Painters Local Union No. 1178, International Brotherhood of Painters and Allied Trades, AFLCIO (Roland Painting, Inc.)

National Labor Relations Board - Board Decisions

Dec 16, 1982

265 N.L.R.B. 1341 (N.L.R.B. 1982)

PAINTERS LOCAL NO. 1178
Painters Local Union No. 1178, International Broth-
erhood of Painters and Allied Trades, AFL-
CIO (Roland Painting, Inc.) and James E.
Phillips. Case 32-CB- 1104
December 16, 1982
DECISION AND ORDER
BY CHAIRMAN VAN DE WATER AND
MEMBERS JENKINS AND HUNTER
On August 10, 1982, Administrative Law Judge
Richard J. Boyce issued the attached Decision in
this proceeding. Thereafter, Respondent filed ex-
ceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge, but
not to adopt his recommended Order.
THE REMEDY
Having found that Respondent has violated Sec-
tion 8(b)(1)(A) of the Act by refusing to refer an
employee for employment in violation of the exclu-
sive nondiscriminatory job-referral system in its
collective-bargaining contract, we shall order that
it cease and desist therefrom and take certain af-
firmative action to effectuate the policies of the
Act. We shall order Respondent to make James E.
Phillips whole for any loss of earnings he may
have suffered as a result of Respondent's failure to
refer him for employment. Earnings are to be com-
puted on a quarterly basis in the manner prescribed
in F. W. Woolworth Company, 90 NLRB 289 (1950),
with interest thereon as initially established in Isis
Plumbing & Heating Co., 138 NLRB 716 (1962),
and at the appropriate rate of interest as set out in
Florida Steel Corporation, 231 NLRB 651 (1977).
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the Respondent,
Painters Local Union No. 1178, International
Brotherhood of Painters and Allied Trades, AFL-
CIO, Hayward, California, its officers, agents, and
representatives, shall:
I We shall issue an Order in lieu of the Administrative Law Judge's
recommended Order, inter alia, to delete provisions which refer to Re-
spondent's operation of the hiring hall in general, inasmuch as the com-
plaint reflects, and the General Counsel reiterated at the hearing, that the
only conduct alleged as unlawful is Respondent's refusal to refer employ-
ee Phillips.
265 NLRB No. 171
1. Cease and desist from:
(a) Refusing to refer employees or applicants for
employment in accordance with the terms of the
exclusive, nondiscrimatory job-referral system con-
tained in its collective-bargaining contracts with
Roland Painting, Inc., and various other employers.
(b) In any like or related manner restraining or
coercing employees or applicants for employment
in the exercise of the rights guaranteed them by
Section 7 of the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Make James E. Phillips whole for any loss of
earnings he may have sustained because of Re-
spondent's unlawful failures to refer him for em-
ployment by paying him a sum equal to what he
would have earned absent the unlawful conduct,
plus interest, as provided in the section of this De-
cision entitled "The Remedy."
(b) Post at its business offices, meeting halls, and
dispatch halls copies of the attached notice marked
"Appendix." 2 Copies of said notice, on forms pro-
vided by the Regional Director for Region 32,
after being duly signed by Respondent's authorized
representative, shall be posted by Respondent im-
mediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter, in con-
spicuous places, including 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.
(c) Sign and return to the said Regional Director
sufficient copies of the attached notice marked
"Appendix" for posting by Roland Painting, Inc., if
willing, in conspicuous places, including all places
where notices to employees are customarily posted.
(d) Notify the Regional Director for Region 32,
in writing, within 20 days from the date of this
Order, what steps the Respondent has taken to
comply herewith.
I In the event that this 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 Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
APPENDIX
NOTICE TO EMPLOYEES AND MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to refer employees or
applicants for employment in accordance with
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the terms of the exclusive, nondiscriminatory
job-referral system contained in our collective-
bargaining contracts with Roland Painting,
Inc., and various other employers.
WE WILL NOT in any like or related manner
restrain or coerce employees or applicants for
employment in the exercise of the rights guar-
anteed them by Section 7 of the Act.
WE WILL make James E. Phillips whole,
with interest, for any loss of earnings he may
have sustained because of our unlawful failures
to refer him for employment.
