R-M Framers, Inc.

National Labor Relations Board - Board Decisions

Nov 7, 1973

207 N.L.R.B. 36 (N.L.R.B. 1973)

36 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
R-M Framers, Inc. and Ralph P. Bresee and David H.
Bresee
United Brotherhood of Carpenters and Joiners of
America, Local Union No. 1797, AFL-CIO
and Ralph P. Bresee and David ' H. Bresee. Cas-
es 19-CA-6082 and 19-CB-1943
November 7, 1973
DECISION AND ORDER
BY MEMBERS JENKINS, KENNEDY, AND
PENELLO
On June 26, 1973, Administrative Law Judge
Maurice M: Miller issued the attached Decision in
this proceeding. Thereafter, the Respondent Union
filed exceptions and a supporting brief designated as
an argument, and the General Counsel filed an
answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, findings,
and conclusions of the Administrative Law Judge
and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended ; the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the Respondent Employer, R-M
Framers, Inc., Olympia, Washington, its officers,
agents, successors , and assigns , and the Respondent
Union, United Brotherhood of Carpenters and
Joiners of America, Local Union No. 1797, AFL-CI-
O, Renton , Washington, its officers, agents, and
representatives , shall take the action set forth in the
said recommended Order.
DECISION
STATEMENT OF THE CASE
MAURICE M. MILLER, Administrative Law Judge: Upon
successive charges duly filed and served, the General
Counsel of the National Labor Relations Board issued a
consolidated complaint and notice of hearing against R-M
Framers, Inc., and United Brotherhood of Carpenters and
Joiners of America, Local Union No. 1797, AFL-CIO,
designated as Respondent Company and Respondent
Union herein, respectively, under Section 10(b) of the
National Labor Relations Act, as amended.
Ralph P. Bresee and David H. Bresee, individuals, had
filed their first charge, against Respondent Company, on
October 6, 1972. Their second charge, directed against
Respondent Union, was initially filed October 16, 1972.
Subsequently, amended charges with respect to both
Respondents were filed December 4, 1972. General
Counsel's consolidated complaint and notice of hearing
issued December 18, 1972; copies thereof were , subse-
quently, duly served.
Within General Counsel's consolidated complaint, Res-
pondent Company and Respondent Union have been
charged with unfair labor practices affecting commerce
under Section 8(a)(3) and (1), Section 8(b)(2) and (1)(A),
and Section 2(6) and (7) of the statute. 61 Stat. 136, 73 Stat.
519. Within their respective answers, duly filed, certain
factual matters set forth within General Counsel's consoli-
dated complaint have been conceded; however,' Respon-
dents have severally denied their commission of unfair
labor practices.
Pursuant to notice, a hearing with respect to the issues
was held at Seattle, Washington, on April 17 and 18,,1973,
before me. The General Counsel and Respondent Union
were represented by counsel. Ralph and David Bresee,
designated complainants herein, noted their appearance,
pro se, for the record; Harold Rood, R-M Framers'
secretary-treasurer, noted his appearance in Respondent
Company's behalf. Each party was, thereafter, afforded a
full opportunity to be heard, to examine and cross -examine
witnesses, and to introduce evidence pertinent to the issues.
During the hearing's first day, shortly following a
luncheon recess, Respondent Company's representative
reported that he had just received information regarding a
serious development, not related to this case , which might
vitally affect ,his firm's business future; he declared,
further, that he considered himself constrained to leave the
hearing forthwith for the purpose of dealing with his
Company's reported problem. Mr. Rood did not, however,
request a continuance. He was told by me that the hearing
would continue regardless of his absence; that he was, of
course, free to return later; that, should he return before
the hearing concluded, I would, with the concurrence of
General Counsel's representative and Respondent Union's
counsel, summarize the testimonial and documentary
record developed during his absence; and that he would be
permitted to recall, for cross-examination and further
testimony, witnesses who had testified while he was not
present, with respect to matters which might bear upon
Respondent Company's defense herein. Respondent Com-
pany's representative did return shortly following the
commencement of the next day's hearing session. He was
provided, during a recess, with a verbal summary of
testimony received during his absence, and was permitted
to examine certain documents which had been proffered
for the record. He declared, thereafter, that he did not wish
any witness recalled for cross-examination or further
testimony.
Following the conclusion of General Counsel's presenta-
tion, Respondent Union proffered several witnesses in
defense. Mr. Rood, though fully advised regarding his right
to present a further, separate defense in Respondent
Company's behalf, made no formal presentation. Before
the hearing closed, Mr. Rood was further advised that,
should his subsequent review of the transcript persuade
207 NLRB No. 37
R-M FRAMERS, INC. 37
him to move for a record reopening for the purpose of
making a supplementary defensive presentation, his mo-
tion for such a record reopening would be considered. No
such motion has been proffered. Since the hearing's close,
however, briefs have been received from General Counsel's
representative and Respondent Union's counsel; these
briefs have been duly considered.
FINDINGS OF FACT
Upon the entire testimonial record, documentary eviden-
ce, received, and my, observation of the witnesses, I make
the following findings of fact:
1. JURISDICTION
Respondent Company is a Washington corporation
engaged in the construction of apartments, office build-
ings, and commercial establishments primarily in the State
of Washington. When this case was heard, Respondent
Company had a contract with TRICO Investment, Inc., for
the construction of some multiunit residential buildings in
Bellevue, Washington, with a "$90,000 plus" contract
price. Respondent Company had- commenced performance
thereunder in September 1972; such performance had
continued for the balance of the year, and was still in
progress. As of the date when this case convened,
Respondent Company's contract had, however, been
"substantially" performed to a degree exceeding $50,000 in
value. When requested to state General Counsel's basis for
jurisdiction herein, his representative declared that:
TRICO purchases various types of appliances that are
used in apartments and buildings from outside the
State of Washington. [They] are shipped into the State
of Washington. TRICO picks them up from the
warehouse here and installs them in various buildings
that are under construction[.] TRICO purchases in
excess of $50,000 worth of the appliances from outside
the State of Washington.
Respondent Company's secretary- treasurer stipulated the
correctness of this statement. Respondent Union's counsel,
then, declared his client's readiness to accept General
Counsel's statement, plus his (General Counsel's) repre-
sentation, "I take it" that TRICO, doing business in the
Greater Seattle area, made purchases "in calendar '72' of
appliances manufactured outside the State of Washington
which exceeded $50,000 in gross dollar value.
