Metropolitan District Council, Carpenters

National Labor Relations Board - Board Decisions

Nov 11, 1971

194 N.L.R.B. 159 (N.L.R.B. 1971)

METROPOLITAN DISTRICT COUNCIL, CARPENTERS
Metropolitan District Council, United Brotherhood of
Carpenters and Joiners of Philadelphia and Vicinity
and George H. Stump , James W. Stump and John
C. Stump. Case 4-CB-1798
November 11, 1971
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND JENKINS
On July 21, 1971, Trial Examiner Thomas A. Ricci
issued the attached Decision in this proceeding.
Thereafter, the General Counsel and the Charging
Parties filed exceptions and supporting briefs, and the
Respondent filed cross-exceptions with a supporting
brief and an answering 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, cross-
exceptions, and briefs and has decided to affirm the
Trial Examiner's rulings, findings,' and conclusions2
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
the complaint be dismissed in its entirety.
1 The General Counsel has excepted to certain credibility findings made
by the Trial Examiner. It is the Board's established policy not to overrule a
Trial Examiner's resolutions with respect to credibility unless the clear
preponderance of all of the relevant evidence convinces us that the
resolutions were incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544,
enfd. 188 F.2d 362 (C.A. 3). We have carefully examined the record and
find no basis for reversing his findings.
2 We agree with the Trial Examiner's conclusion that Respondent did
not violate Sec. 8(b)(2) and (1)(A) in requiring monthly permit fees from
the Stumps to work; however, our reason for so finding is that General
Counsel failed to establish by a preponderance of the evidence that the fees
had no relation to services performed by Respondent.
As to whether Respondent violated Sec 8(b)(2) and (1)(A) by causing
the Stumps' discharges because of nonmembership, we do not agree with
the Trial Examiner that the question of legality or illegality of
Respondent's conduct cannot turn on the use of one word or another.
Indeed, the words used by Respondent's agent could be crucial in
determining whether Respondent was legally motivated by the Stumps'
residence outside the local geographical area or illegally motivated by their
lack of membership in Respondent or one of its affiliated local unions. We
find , however, on the basis of the record before us, that the General
Counsel failed to prove by a preponderance of the evidence that
Respondent was motivated by the latter considerations, and therefore we
adopt the Trial Examiner's recommendation that the complaint be
dismissed.
159
TRIAL EXAMINER'S DECISION
THOMAS A. Ricci, Trial Examiner: The charge in this
case was filed by three individuals on January 26, 1971, and
a hearing was held on May 24, at Philadelphia, Pennsylva-
nia. The General Counsel's complaint, issued on March 11,
1971, charges that the Respondent, Metropolitan District
Council, United Brotherhood of Carpenters and Joiners of
Philadelphia and Vicinity, here also called the Council, or
the Philadelphia Union, caused the three Charging Parties
to be dismissed from their employment at a hospital
construction project in the city of Philadelphia, that it was
motivated by an unlawful objective, and that therefore its
conduct constituted a violation of Section 8(b)(2) of the
Act. The Respondent insists it was a matter of geography,
the men who now complain were from out of town, and
local carpenters who were out of work were entitled to
preference. Briefs were filed by the General Counsel and by
the Respondent.
Upon the entire record, and from my observation of the
witnesses, I make the following:
FINDINGS OF FACT
There is no question concerning commerce or the Board's
jurisdiction. Jamestown Hospital Equipment, Inc., and
Jamestown Metal Products Company, are subsidiaries or
divisions of AVM Corporation; together here called
Jamestown Metal, the group sells and installs metal
cabinets all over the country. In the fall of 1970 it started a
job in A new hospital in Philadelphia. It does a minimum of
$50,000 of business across state lines annually. I find that
the Company is engaged in commerce within the meaning
of the Act and that it will effectuate the policies of the Act
to exercise jurisdiction herein. I also find that the
Philadelphia District Council is a labor organization within
the meaning of Section 2(5) of the Act.
There is also no serious question as to the critical
underlying facts about the alleged unlawful discharges. The
three Stumps live in Reading, Pennsylvania, and have long
been members in good standing of the AFL-CIO
Carpenters Local No. 492 in that city. In 1970 they worked
for the Jamestown Company in the area of Reading and
within the territorial jurisdiction of Local 492 on an earlier
job of the Company. Lawrence Arpin, roving superintend-
ent for Jamestown, was their boss there, and he brought
them with him to work on his next job in Philadelphia. The
three carpenters worked from October 13 to the end of the
month, with work permits issued by the Council. On
November 2, 1970, Edward Kane , Business Agent of the
Council, came to the Stumps and told Arpin he wanted all
three of the Stumps off the job or else he would pull all
other carpenters off on strike. Arpin then had three local
men working for him and there were other union carpenters
employed by other contractors on the project. That Kane in
fact said he would pull the entire job unless the Reading
carpenters were dismissed is established by the testimony of
Arpin and George Stump. The assertion, in the Respon-
dent's brief, that the men quit voluntarily, is in no way
supported by the evidence. According to Stump, when the
194 NLRB No. 28
160 DECISIONS O1 NATIONAL
superintendent asked Kane what would happen if he,
Arpin, refused to release the three men, the business agent
answered: "Well, then I'll shut the job down." As Arpin
recalled: "Mr. Kane said that he would close the job down
if they continued to work." Kane was called as a witness
but did not contradict either Stump or Arpin.
