Painters District Council No. 3, Etc.

National Labor Relations Board - Board Decisions

May 22, 1964

147 N.L.R.B. 79 (N.L.R.B. 1964)

PAINTERS DISTRICT COUNCIL NO. 3, ETC. 79
APPENDIX B
NOTICE TO ALL EMPLOYEES
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 Rela-
tions Act, we hereby notify our employees that:
WE WILL NOT refuse to bargain collectively with Insurance Workers Inter-
national Union, AFL-CIO, as the exclusive representative of the employees in
the bargaining unit described below.
WE WILL, upon request, bargain with the above-named Union, as the exclu-
sive representative of all the employees in the bargaining unit described below
with respect to rates of pay, wages, hours of employment, and other conditions
of employment, and, if an understanding is reached, embody such an under-
standing in a signed agreement.
The bargaining unit is:
All Metropolitan Insurance consultants and canvassing, regular, and
office account agents of the Employer selling industrial life and other forms
of insurance and employed at the Employer's district office in New London,
-Connecticut, and its detached office in Westerly, Rhode Island, but exclud-
ing all independent agents, retired agents, managers, assistant managers,
cashiers, clerical employees, secretaries, professional employees, guards,
watchmen, and all- supervisors as defined in the Act.
METROPOLITAN LIFE INSURANCE COMPANY,
Employer.
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.
Employees may communicate directly with the Board's Regional Office, 24 School
Street, Boston, Massachusetts, Telephone No. 523-8100, if they have any questions
concerning this notice or compliance with its provisions.
Painters District Council No. 3, Brotherhood of Painters, Deco-
rators and Paperhangers of America , AFL-CIO [ Central
States Painting and Decorating Company] and Ernest L.
Miller, Jr. Case No. 17-CB-359. May 22, 1964
DECISION AND ORDER
On September 18, 1963, Trial Examiner Thomas S. Wilson issued
his Decision in the above-entitled proceeding, finding that the Re-
spondent had not engaged in the, unfair labor practices alleged in the
complaint and recommending that the complaint be dismissed in its
entirety, as set forth in the attached Trial Examiner's Decision.
Thereafter, the General Counsel filed exceptions to the Trial Exam-
iner's Decision and a supporting brief, and the Respondent filed a
brief in support of the Trial Examiner's Decision.
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 Ex-
aminer's Decision, the exceptions and briefs, and the entire record in
147 NLRB No. 12.
80 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
this case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner with the following modifications
and additions.
The Trial Examiner concluded, and we agree, that the Respondent
Union did not violate the Act by its conduct with regard to the em-
ployment of the Charging Party on the project here involved. Our
conclusion is based upon the following considerations.
Central States Painting and Decorating Company, the employer
herein, is operated by Henry Vogel, who is signatory to a contract be-
tween the Topeka, Kansas, chapter of Painting and Decorating Con-
tractors of America and Local No. 96 of the Brotherhood of Painters,
Decorators and Paperhangers of America. This contract requires that
a signatory employer, when engaged in work outside the geographical
jurisdiction of the Topeka union, will comply with the industry agree-
ment of the employers and local unions in that area, and will hire
75 percent of his employees from among residents of the area where
the work is performed. 'The Respondent has a similar agreement with
the Builders' Association of Kansas City, Missouri, covering a geo-
graphical area which includes Kansas City, Kansas.
On March 4, 1963, Vogel began work at a jobsite in Kansas City,
Kansas, bringing with him Miller, the Charging Party, whom Vogel
had employed at other projects. Vogel notified the.Respondent that
he was operating in its jurisdiction, and asked that it furnish him
with additional employees. The next day, the Respondent's agents,
Cox and White, appeared at the project and gave Vogel a copy of the
Respondent's contract. Upon learning that Miller was an apprentice
and a member of the Manhattan, Kansas, local of the Brotherhood of
Painters, they told Miller and Vogel that apprentices could not trans-
fer between jurisdictions, and that, for that reason, Miller would have
to cease work on this project.'
On March 11, a week later, Miller reappeared at the project, and
told Cox and White that he had acquired journeyman status, where-
upon they asked to see Miller's union book. When told that. Miller
did not have it with him, Cox stated that the union constitution re-
quired a foreign journeyman to have his book with him at the time
he registered in a different jurisdiction.