With matters in this posture, Respondent Union present-
ly contends that Board jurisdiction should not be exercised
herein since the record does not show, and General
Counsel -failed to prove, that Respondent Company
performed $50,000 worth of contract services for TRICO
Investment, Inc., during calendar year 1972, the preceding
or following years, or any other definable base year. This
contention, must be rejected. Building and Construction
Trades Council of San Bernardino and Riverside Counties, et
al., (BB&G Developers), 139 NLRB 1370, 1372. Within the
case cited, this Board noted that:
As is now well established, "the Board's jurisdictional
criteria' expressed in terms of annual dollar volume of
business do not literally require evidentiary data
respecting any certain 12-month period of operations,
but may be satisfied, for example, by projecting or
estimating commerce data for an appropriate annual
period."
So far as appears from this record, TRICO's conceded out-
of-state purchases , despite the supposition voiced by
Respondent Union 's counsel, were not necessarily con-
fined to calendar year 1972; assuming arguendo that they
were, I would, nevertheless , find a determination warrant-
ed, upon this record, that TRICO's performance during
that calendar year, with its out-of-state purchases included,
may be considered representative with respect to the scope
of its yearly operations. On a projected basis then TRICO's
out-of-state direct inflow figure ("in excess of $50,000
worth of appliances") would be the same for a 12-month
period embracing the Bellevue project's construction work.
Since, within that partially completed and partially
projected period, the Respondent Company's contract
services for TRICO will concededly have exceeded $50,000
in value, this Board's applicable jurisdictional standard will
have been satisfied. See Building and Construction Trades
Council, supra; Stemons Mailing Service, 122 NLRB 81, 85.
I find that Respondent Company was, throughout the
period with which this case is concerned , and remains, an
employer within the meaning of Section 2(2) of the Act,
engaged in commerce and business operations which affect
commerce within the meaning of Section 2(6) and (7) of
the statute. Further, with due regard for presently
applicable jurisdictional standards, I find assertion of the
Board's jurisdiction in this case warranted and necessary to
effectuate statutory objectives.
II. RESPONDENT UNION
General Counsel contends, both Respondents presently
concede, and I find that United Brotherhood of Carpenters
and Joiners of America, Local Union No. 1797; AFL-CIO,
designated as Respondent Union within this Decision, is,
and at all times material herein has been , a labor
organization within the meaning of Section 2(5) of the Act,
as amended, which admits, certain of Respondent Compa-
ny's employees to membership.
III. THE UNFAIR LABOR PRACTICES
A. Issues
Throughout the period with which this case is concerned,
and continuously to date, Respondent Company and
Respondent Union have been parties to a so-called
"compliance agreement" whereby Respondent Company
has consented to be bound by collective-bargaining
contracts negotiated between the Associated General
Contractors of America and various labor organizations
functioning as constituent bodies of the United Brother-
hood of Carpenters and Joiners of America. The collective-
bargaining agreement thus designated throughout the
period with which this case is concerned contained a
union-security clause. When Ralph and David Bresee, the
complainants herein , were "hired" for carpenter's work, so
General Counsel contends, by Respondent Company's
representative , they were engaged and retained subject to
these union-security provisions . (Respondent Company's
38 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
representative, within his formal answer duly filed,
concedes General Counsel's consolidated complaint allega-
tion in this connection. Respondent Union, however,
rejects the allegation, contending rather that Ralph and
David Bresee were really independent contractors.)
General Counsel charges, then, that the complainants
were thereafter laid off temporarily on three designated
occasions because they were not Respondent Union's
members, or had not "straightened out" their union status;
that Respondent Union's representatives finally demanded
their discharge because of their purported failure to
comply with the relevant contractual union-security
requirements previously noted, notwithstanding their
tender of those periodic dues and initiation fees which the
designated contractual union-security provisions required;
and that Respondent Company did thereupon terminate
the complainants, pursuant to Respondent Union's de-
mand, although Respondent Company's representative
knew that both complainants had tendered the periodic
dues and initiation fees contractually required. These
charging allegations, 'set forth within General Counsel's
consolidated complaint, have been categorically denied.
B. Facts
1. Background
a. Respondent Company's contractual relationship
with Respondent Union
Within his consolidated complaint, General Counsel
presently claims, both Respondent Company and Respon-
dent Union concede, and I find that "on or about" July 15,
1968, the Respondents signed a compliance agreement
wherein Respondent Company agreed to be bound by
collective-bargaining contracts previously executed and to
be executed between Associated General Contractors of
America, (AGC), and Carpenters, Piledrivers, and Mill-
wrights of the United Brotherhood of Carpenters and
Joiners of America. The most recent collective-bargaining
agreement executed between AGC and these designated
Carpenters union craft bodies bears a July 26, 1971,
effective date; that contract, together with the compliance
agreement previously described, was, so Respondents
herein concede, fully effective throughout the period with
which this case is concerned. Section B-14.4 through B-14.6
of the designated collective-bargaining contract contain
the following provisions:
B-14.4 The employees shall become and remain
members of the Union as a condition,of employment
from and after the ninth day following the dates of
their employment, or the effective date of this Agree-
ment whichever is later.
B-14.5 It is further agreed that all Union workmen
employed by the employer shall maintain their mem-
bership in good standing in the Union.
B-14.6 Failure of any employee to pay or tender
normal initiation fees or dues as required by this
agreement shall, upon request of the Union in writing,
result in the termination of such employee.
No question is raised herein regarding the validity of these
contractual union-security provisions. I find that they
bound Respondent Company and Respondent Union,
mutually, at all times material.
b. Respondent Company hires the Bresee brothers
On Wednesday, September 20, 1972, Harold Rood,
Respondent Company's secretary-treasurer, engaged
Ralph and David Bresee to construct and erect building
frames on Respondent Company 's Bellevue , Washington,
apartment house construction site. A consensus was
reached that they would receive "piecework" compensa-
tion ; no definitive agreement was reached , however,
regarding their compensation rate.
During their prehire conversation , so Ralph Bresee
credibly testified, Rood asked both men how they "stood"
with Respondent Union herein . They detailed some
"trouble" which they had experienced previously while
working in Tacoma; Respondent Company's secretary-
treasurer commented , however, that "there should be no
trouble" connected with his project. He declared that he
got along well with Respondent Union ; that all his
carpenters were "with the union"; and that he could
probably get them "by" though they were not union men.
The Bresees declared that they had previously consulted
this Board's Seattle Regional Office because of their
Tacoma difficulties; that they knew their "rights" with
respect to Respondent Union's presumed membership
requirements; and that , when requested, they proposed to
tender Respondent Union their initiation fees and dues,
solely.
Rood declared that he was then having some difficulty
getting lumber ; that there would be some delay; but that
they could start doing layout and framing work when his
lumber reached the project. The following week on
Tuesday, September 26, the Bresee brothers reported. A
consensus was reached that they would receive piecework
compensation, 15 cents per square foot; pursuant thereto,
they began work.
c. Preliminary contacts with Respondent Union's
representatives
On Wednesday, September 27, the Bresee brothers, while
at work, were visited briefly by two union representatives.
