Metal Lathers, Local 57

National Labor Relations Board - Board Decisions

Aug 18, 1972

198 N.L.R.B. 978 (N.L.R.B. 1972)

978 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Wood , Wire and Metal Lathers Union, Local 57,
AFL-CIO (Mancini and Klimchuck Company,
Inc.) and James D. Barnes. Case 3-CB-1779
August 18, 1972
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS JENKINS
AND KENNEDY
On April 19, 1972, Trial Examiner Sidney Sherman
issued the attached Decision in this proceeding.
Thereafter, Respondent filed exceptions and a
supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the Trial
Examiner's Decision in light of the exceptions and
brief and has decided to affirm the Trial Examiner's
rulings, findings, and conclusions and to adopt his
recommended Order.
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 Respondent, Wood, Wire and Metal Lathers
Union, Local 57, AFL-CIO, its officers, agents, and
representatives, shall take the action set forth in the
Trial Examiner's recommended Order.
CHAIRMAN MILLER, dissenting in part:
Save in one respect, I concur in the decision of my
colleagues. I disagree only with their conclusion that
the complaint, as litigated, adequately tendered as an
issue the question of whether Respondent, with the
Employer's acquiescence, used its exclusive referral
rights-lawfully granted it by a bargaining contract
-to discriminate against nonunion job applicants as
a class. I do not therefore join my colleagues in their
approval of that part of the Trial Examiner's
Decision which finds an unlawful oral arrangement
or agreement between Respondent and the Employer
in fact existed and which provides for its discontin-
uance in the remedial order.
Concededly, the complaint's specific terms do not
allege an unlawful oral agreement with respect to
referrals. When the damaging testimony of Respon-
dent's business agent suggested the possible existence
of such unlawful arrangement, General Counsel was
explicitly asked if his complaint went beyond the
limited claim that employee Barnes lost his job as a
result of Respondent's request that he be displaced
by a union member. General- Counsel's answer
indicated that no more than the alleged discriminato-
ry union conduct involving Barnes was being
attacked. Pointing to this exchange of counsel,
Respondent's exceptions state that Respondent
"could not have been expected to introduce evidence
in support of its position with respect to this matter,"
and it did not do so.
In the above procedural context, I am unwilling to
indulge in any speculation that Respondent had no
evidence to present to counteract the damaging
testimony of its business representative on the
matter.
TRIAL EXAMINER 'S DECISION
SIDNEY SHERMAN , Trial Examiner : The charge herein
was served on Respondent on November 30, 1971, the
complaint issued on January 12 , 1972, and the case was
heard on March 7, 1972.1 The issues litigated related to
alleged violations of Section 8(b)(2) and ( 1)(A) through
discrimination in referrals . After the hearing , briefs were
filed by Respondent and the General Counsel.
Upon the entire record ,2 including observation of the
witnesses ' demeanor, the following findings and recom-
mendations are made:
I. THE BOARD'S JURISDICTION
Mancini and Klimchuck Company, Inc., hereinafter
called the Employer, is a corporation under the laws of
New York State and is engaged in the construction
business as a contractor, maintaining its principal office at
Endicott, New York. During the 12 months immediately
preceding the issuance of the complaint, the Employer
received , from out-of-state sources , goods valued in excess
of $50,000 and had gross revenues of more than $500,000.
The Board's jurisdictional standards are met here.
II. THE RESPONDENT
Wood, Wire and Metal Lathers Union, Local 57, herein
called Respondent, is a labor organization under the Act.
III. THE MERITS
A. Issue
The complaint alleged, and the answer denied, that
Respondent violated Section 8(b)(2) and (1)(A) of the Act
by causing the Employer to refuse to employ Barnes
because he was not a member of Respondent.
B. Sequence of Events
On June 1, 1969, Respondent and Associated Building
1 For corrections of the transcript and other matters , see the show cause
orders of April 3 and 4, 1972 No response to those orders having been
received , they became final on April 10
2 The General Counsel' s unopposed motion to correct the record,
submitted with his brief on March 30, 1972 , is hereby granted
198 NLRB No. 136
METAL LATHERS, LOCAL 57 979
Contractors of The Triple Cities, Inc., entered into a
contract for a term ending May 31, 1972. There is no
dispute that, as Respondent's answer avers, the Employer
is bound by this contract, which recognizes Respondent as
the exclusive representative of the Employer's lathers.
Articel III of that contract provides:
All employers recognize the Union as the source of
qualified workmen and will call upon the Union for
such men as he [sic] shall, from time to time, need and
the Union shall furnish to the Employer [sic] the
required number of qualified and competent workers.
Said workmen shall be made available by the Union
from an out-of-work registration list maintained for
such purposes by the Union. Said list shall be the sole
responsibility of the Union and shall be open and non-
discriminatory . . . . The employer shall also have the
right to request the availability of particular employees.
