Local 120, Laborers International Union

National Labor Relations Board - Board Decisions

Mar 5, 1969

174 N.L.R.B. 1012 (N.L.R.B. 1969)

1012 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Local 120, Laborers International Union of North
America , AFL-CIO ( Edward J . DeBartolo
Corporation ) and Jack Carter . Case 25-CB-809
March 5, 1969
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND ZAGORIA
On November 18, 1968, Trial Examiner William
J. Brown issued his Decision in the above-entitled
proceeding, finding that the Respondent had
engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision.
Thereafter, the Respondent filed exceptions and a
brief in support, and the General Counsel filed
limited exceptions and a brief in support of the
Decision, plus an answering brief.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and
the entire record in this case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner as modified herein.'
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 Respondent , Local 120,
Laborers International Union of North America,
AFL-CIO, Indianapolis , Indiana, its officers , agents,
and representatives , shall take the action set forth in
the Trial Examiner ' s Recommended Order.
'We agree with the Trial Examiner that the Employer's failure to hire
Carter after the Respondent' s business manager reminded Brick Foreman
Osborne that the men on the job had the right to refuse to work should
Carter be hired without a union referral , constituted 8(b)(2) and (IXA)
violations However , we view this "advice" by the Union as an implied
threat to strike, and not merely a reminder that the Union members had
this right Cf Graham Engineering , 164 NLRB No 87, where the problem
was simply a iefusal to refer the alleged discriminatee because of "others"
waiting for work rather than "paid up members" waiting as here
unaccompanied by an implied strike threat should the Employer hire
regardless of union clearance
TRIAL EXAMINER'S DECISION
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 Indianapolis, Indiana, on October 3, 1968'
The underlying charges of unfair labor practices were filed
on June 20 and the complaint herein was issued August
27, by the General Counsel of the National Labor
Relations Board acting through the Board's Regional
Director for Region 25. It alleged, and the duly-filed
answer of the above indicated Respondent, hereinafter
sometimes referred to as the Union, denied the
commission of unfair labor practices defined in Section
8(b)(l)(A) and (2) of the Act by causing and attempting to
cause, the above-indicated employer, (hereinafter
sometimes referred to as the Company) to refuse to hire
the above-indicated Charging Party, (hereinafter
sometimes referred to as Carter) because Carter was not a
member of or referred by the Union
At the hearing the parties appeared and participated as
noted above with full opportunity to present evidence and
argument on the issues Subsequent to the close of the
hearing briefs were received from the General Counsel and
the Union and have been fully considered.
On the entire record herein and on the basis of my
observation of the witnesses, I make the following
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYER
I find, in accordance with the pleadings and evidence
herein, that the Company is a corporation duly organized
and existing under any by virtue of the laws of the State
of Ohio with its principal office in Youngstown, Ohio In
the course of its business operations, the construction of
shopping centers in several states, the Company annually
purchases goods and materials valued in excess of
$50,000, and transported to construction sites directly
from states other than those in which the construction
sites are located I find, as the pleadings establish, that the
Company is an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act. The Company
has at all material times been engaged in the construction
of a shopping center known as Lafayette Square in
Indianapolis, Indiana
II. THE STATUS OF THE UNION
The pleadings and evidence establish that the Union is
a labor organization within the purview of Section 2(5) of
the Act and that Lloyd Gilbert is and at all material times
has been its business manager and an agent of the Union
within the meaning of Section 2(13) of the Act
III. THE UNFAIR LABOR PRACTICES
For some 2 years prior to the occurrence of the events
herein concerned, the Company has been engaged in
performing certain bricklaying and associated labor
operations at the Lafayette Square job The Company has
signed a written agreement with the Union whereby the
provisions of the Union's agreements with Building
Contractors' Association of Indianapolis, Inc and
Indianapolis Mason Contractors Association govern terms
and conditions of the employment of laborers on the
project. The Building Contractors' Agreement, General
Counsel's Exhibit 3, inter alia, provides:
The (Union) will maintain an office . for the purpose
of supplying the (Employer) applicants for employment
if said Employer so desires to use such services
The Mason Contractors Agreement, General Counsel's
Exhibit 4, provides, inter alia,
'Dates hereinafter refer to the year 1968
174 NLRB No. 150
LOCAL 120, LABORERS INTERNATIONAL UNION 1013
All Employees are at liberty to work or cease work for
whomsoever they see fit and Employe(r)s are at liberty
to employ or discharge whomsoever they see fit
and
In the employment of men, no applicant shall be
discriminated against for membership or
non-membership in the Union When the Employer has
requested the Union to furnish men for such a job, such
men shall be referred by the Union on a
non-discriminatory basis from an unemployment list
maintained by the Union
James Osborne has been at all material times the
Company's masonry foreman on the Lafayette Square
project with authority to hire and fire The hod carriers
foreman, under Osborne, has been Joe Allen with
authority to recommend hiring and firing The Union
steward on the project at material times has been Jackson;
he reports to Union Business Manager Lloyd M. Gilbert.