Later they saw these representatives speaking with Respon-
dent , Company's secretary-treasurer . During that conversa-
tion, one union representative, so Ralph Bresee testified,
pointed them out. Shortly thereafter they were visited by
Respondent Company 's secretary-treasurer . He comment-
ed, "You are really in trouble . . . . One of you has to go."
David Bresee declared that he shouldn't be the one to go,
for reasons which will be noted below . Ralph Bresee
declared, however, that when requested he proposed to
"offer" his initiation fee and dues , and that "there
shouldn't be any trouble" with Respondent Union herein.
While a witness, Respondent Union 's business represent-
ative, Wayne Regnier, proffered testimony which provides
a relevant context connected with this conversation. He
conceded a routine visit to Respondent Company's jobsite,
checking union cards . He had , so he recalled, spoken with
Ralph Bresee, who produced no card. Directly thereafter,
so Regnier testified , David Bresee had reported that during
R-M FRAMERS, INC. 39
January or February 1971 Respondent Union's Colorado
Springs, Colorado, sister local had levied a $300 fine
against him . According to Regnier, David Bresee had
asked whether he could continue working without being
required to pay the fine; Respondent Union's business
representative, concededly, had declared that he would,
check the matter. Subsequently, when he encountered
Respondent Company's secretary-treasurer, Regnier had
commented, "You have a fine job and everything, except
that you have two who don't carry cards at the present."
Rood, thereupon , suggested that both Bresees should
"get straight" with Respondent Union; upon this note,
their first September 27 jobsite conversation terminated.
Later that day, however, the Bresee brothers had a
further conversation with Respondent Company's secretary
-treasurer. According to Ralph Bresee, whose testimony
in this respect stands without contradiction, Rood_ de-
clared:
... that he was not going to be able to be at work on
Friday and he was going to be gone and that the union
was going to be coming out there and we weren't
supposed to, go to work because he wanted to be there
to talk to the union when they did come.
Respondent Company's secretary-treasurer said that he
would have "his crew" do required framing work that day.
Pursuant to this direction, the Bresee brothers, though they
performed some work on Thursday, September 28,
thereafter did not report to Respondent Company's
Bellevue project on Friday, September 29. When they
returned on Monday, October 2, they were told that
Respondent Company's next scheduled building "units"
were not ready for work. Subsequently, however, they were
given work, both on Tuesday, October 3, and the following
day.
Sometime on Wednesday, October 4, however, there was
a further jobsite conversation. In relevant part, Ralph
Bresee's credible testimony with respect thereto, which
stands without contradiction , reads as follows:
Mr. Rood told is that the Carpenters Union helped
to get the Laborers Union off his back, that the
Laborers Union was putting pressure on him to hire a
laborer and that the Carpenters Union somehow
convinced the Laborers Union not to pressure [him]
into hiring them.
Respondent Company's secretary-treasurer declared fur-
ther that a union representative would be visiting the
project; the Bresee brothers were once more advised to
"get straight" with that organization. To this, David Bresee
replied, so I find, that Business Representative Res! ier was
checking his situation. Ralph Bresee repeated his Prior
statement that he proposed to proffer his "initiation dues"
when Respondent Union's representatives came. He
declared further that they would do what the law required,
and that there should be no difficulty.
2. Respondent Union's membership requirements
are defined
On Thursday, October 5, Respondent Union's business
representative revisited the Bellevue jobsite; Rood was
asked whether the Bresee brothers were still working.
Respondent Company's secretary-treasurer responded
affirmatively. Regnier, with Rood for Company, thereupon
approached the brothers; they were then at lunch, Ralph
Bresee's testimony regarding their conversation , which I
credit, reads as follows:
I right away told him that I wanted to pay my initiation
and dues, I had a [blank ] check in my wallet , I took my
wallet out and took the check out and told him that I
have been to, the National Labor Relations Board and
that I have been told that I was required to do this by
law and that 1 wanted to do it. He told me that I would
have to sign an application before he could take any
money ... .
The business representative then procured a copy of
Respondent Union 's membership application form from
his car . The form, inter alia, contained the "pledge" or
formal "obligation" which Respondent Union's parent
body, the United Brotherhood of Carpenters and Joiners
of America, required applicants for membership to sign.
With respect thereto, Ralph Bresee's credible testimony
continued as follows:
[He] told me that the oath was on it and I told him that
when I was in the N.L.R.B. I was told that I didn't have
to sign anything, that I didn't want to sign anything,
but especially anything with the oath on it . I told him I
objected to the oath . . . [He] gave me the application
with the oath on it and I read through it practically
phrase by phrase and told him what I objected to ....
I told him that in the oath the members agreed to go by
the majority decision and that the Carpenters Union
pays for abortions and I especially didn't want to have
any part [of ] that ... .
Regnier, however, insisted that Bresee would have to sign
the _ proffered membership application form, thereby
subscribing to Respondent Union 's pledge, before his
money could be taken . Meanwhile , Respondent Compa-
ny's secretary-treasurer, so I find, was encouraging Ralph
Bresee to "go along" with Regnier's position. He declared
that he saw nothing wrong , with signing the application
form; described how well he worked with Respondent
Union's representative ; and told Bresee that he "could not
fight city hall." At this point, so the record shows, Ralph
Bresee queried Regnier, while Rood was still present, with
respect to whether Respondent Union 's business represent-
ative proposed to get him removed from Respondent
Company's project. Bresee's testimony with regard to
Regnier's reply and subsequent developments, which I
credit, reads as follows:
[He] said that the union had the big jobs all tied up and
I asked him if he was going to get me fired off the job
and he said that-Mr. Rood was there-he said that,
"We have an agreement with Mr . Rood and we expect
him to keep it." Harold [Rood ] walked away and
Wayne [Regnier ] started to leave the area of the car
and I asked him once again if he was going to get me
run off the job and he said , "You will probably find
that Harold doesn't have any more work for you."
[When Ralph Bresee ; once more, repeated his query]
He said, "You will be out with the "shack builders"
referring to my brother and I [;I he meant that we
wouldn't be on any big jobs around Seattle, that we
40 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
would be where the union didn't bother to encourage
membership.
The record, considered in totality, warrants a- determina-
tion, consistent with Ralph Bresee's testimony, that
Respondent Company's secretary-treasurer, though pres-
ent during the first part of this conversation, had left the
vicinity shortly before Regnier's comment that Ralph
Bresee would "probably" find Respondent Company had
no more work for him; further, I conclude and find that
Rood, likewise, did not hear the business representative's
final "shack builder" comment.
