Plasterers', Local Union 908

National Labor Relations Board - Board Decisions

Oct 6, 1970

185 N.L.R.B. 879 (N.L.R.B. 1970)

PLASTERERS ', LOCAL UNION 908
Local Union No. 908 of the Operative Plasterers'
and Cement Masons' International Association of
the United States and Canada, AFL-CIO and
Howard Sterling and Kaiser Engineers , Division
of Kaiser Industries Corporation. Case 14-CB-
1906
October 6, 1970
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS FANNING
AND BROWN
On April 15, 1970, Trial Examiner William J.
Brown issued his Decision in the above-entitled pro-
ceeding, finding that the Respondent had engaged
in certain unfair labor practices alleged in the com-
plaint and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision. He
did not discuss other unfair labor practices alleged
in the complaint, as to which the General Counsel
has now filed exceptions and a brief in support.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-member
panel.
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, the exceptions, the beef, and
the entire record in this case, and hereby adopts
the Trial Examiner's findings, conclusions, and recom-
mendations as amplified herein.
The Trial Examiner found, and we agree, that
Respondent caused the Company, about September
15, 1969, to refuse Charging Party Sterling a promo-
tion to foreman because of his delinquency in dues
owed the Union, in violation of Section 8(b)(2) and
(1)(A) of the Act.'
' The Trial Examiner rejected as an exhibit the pretrial statement
of Respondent's business agent, Camp, which contains an admission
that the September 16, 1969, charges filed by discnmmatee Sterling
in this case contributed to Camp's decision not to refer Sterling for
an opening as foreman The signed pretrial statement of an agent can
properly be relied upon as an admission against his principal's interest
as well as for purposes of contradiction and impeachment See Tuscarora
Plastics Co, 167 NLRB 1059, In 1 However, as Camp's testimony
at the hearing adequately establishes a causal connection between the
filing of unfair labor practice charges by Sterling and a later decision
by Camp to refer a member other than Sterling as foreman, we see
no need to rely upon the pretrial statement
' The Trial Examiner based his September 15 finding on the occasion
when Sterling protested the selection of Bunn, but did not include the
879
The General Counsel excepts to the failure of the
Trial Examiner to treat two additional allegations
of the complaint and to make findings thereon. One
of these involves the failure to refer Sterling on another
occasion, after he filed the unfair labor practice charge
in this case on September 16, 1969. We agree with
the General Counsel that business agent Camp's deci-
sion in late September to send Jake Cooper rather
than Sterling to the Noranda job as foreman, partially
because of the said charge, violated Section 8(b)(2)
and (1)(A) of the Act.'
The other exception, in which we also find merit,
concerns the impact of article VIII, section 2, of
the Respondent's standard collective-bargaining agree-
ment.' Although the wording of section 2 is without
ambiguity, its import, we conclude, is to limit eligibili-
ty for promotion to foremen to members of Respond-
ent Local 908 or an adjoining local. Under this section
an employer is allowed leeway in selecting a foreman
only to the limited extent of having its own selection
for foreman designated as "General Foreman,"5 in
which case Local 908 "will supply" the "Foreman."6
occurrence on which Sterling had not protested the selection of Wigand
This occurred on or about August 27, as related by the Trial Examiner
We rely on both instances
' See Master Stevedores Association of Texas, 156 NLRB 1032, 1037
Art VII
Foreman
Section 1 When one or more Cement Masons are employed
on any one project , one should act as working Foreman at Foreman's
rate of pay The working Foreman shall be designated by the Business
Agent of the Union When a total of five Cement Masons are
employed on one project , the sixth man shall be a non-working
Foreman No Foreman will be required to supervise more than
10 Cement Masons
When over 11 Cement Masons are employed on one project,
there will be a General Foreman . The twelfth man shall be a nonwork-
ing Foreman When over 20 Cement Masons are employed on one
project, the General Foreman shall only be required to give orders
to the Foreman and not be required to supervise a crew.