The next day, Miller returned with his journeyman's book and
attempted to register with the Respondent. He was told that he could
not work for Vogel in Kansas City until Vogel complied with the
contractual quota requirement by hiring additional Kansas City per-
sonnel, which Vogel had refused to do on the ground that he did not
1 The record shows in this connection that the Respondent and the local painting con-
tractors jointly 'conduct an apprentice training program requiring 3 years of supervised
work under a single employer , plus attendance at an apprenticeship school for 25 weeks
each winter . The record shows further that Miller 's training did not meet these standards.
PAINTERS DISTRICT COUNCIL NO . 3, ETC. 81
need extra help. Miller offered to transfer his local membership to
the Respondent , and was told he could do this by' paying the differ-
ence in 'initiation fees. He was also told - that, whether or not he trans-
ferred his membership, he could not work for Vogel on this particular
project unless Vogel complied with the , hiring quota . Miller pro-
ceeded to take the necessary . steps to transfer, out of the Manhattan
local and, on -March 18, returned to Kansas City to transfer his mem-
bership to the Respondent.- He was told again that he could not work
on the project in question unless Vogel complied with - the 75-percent
quota requirement as Miller could not be considered a local resident
under the terms of that requirement until he had been living in the
area for 6 months. , He was also told that in the meantime he was free
to work for any local Kansas City painting contractor. -
It thus appears that the Respondent maintained that Miller should
not be permitted to work on this project, first, because he was an
apprentice from another area who did not meet the standards of the
apprenticeship program maintained by the Respondent and the area
contractors , again, because Miller claimed a few days later to have be-
come a journeyman, but did not have his union book with him to prove,
such status ; and finally , because Miller was not a local resident within
the terms of the contract requiring Vogel to hire local men.
We are satisfied , under all the circumstances of this case , that Re-
spondent did not violate the Act by its demand that Vogel comply
with the area training standards for apprentices when working in the
Kansas City area. The collective-bargaining agreement between the'
Topeka Painting Contractors and Local 96 of the Painters, to which
Vogel was a. signatory, provided that, when,engaged in work outside
the territorial jurisdiction of Local 96 , a signatory employer "shall
comply with all the lawful clauses of the collective-bargaining agree--
ment in effect in said other geographic jurisdiction , executed by the
employers of this industry, and the local unions . . ." -The collective-
bargaining agreement in effect in the Kansas City area incorporates a
program for training painter apprentices formulated by an employer-
union Joint Apprenticeship Committee and .approved by the United
States Bureau of Apprenticeship Standards. The training program
extends over 3 years, requires that an apprentice be indentured to a
single employer for the duration of his apprenticeship , and outlines
a course of training including attendance at an apprenticeship school
for substantial periods of time during each of the 3 years. The bar-
gaining agreement states : -
Any employer working trainees shall be expected to rigidly ad-
here -to the above program. Failure to do, so will be cause for the
Joint Apprenticeship Committee to revoke the employer's right
to employ trainees.
756-236-65-vol. 147-7
82 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The training program as thus formulated is lawful. It is not depend-
ent on union membership or activities. If Vogel had been a signatory
to the Kansas. City agreement, Respondent Union unquestionably
could have lawfully insisted that any apprentice not employed in
accordance with the terms of the apprenticeship training program be
discharged 2 The dissenting members say that Respondent had no
right to make the demand for Miller's discharge because Respondent
is not a party to the Topeka contract; which required Vogel to adhere
to lawful provisions of a collective-bargaining agreement in an out-of-
area work jurisdiction. Although Respondent did not sign the Topeka
contract, it is obviously an intended beneficiary of certain terms
thereof. Also, as Local 96 could hardly be expected to police such
terms contrary to the manner in which Respondent polices the same
terms against Kansas City employers, it must have been contemplated
by the contracting parties that enforcement of the "Kansas City area"