While a witness, Business Representative Regnier re-
called his response with respect to Ralph Bresee's query,
proffered while Respondent Company's secretary-treasurer
was present, somewhat differently. Accordingly to Regni-
er's recollection, Bresee was told, "that Mr. Rood and R-M
Framers were a union contractor." When queried directly
by Respondent Union's counsel, the business representa-
tive flatly denied saying anything further; when cross-
examined, however, Regnier conceded that he had said
Respondent Company's representative "should" live up to
his contract. With due regard for the total conversational
context within which this conceded remark was made,
however, I cannot credit Regnier's limited witness-chair
recollection. Ralph Bresee's testimony in direct examina-
tion regarding the business representative's complete
comment previously noted rings true; the Bresee brothers,
with Rood present, were told, so I find, that Respondent
Company would be "expected" to comply with its
contractual union-security commitments.
Sometime during this October 5 conversation, David
Bresee queried Respondent Union's business representa-
tive, so I find, with -respect to whether he had "heard
anything" regarding the possible remission of his [Bresee's]
Colorado fine. Regnier replied that no word had been
received, yet, from the Carpenters Union Colorado District
Council; he declared his willingness, however, to "put
[David Bresee] on a permit" for which he would be
required to pay $8 monthly, pending some communication
from the Colorado District Council regarding the fine's
possible downward revision or settlement. David Bresee
replied, so his credible testimony shows, that he planned to
visit, Respondent Union's hall the following morning to
pay his work permit fee. According to Regnier's recollec-
tion, this conversational exchange had taken place before
Rood's departure, previously noted.
Following his further conversation with Ralph Bresee,
previously noted, Respondent Union's business representa-
tive, so I find, left the Bellevue project. So far as appears,
Ralph and David Bresee resumed their work.
3. October 6 developments
On Friday, October 6, the Bresee brothers did not work.
They did, however, speak with Respondent Company's
secretary-treasurer. Rood asked "how things [had] turned
out" with Regnier the previous day. Inter alit, both Bresee
brothers thereupon recapitulated their previously detailed
program for satisfying Respondent Union's financial
requirements.- Rood renewed his request that they
"straighten out" their difficulties. Finally, Respondent
Company's secretary-treasurer declared that if he did not
"hear from the union" before Monday, October 9, there
would be work for both Bresee brothers that day.
Shortly thereafter, Ralph and David Bresee visited
Respondent Union's hall. There, they spoke with, Earl
Bohanan, Respondent Union's financial secretary. Ralph
Bresee declared that he wanted to pay his "initiation and
dues" while simultaneously removing a blank check from
his wallet; Respondent Union's total "initiation fee
amount" had, so I find, been previously quoted. (My
factual determinations herein, regarding the conversation
which followed, derive from a synthesis of the 'testimony
which both Bresee brothers and Respondent Union's
financial secretary proffered. Bohanan's testimonial recol-
lections-save in one respect--substantially' matched
Ralph and David Bresee's recitals. Respondent Union's
financial secretary did testify, despite Ralph Bresee's
proffered testimonial recollection, that "no money was
offered" by Ralph Bresee, and that neither brother
displayed any money or checks during their visit. With due
regard for the record, considered in totality, I find Ralph
Bresee's contrary recital previously noted more reliable.)
Bohanan declared that he (Ralph Bresee) would have to
sign a membership application. When Bresee refused,
mentioning the Carpenters Union oath printed thereon,
Bohanan declared that he could-not take Bresee's money
without a signed application, since such applications were
required by Respondent Union's` constitution and bylaws.
The financial secretary declared further that, should he
send Ralph Bresee's application with no signature to the
Carpenters Union general office, he felt certain it would be
returned. Despite Bresee's protest that this Board's
Regional Office had told him signed applications for
membership were not required by law, Bohanan main-
tained his position.
Concurrently, David Bresee reported Regnier's comment
during their previous day's conversation that he could pay
$8 for a monthly work permit. Bohanan, declaring that
Regnier had not yet communicated with him, and that he
did not know what commitments Respondent Union's
business representative had made, stated that he could not
take "any money" from David Bresee before his $300 fine
was paid. Ralph Bresee's detailed testimony regarding this
conversational exchange-which Respondent Union's
financial secretary did not, within my view, persuasively
controvert-credibly summarizes the situation. It reads as
follows:
Mr. Bohanan told my brother [David Bresee] that he
had a $300 fine against him, that he, Mr. Bohanan, had
to collect that . . . before he could take any money
from him. That meant initiation-or dues. My brother
asked him, "Indeed, you mean you wouldn't take any
money from me unless I pay the fine?" He told Mr.
Bohanan that he had been to the N.L.R.B. and that he
was told that wasn't according to the law, that he can
pay initiation dues if the Union will take it. My brother
told Mr. Bohanan that he wouldn't pay the $300 fine.
They had already discussed the $8 that Wayne
[Regnier] had said that he could pay. Mr. Bohanan had
already said that he had not heard anything about the
$8 and that he wasn't going to take $8 because my
brother had a $300 fine. Mr. Bohanan said that Wayne
R-M FRAMERS, INC. 41
would be in later that day, that he expected him--in that
afternoon and that he would check about the $8, but
Mr. Bohanan also said that if he didn't hear from
higher ups about that, he wouldn't take the $8 because
it would be against the rules, against the law.
With matters in this posture, the Bresee brothers left
Respondent Union's hall. However, Financial Secretary
Bohanan's testimony warrants determinations, which I
make, that, when Regnier came in shortly thereafter, they
discussed David Bresee's situation. Regnier mentioned his
prior discussion with David Bresee regarding a permit fee,
but concluded that "under the circumstances" he was not
sure whether a work permit should be granted. According
to Bohanan, Regnier's doubts, with respect to this matter,
were not resolved.
4. October 9 developments
When Ralph and David Bresee reached Respondent
Company's project on Monday, October 9, they found a
building foundation newly poured. The project foreman
suggested that they proceed to construct frames for the
building's outside walls. When the brothers commented,
however, that the foundation- concrete was still "pretty
wet," the foreman suggested they check with Respondent
Company's secretary-treasurer; sometime later, when the
building's concrete "got a little bit drier," they did so.
Ralph Bresee's 'testimony with respect to their conversa-
tion, which stands without contradiction, reads as follows:
Mr. Rood said that he was going to have his crew
frame those and that he would have us frame the next
one, and there will be work for us on Wednesday. He
told us to get straight with the union . . . he told us we
had to get along with them. He emphasized that he had
a lot of work for us if we got straight with the union.
Considered in totality, the record warrants a determina-
tion, which I make, that Ralph and David Bresee did not
work that day. Sometime later Business Representative
Regnier visited the project; he did not see the Bresee
brothers. During a general conversation with Respondent
Company's secretary-treasurer, so Regnier testified, the
latter reported that he was putting in more footings
(building foundations), but that none of them were ready.