Section 2 No Cement Mason may be Foreman in Local 908
unless he travels in, or is a member of, an adjoining Local Cement
Masons are required to take orders from the Foreman only and
no one else The Foreman , will give the men their pay for the
time they have coming When a contractor supplies his own Foreman,
he will be classified as a General Foreman, and Local 908 will
supply the Foreman
General Foremen are required by the contract 's union-secunty provi-
sions, art I, to be members , as are foremen However, no grace period
for new members is provided in the contract , such as the 7-day period
under Sec 8(1) of the Act applicable to the construction industry Hence
we are not here dealing with the situation where, under successive
contracts with valid union-security provisions , preferences limited to mem-
bers may be nondiscriminatory See Coal Producers ' Association of Illinois,
165 NLRB 337.
We note the following testimony of Respondent ' s business agent
Camp Asked "Is it possible for the foreman to not be a member of
the Union ," Camp answered "Yes If the company would seek to hire
an employee and put him out there as a foreman, I have no objections
I mean, he can go to work and work on the job as a foreman. I
think on the eighth day he is supposed to join the Cement Masons
or the local which he's working with " Also according to Camp, local
contractors frequently call back a former foreman whenever work picks
up instead of calling Camp, whereas new contractors in the area may
request Camp to appoint a foreman who will give them a good job
185 NLRB No. 123
880 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Additionally, from article VIII, section 1, it is clear
that any use of cement masons on a job in the
area, no matter how small, requires at least one
foreman to be supplied by the Respondent.' Accord-
ingly, we find that by maintaining and enforcing
article VIII, section 2, requiring foremen to be mem-
bers, the Respondent has caused and attempted to
cause an Employer to discriminate against its employ-
ees in violation of Section 8(a)(3) by conditioning
eligibility for promotion to the position of foreman
upon membership in the Respondent or its adjoining
Locals, and has thereby violated Section 8(b)(2) and
(1)(A) of the Act.
ADDITIONAL CONCLUSIONS OF LAW
1. By causing the Company to refuse Sterling a
promotion to the position of foreman because of
his having filed an unfair labor practice charge against
the Union, the Union has engaged in unfair labor
practices defined in Section 8(b)(2) and (1)(A) of
the Act.
2. By maintaining and enforcing contractual provi-
sions which condition the benefit of promotion to
foreman upon membership in the Respondent Union
or an adjoining local, the Respondent has restrained
and coerced employees in the exercise of rights guaran-
teed in Section 7 of the Act in violation of Section
8(b)(1)(A), and has caused and attempted to cause
an employer to discriminate against its employees
in violation of Section 8(a)(3) of the Act, and has
thereby violated Section 8(b)(2) of the Act.
THE REMEDY
Having found that the Respondent has violated
various provisions of the Act by its maintenance
and enforcement of contractual provisions which con-
dition the benefit of promotion to foreman upon
membership in the Respondent Union or an adjoining
local, we shall order the Respondent to cease and
desist therefrom.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended , the National Labor Rela-
tions Board hereby orders that the Respondent, Local
Union No. 908 of the Operative Plasterers' and
Cement Masons' International Association of the
United States and Canada , AFL-CIO, Cape Girar-
deau , Missouri , its agents, officers , and representatives,
shall:
' On a one-man job this would be a working foreman designated
by the business agent, as appears from art VIII, sec 1
1. Cease and desist from:
(a) Maintaining and enforcing contractual provi-
sions which condition the benefit of promotion to
foreman upon membership in the Respondent Union
or an adjoining local.
(b) Causing or attempting to cause the Company
or any other employer to discriminate against Sterling
or any other cement mason with respect to promotion
to the position of foreman because of delinquency
in dues owing to the Union, or the filing of unfair
labor practice charges against the Union.
(c) Restraining or coercing employees of the Compa-
ny in the exercise of rights guaranteed by Section
7 of the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Notify Sterling and the Company in writing
that it will not oppose the promotion of Sterling
to the position of foreman on the Noranda project
at New Madrid for dues delinquency or filing unfair
labor practice charges.
(b) Make Sterling whole for loss of earnings suffered
as a consequence of the Union's opposition to his
promotion to the position of foreman on August
27, September 15, and again in late September, by
payment to him of an amount representing the differ-
ence between the journeyman and foreman rates for
the hours worked by foremen in the period in question
to the date of termination of the project, or of the
reversion to journeyman of the foreman nominee-
in-lieu of Sterling, or of compliance with this Order,
whichever first occurs. The remedial relief policies
of F W. Woolworth Co., 90 NLRB 289, and Isis
Plumbing & Heating Co., 138 NLRB 716, shall apply.
(c) Preserve and, upon request, make available to
the Board and its agents, for examination and copying,
all books and records necessary to analyze and give
effect to the backpay requirements hereof.
(d) Post at its regular meeting place and on any
bulletin board or boards maintained for use of the
Union on the Noranda project at New Madrid, and
the Respondent's office at Cape Girardeau, copies
of the attached notice marked "Appendix."8 Copies
of said notice, on forms supplied by the Regional
Director for Region 14, shall, after being duly signed
by Camp, be posted by the Union immediately on
receipt thereof, and be maintained for 60 consecutive
days thereafter. Reasonable steps shall be taken by
the Union to ensure that said notices are not altered,
defaced, or covered by other material.
In the event that the Board's Order is enforced by a judgment
of a United States Court of Appeals, the words in the notice reading
"posted by Order of the National Labor Relations Board" shall be changed
to read "Posted Pursuant to a Judgment of the United States Court
of Appeals Enforcing an Order of the National Labor Relations Board "
PLASTERERS', LOCAL UNION 908
(e) Notify the Regional Director for Region 14,
in writing, within 10 days from receipt of this Order,
what steps have been taken to comply herewith.