provisions would be left to Respondent. This is the usual practice
where an employer operates within the geographical jurisdiction of
two or more unions and has agreed to abide by the provisions of the
respective unions' local contracts. Whether Respondent is regarded
as a third-party beneficiary of the Topeka contract, or as agent of
Local 96, it had the right to insist, in accordance with the agreement,
that Vogel conform with the locally established, lawful, nondiscrimi-
natory apprenticeship training program .3
With regard to the Respondent's later demand for Miller's union
book, we infer, as-did the Trial Examiner, that it was reasonable for
the Respondent, in view of Miller's sudden elevation to journeyman
status, to ask to see Miller's union book as evidence of his changed
status. Finally, there was nothing unlawful in the Respondent's con-
duct in seeking to enforce the contract restrictions on the importation
of painters from outside the area, or in equating "residents of the
area" to individuals who had lived in the area for 6 months. The area
quota provision, which appeared in both area contracts, did not refer
to membership in a union, and was not shown to have been enforced
on the basis of such membership. As the Board and the courts have
held, it is lawful to base employment priority on objective and reason-
able criteria which are unrelated to union membership .4
Therefore, and in view of all the circumstances set forth above, we
find no merit in the General Counsel's contention that the fact that
the Respondent assigned different reasons at different times estab-
2 Daugherty Company, Inc ., 112 NLRB 986.
8 Daugherty Company, Inc., supra ; Millwrights' Local Union 1102, United Brotherhood
of Carpenters , etc. (Planet Corporation ), 144 NLRB 798 ; Armored Car Chauffeurs and
Guards Local Union No. 820 International Brotherhood of Teamsters , etc. (United States
Trucking Corporation ), 145 NLRB 225.
'Bricklayers, Mason and Plasterers ', etc. (Plaza Builders, Incorporated), 134 NLRB
751, 754 ; see also Local 857, International Brotherhood of Teamsters , etc. (Los Angeles-
Seattle Motor Express ) v. N.L.R.B., 365 U.S. 667.
PAINTERS DISTRICT COUNCIL NO. 3, ETC. 83
lishes that it was seeking a pretext to disguise an unlawful reason for
its conduct as its changing reasons met changes in Miller's situation.
Accordingly, we find that the General Counsel has failed to prove
that the actions of the Respondent restrained or coerced employees in
the exercise of their rights as guaranteed by Section 7 of the. Act, in
violation of Section 8(b) (1) (A) of the Act, or that the Respondent
violated Section 8(b) (2) of the Act by causing or attempting to cause
the employer to discriminate against Miller in violation of Section
8 (a) (3) of the Act.'
[The Board dismissed the complaint.]
MEMBERS LEEDOM and JENKINS, dissenting :
We would find, contrary to our colleagues, that the Respondent
Painters District Council, by preventing Vogel from employing Miller
on a painting project in Kansas City, has violated Section 8(b) (1) (A)
and (2) of the Act, as alleged in the complaint.
The facts are substantially undisputed. They show that the Re-
spondent is a party to a contract with an employer association in the
Kansas City area. Vogel, the employer herein, is not a party to this
contract, but he is a member of an employer association that has a
contract with Painters Local 96 in Topeka, which is affiliated with
the same International Union as the Respondent. Both contracts con-
tain provisions regarding apprenticeship, the Kansas City contract
incorporating a program requiring 3 years of training, with the ap-
prentice indentured to a single employer for the entire period and
attending apprenticeship school for a substantial part of the time.
Both contracts also require that the participating employers, when
working outside the geographical jurisdiction of the Union which is
party to the contract, shall hire 75 percent of their employees from
residents of the area where the job is situated. The Topeka contract
also obligates employers working away from home to comply with all
lawful clauses of the agreement in effect in that jurisdiction, but pro-
vides, in significant part, that the Topeka local "shall be the exclusive
bargaining representative for . . . all the employees employed by the
employer wherever, and whenever employed ...." Administration
of the Topeka contract is vested in a Joint Trade Board.
Vogel began work on this project away from home on March 4, 1963.
He brought Miller with him as an employee. When the Respondent's
agents, White and Cox, first found Miller working on Vogel' s Kansas
City project and learned that he was an apprentice, they told him and
Vogel that Miller could not work there. The reason given for oppos-
ing Miller's employment was that Vogel was an employer from an-
6 we find no merit in the General Counsel's contention that the Respondent's conduct
was rendered unlawful by the fact that it occurred in a "right -to-work State."
84 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
other jurisdiction with a job in the Kansas City area and, therefore,
could not bring an apprentice in with him . However, neither the
Respondent 's area contract nor the Topeka contract contained any
reference to an employer 's transfer of apprentices.
Miller left the job immediately , but resumed work a week later.
When the Respondent's agent White asked Miller-thereafter what he
was doing on the job, Miller replied that he had become a journeyman.