While a witness, Regnier was asked by Respondent's
counsel whether, during this conversation, there had been a
specific discussion of the Bresee brothers, their union
membership status, or their continued employment. The
business representative replied:
There was nothing about continued employment. I
believe we may have talked about if and when they got
it straightened out, yes, but I didn't have to answer him
on that, that they had not, but continued employment,
no.
This testimony, with its somewhat elliptical tenor, requires
construction. Substantially, Regnier'.s proffered recollec-
tion, within my view, signifies: that Rood, solicited a
clarifying statement regarding the situation which would
prevail "if and when" the Bresee brothers and Respondent
Union reached some accommodation; that Regnier did not
consider a direct response required with respect to such a
speculative possibility; that he merely reported Ralph and
David Bresee had not "straightened out" their relationship
with Respondent Union herein; and that he did not then
suggest Respondent Union's wishes "one way or the other"
with respect to their continued employment. I find
Regnier's testimony, so construed, credible.
5. The termination of the Bresee brothers
Meanwhile, on Friday, October 6, Ralph and David
Bresee had filed their first unfair labor practice charge
herein, directed against Respondent Company solely. The
Board's Regional Office had mailed a copy thereof on
Tuesday, October 10, by registered mail; the following day,
October 11, that charge copy was received at Respondent
Company's Olympia, Washington, place of business.
When the Bresee brothers reached Respondent Compa-
ny's Bellevue project on Wednesday, October 11, they
spoke with Rood; Ralph Bresee's testimony regarding their
conversation, proffered for the record without challenge or
contradiction, reads as follows:
Mr. Rood told us that the union had just been out
... Mr. Rood told us he was told not to work us until
he heard from the union. He told us to get straight with
the union and we told him, we went over the whole
thing and told him we did everything we could. Mr.
Rood said that he had not heard from anybody else yet.
The Bresee brothers promptly telephoned Respondent
Union's financial secretary. Ralph Bresee reported their
termination; Bohanan was asked whether there was "any
way" they could work while their difficulties were being
resolved. Respondent Union's financial secretary declared
that he could not take their money, and that there was
nothing he could do. When questioned further by David
Bresee particularly, Respondent Union's financial secretary
stated that he (David Bresee) would not be, given a
monthly work permit; further, he declared that ,Bresee
would not be permitted to work without paying his $300
Colorado fine.
Shortly thereafter, the Bresee brothers visited Respon-
dent Union's hall, where they spoke with Bohanan
personally. Ralph Bresee reiterated his desire to tender
"initiation dues" producing a blank check from his wallet
for that purpose. Bohanan replied that he could not take
any money; he reiterated his position that Bresee would
have to sign a membership application. David Bresee
queried Bohanan then regarding Regnier's promised "$8
deal" which had seemingly been withdrawn. Bohanan
reiterated his position that Bresee would have to pay his
$300 fine first. With matters in this posture, , the Bresee
brothers left.
6. Subsequent developments
Following his October 1I conversation with the Bresee
brothers, Rood telephoned Financial Secretary Bohanan;
he reported that the Bresee brothers had been laid off or
terminated, and requested Bohanan, so I find, to advise
Business Representative Regnier that they were no longer
on Respondent Company' s Bellevue project.
On October 13, Rood dispatched a letter to the Board's
Regional Office, responding to the Bresee brothers' initial
charge herein. In relevant part, Respondent Company's
secretary-treasurer reported that:
42 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On -October 12th there was` work available and we
would have hired them [Ralph and David Bresee] but
our agreement with the International Brotherhood of
Carpenters' states that we may not hire anyone not
belonging to this union. Ralph and David Bresee
refused to do this.
The Bresee brothers have performed no work on Respon-
dent Company's Bellevue project since the date indicated.
On October 16, their initial charge with respect to
Respondent Union herein was filed.
C. Discussion and Conclusions
1. The Bresee brothers' employee status
Respondent Union contends, herein, that Ralph and
David Bresee should be considered "independent contrac-
tors" rather than craftsmen in Respondent Company's
hire. Proceeding from that premise, Respondent Union's
counsel suggests that the Bresee brothers should not be
considered entitled to statutory protection. The present
record, considered in totality, persuades me, however, that
Respondent Union's suggestion merits Board rejection.
Within my view, it lacks persuasive record support.
When distinguishing between "employees" and "inde-
pendent contractors" for statutory purposes, this Board
must concededly apply general agency principles. N.L.RB.
v. United Insurance Company of 'America, 390 U.S. 254
(1968). And the common-law agency test rests primarily
upon the amount of supervision that a putative employer
has the right to exercise over individuals, particularly
regarding the details of their work. See Associated Inde-
pendent Owner-Operators, Inc. v. N.L.RB., 407 F.2d 1383,
1385 (C.A. 9, 1970), vacating and remanding 168 NLRB
863, in this connection; therein, the court notes that:
All incidents of the given relationship must be assessed
to determine whether "the person for whom the work is
done has the right to control and direct the work, not
only as to the result accomplished by the work, but also
as to the details and means by which that result is
accomplished."
Consistently therewith, this Board has routinely held the
so-called "right to control" test decisive when determining
whether particular persons should be considered independ-
ent contractors specifically excluded from statutory protec-
tion.
The record herein, with particular reference to Respon-
dent Company's right to control and direct the work which
Ralph and David Bresee did, can hardly be considered
comprehensive. I am satisfied, however, that reliable,
probative, and substantial testimony with respect thereto
has been presented, sufficient to sustain a Board determi-
nation that Ralph and David Bresee should be considered
"employees" statutorily protected.
I note, first, that they had no contract, written or verbal,
with Respondent Company wherein their complete per-
formance commitment was defined; no total contract
price, for their services, was fixed. (The consensus reached
with respect to their so-called "piecework" compensation
dictates no conclusion that they were contractors; through-
out our business enterprise system, piece-rate compensa-
tion for conceded employees is common.) In that connec-
tion, I note further that Respondent Company's secretary-
treasurer, not the Bresee brothers, measured the amount of
work which they had completed for the purpose of
determining their compensation.
Though Ralph and David Bresee furnished their own
handtools, they worked on materials which Respondent
Company furnished. Their services were performed when
and where Respondent Company's management represent-
atives directed. Ralph Bresee testified credibly that
Secretary-Treasurer Rood, personally, gave them their first
assignment. During their few short days on Respondent
Company's Bellevue project, they were supervised directly
by Secretary-Treasurer Rood and Respondent Company's
foreman.
Ralph Bresee testified, credibly and without contradic-
tion, that when they began work Respondent Company's
foreman provided them with plans which they would be
required to follow, and detailed certain problems and
difficulties which they would be required to consider and
surmount in connection therewith. On one occasion, at
least, David Bresee questioned him regarding a construc-
tion problem. Further, Respondent Company's foreman,
so the record shows, worked nearby and checked the
progress of their work with them, during their first week
some seven times to the end that mistakes might be
avoided.
