Local 1098, Carpenters

National Labor Relations Board - Board Decisions

Nov 5, 1970

186 N.L.R.B. 385 (N.L.R.B. 1970)

LOCAL 1098, CARPENTERS 385
Local 1098, United Brotherhood of Carpenters and
Joiners of America AFL-CIO and John L . Hodges,
its Agent (Chauncey Construction Company, Inc.)
and Wilson A. Watts. Case 15-CB-1042
refusal to refer Watts and Giamalva was unlawful because motivated by
"other reasons unconnected with their failure to pay the periodic dues and
initiation fees uniformly required as a condition of acquiring or retaining
membership in the Respondent Union," as we find it unnecessary to
consider or decide that issue
November 5, 1970
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND BROWN
On June 12, 1970, Trial Examiner Anne F. Schlez-
inger issued her Decision in the above-entitled
proceeding, finding that the Respondents had en-
gaged in and were engaging in certain unfair labor
practices within the meaning of the National Labor
Relations Act, as amended, and recommending that
they cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial
Examiner's Decision. Thereafter, the Respondents
filed exceptions to the Trial Examiner's Decision and
a supporting brief, and the General Counsel filed a
brief in support of the Trial Examiner's Decision.
Pursuant to the provisions of Section 3(b) of the
Act, the National Labor Relations Board has delegat-
ed 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 and briefs, and
the entire record in the case, and hereby adopts the
findings,' conclusions, and recommendations of the
Trial Examiner, except as modified below.2
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recommend-
ed Order of the Trial Examiner and hereby orders that
Respondents, Local 1098, United Brotherhood of
Carpenters and Joiners of America, AFL-CIO, Baton
Rouge, Louisiana, and its agent John L. Hodges, its
officers, other agents, and representatives, shall take
the action set forth in the Trial Examiner's Recom-
mended Order.
i These findings are based, in part, upon credibility determinations of
the Trial Examiner to which the Respondents have 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).
2 We agree with the Trial Examiner 's finding that Respondent Union
violated Section 8(bx2) and 8(b)(l)(A) by discnmmatorily refusing to refer
Watts and Giamalva for rehire by Chauncey on December 3, because they
had not supported President Hodges in the union election campaign
However, we do not rely on the Trial Examiner' s alternate fording that the
186 NLRB No. 59
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
ANNE F. SCHLEZINGER, Trial Examiner: Upon a charge
filed on December 4, 1969, by Wilson A. Watts, the
Regional Director for Region 15 issued a complaint dated
February 4, 1970. The complaint alleges in substance that
Local 1098, United Brotherhood of Carpenters and Joiners
of America, AFL-CIO, and John L. Hodges, Its Agent,
referred to herein respectively as the Union and Hodges
and collectively as the Respondents, attempted to and did
cause Chauncey Construction Company, Inc., referred to
herein as Chauncey or the Company, to fail and refuse to
hire Wilson A. Watts and Joe S. Giamalva by discriminato-
nly refusing to refer them for employment, in violation of
Section 8(b)(l)(A) and (2) of the National Labor Relations
Act, as amended. The Respondents' answer, amended at
the hearing, admits certain allegations of the complaint,
including the allegation that Respondent Hodges and E. J.
Ardoin, financial secretary, are authorized agents of the
Respondent Union within the meaning of Section 2(13) of
the Act, but denies the commission of any unfair labor
practice.
Pursuant to notice, a hearing was held before me in Baton
Rouge, Louisiana, on March 26 and 27, 1970, at which the
parties appeared and were afforded full opportunity to be
heard, to present evidence, and to examine and cross-
examine witnesses. Subsequent to the hearing the General
Counsel and the Respondents filed beefs which have been
fully considered.
Upon the entire record in this case and from my
observation of the witnesses, I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
Chauncey Construction Company, Inc., a Delaware
corporation with its principal office and place of business
located at Dobbs Ferry, New York, is primarily engaged in
the building construction business. Its construction of the
Stauffer Chemical Plant at St. Gabriel, Louisiana, is the
only operation of the Company involved in this proceeding.
During the past year, which period is representative of all
times material herein, Chauncey, in the course and conduct
of its business operations, purchased materials and
supplies, valued at over $50,000, from points outside the
State of Louisiana, which it caused to be transported
directly to its Stauffer Chemical Plant location. I find that
Chauncey is, and has been at all times material herein, an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
I find that Local 1098, United Brotherhood of Carpenters
386 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and Joiners of America , AFL-CIO, is a labor organization
within the meaning of Section 2 (5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Respondents' Hiring Hall Procedures
The issue in this case is whether the Respondents, in the
operation of an exclusive hiring hall , discriminatorily
refused to refer Watts and Giamalva for rehire, when
Chauncey requested them by name in accord with the
contractual and customary referral procedures , because of
internal union politics or for other reasons unrelated to
their failure to pay periodic dues and initiation fees, and by
such conduct attempted to and did cause Chauncey to
discriminate against these two individuals in violation of
Section 8(a)(3) of the Act, and thereby violated Section
8(b)(l)(A) and, (2) of the Act.
