Petersen Construction Corp.

National Labor Relations Board - Board Decisions

Dec 29, 1961

134 N.L.R.B. 1768 (N.L.R.B. 1961)

1768 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the Respondent was aware of the nature of the work being done . It was customary
and permitted for the girls to do work for the employees when free. Miss Lee's
testimony is that she would have done work for the United Plant Guard Workers,
too, if requested by employees . Under the circumstances these incidents do not
appear to reflect illicit assistance to the Alliance, and it is concluded that they do not.
Cf. Ranco, Inc., 109 NLRB 998.
Upon the basis of these findings and conclusions , it is now found that the pre-
ponderance of the evidence does not establish that the Respondent dominated or
interfered with the formation or administration of the Alliance or contributed finan-
cial or other support to it . It will therefore be recommended that the complaint
in Case No. 13-CA-4046 so alleging be dismissed . There thus being no substantial
evidence that the Respondent failed to comply with the settlement agreement of
October 21, 1960, in Case No. 13-CA-3720, or engaged in independent unfair
labor practices since that date, it follows that dismissal of the complaint in that
case is also required , pursuant to the Board's Larrance Tank decision.
The evidence suggests that the employees ' disillusioning experience with Local
221 was a substantial factor in their decision to establish an independent local
organization rather than to affiliate with another large national union . If that
decision of the employees is error, the statute protects their right to make it. It is
not the function of the Board to shield employees from the consequences of their
free choice , however unhappy in result, but only to insure that they have the
opportunity to exercise that choice.
Upon the basis of these considerations , it is recommended that the consolidated
complaint be dismissed in its entirety.
CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce within the meaning of the Act.
2. Independent Guard Employees Alliance is a labor organization within the
meaning of the Act.
3.Upon the cognizable record the Respondent has not committed unfair labor
practices within the meaning of Section 8(a)(1), (2), and (3) of the Act.
[Recommendations omitted from publication.]