APPENDIX
NOTICE TO MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An agency of the United States Government
WE WILL direct our agents not to maintain
and enforce contractual provisions which condi-
tion the benefit of promotion to foreman upon
membership in Local Union No. 908 of the Oper-
ative Plasterers' and Cement Masons' Interna-
tional Association of the United States and Cana-
da, AFL-CIO, or an adjoining Local.
WE WILL NOT refuse to appoint Howard
Sterling or any other cement mason to the posi-
tion of foreman on the New Madrid project
of Kaiser Engineers, or on any other project
employing Union members, on the basis of delin-
quency in dues owing to the Union, or for having
filed unfair labor practice charges against the
Union.
WE WILL NOT cause or attempt to cause
Kaiser Engineers or any other employer to dis-
criminate against Howard Sterling or any other
employee except as may be required under a
valid union-security agreement in conformity with
the Act.
WE WILL make Howard Sterling whole for
the loss of foreman's wages on the Noranda
project at New Madrid as a result of our discrimi-
nations against him on August 27, September
15, and later in September 1969.
LOCAL UNION No. 908 OF
THE OPERATIVE
PLASTERERS' AND
CEMENT MASONS'
INTERNATIONAL
ASSOCIATION OF THE
UNITED STATES AND
CANADA, AFL-CIO
(Labor Organization)
Dated By
(Representative)
(Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced, or covered by any other material.
Any questions concerning this notice or compliance
with its provisions may be directed to the Board's
881
Office, 1040 Boatmen 's Bank Building , 314 North
Broadway, St. Louis, Missouri 63102, Telephone 314-
622-4167.
TRIAL EXAMINER'S DECISION
WILLIAM J. BROWN, Trial Examiner This proceeding
under Section 10(b) of the National Labor Relations Act,
as amended, hereinafter referred to as the "Act," came
on to be heard at Cape Girardeau, Missouri, on February
10, 1970 The underlying charges of unfair labor practices
were filed September 16, 1969,' by the above-indicated
Charging Party, hereinafter referred to as "Sterling," and
the complaint herein was issued November 13 by the General
Counsel of the National Labor Relations Board acting
through the Board's Regional Director for Region 14. It
alleged, and the duly filed answer of the above-indicated
Respondent, hereinafter referred to as the "Union," denied
the commission of unfair labor practices defined in Section
8(b)(1)(A) and (2) of the Act
At the hearing the parties appeared and participated,
as noted above, with full opportunity to present evidence
and argument on the issues. Subsequent to the close of
the hearing the General Counsel and the Union filed briefs
which have been fully considered
On the entire record herein and on the basis of my
observation of the witnesses, I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE EMPLOYER
The pleadings and evidence indicate and I find that
Kaiser Engineers, Division of Kaiser Industries Corpora-
tion,' is a Nevada corporation with its principal office
and place of business in Oakland, California, and engaged
in the building construction industry. During the year ending
December 31, a representative period, the Company pur-
chased and caused to be transported to its places of business
and directly across state lines goods and materials valued
in excess of $50,000 The instant case concerns events
occurring at the Company's Noranda Aluminum project
at New Madrid, Missouri I find that the Company is
an employer engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.
II THE STATUS OF RESPONDENT
The pleadings and evidence establish and I find that
the Union is a labor organization within the purview of
Section 2(5) of the Act
III THE UNFAIR LABOR PRACTICES
The Noranda project at New Madrid involves the con-
struction of an aluminum smelter and a power house.
' Dates hereinafter, unless otherwise indicated, relate to the calendar
year 1969
1 Hereinafter referred to as the "Company."
882 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It commenced in late January 1969, and called for the
employment, among other crafts, of cement masons who
work under Donald J. Rickus, general foreman for cement
masons The Company is party to a national agreement
with the Union's parent International Union but recognizes
local conditions of employment except where they conflict
with provisions of the International agreement. The local
agreement contains a provision to the effect that no qualified
cement mason should be barred from becoming a foremen
because of race, creed or color. The foreman's wage rate
is set at 50 cents per hour above that of the highest
paid journeyman on the project. The agreement also provides
that when one or more cement masons are employed on
a project, one should be designated by the union business
agent to act as working foreman at the foreman rate of
pay. Union shop provisions are also incorporated into the
agreement.
Sterling, a cement mason and member of the Union
for some 20 years, was hired as a cement mason on the
Kaiser Noranda job at New Madrid on June 26 and has
worked there continuously up to the date of the hearing.