The record shows that Chauncey began work on the
Stauffer project in November 1968. On or about October
15, 1969 , it entered into an agreement with the United
Brotherhood of Carpenters and Joiners of America which
contains the following provisions:
In consideration of the foregoing the United
Brotherhood of Carpenters and Joiners of America
agrees to furnish competent journeymen selected for
reference to jobs upon a non -discriminatory basis, such
furnishing to be made upon request of the Company
and with the Company retaining the right to reject or
accept the applicants for employment.
The United Brotherhood of Carpenters and Joiners
of America agrees that the District Councils or, Local
Unions having jurisdiction in the respective areas of the
performance of work will maintain appropriate nondis-
criminatory facilities for the registration and referral of
persons possessing the skills required for the perform-
ance of work by the Company. The Company agrees to
use said facilities in filling job vacancies on all projects.
On or about November 21, 1969, Chauncey became party
to an agreement which had previously been entered into
between the Respondent Union and the Associated
General Contractors of America, Inc., Baton Rouge,
Louisiana, Chapter, and which contains the following
provisions:
XIV. HIRING AND TRANSFERRING
A. The Employer shall have the right to determine the
competency, desirability and qualifications of his
employees , and shall have the right to employ and
discharge accordingly.
s s : s
D. Requests by the Employer for employees previous-
ly employed by the Contractor shall be given
preference of rehire and shall be referred to the
Contractor.
Respondent Hodges , who executed this agreement with
Chauncey on behalf of the Respondent Union, testified
that it was the standard form in the area.
The Union has operated the hiring hall, through which
Chauncey agreed to and did obtain its carpenters, for a
number of years. The hiring hall has not maintained any
out-of-work list for several years . Carpenters in the area
looking for work either ( 1) went to the hiring hall and threw
their cards on a table when jobs in which they were
interested were called out by the business agent, who made
referrals on the basis of the first cards to hit the table, or (2)
applied directly to a project supervisor who, when he hired
them , notified the hall and had them pick up referrals there
before going to work. Many carpenters have obtained all
their jobs for years by this second method , and some
construction projects in the area , including the Stauffer
project, have hired most of their carpenters by this method.
Watts and Giamalva, the complainants herein, had been
members of the Respondent Union for about 8 and 13
years respectively. No question has been raised with regard
to their status as paid-up members in good standing. Watts
and Giamalva worked as partners , a practice among many
carpenters in the area . They had obtained their jobs for
about 5 or 6 years prior to the events here in issue by direct
application at the projects . They obtained their original
jobs at the Stauffer project by direct application to General
Foreman Smith, with whom they had worked on other jobs.
B. The Union Election
In the union election held in June 1969, Respondent
Hodges defeated the incumbent business agent, Adams,
and took office on July 1 . During the preelection campaign,
Watts and Giamalva attended an open house party given
by Adams, and both told Adams prior to the election they
were going to vote for him. In the course of his campaign
for election, Hodges went to the Stauffer parking lot one
morning and solicited support from the men as they were
going to work . According to Watts and Giamalva, who
rode in the same carpool , Hodges approached them, shook
hands , and asked for their support. Watts , who testified
that he understood Hodges was addressing his remarks
principally to Giamalva , walked away to talk with someone
else. Giamalva testified that he told Hodges he had
promised his vote to Adams but would vote for a number of
the men on Hodges' slate of candidates , and that Hodges
responded , "You are either for me or you are against me."
Hodges denied that he made this remark. When asked by
counsel for the Respondents to relate his conversation with
Giamalva , he replied:
Well, I went on the parking lot before work time and
I asked every man out there-I wanted to make a point
out there to ask every man out there, no matter who it
was, every man that was eligible to vote. I shook hands
with him and asked him for support . I didn't wait for a
commitment . I just asked him, if he could , I would like
to have him vote for me and support me.