Petersen Construction Corp.; Southern California Chapter of
the Associated General Contractors of America ; Building
Contractors Association of California , Inc.; Engineering and
Grading Contractors Association , Inc.; and Home Builders
Association and William Van Buskirk
Hod Carriers and Common Laborers Union Bakersfield Local
220, Santa Barbara Local 195, Los Angeles Local 300, Bishop
Local 302, Los Angeles Local 345, Pasadena Local 439, Long
Beach Local 507, Ventura Local 585, Santa Barbara Local 591,
Santa Ana Local 652, Pico Local 696, Hollywood Local 724,
San Bernardino Local 783, Wilmington Local 802, Pomona
Local 806, Los Angeles Local 923, El Centro Local 1119, Los
Angeles Local 1159, Riverside Local 1184, Santa Maria Local
1222, San Luis Obispo Local 1464, and Southern California
District Council of Laborers , affiliated with International Hod
Carriers', Building and Common Laborers' Union of America,
AFL-CIO and William Van Buskirk
Hod Carriers and Common Laborers Union El Monte Local 1082
and William Van Buskirk
134 NLRB No. 152.
PETERSEN CONSTRUCTION CORP., ETC. 1769
Hod Carriers and Common Laborers Union Los Angeles Local
300 and Charles F. Porter and H. B. Nicholson , Party to the
Contract
Hod Carriers and Common Laborers Union Los Angeles Local
300 and William R. Carlos and McNeil Construction Co., Party
to the Contract
Hod Carriers and Common Laborers Union Los Angeles Local
300 and Eduardo Gallardo and Webb & White, Party to the
Contract
Hod Carriers and Common Laborers Union Los Angeles Local
300 and Thomas A. Gannon and Engineers Limited Pipe Line
Co., Party to the Contract
Hod Carriers and Common Laborers Union Los Angeles Local
300 and Hughie E. Oakley and Engineers Limited Pipe Line
Co., Party to the Contract
Hod Carriers and Common Laborers Union Los Angeles Local
300 and Jess E. Milsap and Engineers Limited Pipe Line Co.,
Party to the Contract
Hod Carriers and Common Laborers Union Los Angeles Local
300 and Guy Balassone and Mac Isaac and Menke Co., Party
to the Contract
Hod Carriers and Common Laborers Union Los Angeles Local
300 and Uldie Garmon and James I. Barnes Construction Co.,
Party to the Contract
Hod Carriers and Common Laborers Union Los Angeles Local
300 and L. C. Brown and Morley Construction Company, Party
to the Contract
Allied Construction & Engineering Co. and Robert A. Gifford
Hod Carriers and Common Laborers Union Ventura Local 585
and Robert A. Gifford
Hod Carriers and Common Laborers Union San Bernardino
Local 783; its Business Agent, A. Acuna; and Walter Neff,
its Financial Secretary and Treasurer and Beecher Kreigh
and Fredrickson & Kasler
Hod Carriers and Common Laborers Union San Bernardino
Local 783; its Business Agent , A. Acuna; and Walter Neff,
its Financial Secretary and Treasurer and Charles Edward
Rusow and Associated General Contractors of America , South-
ern California Chapter , Party to the Contract . Cases Nos.
1770 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
21-CA-2892, 21-CB-983, 21-CB-984, 21-CB-997,1 21-CB-1015,
21-CB-1076, 21-CB-1087,2 21-CB-1088, 21-CB-1091, 91-CB-1096,
21-CB-1107,3 21-CB-1147, 21-CA-3197, 21-CB-1174, 21-CB-1259,
and 31-CB-1275. December 29, 1961
SUPPLEMENTAL DECISION AND ORDER
On August 26, 1960, the Board issued its original decision' in the
above-entitled consolidated proceeding, finding that Respondents
Petersen Construction Company and four employer Associations 5
and Respondent Unions' violated Section 8(a) (1) and (3) and
8(b) (1) (A) and (2) of the Act, respectively, by maintaining and en-
forcing a contract with exclusive hiring and referral clauses which
did not contain the safeguards the Board deemed essential to their
nondiscriminatory operation. By the maintenance and enforcement
of such contract, 10 individuals were discharged or deprived of em-
ployment by being denied placement on the Unions' referral lists.
However, as noted in our prior decision, five employees, Van Buskirk,
Crawford, Kreigh, Rusow, and Carlos, were required to be union
members in good standing before the Unions would place them on
their referral lists.
Since the issuance of our decision, the United States Supreme Court,
on April 17, 1961, issued two decisions' directly affecting the conclu-
sions in our prior decision. In Local 357, Teamsters, supra, the
Supreme Court rejected the Board's conclusion that a contract with
exclusive hiring and referral provisions was discriminatory unless it
contained certain safeguards. In Local 60, Carpenters, supra, the
second of these decisions, the Court similarly rejected the view that
all employees who had paid dues, fees, and assessments during the
period that the exclusive hiring and referral clauses were in effect,
were necessarily coerced into union membership or retention thereof,
and should be refunded all such moneys.
In light of these decisions, the Board has reexamined its conclusions
in the above-entitled consolidated proceeding and makes the following
findings and conclusions.
' The General Counsel's motion, made at the hearing , to sever this case was granted
without objection
3 The General Counsel's motion, made at the hearing, to dismiss the case was granted
without objection
3 The General Counsel's motion, made at the hearing, to dismiss this case was granted
without objection
' Petersen Construction Corp , et at., 128 NLRB 969
5Associated General Contractors ( Southern California Chapter ), Building Contractors
Association of California, Inc, Engineering and Grading Contractors Association , Inc, and
Home Builders Association of Los Angeles.