Article VIII, section 14, of the foregoing contract
provides:
The Employer shall employ at least one (1) journeyman
lather over fifty (50) years of age for every five (5) men
employed on any one job, provided they are available
at the time of employment.
It is clear that the net effect of the foregoing language is
to establish Respondent as the exclusive source of lathers,
and the record shows that all such employees are in fact
obtained from that source alone. Moreover, despite
Respondent's above-quoted renunciation of any discrimi-
nation in referrals,3 it was agreed at the hearing that
Respondent and the area contractors, including the
Employer, have been parties to the following arrangement:
While it will refer nonmembers to jobs as lathers,
provided that they have paid it a $4 weekly fee for a work
permit,4 Respondent gives preference in referrals to its own
members. Thus, nonmembers (or "permit men") are
referred to a job only when no members are available to
man that job and, if a member becomes unemployed and a
"permit man" is currently working, Respondent will simply
refuse to renew his weekly permit at the end of that week,5
and request the Employer to hire the unemployed
member .6
With respect to the charging party, Barnes, the record
shows that, while working as a permit man under the
foregoing arrangement, he was laid off by the Employer on
October 8 and November 26, at a time when Braman, a
member of Respondent, who was over 50 years of age, was
unemployed. There was no substantial dispute that, on the
first occasion such layoff occurred, Union Agent Ulrich
demanded that Mancini, a coowner of the Employer, hire
Braman , serving notice at the same time upon Mancini
3 Such renunciation of discrimination is amplified in sec 3 of art III of
the contract as follows:
Journeyman lathers and Apprentices shall be referred by the Local
Union to jobs on a non-discriminatory basis and such referral shall not
be based on, or in any way be affected by Local Union membership,
by-laws, rules, regulations, constitutional provisions or any other aspect
or obligations of Local Union membership, policies or requirements
Nonmembers working under such an arrangement are referred to in
the record as "permit men "
5 The work permits are good only for the current week and must be
renewed each week by payment of the weekly fee
6 While the contract required lathers to become members of Respondent
after the 7-day statutory grace period, it is evident from the record that this
that Barnes' work permit, which was to expire on October
8, would not be renewed.? Mancini retorted that he would
not hire Braman because of his limited climbing ability,
and he was not hired. However, Barnes was laid off on
October 8. The next week both Braman and Barnes were
referred by Respondent to jobs with other employers. On
November 8, Barnes returned to work for the Employer as
a journeyman lather. Within the next 10 days, Braman
again became unemployed and on November 18, Respon-
dent notified the Employer that it had some unemployed
members and demanded that it lay off Barnes. On
November 19, he was taken off lathing and assigned to
carpentry. When, on November 26, that work ran out, he
was again laid off and has not since been rehired by the
Employer.
C. Discussion
The General Counsel contends that the removal of
Barnes on October 8 and November 19 from lathing work
should be found to have been caused by Respondent for
discriminatory reasons and, therefore, violative of Section
8(b)(2) and (1)(A). Respondent contends, inter alia, that it
was only seeking here to enforce the contractual require-
ment quoted above for the hiring of journeymen over 50
years of age when there are five men on the job. It was
stipulated that at all times here relevant there were eight
lathers on the job and Respondent points to Ulrich's
testimony that, when he called Mancini early in October,8
he stated that Braman was unemployed and that there was
no one on the job over 50 years of age and demanded that
Braman be hired. However, Ulrich admitted that in this
conversation he specified that Braman be hired as a
replacement for a "permit man,"9 warning Mancini that he
would not renew Barnes ' permit after October 8. More-
over, although Ulrich professed ignorance of the matter,
Respondent's secretary-treasurer conceded at the hearing
that Youket, Respondent's job steward on the instant job,
was well over 50 years of age and the record shows that he
was employed on that job as a lather throughout the period
here under consideration. Accordingly , it is clear that the
Employer was not in violation of the over- age clause either
on October 8 or November 19.
Respondent, nevertheless, contends that Ulrich in good
faith believed that there was such a violation and that his
motivation, which is the controlling consideration here,
should therefore be found to have been lawful. However,
one would have to be naive to credit Ulrich's disclaimer of
any knowledge of the approximate age of his own job
steward, particularly as it was admitted that such informa-
tion appeared on Respondent's records. Moreover, it is
requirement was not enforced , Respondent apparently preferring to allow
nonmembers to work on a weekly permit basis , as they were needed , subject
to displacement by unemployed members.