PAINTERS LOCAL UNION NO. 1178,
INTERNATIONAL BROTHERHOOD OF
PAINTERS AND ALLIED TRADES,
AFL-CIO
DECISION
STATEMENT OF THE CASE
RICHARD J. BOYCE, Administrative Law Judge: This
matter was heard before me in Oakland, California, on
July 14, 1982. The charge was filed December 11, 1981,
by James E. Phillips, acting in his individual capacity
(Phillips). The complaint issued February 24, 1982, was
amended during the hearing, and alleges that Painters
Local Union No. 1178, International Brotherhood of
Painters and Allied Trades, AFL-CIO (Respondent),
violated Section 8(bXIXA) and (2) of the National Labor
Relations Act, as amended (Act), on or about January 7,
1982, by failing to dispatch Phillips to a job with Roland
Painting, Inc. (Roland Painting).'
Roland Painting is a painting contractor in San Jose,
California. It annually sells over S50,000 in goods and
services to customers within California which meet the
Board's direct inflow and/or outflow jurisdictional stand-
ards, and thus is an employer engaged in, and affecting,
commerce within the meaning of Section 2(2), (6), and
(7) of the Act.
1. JURISDICTION
Roland Painting is a painting contractor in San Jose,
California. It annually sells over $50,000 in goods and
services to customers within California which meet the
Board's direct inflow and/or outflow jurisdictinal stand-
ards, and thus is an employer engaged in, and affecting,
commerce within the meaning of Section 2(2), (6), and
(7) of the Act.
II. LABOR ORGANIZATION
Respondent is a labor organization within the meaning
of Section 2(5) of the Act.
'As noted, the charge predate the alleged misconduct. The conduct
contemplated by the charge, when filed, is not in issue. The conduct in
question, occurring during the pendency of the charge, is deemed by the
Oeneral Counsel to fall within the scope of the charge.
III. THE ALLEGED MISCONDUCT
A. Facts
Respondent's standard labor contract provides that its
hiring hall is to be the sole source of painters hired by
signatory employers. With exceptions not now relevant,
the contract calls for the referral of those seeking work
through the hiring hall "in the order in which their
names appear on the [out-of-work] list." A new out-of-
work list is established at the start of business each
Monday morning, necessitating weekly reregistration by
those wishing their names to be on each new list.
Roland Painting is signatory to the labor contract.
About January 6, 1982, it asked that Respondent refer
two painters to a project on which it was working,
Lustig Court in Hayward, California. Although Phillip's
name was atop that week's out-of-work list,2 and he was
in all respects qualified for referral, Respondent did not
refer him. It instead referred the second person on the
list, Chuck Frank, January 6; and one not on the list,
Roger Matson, January 7. Frank and Matson worked for
Roland Painting until about January 18.
Roy Pellegri, business agent, testified that he referred
Frank. Explaining why he bypassed Phillips, Pellegri
averred: "Because Mr. Frank was out of work a lot
longer than Mr. Phillips. Mr. Phillips had just came off a
job."
Dale Ball, financial secretary, testified that he referred
Matson. Explaining why he bypassed Phillips, Ball
stated:
Roger [Matson] had been out of work for quite a
few months. And if he had a job, he wouldn't go to
jail for awhile. And he was about ready to lose his
house and everything else, so I dispatched him to
the job.
Ball elaborated that "one of the main factors" in Mat-
son's being chosen was that a jail term to which Matson
had been sentenced would be delayed if he had a job.
Ball added, however, that he "probably would have
sent" Matson rather than Phillips, regardless of Matson's
personal problems, stating: "I don't know why. I mean,
maybe I would have, maybe I wouldn't have. I don't
know. But I probably would have sent Mr. Matson."
A further "factor" in Phillips' being bypassed in favor
of Matson, according to Ball, was that Phillips had
worked more recently. Ball asserted: "We've always
taken the guys that's been out of work the longest." Re-
spondent concededly maintains no records by which to
ascertain relative lengths of unemployment. Ball pro-
claimed: "I don't have to ... I know how long a guy's
been on unemployment." He later admitted, however,
that he did not know "right off hand" if Matson had
been out of work longer than everyone on the out-of-
work list and that "it's possible" he had not.
Ball advanced yet another reason for Matson's being
referred-that he happened to be in the hall when the
Roland Painting request was received. Ball declared that
· Phillips had gone to the hall at 7 a.m., Monday, January 4, to ensure
his being first in line to sign the list when the hall opened at 8 o'clock.
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PAINTERS LOCAL NO. 1178
he generally refers "the men out of the hall [i.e., phys-
ically present] first," regardless of the out-of-work list. s
Ball testified, finally, that the out-of-work list is neither
intended nor used as a determinant of referral order. He
explained:
They have to sign the list in order to get unemploy-
ment [compensation]. That's the reason we use the
list. We've always used it that way.