When asked if Giamalva said he would not vote for him but
would for some of the men on his slate , Hodges replied:
"The only man I can remember telling me they wouldn't
vote for me on that job-because I did not press them for a
commitment- was Mr. Lard and he volunteered ." Hodges
also testified that he did not specifically recall speaking to
Giamalva , that "I didn't have time to talk to everybody
because these men were going in the gate and I wanted to
see each and every one of them and I didn't spend much
time with anybody," and that he did not know how Watts
and Giamalva or any others voted . I found Giamalva a
LOCAL 1098, CARPENTERS
more candid, direct, and convincing witness than Hodges,
and credit Giamalva's version of this conversation.
Hodges testified that he similarly approached Smith, the
general foreman on the Stauffer project, asked Smith to
vote for him and moved on, and did not know who Smith
supported in the election. Smith's recollection was that
Hodges spoke to him on the parking lot and also at the hall
on election day, that Hodges asked for his support, and that
he told Hodges he would think about it.
Hodges sought the support of Jones, the job steward at
the Stauffer project, at a party given by Hodges. Jones
testified that Hodges called and asked hum to attend the
party as Hodges wanted to talk to him about the election,
that he went and listened to the speeches, that when Hodges
asked about his support in the election he said he was not
yet prepared to give a reply, and that Hodges' parting
remarks as he walked Jones to the door were as follows:
he says, "I want to tell you something." He says, "I'm
going to tell you how it is." He says, "It's the cold, hard
facts of life." He said, "People that vote for me and
support me in this next election are the people that are
going to work for the next two years." He said, "I'm
going to win."
Jones testified further that Hodges spoke to him several
times between then and the election, and that he told
Hodges on the morning of the election, when Hodges asked
if Jones had decided to vote for him, that he would not.
Hodges testified that he assumed "Jones was on the other
side of the fence . . . in politics prior to" the election, that
he did not recall what was said at the party except that he
asked Jones to vote for him and Jones "wouldn't commit
himself one way or the other," and that he did not make the
remarks about the "facts of life" attributed to him by Jones.
I was more favorably impressed by the demeanor and
testimony of Jones than of Hodges, and credit Jones'
testimony that Hodges made the remarks set forth above.
C. The Stauffer Project
After Chauncey began construction work at the Stauffer
project in November 1968, it hired a total of more than 60
carpenters, all of them through the hiring hall. Field, who
was in charge of labor relations at the Stauffer project, and
Anthos,i the general superintendent, determined from time
to time the number of men to be employed in the various
categories at the project. When they decided that additional
men were needed, they approved written requisitions
indicating the category and the number of men to be hired,
but they took no part in selecting the men. When carpenters
were to be hired, General Foreman Smith, after consulting
the carpenter supervisors, decided whether to call the hall
for the number of men requisitioned or for referrals for that
number of named individuals whom he had already
selected. Field, who impressed me as a completely reliable
witness, testified that this authority to request men by
numbers or by name had been delegated to the general
I The name appears in the record as "Antose " but, although no motion
was made to correct the record , both of the briefs filed herein and the
signature on a contract that is in evidence indicate that the name is spelled
"Anthos "
2 Watts and Giamalva each testified that Assistant Superintendent
Johnson told hum at the time of the October layoff that he would be
387
foreman because he was a member of the Union and
familiar with the local contract, and that the only limitation
placed on his choice of men was that he comply with the
local contract. Watts and Giamalva, who began working on
the Stauffer project in January 1969, obtained theirjobs by
direct application to Smith, with whom they had worked on
other jobs. All the carpenters hired on the Stauffer project
were given consecutive numbers in the order of their hire,
the lower numbers indicating those with greater seniority.
Watts and Giamalva were numbers 23 and 24.
There was a layoff of carpenters in June or July 1969
which did not include Watts and Giamalva, but they were
among the more than 20 carpenters laid off in October
1969.2 Although the general practice in the area was to
select men for layoff on the basis of such factors as ability,
General Foreman Smith decided voluntarily to select
carpenters for the October layoff by the number system,
retaining those with the lower numbers and greater
seniority, in order to discourage the practice of some
foremen to select men on the basis of personal friendship.
Hodges testified that he was at the Stauffer jobsite some
time prior to the October layoff when Smith told him men
were to be selected for layoff by the number system.
Hodges testified further:
I said that while I never heard of this system being used,
in other words, not considering the man's capabilities at
all, I said, it is not an ordinary thing. I said, however,
you are the general foreman and it is your prerogative
however you lay off. That is your business . . . I told
him that I always felt like the general foreman looked to
the foremen to get the work, the foremen looked to the
men and he should have the prerogative of keeping the
men he wanted . . .