White then asked to see Miller's card . After Miller showed White his
journeyman 's card, White asked for Miller's "book ." When Miller re-
plied that he had not received it yet, White stated that Miller was sub-
ject to charges under the union constitution for coming into a district
from another jurisdiction without notifying the business agent, and
that he must present his book when registering with the local union.
Miller went to the Respondent 's offices the next day with his book.
At this time, he was told he could not work for Vogel in Kansas City
unless Vogel agreed to hire enough men to meet the 75-percent quota.
When Miller offered to transfer his membership to the Respondent
and pay a $105 difference in initiation fees, he was told that the quota
requirement would still be applicable . Miller asked what would hap-
pen if he worked without these conditions being met. Cox told him
that the Respondent could picket the job.
Miller returned to Manhattan, Kansas, to clear out of the Painters
local of which he was a member, and then went back to Kansas City
and offered to transfer his membership to the Respondent and pay the
$105 fee. On this occasion White told Miller that he had to be a resi-
dent of the area for 6 months before he could qualify to work for
Vogel as a local resident , and until then , Vogel would have to hire
additional men under the 75-percent quota if he wanted to employ
Miller.
At this point, Miller gave up trying to meet the Respondent's chang-
ing requirements and filed the charge herein. A week later, the Re-
spondent issued a work permit allowing Miller to work for Vogel on
the Kansas City job.
We ate 'convinced from an examination of the Respondent 's entire
course of conduct that it was seeking to prevent Miller from working
for Vogel in Kansas City because Miller was not a member of the
Respondent. Insofar as the contracts herein are concerned, we per-
ceive no basis for implying, as our colleagues seem to do, that the
Respondent was here enforcing its contract rights. The Respondent
is not a party to the Topeka contract; there is nothing to show that
the Respondent was acting as an agent for Local 96 in enforcing the
Topeka contract ; and the record does not indicate, that Vogel adopted
the Kansas City contract and agreed to be bound by its terms. All
that appears is that Vogel notified the Respondent in Kansas City
that he was beginning a job within its geographical jurisdiction and
PAINTERS DISTRICT COUNCIL NO. 3, ETC. 85
would look.to the Respondent to supply additional employees; that
Vogel was handed a copy of the Kansas City contract by one of the
Respondent 's agents ; and that, pursuant to the Topeka contract;
Vogel expected to pay the Kansas City wage rates, if higher than
those in Topeka. It is evident, therefore, that the Respondent's de-
mand for the termination of Miller's employment cannot be justified
on the basis of any contract rights.
We note, furthermore, that the Respondent first refused to allow
Miller to work on the Vogel project because he was a foreign appren-
tice although the record does not indicate that Miller was any less
qualified to do the work than a local apprentice. - Moreover, assum-
ing that the Respondent intended to be enforcing either the Kansas
City or the Topeka contract, there is nothing in either contract that
related to an employer 's transfer -of apprentices. ° Further, even assum-
ing, arguendo, that some obligations under the Kansas City contract
became enforcible by the Respondent when Vogel began the paint-
ing work on the Kansas City project, this could not be true of the
apprenticeship provisions, involving, as they did, a 3 yeas period of
work for a single employer while also attending school. We note
that, although the Respondent here decreed that Miller could not work
on the Kansas City project as an apprentice for the short period he
was needed , it made no attempt to determine what apprenticeship
training he had acquired . It is clear from these facts that the Re-
spondent was not enforcing a contract provision either as a third-
party beneficiary or as an agent, roles which the majority would
ascribe to it; but, on the contrary, was unlawfully attempting to en-
force a union rule, unrelated to the payment of union dues or fees,
against an employer with whom it had no contractual relationship
and an -employee whom it did not represent and who was in fact rep-
resented by another union.
It is further evident, from the facts summarized above, that each
time Miller complied with a requirement imposed by the Respondent
on his employment by Vogel, the Respondent produced a new and dif-
ferent requirement . Thus, when Miller presented a journeyman's
card, after he had been prohibited from working because he was an
apprentice , the Respondent insisted he could not work because he did
not have his "book" with him and this allegedly was in violation of
the union's constitution. Next, when Miller appeared at union head-
quarters , and showed his "book "- evidencing journeyman status, the
Respondent shifted position again and decreed that he could not work
for Vogel unless Vogel hired 75 percent of his employees from among
local residents. Finally, when Miller offered to transfer his member-
ship to the Respondent , he was told that he would nevertheless be pro-
hibited from working as a local resident for Vogel until he had in
addition lived in the area for 6 months.