The Bresees were craftsmen; presumably, Respondent
Company's supervisors considered them sufficiently well
qualified to perform their work consistently with conven-
tional standards of craft competence. The fact, therefore,
that their work may not have been closely supervised or
continuously reviewed provides no legitimate basis for a
determination that Respondent Company's management
representatives had relinquished their "right of control"
with respect thereto. I note, in this connection, that, when
the Bresee brothers were not on the job, Respondent
Company's hourly paid carpenters, whose "employee"
status has not been questioned, did framing work.
Further, the present record warrants a determination,
which I make, that, when the Bresee brothers were paid on
Respondent Company's regular payday, they received
separate checks from which deductions for social security,
Federal withholding taxes, and medical aid had been
taken. Such compensation arrangements are considered
normally consistent with employee status.
Both Ralph and David Bresee testified, without chal-
lenge or persuasive contradiction, that within the Greater
Seattle Area framing work, roofing work, and siding
construction done in connection with a substantial number
of construction projects has, for some years, been compen-
sated largely on apiece-rate basis. Respondent Union has
concededly questioned the desirability of piece-rate com-
pensation; it has sought, both by contract and by rule, to
persuade union members that such compensation arrange-
ments should be eschewed. Clearly, therefore, Respondent
Union cannot be said to consider piece-rate compensation,
per se, sufficient to warrant a determination that craftsmen
so compensated should be considered contractors.
These several considerations, within my view, warrant a
determination, which I make, that Ralph and David Bresee
were, throughout the period with' which this case is
R-M FRAMERS, INC. 43
concerned, statutory "employees," privileged to exercise
rights statutorily guaranteed and consequentially entitled
to statutory protection . Compare Sheet Metal Workers
Union Local 283, Sheet Metal Workers International
Association, AFL-CIO (Tad's Service), 172 NLRB 652, 658;
Local No. 2265, United Brotherhood of Carpenters and
Joiners of America; AFL-CIO, (Carpet Center, Inc.), 170
NLRB 633 , 634-635; M.P. Building Corporation, et al.
d/b/a Kent _ Construction Company, 165 NLRB 829,
836-837, in this connection.
2. Respondent Union's request for the Bresee
brothers' termination
The collective-bargaining contract by which Respondent
Company and Respondent Union were, mutually, bound
throughout the period with which this case is concerned
provides that workers covered thereby shall, become and
remain union members, as a condition of their employ-
ment , from and after the ninth day following their dates of
hire. The propriety of this contractual union-security
provision has not been challenged herein.
When Respondent Union's business representative spoke
with Ralph and David Bresee, during his October 5 visit to
Respondent Company's Bellevue project, the ninth calen-
dar day following their September 26 hire date was in
progress; ipso facto, their contractually defined obligation
to become and remain union members hadmatured. Both
Ralph and David Bresee were presumably cognizant of
their situation; the record, within my view, reflects their
sustained efforts ' to reach some accommodation with
Respondent Union's representatives, whereby that organi-
zation's contractually defined "membership" requirement
could be considered satisfied.
Difficulties developed, however, when Business Repre-
sentative Regnier and Financial Secretary Bohanan discov-
ered: (1) That Ralph Bresee proposed to tender merely
whatever monetary sums Respondent Union might then
require for payments on his initiation fee and dues, without
signing a standard membership application form; and (2)
that David Bresee was proposing a similar tender or,
alternatively, proposing to pay a monthly permit fee,
without concurrently paying a prior Union-levied $300
fine . Replying, Respondent Union's representatives, con-
tended, substantially, that, consistently with their organiza-
tion's constitutional and bylaw requirements, such tenders
could not be taken since , "membership" could not be
granted thereon. The Bresee brothers, contrariwise, con-
tended that, with due regard for relevant National Labor
Relations Act provisions and,decisional pronouncements
bottomed thereon, their proposed monetary tenders should
have been considered sufficient.
With matters in this posture, this Board's disposition of
General- Counsers contention, that Respondent Union
herein, through its course, of conduct detailed within this
Decision, violated Section 8(b)(1)(A) and (2) of the statute,
will require the preliminary determination of two factual
questions. First: Did Respondent Union's business repre-
sentative "cause or attempt to cause" Respondent Compa-
ny's secretary-treasurer to, terminate Ralph and David
Bresee, or to withhold further work from them, for
statutorily proscribed reasons? Second: Assuming, for the
- sake of argument , that Respondent Union's representatives
did "cause" their loss of work, were Ralph and David
Bresee employees with respect to whom union membership
was being denied "on some ground other than [their]
failure to -tender the periodic dues and the initiation fees
uniformly required" from persons seeking to become or
remain members? To these questions, consideration must
now turn.
a. Did Respondent Union cause the Bresee brothers'
terminations?
Respondent Union's counsel, within his brief , contends
vigorously that General Counsel has not herein 'demon-
strated a direct causal link between Business Representa-
tive Regnier's statements or conduct and Respondent
Company's subsequent decision to terminate Ralph and
David Bresee and/or deny them further work. More
particularly, General Counsel has not, so he contends,
shown by substantial, convincing evidence that Respon-
dent Union's representative "actually demanded" both
terminations herein challenged. -
These contentions, within` my view, must be rejected.
When Business Representative Regnier, replying to Ralph
Bresee's question, declared, "We have an agreement with
Mr. Rood and we expect him to keep it," the Respondent
Company's secretary-treasurer was essentially being told
that, should the Bresee brothers ultimately fail to satisfy
Respondent Union's conventional "membership" require-
ments, their Bellevue project employment should be
terminated.
My factual determination that Regnier made the
statement quoted does not, contrary to Respondent
Union's posthearing contention, derive from hearsay
testimony. Ralph Bresee , who heard it directly, proffered his
recollection for the record ; Regnier, while a witness,
testified with regard to their conversation in terms "which,
so I have found, provide support for a determination that
Bresee's testimonial proffer merits credence. Compare
Edward Kraemer & Sons, Inc., 203 NLRB No. 110,' in this
connection., - -
True, Regnier's directive may have been couched in
somewhat Aesopian language ; concededly he made no
direct discharge demand. Clearly, however, the business
representative's comment was calculated to convey a
message ; and Secretary-Treasurer Rood's testimony herein
fully warrants_a determination, which, Imake, that he "got
the message" which Regnier sought toconvey.