Hodges also discussed layoff by numbers with Jones, the
job steward. He testified that he did not recall any
discussion with Jones, Smith, or anyone else at the Stauffer
project, as to how men would be recalled. Smith and Jones
maintained in their testimony, which I credit, that there was
no discussion with Hodges or any other Union agent about
recalling men by the numbers, and no agreement or
practice to do so.3
D. The Refusal To Refer Watts and Giamalva
Early in December 1969, Company officials authorized
the hire of one carpenter to replace a man who left. At
about that time the Company learned that certain
equipment, expected at the jobsite in January, was being
shipped early. As the foundation needed for this equipment
was not ready, it would be necessary to store the equipment
and move it again when the foundation was ready. Field,
the labor relations director at the Stauffer project, and
Anthos, the general superintendent, discussed with Super-
intendent Owens the economic advantages of being able to
set the equipment on the foundation immediately upon its
arrival. Field testified as to this discussion that Owens said
recalled in a few weeks
3 On the basis of the entire record, I do not credit the testimony of the
laid-off employees who testified, as witnesses for the Respondents, that
they were told by Smith or Jones at various times that men would be
recalled by the numbers
388 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
he could schedule the additional work if he had a few more
carpenters; that he and Anthos pointed out that the work in
question would take only 2 or 3 days, "we did not want to
add carpenters to the job for such a short time . . . and we,
at that time, told Mr. Owens that unless he could justify
keeping the men for at least two weeks, we would just
forego this attempt"; that Owens "assured us then that he
would be able to keep these men employed for at least two
weeks" ; that he and Anthos thereupon "authorized him
[Owens ] to hire the additional carpenters"; and that Anthos
"approved this requisition and gave it to the general
foreman to add the additional carpenters to the payroll."
On December 2, when Smith was authorized to hire the
one carpenter replacement, he told Jones he wanted that
one to be his son, who had not previously worked at the
Stauffer project. Smith's son obtained a referral on
December 2, with Hodges' name signed by Ardoin, the
Union's financial secretary, and went to work at the
Stauffer project on December 3. Hodges learned of this
referral on December 2 and raised no question about it.
Smith learned late in the day on December 2 that the
requisition would authorize the hire of a total of three
carpenters. Jones had already left work. Smith that evening
told Watts' father, who was employed at the Stauffer
project, to notify Watts and Giamalva to stop the next
morning at the hiring hall for referrals, and he, Smith,
would have them called there by name to go back to work
that morning. On the morning of December 3, Smith
directed Jones to call the hall for Watts and Giamalva.
Watts and Giamalva arrived at the hall about 7 a.m. on
December 3. Jones telephoned the hall about 7:30, told
Hodges that Watts and Giamalva had been notified to be at
the hall, and asked Hodges to send them out to the project.
Hodges refused. I credit Jones' testimony that Hodges
continued to refuse after he told Hodges that Smith had
selected Watts and Giamalva,4 and that they had been
instructed to stop at the hall expecting to go back to work.
Both Jones and Hodges testified that Hodges asked Jones
about the six carpenters who had been laid off by the
Company at the same time as Watts and Giamalva and
who had lower numbers. Hodges testified further that he
told Jones, "I understood that this layoff was going by
numbers and I assumed that it would go back by numbers,"
although he admitted that, other than the references to the
six men, there was no discussion of the number system in
general and no "talk about an obligation to recall men by
the numbers." Jones explained to Hodges that certain ones
of the six had indicated they wanted time off to hunt or
because they did not work during the winter, that others
had indicated they had jobs, and that the remaining ones
were considered unsatisfactory workers .5 None of the six
4 I discredit Hodges' denial that Jones said Smith had selected Watts
and Giamalva , and his assertions that Jones repeatedly stated that he,
Jones, was calling for them. As stated above, I found Jones a more credible
witness than Hodges. Moreover, Smith had directed Jones to call for Watts
and Giamalva, it was the general practice for Jones to call on behalf of
Smith , and the evidence indicates no reason for Jones to tell Hodges
otherwise . Smith's status as a Company representative is undisputed.
5 Smith on another occasion made the same explanation about these
men to Hodges, and some of the laid-off men who testified as witnesses for
the Respondents in large part corroborated this explanation.