According to the uncontradicted and credible testimony
of Gilbert he has never pulled Union men off the
Lafayette Square project during the 2 years of its
continuance, because of the presence of non-Union
workers there who were, in fact, referred by Gilbert.
Gilbert also testified that sometimes that Company called
for men when jobs were available, sometimes the
Company hires directly and then clears with the Union
and sometimes it hires directly without subsequently
clearing with the Union.
On or about June 18, 1968, the Charging Party, Carter,
went to the Lafayette Square project and asked Allen for
a job Carter was not a Union member but had worked
some considerable time at laboring work. Carter testified
that Allen told him to go to the shack and be signed up
for employment, that en route to the shack, Allen asked
him if he were a Union member and when Carter replied
that he was not, Allen said it would be best for all
concerned if he went to the Union offices and got a work
permit Apparently on that occasion of Carter's first visit
to the jobsite Carter was in the vicinity while Osborne was
talking with a couple of bricklayers and told them that he
would soon be employing some bricklayers and, probably,
hod carriers.' Carter proceeded to the Union office, first
borrowing the $35 necessary as down payment on a Union
initiation fee, and asked Gilbert for a referral slip to the
Lafayette Square job Carter's testimony is that Gilbert
refused both the $35 and a work permit because there
were Union members out of work; Gilbert's account is
that he said he would take the $35 but would not issue
Carter a referral slip because there were paid up members
loafing. Carter, accord..ig to Gilbert, said that there was
no point in paying the $35 if he could not get a referral
slip It is clear, in any event, that Gilbert refused to give
him a referral slip.
The following day Carter returned to the job and Allen
asked why he had not returned the preceding day. Carter
explained that he had not returned then because Gilbert
had refused to give him a referral slip Allen told him to
talk to Jackson, but instead Carter telephoned Gilbert and
asked him to reconsider the matter since a job was still
available for Carter, Gilbert, according to Carter, refused
to discuss the matter further Carter reported this to
Jackson and Osborne and Osborne telephoned Gilbert
about the employment of Carter Gilbert's account of this
'While Osborne testified that he never met Carter, I must conclude that
th•s is to be interpreted as meaning only that they never were actually
introduced since the evidence is clear that Osborne knew that it was Carter
who was on the jobsite looking for work on or about June 18
call is that Osborne asked why Carter could not get a
referral slip and asked him to issue him one and that
Gilbert replied that it was because Union members were
idle in the hall and that Osborne had the right to hire
Carter but that the men on the job had the right to quit
work whenever they wanted. Gilbert concedes that he told
Osborne in the course of this conversation that if the
Company needed a hod carrier he would send him one
Carter was not hired and did not return to the jobsite,
the Company hired some hod carriers within a few days
Although Osborne testified that he never squarely offered
Carter a job, it is clear from the testimony of Carter
which I credit, that Allen would have employed him were
it not for the information received from Gilbert about the
right of the Union men on the job to refuse to work if he
were hired In this connection I credit the testimony of
Carter as against that of Osborne that Osborne told
Carter that if the Company hired him the Union would
picket the project; this fear of Osborne with respect to
Union picketing appears to have been an apprehension
unwarranted by Gilbert's words particularly since the
evidence reveals that there has been no labor difficulties
with the Union on the project notwithstanding
employment of non-Union men on the job.
The evidence amounts to the Company's refusal of
employment to Carter because of Gilbert's advice that the
Union men had the right to quit if they wanted to because
of Carter's employment The question is whether by such
advice the Union, through Gilbert, caused or attempted to
cause the Company to refuse to hire Gilbert and thereby
to encourage or discourage Union membership. There is
no evidence that the Union threatened any action in the
nature of striking or otherwise protesting Carter's
presence on the job. In fact the statements of Gilbert
amount to no more than a reminder of the traditional
disinclination of Union men in the construction industry
to work alongside nonunion members entirely as a matter
of their own volition In the circumstances of this case
which include the prior employment of nonunion men on
the project without Union protest there is a strong
suggestion that the Company was unduly apprehensive
and it might be contended that the denial of employment
to Carter should probably be laid at the feet of the
Company's fears rather than to any action by the Union.