6 Southern California District Council of Laborers , and Hod Carrier and Common
Laborers Union, Locals 195, 220 , 300, 302, 345, 439, 507, 585 , 591, 652, 696 , 724, 783,
802 806, 923, 1082, 1119, 1159, 1184, 1222, 1464
'Local 357 , International B,otherhood of Teamsters , Chauffeurs, Warehoavsemen and
Helpers of America v. N L.R B. ( Los Angeles -Seattle Motor Express ), 365 U.S. 667;
PETERSEN CONSTRUCTION CORP., ETC. 1771
We conclude that neither Petersen Construction Company nor the
Respondent Associations and Unions violated the Act by maintaining
and enforcing a contract now deemed lawful.' Consequently, the dis-
charges herein, pursuant to such lawful contract, are not a violation
of the Act. However, apart from the contract, Van Buskirk, Craw-
ford, Rusow, Kreigh, and Carlos, were discriminated against because
they were not union ,members, not members of the referring local
Union, or were not in good standing with such Union. As to these
five individuals, there are no outstanding charges against any of the
Respondent Employers and only charges against three local unions
remain unresolved.
Regarding Buskirk and Crawford, they were denied a work permit
or clearance by Local 1082, although the Union was informed that
they had been hired. In hiring these individuals directly, Petersen
was in violation of its contract which had granted exclusive referral
to the respective local Unions. Consequently, Local 1082 could, and
did, properly refuse to clear Buskirk and Crawford because, had
they cleared them, they would have given them preferential referral
and would have discriminated against several hundred other indi-
viduals who preceded them on a waiting list. However, Local 1082
did condition access to the referral list upon their joining the Union
and to that extent violated Section 8(b) (1) (A) and (2) of the Act.
Rusow and Kreigh both sought job referrals through the office of
Local 783. Rusow was informed that he would have to become a
member of Local 783 before he could get on the referral list. He did
not join and therefore was not put on the referral list. On August 18,
1958, Fredrickson and Kasler, a construction firm, informed Kreigh
that they would hire him if he received clearance from the Union.
The same day, Kreigh informed Neff, secretary and treasurer of Local
783, that he desired to pay his initiation fees and dues and get back
on the call board. The tender of money was refused and Kreigh was
informed that he would have to appear before a union "board," ap-
parently because of his prior dereliction in paying dues. Despite a
repeated tender of fees and dues on several other occasions thereafter,
Neff refused to accept them and Kreigh was not placed on the referral
list because, as he was informed, the Union was going to make an ex-
ample of him. Granting that Local 783 may have established certain
procedures before restoring Kreigh to full union membership because
of his prior delinquency in payment of dues, the Union could not
affect his employment opportunities by denying him referral or ac-
Local 60, United Brotherhood of Carpenters and Joiners of America , AFL-CIO ( Mechanical
Handling Systems ) v. N.L R B., 365 U.S 651.
s Since there is no evidence of coercion to make individuals become union members or
retain their union membership apart from the lawful contract , a Broicn-Olds reimbursement
remedy is not warranted . As to the five individuals discussed hereafter, they either did not
join the Union and therefore did not make any payments of fees or dues or their tender of
such fees and dues was refused.
1772 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cess to the referral list because he was not a member in good standing.
As to both Rusow and Kreigh, therefore, Local 783 violated Section
8(b) (1) (A) and (2) of the Act by conditioning their placement on
the referral list upon their joining the Union or upon being a member
in good standing.
Carlos, a member of Local 439, was hired directly by McNeil Con-
struction Company and was subsequently terminated when he failed
to secure a referral from Local 300. Before his termination was ef-
fected, he secured a withdrawal card from Local 439 and a transfer
slip into Local 300. He presented himself at the hiring hall of Local
300 and requested that he be referred to the McNeil job. He was
advised by a business representative of Local 300 that he had. to go
through the regular referral process and that many others preceded
him on a waiting list. Carlos was told, however, that he had to be a
member of Local 300 before his naive would be put on the referral
list. When Carlos learned that he would not get a "preferential re-
ferral" to the McNeil job even if he completed his transfer to Local
300, he did not pursue his transfer because he was returning to school
in several weeks .9 On these facts, it is clear that Local 300 violated
Section 8(b) (1) (A) and (2) of the Act when it required membership
in Local 300 before placing Carlos on the referral list. It is also clear
that Carlos' termination resulted from his bypassing the regular
referral process and the fact that he was not a member of Local 300,
was not an operative factor in his termination. This is borne out
by the fact that Local 300 denied preferential referral (or clearance)
to three other individuals ,10 all members of Local 300, because they
had secured jobs themselves and had bypassed the regular referral
process. It is also apparent that, even had Carlos completed his trans-
fer into Local 300 or had he been a member of Local 300, he would
not have been referred to the McNeil job because of the number of
individuals that preceded him on the referral list. Accordingly, we
find no violation in Carlos' termination.