6 Jones testified that Hodges referred specifically to Anthos and
Assistant Superintendent Borden . Watts, who was called to the telephone
men were in the hall on December 3, and Hodges admitted
in his testimony that he did not know if any of them had
other jobs at the time. He also testified that he demanded
nevertheless that Jones make a current check with each of
the six men, and stated that he would refer Watts and
Giamalva if all six rejected the jobs, or if a Company
official called for them by names Hodges testified further
that he said he would throw the jobs "on the floor" before
he would discriminate against the six men, and that he did
not know what Jones replied to this or how their
conversation ended. Jones finally asked Hodges to call
Watts or Giamalva to the telephone, and told Watts, who
took the call, that Hodges refused to refer them, that he
would talk to Smith, and that Watts and Giamalva should
wait at the hall until he called again. Watts asked if Jones
would back him up in the event he went to the Board with
this matter, and Jones replied that he would tell what
happened. After this telephone conversation, Watts and
Giamalva protested to Hodges about his refusal to refer
them, but Hodges maintained that he would refer them
only if, as Watts and Giamalva credibly testified, Field or
Anthos called the hall and requested them. Hodges left the
office shortly after this. He did not throw the jobs on the
floor, but told Ardoin that, if a Company representative
called for Watts and Giamalva, Ardoin should give them
referrals, and otherwise he was to hold the jobs.
Anthos and Field were both away from the project for a
few days at this time. Jones reported what had occurred to
Smith, Owens, and Borden, and they discussed what action
they might take. It was evidently understood by these
Company representatives that a call from Smith would not
satisfy Hodges' demand, and Borden refused to assume the
responsibility of calling the hall for Watts and Giamalva as
that was not part of his function and he did not know the
two men. Smith finally decided, with Owens' approval, that
he would cancel the request for two additional carpenters if
he could not get the men he wanted. Jones accordingly
called the hall again and spoke to Ardoin, who said he
would send the two men out if, pursuant to Hodges'
instructions, a Company representative called, but Jones
canceled the request, and notified Watts and Giamalva of
this by telephone.
Field telephoned the Stauffer jobsite a day or two after
December 3 and was told by Borden that the Union had
referred only one of the three men requested, and that the
other two would not be referred unless Field or Anthos
called the hall. Field, who testified that he and Anthos
never requested specific people, and that it was too late
then to get the foundation in on time, told Borden to keep
the man who had been sent out and to cancel the request
for the other two. He was apparently not informed that this
by Hodges to speak to Jones, testified that Hodges said at that time he
would refer the two men if Field or Anthos called . Smith testified that
Jones reported to him after the telephone call that Hodges would not refer
the two men unless Field, Anthos, or Borden called for them . When cross-
examined by the General Counsel about this , Hodges testified he did not
recall mentioning any company men by name, evaded answering a
question whether it was possible he did so, and finally denied he named
Field or Anthos because "I usually refer to them people as company." He
also testified that he did not mention Smith's name in this conversation. I
find, on the basis of the credited testimony and all the relevant
circumstances, that Hodges named Field , Anthos, and Borden as the
company men whose request for the two referrals he would honor.
LOCAL 1098, CARPENTERS
request had been canceled. Smith's son worked for about 4
or 5 weeks, and was laid off in January in the first layoff of
carpenters after December 3. Watts and Gtamalva have
gone to the hall a few times since December 3, but the only
jobs that were available to them on those occasions were
not in the "line of work" they perform.
It appears from the record that the December 3 incident
was the only time such a request that the hall refer named
individuals had been rejected. Hodges admitted that he
could not remember any other instance. He also testified
that he considered the system of employers calling for men
by name to be generally unfair as it resulted in some
individuals being almost continuously employed while
others had no work for substantial periods, and that after
he became business agent he explored possible changes in
this system with Ardoin and other union officers. Ardoin
testified that he told Hodges he did not see how they could
work out an impartial system "because we have it in the
contract where the contractor can call by name . . . If he's
on the bottom of the list and the contractor calls for him,
you have to send him." Hodges changed the cards-on-the-
table procedure whereby, instead of a race to the table with
the jobs going to the fleetest, cards of all those interested
are placed on the table, shuffled, and a number drawn
based on the number of jobs available. He did not,
however, change the system of employers calling for
carpenters by name. Moreover, Hodges did not during the
election campaign indicate that he intended to change this
practice nor, after he took office, announce that he had
made such a change. Ardoin testified that he has referred
men for whom a steward called by name and Hodges never
said anything to him about this, and Hodges admitted that
Milton, the steward on a project adjoining the Stauffer job,
had called for carpenters by name after December 3, and
that he issued referrals pursuant to these calls. Hodges
testified that he requested some employers not to call for
men by name, but he admitted that he never made such a
request of Chauncey representatives Field, Anthos, or
Smith. He likewise admitted that he never made such a
request of Steward Jones; of McKinney, the steward with
whom Hodges testified he replaced Jones approximately
"two days after this incident" of December 3; or of Milton,
the steward at the project adjoining the Stauffer job. He
also admitted that he never instructed any job steward that
he would not be allowed to call for men by name.