When questioned by Respondent Union's counsel, Rood
could recall no specific request, in haec verbs, that
Respondent Company should refrain from hiring the
Bresee brothers, or send them home, until they got
"straightened out" with respect to their membership status;
he declared, however, that, "the implication is always don't
hire nonunion help; it is just understood.'. Further, Rood
testified that, because of his union agreement , "if there is a
nonunion man on the job, there is always a problem for
me, it is like a thorn in my side." Clearly, Rood considered
himself contractually obligated to withhold further work
from the Bresee brothers, when finally, apprised that they
were not satisfying Respondent Union's membership
requirements.
44 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The nature of Rood's conceded "impression" or "under-
standing" regarding the thrust of Business Representative
Regnier's communication stands clearly revealed when his
final October 11 conduct is considered. Directly following
his decision to withhold' further work from the Bresee
brothers, Respondent Company's secretary-treasurer, so I
have found, telephoned Respondent Union's hall, told
Bohanan that Ralph and David Bresee had been terminat-
ed, and requested Respondent Union's financial secretary
to give Regnier that message.
Upon this record, I am fully satisfied, despite Respon-
dent Union's contrary contention, that Rood's decision
was not "independently" or "unilaterally" reached. Fur-
ther, I am satisfied that General Counsel has sufficiently
shown a direct "causal" link between Business Representa-
tive Regnier's October 5 conversational declaration,
previously noted, and Secretary Treasurer Rood's subse-
quent termination decision. Within my view, that link,
despite Respondent Union's contrary contention, strongly
presented within its brief, cannot legitimately be consid-
ered derived from mere inference or speculation.
This Board has consistently held, with judicial concur-
rence, that a labor organization need not make a specific
demand upon some concerned employer to terminate a
worker for illegal reasons before Section 8(b)(1)(A) and (2)
violations may be found. See Local Union No. 742, United
Brotherhood of Carpenters and Joiners of America (J. L.
Simmons Company,, Inc.), 157 NLRB 451, 453-454, enfd.
377 F.2d 929 (C.A.D.C., 1967); Local Union No. 592,
United Brotherhood of Carpenters and Joiners of America,
AFL-CIO (Brunswick Corporation), 135 NLRB 999,
1000-02; Brotherhood ofPainters, Decorators and Paperhang-
ers of America, AFL-CIO Local Union No. 193 (South-
eastern Plate Glass Company), 129 NLRB 412, 413.
Compare Local Union No. 230, Sheetmetal ' Workers
International Association, AFL-CIO (Twin City Roofing),
165 NLRB 151, 152-154, 154-155, 156, in this connection.
I find these precedents germane; further, upon this record,
I find their principle dispositive.
b. Were the Bresee brothers terminated for reasons
other than their failure to tender initiation fees and
dues?
The record herein warrants determinations, which I have
made, that both Ralph and David Bresee were throughout
the period with which this case is concerned prepared to
pay whatever sums Respondent Union might momentarily
require, calculated to satisfy their initiation fee and dues
obligations.
Ralph Bresee, so I have found, declared his readiness to
make such required payments, whatever they might be, on
two occasions-specifically , during Business Representa-
tive Regnier's October 5 visit to Respondent Company's
Bellevue jobsite, and during Bresee's October 6 visit to
Respondent Union's hall. '
On both occasions, so Bresee's credible testimony shows,
he produced blank checks which he was prepared to
complete and sign. Though he proffered no specifically
named sum, his verbal declarations, taken in' conjunction
with his gestures, did, within my view, constitute a tender
sufficient to satisfy statutory requirements. Should this
Board consider his conduct less than sufficient to consti-
tute a formal tender, I would find, nevertheless, that they
constituted valid offers , looking toward formal tenders.
Such tenders were, however, clearly forestalled when
Respondent Union 's representatives categorically rejected
the concurrent condition pursuant to which Bresee's
repetitive proffers were made. These proffers were refused
solely because of Ralph Bresee's concurrent declaration
that he would not sign Respondent Union 's membership
application form, since it contained a formal "pledge" with
respect to which he could not, conscientiously , subscribe.
Respondent Union's representatives clearly considered
signed application forms a standard prerequisite for
persons seeking contractually required "membership"
therein.
And David Bresee, so the record shows, had likewise
discussed, with Respondent Union's representatives wheth-
er he could "keep a job" within Respondent Union's
jurisdiction by paying merely his initiation fee and dues,
without being required concurrently to. pay his $300
Colorado fine . When he first raised the question, Financial
Secretary Bohanan had responded negatively; Regnier,
during his initial September 27 jobsite conversation with
David Bresee, merely had promised that he would see what
could be done.
In this connection, the present record contains David
Bresee 's testimony-not previously mentioned within this
Decision-that, shortly following his September20 visit to
Respondent Company's Bellevue project, he had tele-
phoned Financial Secretary Bohanan at Respondent
Union's hall. Bresee 's credible recollections regarding their
conversation-which Bohanan's limited rebuttal testimony
did not, within my view, persuasively controvert-read as
follows:
I told him my name, unnecessarily reminded him that I
am the chap that his union was getting off jobs because
of a $300 fine that was levied against me in Colorado,
and I told him that I had a job in his jurisdiction and
wanted to know if there is any way short of paying that
$300 fine that I would be allowed to, work on this job
.... He told me that Carpenters Unions' rules forced
him to collect the $300 fine before he could accept new
initiation and dues from me ... I think he asked if I had
gone to the District Council to see about getting the
fine lowered. And he assured me that there was no way
that I could work in his jurisdiction without paying my
$300 fine. [Emphasis supplied.]
Subsequently, during Business , Representative Regnier's
September Z7 visit to Respondent Company's jobsite,
previously noted, David Bresee mentioned his $300 fine;
reported that Financial Secretary Bohanan had been
asked, during their prior telephone conversation, whether
he (David Bresee) would be able to keep a job within
Respondent Union's jurisdiction without paying the fine;
and 'declared that he had "tried" paying his dues and
initiation fee, but that Bohanan had said he ' couldn't.
Further, Bresee told Respondent Union's business repre-
sentative, so I find , that this Board 's Regional Office
personnel had told him Respondent Union could collect
the $300 fine through civil court proceedings, but that his
employment could not be conditioned on the fine's
R-M FRAMERS, INC. 45
payment; he declared that NLRB personnel had told him
he was required merely to tender initiation fees and dues.
(Regnier's testimony regarding his September 27 conversa-
tion with David Bresee, previously noted, compasses no
comparably detailed recital with respect thereto. However,
his recollection of their talk, so far as it goes, was not
inconsistent with David Bresee's testimony. Bresee's
recital, within my view, merits credence.) When confronted
with David Bresee's plea, Business Representative Regnier
did not, so I find, reiterate Bohanan's reported dictum.
Neither, however, did he propound a contrary view; David
Bresee was merely told, so I have found, that Respondent
Union's business representative "would see what he could
do" thereafter.