Robert Gray, secretary-treasurer of the District Council,
as a defense witness said Arpin called him on the phone 2
days later and that he, Gray, then told him he was free to
hire all three Stumps. Arpin denied Gray said this; I do not
credit Gray. He may have spoken to Arpin, but in the total
circumstances of the case he was not a reliable witness.
Gray also would have it that when the three out-of-town
men appealed to him personally to accept a transfer of their
membership from the Reading local to the Philadelphia
Council, all he told them was they would have to take a
minor qualifying test, and that they refused to do so. All
three of the Stumps denied any such talk by Gray. Desirous
of working on this job, and attempting to get around the
Council's objections by clearing into the Philadelphia
Union, had they really been told all that was required was a
minor test, the last thing George Stump and his brother
John would have done was refuse; John has been an AFL
carpenter 23 years and John 12 years. I find it unbelievable
that a union agent of Gray's experience would require a
qualifying examination from such longstanding members
of his own international. More significant, Gray's story
conflicts with that of his assistant, Gray, who said nothing
about expert qualification, but gave a totally unrelated
reason for preventing these men from working in the area.
That the Respondent Union "caused" Jamestown, the
employer, to discriminate against the three carpenters, is
clear. The heart question of the case, however, turns on the
motivation of the Council in causing the discharges. If its
objective was one not prescribed by the Act, there can be
no unfair labor practice finding. Radio Officers'v. N.L.R.B.,
347 U.S. 17. I find that the reason why the Respondent did
what it did was to gain employment for carpenters living
and working in the Philadelphia area, what is called the
Five County area. This is the geographical delineation of
the contract coverage of the Respondent's contract with
employers in the area, this is the geographical coverage of
the contract which Jamestown signed with the Council long
before the events, and this is the contract that was in effect
when the discrimination was brought about. The best proof
of the true motivation came from Arpin himself, the
principal witness for the General Counsel. Arpin admitted
Kane "said local men needed work." "And naturally, I
wanted to know why-and he [Kane } said it was because he
had local men available for the job." "Q: When Mr. Kane
told you, on November 2, that he had local men or local
members out of work, whatever it was-what did you
understand him to mean by that? A: That the members of
his local were unemployed." "Q: And that's when Mr.
Kane told you you'd have to lay them off because he had
unemployed local men-otherwise, he'd shut the job down?
A: That's correct. Q: And that was the only reason that he
gave you-that he had local men unemployed, isn't that
correct, Sir? A: That's correct." What had Kane told the
Respondent's steward on the job? ". . . he said that he had
men available and he could not issue a permit for out-of-
towners, as long as he had men available."
LABOR RELATIONS BOARD
The following is from the testimony of Kane: "... i said
that we wouldn't issue-I wouldn't issue any permits
because we have men out of work from this area and men
were calling me on the phone, in particular, about that
particular job down there." ". . . I said that `we have men
that are out of work from different locals that have called
over the weekend.' "
Despite Arpin's statement at the hearing that he had
difficulty finding carpenters in that area at that time, and
even that Kane told him, some weeks earlier, that "at that
particular time he didn't have any available," there are
objective facts supporting a finding that a desire to give
employment to local area men was in fact the Respondent's
motivation. On Monday morning, November 2, Arpin had
six carpenters at work. With the discharge of the three
Stumps during the morning he was down to three. But that
very morning he also discharged another, one Pete
Monihan, because, as Arpin testified, the man refused to
work Fridays. His need for men at the time, and
consequently the alleged scarcity of workmen, could not
have been very great. More important, during that very
week carpenters came off the street looking for work and he
hired them. There is indication from Arpm's testimony that
by the end of the week he was up to 10 carpenters, all also
members of the area local union. Kane must have been
telling the truth that there were carpenters in Philadelphia
needing work. I find very unpersuasive the argument in the
General Counsel's brief that maybe the many persons who
just showed up at the jobsite themselves came from far
away, somewhere outside the Five County area.