CONCLUDING FINDINGS
The General Counsel maintains that when Jones called
for the referral of Watts and Giamalva for rehire on the
Stauffer project, Hodges was required by the controlling
contract provisions and the established referral practices to
refer these men, and that his refusal to do so was motivated
by reasons unrelated to their failure to tender periodic dues
and initiation fees and was therefore violative of Section
8(b)(1)(A) and (2) of the Act. The Respondents argue that
Hodges' refusal to refer these two men was warranted by
legitimate hiring hall practices on the grounds that (1)
Jones, the steward, was not a representative of the
7 See United Brotherhood of Carpenters & Joiners of America, Local 1281,
AFL-CIO (Raber-Kief Inc), 152 NLRB 629, 630, in which the Board
pointed out, on the basis of the agreement and practice in that case, that
389
Company authorized by contract to call for carpenters by
name, and (2) there were six men laid off by the Company
in October who had lower numbers than Watts and
Gtamalva, and who should therefore have been offered
rehire before Watts and Giamalva.
As noted above, the Respondent Union was bound by
agreements providing that "The Employer shall have the
right to determine the competency, desirability and
qualifications of his employees, and shall have the right to
employ and discharge accordingly," and, further, that
"Requests by the Employer for employees previously
employed by the Contractor shall be given preference of
rehire and shall be referred to the Contractor." In addition,
there was a long-established practice for employers to call
the hall and request carpenters by name for original hire as
well as for rehire. It was likewise a customary procedure, at
the Stauffer job and other projects in the area, for the
steward to make these calls to the hiring hall. While Field
and Anthos determined the number of men the Company
needed, they took no part in selecting the individuals to be
hired or in calling the hall for the men selected. Smith, after
discussion with carpenter supervision, decided whether to
call named individuals and who they should be, but it was
the job steward, Jones, who made the calls to the hiring hall.
Hodges was no doubt aware from past practice that Jones
made these calls on behalf of Smith and, as I have found
above, Jones expressly told Hodges in their telephone
conversation on December 3 that the two men had been
selected by Smith. Hodges' demand that a Company
official call for the two men has not been shown to be
warranted by any contract provision or hiring hall practice.
The Respondents in fact have admitted that no call by a
steward has been rejected on the ground that the steward
was not authorized to make the call. They have admitted
also that named individuals have been referred pursuant to
calls by stewards before and since December 3. On the
basis of all the relevant evidence, therefore, I find no merit
in the Respondents' contention that the refusal to refer
Watts and Giamalva was justified because the call for them
was made by the job steward.?
I likewise find no merit in the contention that the
Chauncey jobs had to be offered first to the six laid-off men
with lower numbers than Watts and Giamalva. Smith had
voluntarily selected men for the October layoff on the basis
of their hiring numbers. Hodges admitted that use of this
number system was not area practice; that he was given no
indication by Smith, Jones, or anyone else on the Stauffer
project, that men would be rehired by this number system;
and that, when he insisted to Jones that the jobs had to be
offered to the six laid-off men before he would refer Watts
and Giamalva, it was not on the basis of any general "talk
about an obligation to recall men by the numbers." It is
clear from the entire record, and I find, that there was no
contract provision or customary procedure which required
the Company to rehire men by the number system, or which
warranted Hodges' refusal to refer the men selected by the
Company for rehire unless the laid-off men with lower
numbers were given a priority for these jobs.
"A request by an employer for a particular carpenter can be made through
the employee himself "
390 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I find further, on the basis of the foregoing and the entire
record, that the tenuous reasons advanced by the
Respondents for not referring Watts and Giamalva were in
fact pretexts to conceal Hodges' true motivation. The only
plausible explanation indicated by the evidence for Hodges'
departure from contractual and customary procedures is
that he was carrying out his threat, found above, to
discourage employment of men who did not support him in
the election campaign. Hodges' first opportunity to do so as
to Watts and Giamalva came when they sought the rehire
referrals on December 3. It is clear in any event that
Hodges' refusal to issue the rehire referrals to Watts and
Giamalva was unrelated to any failure by them to pay
periodic dues or initiation fees . As the Respondent Union
had undertaken to operate an exclusive hiring hall, it had a
statutory duty to give effect to the hiring hall contracts and
established procedures without discrimination based on
union or protected concerted activities .8 There is no
question that support of the losing candidate in a union
election is a protected concerted activity, and that
discrimination in job referral by the winning candidate
based on such considerations is unlawful .9
I am convinced, therefore, that the evidence amply
demonstrates, as the General Counsel contends, that
Respondent Hodges discriminatorily refused to refer Watts
and Giamalva for rehire by Chauncey on December 3,
contrary to the contract provisions and hiring hall
procedures observed prior to and since December 3,
because they had not supported him in the election
campaign or for other reasons unconnected with their
failure to pay the periodic dues and initiation fees
uniformly required as a condition of acquiring or retaining
membership in the Respondent Union. Accordingly, I find
that the Respondents attempted to and did cause Chauncey
Construction Company, Inc., to fail and refuse to rehire
Watts and Giamalva in violation of Section 8(a)(3), and
thereby restrained and coerced Watts and Giamalva in the
exercise of rights guaranteed by Section 7 of the Act, and
that the Respondents by such conduct violated Section
8(b)(1)(A) and (2) of the Act.10
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondents set forth in Section III
above and found to constitute unfair labor practices,
occurring in connection with the business operations of the
Company set forth in Section I above, have a close,
substantial, and intimate relation to trade, traffic, and
commerce among the several States and tend to lead to
E Local Union 136, Carpenters (Frank Vlack Co.), 165 NLRB 1040;
United Brotherhood of Carpenters & Joiners of America, Local 1281,
AFL-CIO (Raber-Kief Inc.), supra.