In this regard the evidence is clear that Gilbert told
Osborne that the Company could hire Carter. There is no
direct threat of Union reprisal but only a reminder of the
fact that Union men were available and that Union
members had the right to refuse to work as a consequence
of the hiring of Carter Nevertheless, I agree with the
General Counsel, that the authority of Chief Freight Lines
Company, l l l NLRB 22 enfd 235 F.2d 105 (C A. 10), is
dispositive of the issues herein and on the authority of
that precedent I find and conclude that the Union engaged
in unfair labor practices defined in Sections 8(b)(2) and
8(b)(1)(A) of the Act
IV THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent labor organization set
forth in section III, above, and there found to constitute
unfair labor practices, occurring in connection with the
operations of the Company as set forth in section 1,
above, have a close, intimate, and substantial relation to
trade, traffic, and commerce among the several States and
tend to lead to labor disputes burdening and obstructing
such commerce and the free flow thereof.
1014 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
V. THE REMEDY
In view of the findings set forth above to the effect that
the Union has engaged in 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, to post appropriate notices, notify the
-Company that it will take no retaliatory action in the
event of employment of Carter on the Lafayette Square
project, and make Carter whole for any loss of earnings
he suffered as a consequence of the Union's action of June
1968 relating to Carter's employment on the job
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. The Company is an employer engaged in commerce
within the purview o1 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 By causing and attempting to cause the Company to
refuse to hire Carter because of his lack of membership in
the Union, the Union has engaged in unfair labor
practices defined in Section 8(b)(2) and (1)(A) 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
conclusions of law and upon the entire record in this case,
it is recommended that the Union, its officers, agents, and
representatives, shall
1. Cease and desist from
(a) Causing or attempting to cause the Company to
discriminate against Carter or other applicants for
employment on the basis of lack of membership in the
Union
(b) Restraining or coercing employees of or applicants
for employment by the Company in the exercise of rights
quaranteed by Section 7 of the Act except as such rights
may be affected by an agreement authorized by 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) Notify the Company that it will not in any manner
oppose the employment of Carter on the Lafayette Square
project
(b) Make Carter whole for any loss of earnings suffered
as a consequence of the Union's action of June, 1968
respecting the employment of Carter on that job, by
payment to Carter of a sum of money equal to that which
he would have earned on the Lafayette Square job absent
the Union's refusal to issue him a referral slip on or about
June 18, 1968, said amount to be computed in accordance
with the remedial policies of F W Woolworth Company,
90 NLRB 289, and Isis Plumbing & Heating Co , 138
NLRB 716.
(c) Post at its regular meeting place and on any bulletin
board maintained for the Union's use at the Lafayette
Square project, copies of the attached notice marked
"Appendix "3 Copies of said notice, on forms supplied by
the Board's Regional Director for Region 25, shall, after
being duly signed by an authorized representative of the
Union, be posted by the Union immediately upon receipt
thereof and be maintained by it for a period of 60
consecutive days thereafter Reasonable steps shall be
taken by the Union to insure that said notices are not
altered, defaced, or covered by any other material
(d) Notify the Regional Director for Region 25, in
writing, within 20' days from receipt of this Decision,
what steps have been taken to comply with the terms
hereof
'If these Recommendations are adopted by the Board, the words "a
Decision and Order" shall be substituted for the words "the
Recommendations of a Trial Examiner " in the notice If the Board 's Order
is enforced by a decree of the United States Court of Appeals, the notice
will be further amended by the substitution of the words "a Decree of the
United States Court of Appeals Enforcing an Order" for the words "a
Decision and Order "
if these Recommendations are adopted by the Board , this provision
shall be modified to read "Notify the Regional Director for Region 25, in
writing, within 10 days from the date of this Order , what steps the
Respondent has taken to comply herewith "
APPENDIX
NOTICE TO ALL MEMBERS OF LOCAL 120, LABORERS
INTERNATIONAL UNION OF NORTH AMERICA AFL-CIO
AND TO APPLICANTS FOR LABORERS JOBS AT THE
LAFAYETTE SQUARE JOB
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify you that
WE WILL NOT cause or attempt to cause Edward J.
DeBartolo Corporation to refuse to hire to to discharge
or in any other manner discriminate against Jack
Carter or any other employee or applicant for
employment, in violation of Section 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 Jack Carter whole for
loss of pay suffered as a consequence of our having
caused Edward J. DeBartolo Corporation to refuse to
hire him
WE WILL notify Edward J DeBartolo Corporation,
in writing, that we have no objection to the employment
of Jack Carter
LOCAL 120, LABORERS
INTERNATIONAL UNION
OF NORTH AMERICA,
AFL-CIO
(Labor Organization)
Dated By
(Representative) (Title)
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
If members have any question concerning this notice or
compliance with its provisions, they may communicate
directly with the Board's Regional Office, 614 ISTA
Center, 150 West Market Street, Indianapolis, Indiana
46204, Telephone 317-633-8921.