86 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Miller was apparently as qualified to do painting work as any of the
local painters . Indeed, when Miller reported that he had journeyman
status, the Respondent did not question that status. It chose instead
to raise the fact that Miller had not produced a "book"' in violation of
its constitution , and invoked the quota system of a contract it had no
standing to enforce and, later , such union rules as the residence re-
quirement. Under all the circumstances , including the Respondent's
shifting reasons for opposing Miller's employment , which were mani-
festly based upon adherence to its constitution and rules ,' and the
absence of a contractual relationship between the Respondent and
Vogel, we are convinced that the Respondent 's real reason for oppos-
ing Miller 's employment was his membership in Local 96 rather than
in District Council No . 3.7 We think it clear , therefore , that, by the
aforesaid conduct, the Respondent has caused Vogel to discriminate
against Miller in violation of Section 8(a) (3) of the Act, and has
thereby violated Section 8 (b) (2) and 8 (b) (1) (A) of the Act.
6 N.L.R B. v. Shear 's Pharmacy, Inc., 327 F. 2d 479 (C.A . 2), enfg . 137 NLRB 451;
International Longshoremen's Association Local 1408 ( Caldwell Shipping Company), 134
NLRB 1669 ; Local 542, International Union of Operating Engineers , AFL-CIO (Koppers
Company, Inc ), 117 NLRB 1863 , enfd. 255 F . 2d 703 (C.A. 3).
1 N.L.R.B. v. Animated Displays Company, 327 F. 2d 230, ( C.A. 6), enfg . 137 NLRB
999; International Brotherhood of Boilermakers , etc. (Pittsburgh -Des Moines Steel Com-
pany), 119 NLRB 1605 , enfd. 259 F. 2d 957 (C A.D C.) ; Local 542, International Union
of Operating Engineers , AFL-CIO (Koppers Company, Inc.), supra, footnote 6.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Upon a charge duly filed on March 18, 1963, by Ernest L. Miller, Jr., an individual,
hereinafter called Miller or the Charging Party, the General Counsel of the National
Labor Relations Board, hereinafter called the General Counsel i and the Board
respectively, by the Regional Director for the Seventeenth Region (Kansas City,
Missouri), issued its complaint dated April 30, 1963, against Painters District Council
No. 3, Brotherhood of Painters, Decorators and Paperhangers of America, AFL-
CIO, herein called the Respondent. The complaint alleged that Respondent had
engaged in and was engaging in unfair labor practices affecting commerce within
the meaning of Section 8(b) (1) (A) and Section 2(6) and (7) of the Labor Manage-
ment Relations Act, 1947, as amended, herein called the Act. Copies of the charge,
complaint, and notice of hearing thereon were duly served upon the Charging Party
and Respondent.
Respondent duly filed its answer admitting certain allegations of the complaint
but denying the commission of any unfair labor practices.
Pursuant to notice, a hearing thereon was held at Kansas City, Missouri, on
June 27, 1963, before Trial Examiner Thomas S. Wilson. All parties appeared at
the hearing, were represented by counsel, and afforded full opportunity to be heard,
to produce, examine, and cross-examine witnesses, to introduce evidence material'
and pertinent to the issues, and were advised of their right to argue orally upon the
record and to file briefs and propose findings and conclusions or both. Oral argu-
ment was waived. Briefs were received from General Counsel and Respondent on
July 25, 1963.
Upon the entire record in the case and from my observation of the witnesses, I
make the following:
1 This term specifically includes the attorney appearing for the General Counsel at the
hearing
PAINTERS DISTRICT COUNCIL, NO. 3, ETC.
FINDINGS OF FACT
87
1. THE BUSINESS INVOLVED
Central States Painting and Decorating Company (herein referred to as Central
States), an Iowa corporation with its principal office and place of business at Cedar
Rapids, Iowa, is engaged in business as a painting contractor. Its president and
principal managing agent is one Henry Vogel, who acted in that capacity with regard
to all matters here involved.