It is not unlawful for a union to insist upon a
geographical preference in the hiring of workmen. Local
Union No. 337 (Townsend and Bottum), 147 NLRB 929: "As
we have held, the Act does not prohibit a union from trying
to ease the impact of local unemployment by excluding
workers holding outside jobs, or by attempting to cause
employers to limit work opportunities to strictly local
applicants." See, also, International Union of Operating
Engineers, Local 98 (Consolidated Gas and Service Co.), 155
NLRB 850, where the preference enforced was in favor of
"Boston men" and against "Greenfield men."
The Board has also held that the fact the people who live
in the area are also members of the union that functions
there, of itself is insufficient to prove that the objective in
the local union's demand is to gain preferred treatment for
members of one union instead of members of another. A
very comparable situation was presented in Bricklayers,
Masons and Plasterers, etc. Union No. 28 (Plaza Builders),
134 NLRB 751, where also the workmen from one area
were members of one union and those from the separate
area members of the Respondent Union. The Board there
agreed that merely because "the criterion of residence in
the area could only be met by members of the Respondent"
was not sufficient to prove that the Respondent Union's
motivation in causing the discrimination was membership
in one union instead of the other.
Nor can the major question of legality or illegality turn
upon the use of one word or another. Unfair labor practices
are proved by a preponderance of the substantial evidence
on the record as a whole, or not at all. Glenn Raven Silk
METROPOLITAN DISTRICT COUNCIL, CARPENTERS 161
Mills, Inc. v. N.L.R.B., 203 F.2d 946 (C.A. 4). Most of the
carpenters who live in the Five County area are, through 27
local unions, members of the District Council, and it stood
to reason that the local officials should at times refer to
,'them also as members of the local or locals. Pressed by the
General Counsel, at one point Kane conceded that when
demanding dismissal of the Stumps he said " `Men' or
'members'-I don't know which it could have been. I could
have used `members' as far as that's concerned. It was
either `men' or `members.' " Arpin could not recall Kane's
exact words either: "No, I'm not positive-`men' or `local
men' or `members. "
As an afterthought to the original complaint the General
Counsel modified it to allege that Arpin, Jamestown's
roving superintendent, was also an agent of the Union, and
that therefore his act in discharging the men, entirely apart
from what may or may not have otherwise been proved
against the Respondent, constituted the illegal "causing" in
this case. The theory is expanded in the brief by arguing
that even though Arpin was told by Kane that geography
was the Union's concern, he, Arpin, believed the real reason
to be membership in the Council, and therefore, the
mistaken intent of the agent becomes the illegal intent
chargeable to the Respondent. Were the proof of legitimate
intent less clear and direct, were it at least out of the mouth
of some other witness, there might be some persuasion in
this devious approach. But the record evidence, in critical
part, consists of Arpin's own testimony. For him to say
later, at the hearing, that in his opinion the Respondent was
seeking to accomplish a hidden purpose, is no different
than the fundamental allegation stated in the complaint
itself. Judgment must rest upon the evidence as to what
transpired at the time of the events, and it is not for Arpin
to make.
There are a number of additional theories of illegality
and arguments, not all clearly articulated in the General
Counsel's brief, but none of which are persuasive. It is said
that there existed a closed shop here, created, it would
appear, all in Arpin's mind, because in the dual capacity as
both superintendent and union agent he ran the business
that way. It is simultaneously conceded, however, that the
contract did not provide for a hiring hall, exclusive or
otherwise, and at some points Arpin himself said he was
free to hire off the street and did so. The complaint alleges
that the Union acted illegally in requiring the Stumps to
pay for work permits on the Philadelphia hospital project.
The case was not tried on this theory at all; the Stumps in
fact worked for more than 2 weeks before they had any
permits, and what was stressed at the hearing as the real
vice in the case was the Respondent's refusal to accept the
employees' offer to pay for work permits.
It will be recalled that on the very morning that Business
Agent Kane told Arpin to dismiss the Stumps, Monihan,
one of the local area carpenters, was discharged for other
reasons. Kane quarreled with Arpin about Monihan also.
There simply is no evidence worthy of note that Kane's
objections to the Stumps was retaliation against the
Company for releasing Monihan, and the General Coun-
sel's assertion to that effect seems to be pure speculation.
And finally, when a union "causes," as the Act reads, an
employer to discriminate against an employee, the legality
of its conduct cannot depend upon the manner in which it
chooses to make its desire effective. The brief says that if
Kane had invited Arpin "to voluntarily and freely" send
the men home, the complaint might be dismissed, but
because he resorted to "naked economic power" and used
"duress" the finding must be otherwise. I find no support
for this distinction in the cited cases.
I find that the record as a whole does not contain
sufficient evidence to prove the essential allegations of the
complaint, and shall therefore recommend dismissal of the
complaint.
RECOMMENDED ORDER
On the basis of the record in its entirety I hereby
recommend that the complaint be, and it hereby is
dismissed.