THE REMEDY
We have found that five individuals were discriminatorily denied
placement on the referral lists of the aforementioned local unions and
thereby deprived of opportunities for employment because they were
not union members or not members of a specific local union or not a
union member in good standing. Buskirk and Crawford were denied
access to Local 1082's referral list because they were not union mem-
bers. However, several hundred men preceded them on the referral
Carlos testified that he told the business agent "you know there are close to 2,000 men,
on that hiring board down there at the Union hall . . three weeks from now I want to go
back to school . and if I go down to that Union [ Local 300] it will be months before
I will he put on the job."
'° Balassone , Gallardo, and Mlilsap
PETERSEN CONSTRUCTION CORP., ETC. 1773
list and there is no indication in the record as to when or for how long
they would have been employed but for the discrimination against
them. Rusow and Kreigh were denied access to Local 783's referral
list. The record does not indicate whether a waiting list existed or
whether they would have been given prompt referral but for the dis-
crimination herein. As to Kreigh, he had a promise of immediate
employment from Fredrickson & Kasler if he secured a referral. He
was denied a specific referral as well as access to the referral list be-
cause he was not in good standing with the Union. Carlos acknowl-
edged that, if he had followed the regular referral process, he prob-
ably would not have been referred to a job for months because of the
large number of men who preceded him on the referral list. Carlos
did not, therefore, complete his transfer to Local 300, because he was
returning to school in 3 weeks.
Thus, the record does not enable us specifically to determine when
or for how long such individuals would have been employed but for
the discriminatory conduct here involved. Under these circumstances,
we shall order the respective local Unions to make whole these indi-
viduals for any loss of earnings incurred as a result of the discrimi-
nation against them, the amounts of backpay, if any, to be determined
in complance proceedings. We shall also order the respective local
Unions here involved, to cease and desist from such discrimination and
notify the five individuals involved that they may utilize their referral
system without discrimination, without respect to whether they are
union members or a member of a particular local union or whether
they are in good standing in such local union.
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 Respondent Locals 300 , 783, and
1082 of the Laborers , Hod Carriers ', Building and Common Laborers
Union of America, AFL-CIO, shall:
1. Cease and desist from :
(a) Refusing to refer or to deny individuals placement on a job re-
ferral list because such individuals are not union members or not
members of a certain local union or are not union members in good
standing.
(b) In any like or related manner, restraining or coercing employees
of, or applicants for employment With, Petersen Construction Com-
pany,, McNeil Construction Company, or Fredrickson & Kasler,- or
any other employer over which the Board would assert jurisdiction,
in the exercise of their rights guaranteed in Section 7 of the Act, ex-
cept to the extent permitted by an agreement requiring membership in
1774 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a labor organization as a condition of employment as authorized by
Section 8 (a) (3) of the Act, as modified by the Labor-Management Re-
porting and Disclosure Act of 1959.
2. Take the following affirmative action which the Board finds will
effectuate the purpose of the Act :
(a) Make whole William Van Buskirk, Chester Crawford, Charles,
Rusow, Beecher Kreigh, and William Carlos, for any loss of earnings
incurred as a result of the discrimination against them in the manner
described in,the section of this report entitled "The Remedy" and
notify the aforenamed individuals, at their last known address, that
they may utilize the referral system without regard to their union
membership or lack thereof.