In the course and conduct of its business operations, Central States annually per-
forms services valued in excess of $50,000 in States other than the State of Iowa,
where it is located. At all times material herein Central States was engaged in the
performance of services for Rinderknecht Construction Co., at the Holiday Inn
construction project at Kansas City, Kansas (herein called the project).
The complaint alleged, the answer admitted, and I find that Central States is
engaged in commerce within the meaning of the Act.
II. THE RESPONDENT
Respondent is, and at all times material herein has been , a labor organization admit-
ting to membership employees of Central States.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The facts
On March 4, 1963, President Henry Vogel of Central States whose headquarters
were in Cedar Rapids, Iowa, arrived in Kansas City, Kansas, in order to commence
the painting work on the new Holiday Inn which was still under construction.
At this time Vogel's company was a signatory to the Joint Agreement between
the Topeka Chapter of Painting nand Contracting Contractors of America and Local
No. 96. This agreement provided .that it was understood that, although the "principal
place of business of the employer is in Topeka, Kansas," that the Employer oc-
casionally undertook painting contracts in other, cities and areas; that Local Union
No. 96 was to remain the "exclusive bargaining representative for and on behalf
of all the employees employed by the employer." In addition this agreement also
provided, in pertinent part:
when the above employer is engaged in work outside the geographical
jurisdiction of the Union, he shall hire not less than 75 percent of the men
employed on such work, from among residents of the area where the work
is performed, or from among persons who are employed the greater percentage
of their time in such area . .; - .
Further, the employer when engaged in work outside the geographical jurisdic-
tion of the union party to the agreement, shall comply with all of the lawful
clauses of the collective-bargaining agreement in effect in said other geographic
jurisdiction, executed by. the employers of this industry, and the local
unions,
Upon arrival in Kansas City, Vogel called the office of District Council No. 3
where he spoke to Business Agent Richard White and advised White that he was
the contractor on the Holiday Inn project, would need two men from the Union
and had one man, Ernest Miller, a nonjourneyman, with him. White sent Vogel
the two men he had requested.
The following day, March 5, White and James B. Cox, who was the union rep-
resentative on the Kansas City Joint Apprenticeship Program, went to the Holiday
Inn project where they discussed the project with Vogel, mentioned various local
work rules and wages and gave Vogel a copy of Council No. 3's contract with the
contractors. Upon seeing Ernest Miller and learning that he was an apprentice out
of the Manhattan, Kansas, local of the Union, the union representatives informed
Miller sand Vogel that apprentices were not permitted to move from jurisdiction to
jurisdiction and that, therefore, Miller could not work within the jurisdiction of
District Council No. 3. The union representatives required that Miller cease work
immediately.2 Council No. 3 and the Painting Contractors of Kansas City conduct
E For the past year Ernest L. Miller, Jr., had been employed by Vogel painting various
Holiday Inns throughout the country under a contract between Vogel and Ernest L.
Miller , Sr., who had -some official capacity with Holiday Inn.
88 DECISIONS ..OF NATIONAL "LABOR RELATIONS' BOARD
a Joint Apprenticeship Program approved by the United States Bureau of Appren.-itice-
ship Standards which requires that an apprentice must be indentured to a single
employer for a 3 -year period ' with'supervised ' work in the geographical area plus
attendance at apprenticeship school for 25 weeks each winter. This Joint Apprentice-
ship Program has been in existence for a number of-years..:
Subsequently Vogel-and Miller drove tb .Manhattan , Kansas, where the business
agent of 'that local suddenly promoted Miller to journeyman 'status...
On March 11 ,9 Miller returned to the Kansas City project . and began working
thereon again , this time as a journeyman .. Once again White sand Cox visited the
project , saw Miller -back at work , and requested hi§"union book upon being informed
that he was now a journeyman .. ,Miller explained that he did not at that time have
his book as it was •in the mail - to him ' at Topeka. ' Cox stated that the union constitu-
tion required a journeyman entering into a foreign jurisdiction to have his book at the
time he cleared into ' the local and refused to:permit him to continue working without'
having his union book .- When Miller inquired as to what would happen if he con-
tinued working, Cox stated that they could picket the job . Thereupon Miller ceased
work in order to go to Topeka looking for his union book.