7 See In 5, above
8 Ulrich vacillated at first as to whether this conversation occurred
several days before Barnes ' first or second layoff, but finally related it to the
first layoff. As found below , Ulrich also called Mancini a day or so before
the second layoff The contents of that conversation are discussed below
9 According to Ulrich there were then three "permit men" on the job and
two members of a sister local of Respondent Since it was stipulated that
there were all together eight lathers on the job at all relevant times, it is
inferred that the remaining three lathers at work on October 8 were
members of Respondent
980 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
significant that Ulrich did not simply demand that the
Employer hire Braman but also insisted that it make room
for him by laying off one of the "permit men," pointedly
warning the Employer at the same time that the weekly
permit of one of those men, Barnes, would not be renewed.
Since, under the existing arrangement between the parties,
Barnes could not continue to work for Respondent unless
his permit was renewed, Ulrich's remarks were tantamount
to a demand that Barnes be laid off and Braman hired to
replace him. Thus, even if one were to find that the
demand that Braman be hired was not improperly
motivated, that circumstance would not excuse Ulrich's
designation of Barnes as the one to be laid off, which
designation, so far as the record shows, was based solely on
the fact that Barnes was not a member of Respondent but
a permit man.
Respondent urges that, in any event, there is insufficient
evidence that the Employer laid off Barnes on October 8 as
a result of Ulrich's foregoing conversation with Mancini.
Respondent points to the testimony of Holobosky, the
Employer's job superintendent, that there was a decline in
the volume of lathing work, which necessitated the layoff
of three lathers on October 8. However, Holobosky also
testified that Barnes was selected for layoff, after consulta-
tion between the witness and Mancini, solely because he
was a permit man and that, if he had been a member of
Respondent, he would have been retained. Since it appears
from the foregoing testimony, which was not contradicted,
that Mancini participated in the selection of Barnes for
layoff on October 8, such testimony suffices to establish a
nexus between such selection and Ulnch's warning to
Mancini that Barnes' permit would not be renewed.
To sum up, it is found that the existing arrangement
between the Employer and Respondent required that
Barnes be laid off upon the expiration of his weekly work
permit, that the Employer was forced to lay him off on
October 8, by Respondent's warning that his work permit
would not be renewed beyond that date,10 and that, in
insisting on the removal of Barnes from the job, Respon-
dent acted for discriminatory reasons. It follows that it
thereby violated Section 8(b)(2) and (1)(A).
As to the November 19 incident , Barnes was on that date
again working for the Employer, having returned to the job
on November 8. Mancini testified, without any substantial
contradiction, and it is found, that on November 18, Ulrich
called him, stated, in effect, that he had some members out
of work,li and insisted that Barnes "had to go"; and that
to placate Ulrich the witness transferred Barnes on
November 19, to work as a carpenter's helper, without,
however, hiring any replacement for him on the lathing
work. While the Employer, as a result, had to operate with
less than the optimum number of lathers, it is clear from
the record that Mancini regarded that as preferable to
10 While it is clear that it had no intention of complying with
Respondent's request that Braman be hired, the Employer had no
alternative but to lay off Barnes upon the expiration of his work permit.
(Although such permit was in fact renewed during the following week, this
was presumably because Respondent had in the interim succeeded in
finding anotherjob for Braman )
11 One of such unemployed members was Braman
12 While the complaint does not allege the maintenance of such
arrangement as a separate violation, the issue was adequately litigated See
Tonn and Blank, Inc, 182 NLRB 233
giving Respondent an occasion for referring Braman to the
job. Thus, it is found that as of October 8 the Employer
was forced to dispense with the services of Barnes in order
to avoid violating the preferential hiring arrangement,
which did not allow it to retain a permit man so long as
members of Respondent were available , and that Ulrich's
reason for again designating Barnes as the one to be laid
off was solely his lack of membership in Respondent. It
follows that, by causing Barnes to be taken off lathing
work on November 19, Respondent again violated Section
8(b)(2) and (1)(A).
It is further found that, by maintaining an arrangement
or understanding with the Employer requiring that
members of Respondent be given preference in hiring,
Respondent additionally violated Section 8(b)(2) and
(1)(A) of the Act.12
IV. THE REMEDY
It having been found that Respondent violated Section
8(b)(2) and (1)(A) of the Act, it will be recommended that
it be required to cease and desist therefrom and take
appropriate affirmative action. Such action shall include
indemnifying Barnes for any loss of earnings suffered by
reason of the discrimination against him. Backpay shall be
computed in accordance with the formula prescribed in F.
W. Woolworth Company, 90 NLRB 289; interest shall be
added to backpay at the rate of 6 percent per annum (Isis
Plumbing & Heating Co., 138 NLRB 716).13
It will be further recommended that Respondent notify
the Employer, in writing, with a copy to Barnes, that it has
no objection to his employment on any job within
Respondent's jurisdiction, regardless of the availability of
its members to fill the same job.14
In view of the nature of the violations found herein, a
threat of future violations exists which warrants a broad
cease-and-desist provision.