This testimony, without documentary or other corrobo-
ration, seemed blatantly self-serving. There is no evi-
dence that those using Respondent's hall as a referral ve-
hicle ever were apprised that the list was for so limited a
purpose.
It is undisputed that, before the referrals in question,
Phillips had worked more recently than Frank and
Matson. The painting trade in the area, in common with
the construction industry generally, was suffering heavy
unemployment at relevant times.
In the fall of 1981, Phillips complained to the president
of Respondent's parent international, among other things,
about Respondent's improper operation of the hiring
hall. Pellegri and Ball denied that this influenced their
bypassing of him on the occasions in question. Phillips
received a referral in December 1981, apparently after
the matters of which he complained had been resolved
by Respondent internally.
The labor contract contains a procedure whereby
anyone "who feels that he has not been dispatched in ac-
cordance with" the contract may protest to a so-called
examining committee; and may appeal any "opinion" of
the committee that "is less than unanimous" to "an im-
partial umpire." Respondent's attorney, by letter dated
January 25, 1982, and thereafter, invited Phillips to use
this procedure. An ad hoc examining committee accord-
ingly convened May II 1. Phillips, although aware of the
meeting, did not appear, however, and the committee
took up action.
The record does not disclose the manner in which an
examining committee is chosen. Respondent's counsel
concedes that its makeup would not warrant Board de-
ferral to its processes. Counsel nevertheless argues that,
since "the procedure provides at its ultimate step" for
resolution by "a totally neutral arbitrator . . . with full
powers of remedy," it is "totally adequate."
s That Matson in fact wa in the hall when the Roland Painting re-
quest came in is doubtful. The request apparently arrived on January 6,
as witness Frank's referral of that date. Matson, as earlier noted, was not
referred until January 7.
B. Conclusions
The Board has stated that a union violates Section
8(bX1XA) and (2) "where it discriminatorily refuses to
refer an employee or applicant for employment pursuant
to the terms of an exclusive referral system. 4 In the
present case, Respondent's bypassing of Phillips on Janu-
ary 6 and 7 in favor of Frank and Matson was contrary
to the terms of the exclusive referral system. It is con-
cluded that Respondent, by so doing, violated Section
8(bXIXA) and (2) as alleged.6
A union perhaps may depart from literal adherence to
the terms of an exclusive referral system where "its ac-
tions [are] necessary for the effective performance of its
functions as bargaining representative." Such occasions
at best are exceptional, however, and the present plainly
is not among them. Indeed, the assorted reasons put
forth by Ball for choosing Matson over Phillips, and his
testimony generally concerning Respondent's operation
of the referral system, reveal an utter absence of "any
objective criteria or standards for the referral of employ-
ees" and an attendant arrogation of "unbridled discre-
tion" by those to whom the system is entrusted. This
alone establishes a violation of Section 8(bXIXA) and
(2).1
CONCLUSION OF LAW
By failing to refer James E. Phillips in accordance
with the terms of the exclusive job-referral system in its
collective-bargaining contract with Roland Painting,
Inc., on January 6 and 7, 1982, Respondent violated Sec-
tion 8(b)(XIXA) and (2) of the Act.
[Recommended Order omitted from publication.]
4 Painters Local Union N 1555 affiliated with the International Brother-
hood of Plinters and Allied Trades AFL-CIO (Stephen Strickland), 241
NLRB 741, 742 (1979). Also International Brotherhood Electrical Workers
Local 401 (Stone and Webster Engineering Corporation), 251 NLRB 321
(1980); Local 675. International Brotherhood of Electrical Workern AFL-
CIO (S A M Electric Coa), 223 NLRB 1499 (1976).
a This conclusion does not require a determination whether Respond-
ent was influenced, when it bypassed Phillips, by his complaints to the
parent international in the fall of 1981. Respondent's contention is reject-
ed that the Board should defer to the contractual procedure for protest-
ing improper operation of the hiring hall. Respondent concedes that the
first level of review under that procedure, the examining committee, is
inadequate; and ccess to the next, arguably neutral, level is available
only when the "opinion" of the examining committee is "less than unani-
mous." The objectivity of that process thus is not sufficiently assured.
Cf., Elctrical Workers Local 401 (Stone and Webster Engineering Cor.),
supra at 251 NLRB 321, fn. 3; Electrical Workers Local 675 (S & M Elec-
tric C). supra.
6 Painters Local 1555 (Stephen Strickland). rsupra at 241 NLRB 742.
' Local 394 Laborers' International Union of North America. AFL-CIO
(Wakil Abdunafi), 247 NLRB 97, fn. 2 (1980).
1343