The next day Miller went to the union hall and suggested that he "clear in" to
the. District Council No .. 3. It was explained that this - could be idone but that Miller
would have to pay the $ 105 difference between the initiation fee of District Council
No. 3 and that of the Manhattan local. He was also told that before he could work
for Vogel , Vogel would have to -hire -six local painters in order to make up the
75 to 25 ratio required in both the Topeka contract and the District Council No. 3
contracts as he would then have two men (himself and Miller ) from a foreign
jurisdiction.
Miller then went back home , cleared out • of' the 'Manhattan'. local and returned
to Kansas City on or about March 18. Upon his return ' to Kansas City he tele-
phoned White at the ' union hall telling him that he desired to clear into District
Council No . 3,, pay the $ 105 difference 'and go to work for Vogel . White told Miller
that he could clear into District Council No.-3 but that Vogel would still have to
hire six local men as'required by the contract but that Miller could work for any
other contractor in Kansas City except Vogel for the next 6 months while - Miller
established his residence in the Kansas City area.4
Miller thereupon "got mad ," hung up, called the National Labor Relations Board
Office, and went over there and filed the charge upon which the present complaint is
based.
Miller returned then to his home in Topeka , Kansas. A few days thereafter one
Gaylin Torke , business agent of the Topeka local, informed him that White had told
him (Torke ) that Miller could return to Kansas City and go to work for Vogel.
According to Miller, this offer was conditioned upon Miller 's dropping the present
charges against District Council No. 3.
Without having dropped the charges, Miller received his work permit from District
No. 3, returned to Kansas City on March 25 and has been working there for Vogel
ever since.
B. Conclusions -
The first thing to be noted here is that at all times material Miller was, and'
still is, a member of the Painters' Union albeit ' ' here may be some question as to
just which local he may now be a member. - There is, however , no question but that
Miller was offered membership in District Council No . 3 on the same terms and
conditions as anyone ' else. At no time herein was there any question but that
Miller was and remained a member of the Union . The constitution of the Union
requires that three-quarters of the men hired on a job must be local men. This
requirement Miller accepted on becoming a union member.
The next thing to be noted is that Miller 's mentor, Vogel or Central States, was
a party to a labor agreement with the Topeka local of the Union which requires
the contractor , when operating , in a foreign jurisdiction , ' to' hire three-quarters
of his employees from local painters.
The crux of the trouble here in a nutshell is that, for reasons which* are perfectly
plain when it is recalled that Miller's father provided Vogel with his work on
Holiday Inn construction , Vogel wanted to 'employ young Miller, young Miller
wanted to work for Vogel , and neither of them wanted to have fo abide by the
provisions of the union constitution or the union labor agreement.
3There is some confusion as to the exact dates of events herein but , as•those dates are
of little, if any, significance , 7 have accepted the dates- as set forth by General Counsel.
* At the hearing Miller complained that White "didn't offer [him] any kind of a job" at
this time.
PAINTERS DISTRICT COUNCIL NO. 3, ETC. 89
The March 5 incident occurred while. Miller; was still supposedly an "apprentice."
Respondent's refusal to allow Miller to work at this time as an apprentice in the
Kansas City area had nothing to do with his union membership. If .the Union were
to permit apprentices from other jurisdictions to work in the Kansas City area as
apprentices, the whole Joint, Apprenticeship Program of many years standing would
have been jeopardized. Miller's complaint against Respondent here is obviously a
complaint against the internnal-rules'and regulations of the Union which he chose to
join. In other words Miller desired "membership" in the Union but without obliga-
tion on' his part to abide by the rules-and regulations of that membership. Vogel's
objections, if any, indicate that he desired to be known as,a "union contractor" but
without obligation on his part • to abide.-by the agreement he had signed with the
Union. - .
In this instance, however, both Miller and Vogel apparently recognized that each
was under some obligation to Respondent by reason -of their membership or the
contract with the Union and hence returned to Manhattan where Miller succeeded
in getting himself promoted pronto to journeyman status .5
The March 12 episode was caused by the fact that Miller, now a journeyman,
sought to work in the Kansas City area without having his new journeyman's book
in his possession contrary to the International Union Rules which require a member
to have a book with him upon coming into, the jurisdiction of another local. Al-
though Miller claimed this'-book was- "in the mail," in view of Miller's rapid promo-
tion from apprentice to. journeyman in, 1 week, White and Cox hardly seem to have
been unduly skeptical in enforcing the union requirement of seeing the book. Again
Miller desired his-membership without obligation. • . '
The third and last episode,, that of March .18, was the one. when neither Miller
nor Vogel' wished to abide by the union rules and the provision in the contract
requiring three-quarters of the men hired on a job by- a foreign contractor -be local
men. Once again* the difficulty was not over union membership but, on the con-
trary, was caused by the obligation placed on Miller by that very membership and
upon Vogel by the provisions of the contract he himself had signed with the Union.