Soon after his hiring in on the Noranda job, Camp, the
Union's business representative and an admitted union agent,
offered him a foreman's job on a project at Hayti, Missouri,
within the Union's territorial jurisdiction, but Sterling
declined the offer in view of the distance involved in driving
from his home in Cape Girardeau.' About August 18
Camp asked Sterling to serve as foreman on the Noranda
job as a temporary replacement for Foreman Gurley who
had to take time off on account of a death in his family.
Sterling, with some thirteen cement masons under him,
apparently performed satisfactorily in the foreman job and
was praised by General Cement Mason Foreman Rickus.
When, after 3 days absence, Gurley returned to work,
Sterling reverted to his cement finisher job.
About August 27 the work force in the cement finishing
craft had grown to the point where a second foreman
was needed. Gurley and Camp met with Rickus and later
with Stanert, the Company superintendent on the project,
who also agreed that a second cement foreman was needed.
Rickus asked that Sterling be given the second foreman
job, but Camp vetoed the proposal, stating, according to
Rickus, that Sterling had caused problems on other jobs,
and, according to Camp, that Sterling was behind in his
dues and assessments. The group then consulted Anderson,
Kaiser's Chief of Labor Relations on the job; Anderson,
after some delay, decided that the Company would go
strictly by the agreement and permit Camp to name the
foreman. Camp named a cement mason named Wigand
who apparently performed satisfactorily. Sterling made no
protest of Wigand's appointment.
On September 15 the work force had increased to a
point such that another nonworking foreman was needed.
Camp designated B.D. Bunn and Sterling voiced his protest
of the appointment. According to Sterling's testimony, which
I credit, Camp stated that the reason he did not name
Sterling for the vacancy in the foreman job, was that
he was not a good supporter of the Union and was behind
' The evidence indicates that the Noranda job is some 78 miles
and the Hayti job some 90 miles from Sterling's home
in his dues and assessments Sterling concedes that at
that time he was in fact 2 months behind in his dues.
Sterling has continued in employment on the Noranda
project up to the date of the hearing in this matter but
has had no more employment as a foreman.
In Krambo Food Stores, Incorporated, 106 NLRB 870,
877, the Board said:
It is clear that in Section 8(a)(3) and 8(b)(2) of the
Act the Congress barred discriminatory treatment of
employees based upon union membership because such
treatment might discourage or encourage union affilia-
tion-a matter which the Congress determined should
in general be left to the employees' own uncoerced
judgment. Except for the proviso to Section 8(a)(3),
this prohibition was complete and all-inclusive and
applied to all forms of discrimination and all employees,
whether union members or not. In the proviso, which
in effect is repeated in Section 8(b)(2), Congress permit-
ted one exception to this all-inclusive ban, namely,
employers and unions under certain circumstances were
allowed to require that employees join or maintain
their membership in a union as a condition of employ-
ment. Nothing in the Act or its legislative history
persuades us that the union-shop provisos to Section
8(a)(3) and 8(b)(2) were designed to give employers
and unions a license to use various discriminatory
devices, short of discharge, to coerce an employee
to join the union while still holding over his head
the alternate threat of discharge which the statute
sanctions
Since it is clear that on September 15 the Union caused
the Company to refuse promotion to the foreman job to
Sterling, on the basis of his dues delinquency, it is concluded
that the Union thereby engaged in unfair labor practices
within the scope of Section 8(b)(1)(A) and (2) of the
Act 0
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of the Respondent Union set forth in
section III, above, and there found to constitute unfair
labor practices, occuring in connection with the operations
of the company as set forth in section I, above, have
a close, intimate, and substantial relation to trade, traffic,
and commerce among the several States and tend to lead
to labor disputes burdening and obstructing such commerce
and the free flow thereof.
V. THE REMEDY
In view of the findings set forth above to the effect
that the Union has engaged in unfair labor practices affecting
commerce it will be recommended that it be required to
cease and desist therefrom and from like or related unfair
labor practices, to post appropriate notices, notify the Com-
pany that it will take no retaliatory action in the event
of Sterling's work on the Noranda or any other company
project as journeyman or foreman, and make Sterling whole
for loss of the difference between journeyman and foreman
PLASTERERS ', LOCAL UNION 908
wages from and after September 15 to the date of his
employment as foreman on the project, the date on which
Bunn reverted to journeyman status, or the termination
of the project, whichever first occurs.
On the basis of the foregoing findings of fact and upon
the entire record in this case, I make the following:
CONCLUSIONS OF LAW
1. The Company is an employer engaged in commerce
within the purview of Section 2(6) and (7) of the Act.
883
2. The Union is a labor organization within the purview
of Section 2(5) of the Act.
3. By causing the Company to refuse Sterling a promotion
to the position of foreman because of his delinquency in
dues owed to the Union, the Union has engaged in unfair
labor practices defined in Section 8(b)(2) and (1)(A) of
the Act.
4. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
[Recommended Order omitted from publication ]