(b) Post at their respective offices in conspicuous places, including
all places where notices to members are customarily posted, and at
the premises of Petersen Construction Company, McNeil Construction
Company and Fredrickson & Kasler, if they be willing, copies of the,
notice attached hereto as Appendix A.11 Copies of said notice, to be
furnished by the Regional Director for the Twenty-first Region, shall,,
after being duly signed by the respective representatives of the afore-
named Unions, be posted immediately upon receipt thereof and be
maintained by each of Respondent Unions for 60 consecutive days
thereafter. Reasonable steps shall be taken by the aforenamed Unions,
to insure that said notices are not altered, defaced, or covered by any
other material.
(c) Notify the Regional Director for the Twenty-first Region in
writing, with 10 days from the date of this Order, what steps have.
been taken to comply herewith.
IT IS FURTHER ORDERED that any allegations that Respondents Peter-
sen Construction Company, Associated General Contractors (South-
ern California Chapter), Building 'Contractors Association of
California, Inc., Engineering and Grading Contractors Association,,
Inc., Home Builders Association of Los Angeles, Allied Construction
and Engineering Company, or Respondents, Southern California
District Council of Laborers, and Locals 195, 220, 300, 302, 345, 439,,
507, 585, 591, 652, 696, 724, 783, 802, 806, 923, 1082, 1119, 1159, 1184,,
12225 1464, violated Section 8(a) (1) and (3) and Section 8(b) (1) (A),
and (2), respectively, by maintaining and enforcing an unlawful
contract, be, and hereby are, dismissed.
MEMBER RODGERS took no part in the consideration of the above,
Supplemental Decision and Order.
u In the event that this Order is enforced by a United States Court of Appeals, there
shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant
to a Decree of the United States Court of Appeals , Enforcing an Order "
PETERSEN CONSTRUCTION CORP., ETC. 1775
APPENDIX
NOTICE TO ALL MEMBERS OF LOCALS 300, 783, AND 1082 OF THE
HOD CARRIERS' BUILDING AND COMMON LABORERS UNION OF
AMERICA, AFL-CIO ; AND TO EMPLOYEES OF, AND APPLICANTS FOR,
EMPLOYMENT WITH PETERSEN CONSTRUCTION COMPANY, McNEIL
CONSTRUCTION COMPANY, AND FREDRICKSON & KASLER
Pursuant to a Decision and Order of the Nationail Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify you that:
WE WILL NOT deny referral or access to a job referral list to
William Van Buskirk, Chester Crawford, Charles Rusow, Beecher
Kreigh, and William Carlos or to any other individual because
they are not union members, or members of our local union, or
because they are not members in good standing in our Union.
WE WILL NOT in any like or related manner restrain or coerce
employees or applicants for employment in the exercise of the
right to self-organization, to join or assist a union, to bargain
collectively through representatives of their own choosing, and
to engage in concerted activities for the purpose of collective bar-
gaining, or to refrain from any or all such activities, except to the
extent that such rights may be affected by an agreement requir-
ing membership in a labor organization as a condition of em-
ployment as authorized in Section 8(a) (3), as modified by the
Labor-Management Reporting and Disclosure Act of 1959.
WE WILL make whole the aforenamed individuals for any loss of
earnings they may have incurred as a result of the discrimination
against them.
LOCAL 300, HOD CARRIERS AND COMMON LABORERS
UNION, AFL-CIO, Labor Organization.
Dated---------------- By-------------------------------------
;Representative ) ( Title)
LOCAL 783, HOD CARRIERS AND COMMON LABORERS UNION,
Labor Organization.
Dated---------------- By-------------------------------------
(Representative ) (Title)
LOCAL 1082, HOD CARRIERS AND COMMON LABORERS
UNION, AFL-CIO, Labor Organization.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered , defaced, or covered by any other material.
O