The District Council No. 3 rule requiring 6 months' residence in the area for a mem-
ber to-qualify. as-a "local" man, is not unreasonable. - Without some such residence
requirement-the, rule regarding local men -would -be rendered completely nugatory.
Such objective criterion as local residence is obviously permissible under Section
8 (f) of the Act. I so find.
General' Counsel attempts to evade Section 8(f) 'of the Act on the grounds that it
was inapplicable for at least 7 days. General Counsel apparently forgot that Vogel
signed his contract with Local No. 96 in Topeka, Kansas, even prior to starting work
in Kansas City and thus more than- 7 days before the events here. And also forgot
that Miller secured his membership in the . Union long prior. to his arrival on the
scene in Kansas City. -
General Counsel in his-brief-makes much of'the fact that Respondent'on each of
the three occasions in issue•here'gavd:a different: justification for refusing to allow
Miller to work. The giving, of shifting reasons to .justify a discharge by an em-
ployer frequently is a valid argument. It is not so here for the simple reason that
here Miller and Vogel_ created changed conditions three separate times in their at-
tempt to avoid their own obligations and responsibilities under union membership or
under the union labor 'agreement. Each change' in,-conditions caused' Miller and
Vogel to run afoul of a different union membership rule. and regulation or of-another
part of the labor agreement. The Charging Party never did succeed in avoiding all
his own obligations of membership.
The whole trouble here stems from ,the, fact that neither Miller nor Vogel was will-
ing to comply with the obligations or responsibility of union membership or the
union contract .which the contractor had voluntarily executed. The attainment
of rights and benefits - entail corresponding obligations' and ' responsibilities. This is
one of those' cases where, the Charging•.Party: now objects to the,, corresponding
obligations.
Accordingly I will recommend that this-complaint be dismissed -in foto:
Upon the basis ,of the foregoing findings of fact; and upon the entire record in- this
case, I make the following:
CONCLUSIONS OF • LAW '
1. Painters District Council No. 3, Brotherhood of Painters, Decorators and
Paperhangers of America, AFL-CIO, is a labor organization within the meaning of
Section 2(5) of the Act.
It would be Interesting to know just how this promotion was so promptly and con-
veniently arranged.
90 DECISIONS OF NATIONAL LABOR RELATIONS 130ARD
2. Central States Painting and Decorating Company is engaged in commerce
within the meaning of Section 2(7) of the Act.
3. Respondent has not violated Section 8 (b) (1) (A).
RECOMMENDED ORDER
I recommend that this complaint be dismissed in its entirety.
Local 1474-1, Pipe Coverers , International Longshoremen 's Asso-
ciation [J . Q. H. Insulating Co., Inc., and J. Q. H. Smith, d/b/a
J. Q. H. Insulating Co.] and John Hill and John Downing.
Cases Nos. 2-CB-3693-1 and 2-CB-3693-2. May 25, 1964
DECISION AND ORDER
On February 27, 1964, Trial Examiner George L. Powell issued his
Decision in the above-entitled proceeding, finding that the Respond-
ent had engaged in and was engaging in certain unfair labor prac-
tices and recommending that it cease and desist therefrom and take
certain affirmative action, as set forth in the attached Decision.
Thereafter, the General Counsel filed exceptions to the Trial Exam-
iner's Decision and a brief in support thereof. The Respondent filed
no exceptions.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
these cases to a three-member panel [Chairman McCulloch and Mem-
bers Fanning and Jenkins].
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, and the Respondent's failure to except, and has
also considered the exceptions and the brief filed by the General Coun-
sel urging an appropriate remedy more extensive than the one recom-
mended by the Trial Examiner, and hereby adopts the findings,
conclusions, and recommendations of the Trial Examiner with the
following modifications :
ORDER
Upon the entire record in these cases, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Local 1474-1
Pipe Coverers, International Longshoremen's Association, its officers,
agents, representatives, successors, and assigns, shall :
147 NLRB No. 13.