9 International Brotherhood of Teamsters, etc., Local 38 (Al Jolson
Construction Co.), 146 NLRB 1627; Local Union No. 18, International Union
of Operating Engineers, AFL-CIO, etc. (Earl D. Creager, Inc.), 141 NLRB
512, 518.
10 Local Union 136, Carpenters (Frank Vlack Co.), supra; United
Brotherhood of Carpenters and Joiners of America, Local 1281, AFL-CIO
(Raber-Kief, Inc.), supra.
11 The General Counsel's brief urges that both Respondents in this case
should be made jointly and severally liable for backpay. In accordance
with the Board 's usual practice, however, I shall not recommend imposition
labor disputes burdening and obstructing such commerce
and the free flow thereof.
V. THE REMEDY
Having found that the Respondents have engaged in
unfair labor practices, I shall recommend that they be
ordered to cease and desist therefrom and to take certain
affirmative action designed to effectuate the purposes of
the Act.
As I have found that the Respondents attempted to and
did cause Chauncey Construction Company, Inc., to fail
and refuse to rehire Wilson A. Watts and Joe S. Giamalva
by discriminatorily refusing to refer them for employment
at the request of the Company, I shall further recommend
that the Respondents be ordered to refer Watts and
Giamalva for employment on a nondiscriminatory basis,
and to notify the Company and other employers using the
hiring hall that Watts and Giamalva will have full use of the
hiring hall facilities without discrimination in connection
with referrals for employment. I shall also recommend that
the Respondent Union be required to make whole Watts
and Giamalva from December 3, 1969, for any loss of
earnings suffered by each of them as a result of the
discrimination practiced against them.1' Such payments
shall be equal to the amount of wages each of them would
have earned but for the discrimination practiced against
them by the Respondents, as computed in accordance with
the formula set forth in F. W. Woolworth Company, 90
NLRB 289, together with interest thereon at the rate of 6
percent per annum, as provided in Isis Plumbing & Heating
Co., 138 NLRB 716.12
On the basis of the foregoing findings of fact and upon
the entire record in this case, I make the following:
CONCLUSIONS OF LAW
1. Chauncey Construction Company, Inc., is an em-
ployer engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. Local 1098, United Brotherhood of Carpenters and
Joiners of America, AFL-CIO, is a labor organization
within the meaning of Section 2(5) of the Act.
3. John L. Hodges is an agent of Respondent Local
1098, United Brotherhood of Carpenters and Joiners of
America, AFL-CIO.
4. By attempting to cause and causing Chauncey
Construction Company, Inc., to fail and refuse to rehire
Wilson A. Watts and Joe S. Giamalva in violation of
Section 8(a)(3) of the Act by discriminatorily denying them
job referrals, because they engaged in the exercise of rights
of any personal backpay liability upon Respondent Hodges, business agent
of the Respondent Union . See, e.g., Local Union 136, Carpenters (Frank
Vlack Co.), supra, In. 5.
12 The Respondents maintain in their brief that "in the event the Board
finds Watts and Giamalva were discriminated against , no back pay award
should be granted or in the alternative , it should be limited to 2 weeks."
The brief refers to Field 's testimony regarding the agreement by Company
officials that the carpenters in question would be "employed for at least
two weeks." The brief also contends that Watts and Giamalva were offered
appropriate jobs at the hiring hall after December 3 which they rejected on
the ground that the jobs were not in their "line of work ." The issues as to
the amounts of backpay due are deferred, however, as they can best be
determined at the compliance stage of this proceeding.
