed by the members attending. An examining board is
thereupon created which goes to the place where the
improver is employed (or, if the job has terminated, to
where he was last employed), inspects his work, confers
with the employer, and determines whether the improver
is qualified to be a journeyman. Since 1963, when this
system went into effect, the Union has examined 15
improvers and found them satisfactory; no one has
"failed" the "examination."
The class B men are all members of other locals of the
Union's International, and are "travellers," men who have
obtained cards from their locals attesting their
membership and authorizing them to work outside their
locals' jurisdiction. The class C men are also members of
other locals with the exception of one Kelly, who was
placed in class C without being required to pass an
examination as the result of a settlement of a charge
brought by Kelly against the Union.
No class D man has ever taken an examination, and
hence no one has moved from class D to a higher
classification. According to Ryan, if a class D man asked
for an examination at an appropriate time, the Union
"would have to give it to him." The only class D man ever
to request such an examination was the Charging Party,
Marshall Persinger, under circumstances described
below.
C. Persinger 's Efforts to Obtain Employment
Persinger , until February 1965, had enjoyed intermittent
employment as an asbestos worker on union jobs in the
Wilmington area for several years, and neither he nor the
Union 's business agent had ever heard any criticism of his
work . He was not a member of the Union or of any other
local of the Union 's International , and had not as of the fall
of 1965 taken or passed any "examination " at the hands of
the Union or any of its sister locals, but the Union on
several occasions had given him referral slips, pursuant to
which he was hired . In February 1965, Persinger was laid
off by the Catalytic Construction Company, and he went to
the hiring hall where he signed the registration book. He
received no further job referrals , despite his repeated
inquiries at the hiring hall, although , during this period of
Persinger 's unemployment , Ryan had on several occasions
called business agents of other locals to furnish him with
class C men.
Persinger was carried on the hiring hall lists as a class D
man. He testified , however , that he was totally unaware of
the classification system until in August 1965 on one of his
visits to the hall Ryan told him that there was no work for
men in Persinger's "class." Persinger then inquired of his
brother , a union member and a class A man , and learned
about the system . Persinger then wrote the Philadelphia
office of the National Labor Relations Board, and at the
suggestion of that office requested the Union to give him
an examination so that he could qualify for class A. This,
according to Persinger , was the first time he had heard of
such an examination . The Union did not reply to his
request for an examination. Ryan testified that the matter
was discussed at the union meeting , and the members
decided not to authorize examination as Persinger was not
"even working with our local or through our local"; he had
not been so engaged for several months. Ryan also
testified that Persinger was unemployed at the time, and
Persinger testified that he had not worked as a pipe
coverer in Delaware since February 1965. After several
more months of waiting for work , Persinger moved out of
the area . According to his testimony he left his Delaware
telephone number with Ryan ; Ryan denied this, but I
credit Persinger , who further testified that he had left
word with the people at his Delaware number as to where
he could be reached.
D. Concluding Findings
To establish a violation in the case, General Counsel
must show by a preponderance of evidence that the Union
discriminated in favor of union members in the operation
of its hiring hall. Local 357, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America (Los Angeles-Seattle Motor Express) v. N.L.R.B.,
365 U.S. 667. This burden, moreover, is not discharged by
showing that the Union administers an examination before
conferring a preferred referral status. Section 8(f)(4); Local
367, IBEW (National Electrical Contractors Assn.), 134
NLRB 132, 135. General Counsel urges that two facts in
this case establish that the Union discriminated in favor of
union members.
918 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
First, General Counsel suggests that when class A and B
men are unavailable (presumably because already
employed) the Union's business agent when faced with an
employer's request for men should meet this request by
using people already registered in the hiring hall and
should not attempt to locate class C employees by
telephoning union business agents in other communities.
Although this contention has a substantial equitable
appeal, its practical effect would be to reverse the class C
and class D groupings in the contract. Once it is conceded,
however, that the "examination" criterion is permissible
(see Local 367, IBEW, supra), there can be nothing
inherently illegal in the Union's seeking to find class C
men who have passed the examination before referring out
class D men who have not. The class D men have the
"protection" afforded by the requirement that the Union
meet an employer's requests for men within 48 hours, but
if within that period the Union is able to locate class C men
and have them register at the hiring hall, I find no proof of
unlawful discrimination in the Union's doing so. I cannot
avoid harboring the suspicion that if a class D man were a
union member, the Union would call him in preference to
seeking class C men from other localities, but this
suspicion is nothing more than that which the Supreme
Court held insufficient to justify a finding of discrimination
in Local 357, Teamsters, supra.
Second, General Counsel urges that the Union has
discriminated in not permitting Persinger to take the
examination . It is probable that he could pass the
examination , as his experience exceeds that of the
"improvers," none of whom failed to pass. But I can find
nothing inherently improper or discriminatory in the
Union 's requirement that the "examination" consist of
inspection of a man's actual performance on a job. This
requirement has been applied, it is true, to permit such
inspection even after a man has left the job being
inspected, but apparently the requests for inspection are
made at a time when the work is in progress . The system
under which the "examination" is authorized by a vote at a
union meeting may be questioned, but the testimony in the
record affirmatively establishes that the Union would have
permitted Persinger to take the examination if he had
made a timely request. A class D man can only make such
a request when employed, and the operation of the system
limits his employment, but on this record Persinger had
employment from time to time and has only himself to
blame for not being aware of the classification and
examination system, which was the subject of lists and
contracts posted at the hiring hall which Persinger visited
on several occasions.
In this connection it should be noted that the record
suggests that the Union would not have been willing to
"examine" Persinger based on work not done pursuant to
union contracts. But the record does not establish that
Persinger had worked on nonunion jobs, and indeed
suggests the opposite. A showing that the Union refused to
examine a man based on work performed on nonunion jobs
might well warrant a finding that the Union was using the
"examination" as a device to keep out nonunion men
rather than as a legitimate test of competence. But on this
record, I cannot find that General Counsel has carried his
burden of proof in his respect.
CONCLUSION OF LAW
The Union has not engaged in the unfair labor practices
alleged in the complaint.
RECOMMENDED ORDER
The complaint herein should be, and hereby is,
dismissed.