V. CONCLUSIONS OF LAW
1. Respondent is a labor organization under the Act.
2. By maintaining an arrangement or understanding
with the Employer requiring that preference in hiring be
given to its members, and by causing the Employer to lay
Barnes off on October 8, and to take him off lathing work
on November 19 because of his lack of union membership,
Respondent violated Section 8(b)(2) and (])(A) of the Act.
3. The foregoing unfair labor practices affect com-
merce within the meaning of the Act.,
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, there is issued the following recommended: 15
13 While the record shows that the project on which Barnes was
employed on October 8 and November 19 has been completed , it also
appears that, in various capacities, Barnes has worked for the Employer
over a period of 3 years It may be, therefore , that , if Barnes had been
retained as a lather until the completion of the instant project , he would
have been transferred to another project. This circumstance should be taken
into account in computing Barnes' backpay See J A Ferguson Construction
Company, 172 NLRB 165, cf Tonn and Blank, Inc, 182 NLRB 233, 241
14 See Tonn and Blank, Inc, supra at page 241.
15 In the event no exceptions are filed as provided by Sec 102.46 of the
METAL LATHERS, LOCAL 57 981
ORDER
Respondent, Wood, Wire and Metal Lathers Union,
Local 57, AFL-CIO, its officers, agents, successors, and
assigns, shall:
1. Cease and desist from:
(a) Causing or attempting to cause employers to
discriminate against James Barnes or any other employee
with regard to his hire, tenure, or any other term or
condition of employment, because he is not a member of
Respondent.
(b) Maintaining any arrangement or understanding with
Mancini and Klimchuck Company, Inc., or any other
employer requiring that preference in hiring be given to
members of Respondent.
(c) In any other manner coercing employees in the
exercise of rights guaranteed in Section 7 of the Act, except
to the extent that such rights are modified by the proviso in
Section 8(a)(3) of the Act.
2. Take the following affirmative action, which is
deemed necessary to effectuate the policies of the Act.
(a) Make James Barnes whole, in the manner prescribed
in the Remedy section of the Trial Examiner's Decision,
for any loss of earnings he may have suffered as a result of
the discriminatory actions of October 8 and November 19,
1971.
(b) Promptly notify Mancini and Klimchuck Company,
Inc., that it has no objection to the employment of James
Barnes as a journeyman lather on any job within
Respondent's territorial jurisdiction, regardless of the
availability of its members to fill the same job, and at the
same time serve a copy of such notice on James Barnes.
(c) Post at its office and meeting hall and at the job sites
of Mancini and Klimchuck Company, Inc., within Respon-
dent's jurisdiction, if the former is willing, copies of the
attached notice marked "Appendix." 16 Copies of said
notice, on forms provided by the Regional Director for
Region 3, after being duly signed by an authorized
representative, shall be posted by Respondent immediately
upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places, includ-
ing all places where notices to members are customarily
posted. Reasonable steps shall be taken by Respondent to
insure that said notices are not altered, defaced, or covered
by any other material.
(d) Notify the Regional Director for Region 3, in writing,
within 20 days from the receipt of this Order, what steps
have been taken to comply herewith.17
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions, and recommended Order herein shall, as provided in Sec
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
16 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 read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."
17 In the event that this recommended Order is adopted by the Board
after exceptions have been filed , this provision shall be modified to read-
"Notify the Regional Director for Region 3, in writing , within 20 days from
the date of this Order, what steps have been taken to comply herewith "
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT maintain any arrangement or under-
standing with Mancini and Klimchuck Company, Inc.,
or any other employer requiring that preference in
hiring be given to our members.
WE WILL NOT cause or attempt to cause Mancini and
Khmchuck Company, Inc., or any other employer to
discriminate against James Barnes or any other
employee because he is not a member of our union.
WE WILL NOT in any other manner restrain or coerce
employees in the exercise of the rights guaranteed by
Section 7 of the aforenamed Act, except to the extent
that such rights may be affected by an agreement
requiring membership in a labor organization as a
condition of employment, as authorized by Section
8(a)(3) of the Act.
WE WILL make James Barnes whole for any loss of
pay he may have suffered as a result of the discrimina-
tion against him on October 8 and November 19, 1971.
WE WILL notify Mancini and Klimchuck Company,
Inc., that we have no objection to the employment of
James Barnes as a journeyman lather on any job within
our jurisdiction, whether or not one of our members is
available to fill the same job, and we will serve James
Barnes with a copy of that notice.
WOOD, WIRE AND METAL
LATHERS UNION LOCAL 57,
AFL-CIO
(Labor Organization)
Dated By
(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, 9th
Floor, Federal Building, 111 West Huron Street, Buffalo,
New York 14202, Telephone 716-842-3100.