LOCAL 1098, CARPENTERS 391
guaranteed by Section 7 of the Act or for other reasons
unconnected with their failure to pay the periodic dues and
initiation fees uniformly required as a condition of
acquiring or maintaining membership in the Respondent
Union, the Respondents have violated Section 8(b)(1)(A)
and (2) of the Act.
5. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
steps shall be taken to insure that said notices are not
altered, defaced, or covered by any other material.
(e) Mail to the Regional Director for Region 15 signed
copies of said notice for posting by Chauncey Construction
Company, Inc., if willing, at its business offices and
construction sites where notices to its employees are
customarily posted.
(f) 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.14
On the basis of the foregoing findings of fact and
conclusions of law and the entire record in this case, and
pursuant to Section 10(c) of the National Labor Relations
Act, as amended, I recommend that the Respondents,
Local 1098, United Brotherhood of Carpenters and Joiners
of America, AFL-CIO, Baton Rouge, Louisiana, and its
agent John L. Hodges, its officers, other agents, and
representatives , shall:
1. Cease and desist from:
(a) Causing or attempting to cause Chauncey Construc-
tion Company, Inc., or any other employer, to discriminate
against Wilson A. Watts and Joe S. Giamalva, or any other
employee or applicant for employment, in violation of
Section 8(a)(3) of the Act, by discriminatorily denying them
job referrals because they engaged in the exercise of rights
guaranteed by Section 7 of the Act or for other reasons
unconnected with their failure to pay the periodic dues and
initiation fees uniformly required as a condition of
acquiring or maintaining membership in the Respondent
Union.
(b) In any other manner restraining or coercing
employees in the exercise of rights guaranteed by Section 7
of the Act.
2. Take the following affirmative action necessary to
effectuate the purposes of the Act:
(a) Make whole Wilson A. Watts and Joe S. Giamalva for
any loss of earnings suffered by each of them as a result of
the discrimination against them in the manner set forth in
the section of this Decision entitled "The Remedy."
(b) Preserve and upon request make available to the
Board or its agents, for examination and copying, all
referral records and any other records relevant and
necessary for the determination of the amounts of backpay
due.
(c) Notify Chauncey Construction Company, Inc., and
other employers who use the Respondents' hiring hall as an
exclusive primary source for securing carpenters, and mail
copies of such notice to Wilson A. Watts and Joe S.
Giamalva, that Wilson A. Watts and Joe S. Giamalva will
have full use of the hiring hall facilities without discrimina-
tion in connection with referrals for employment.
(d) Post at the Respondent Union's offices, meeting halls,
and hiring halls, copies of the attached notice marked
"Appendix." 13 Copies of said notice, on forms provided by
the Regional Director for Region 15, after being duly
signed by Respondent Hodges as a representative of the
Respondent Union, be posted 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
13 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
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 NATIONAL 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."
14 In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read : "Notify said Regional Director, in
writing, within 10 days from the date of this Order, what steps the
Respondents have taken to comply herewith."
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 Chauncey
Construction Company, Inc., or any other employer, to
discriminate against Wilson A. Watts and Joe S.
Giamalva, or any other employee or applicant for
employment, in violation of Section 8(a)(3) of the Act,
by discriminatorily denying them job referrals because
they engaged in the exercise of rights guaranteed by
Section 7 of the Act or for other reasons unconnected
with their failure to pay the periodic dues and initiation
fees uniformly required as a condition of acquiring or
maintaining membership in the Respondent Union.
WE WILL NOT in any other manner restrain or coerce
employees in the exercise of rights guaranteed by
Section 7 of the Act.
WE WILL make whole Wilson A. Watts and Joe S.
Giamalva for any loss of earnings suffered by each of
them as a result of the discrimination against them.
WE WILL notify Chauncey Construction Company,
Inc., and the employer members of Associated General
Contractors of America, Inc., Baton Rouge, Louisiana,
Chapter, who use our hiring hall, and mail copies of
such notice to Wilson A. Watts and Joe S. Giamalva,
that Wilson A. Watts and Joe S. Giamalva will have full
use of the hiring hall facilities without discrimination in
connection with referrals for employment.
392
Dated By
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
LOCAL 1098, UNITED
BROTHERHOOD OF
CARPENTERS AND JOINERS
OF AMERICA, AFL-CIO,
AND ITS AGENT JOHN L.
HODGES
(Labor Organization)
(Representative ) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
Any questions concerning this notice or compliance with
its provisions, may be directed to the Board's Office, T6024
Federal Building (Loyola), 701 Loyola Avenue, New
Orleans, Louisiana 70113, Telephone 504-527-6361.