When Regnier next met with the Bresee brothers, David
was told that Respondent Union would possibly take a
monthly $8 permit fee, pending his resort to certain
internal union procedures directed toward the reduction or
remission of his fine. Thereby, any further discussion with
respect to David Bresee's possible payment of Respondent
Union's current initiation fee and dues was, necessarily,
cut short; whether he could do so, without being required
to pay his fine concurrently, became a secondary question.
Bresee's first tentative proffer in that respect-which
Financial Secretary Bohanan had previously refused to
consider-was never, so the record shows, specifically
reiterated. Upon this record, I conclude and find that
David Bresee, like his brother, had declared his willingness
to tender Respondent Union's required initiation fee and
dues, but that Financial Secretary Bohanan's threshhold
refusal to consider their receipt, without a concurrent
remittance covering his $300 fine had forestalled any
formal tender.
Both Ralph and David Bresee, so I find, had taken the
course which they considered themselves legally required
to take; their proposals with respect to paying initiation
fees and dues had, however, been rebuffed. Since the law
will not require the performance of futile acts, the Bresee
brothers cannot be faulted, within my view, for their
subsequent failure to proceed with formal tenders precisely
computed. See International Brotherhood of Pulp, Sulphite
and Paper Mill Workers, Local No. 350, AFL-CIO (St.
Regis Paper Company), , 187 NLRB 824, 826; United
Brotherhood of Carpenters andJoiners of America, Millmen's
Local 824 (Brunswick-Balke-Callendar Company), 115
NLRB 518, 520, footnote 2, in this connection.
Under Section 8(b)(2), labor organizations commit a
statutorily defined unfair labor practice when they cause,
or attempt to cause, concerned employers to discriminate
against employees:
... with respect to whom membership in such
organization has been denied or terminated on some
ground other than his', failure to tender the periodic dues
and the initiation fees uniformly required as a condi-
tion of acquiring or retaining membership. [Emphasis
supplied.]
Upon this record, there can be no doubt that Respondent
Union's representatives denied Ralph and David Bresee
membership status on separate grounds "other" than their
purported failure to tender periodic dues and initiation fees
uniformly required; I so find.
More particularly, with respect to Ralph Bresee, both
Business Representative Regnier and Respondent Union's
financial secretary, so I have found, effectively barred
formal proffers of payment because he would not sign a
membership application form . While the relevant collec-
tive-bargaining contract, with respect to which both
Respondent Union and Respondent Company were privy,
did condition employment on a worker's becoming and
remaining a union member, the statute and well-settled
decisional doctrine teach us that compliance , with such a
contractual provision requires nothing-more than the
tender of periodic dues and initiation fees uniformly
required. Union Starch and Refining Company, 87 NLRB
779, enfd. 186 F.2d 1008 (C.A. 7, 1951). This case stands
for the general proposition that, while contracts which
require membership as a condition of employment are
lawful under Section 8(a)(3)'s proviso , and while unions
may have other requirements for membership together
with the payment of dues and initiation fees, they cannot
lawfully compel a worker 's discharge, pursuant to such
contractual union-security provisions, because of his
failure or refusal to comply with these supplementary
requirements. Consistently, this Board has specifically held
with judicial concurrence that, where a union rejects a
proffer to pay initiation fees and dues because the worker
concerned will not sign a membership application and
thereafter demands his discharge , that demand will be
considered unlawful, within the meaning of Section 8(b)(2)
of the statute , so long as the worker concerned has
tendered the required dues and initiation fees. See Local
Union No. 749, International Brotherhood of Boilermakers,
Iron Ship Builders, Blacksmiths, Forgers & Helpers,
AFL-CIO (California Blowpipe & Steel Co., Inc.), 192
NLRB 502, enfd. 466 F.2d 343 (C.A.D.C., 1972); Zoe
Chemical Co., Inc., 160 NLRB 1001, 1022-23, 1031, in this
connection.
This Board's Union Starch rule has indeed been sanc-
tioned within a variety of factual contexts by virtually
every circuit court of appeals; the Supreme Court has
mentioned it approvingly. See N.L.R.B.v. General Motors
Corporation, 373 U.S. 734, 742, 743 (1963). Therein, the
Court stated, quite unambiguously, that:
It is permissible to condition employment upon
membership, but membership, insofar as it has signifi-
cance to employment rights, may in turn be condi-
tioned only upon payment of fees and dues . "Member-
ship" as a condition of employment is whittled down to
its financial core . . . . If an employee in a union shop
unit refuses to respect any union -imposed obligations
other than the duty to pay dues and fees, and
membership in the union is therefore denied or
terminated, the condition of "membership" for §
8(a)(3) purposes is nevertheless satisfied and the
employee may not be discharged for nonmembership
even though he is not a formal member.
Within his brief, Respondent's counsel suggests that
neither Bresee brother tendered his union fees in good
faith; Ralph Bresee particularly, so counsel suggests, never
really objected to signing Respondent Union's membership
application form for reasons of conscience or philosophy.
Rather, counsel contends, Ralph and David Bresee were
46 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
simply trying to avoid the normal contractual responsibili-
ties which regular employees have been required to satisfy;
they wanted the privilege of working without being
required to observe a congery of contractually sanctioned
union conditions. We are not, however, concerned herein
with the Bresee brothers' good or bad faith;' when a
worker's statutorily validated right to be protected from
discharge for nonmembership within a union is challenged,
his particular motive for eschewing particular "member-
ship" requirements which the union may have set cannot
be considered relevant.
A worker's decision to shun voluntary full membership,
while seeking to satisfy a union's compulsory membership
requirement by the payment of initiation fees and dues
merely, may be seen as rational, regardless of his stated
reasons, when the Supreme Court's decision in N.L.R.B. v.
Allis-Chalmers Manufacturing Co., 388 U.S. 175 (1967), is
considered. When a worker signs a membership applica-
tion blank wherein he agrees to be bound by union rules,
he is subjecting himself to possible subsequent discipline
and fines which could not be imposed on those who merely
pay the initiation fee and dues which the statute permits a
union to charge in coninection^ with its effectuation of
contractual union-security provisions. The statute does not
require workers to sign commitments which impose on
them obligations other than the duty to pay initiation fees
and dues.
Whether or not Ralph Bresee's purported scruples with
respect to subscribing a Carpenter's Union pledge might
arguably be considered sham, therefore, his legal right to
limit his relationship with Respondent Union, by whittling
that relationship down to its financial core, cannot be
gainsaid. Accordingly, I find that Respondent Union's
representatives, when they caused Ralph Bresee's termina-
tion for the reason herein found, violated Section 8(b)(2)
and (1)(A) of the statute.
With respect to David Bresee, the present record clearly
dictates a similar conclusion. His failure to acquire that
degree of putative "membership" status within Respondent
Union, which the statute permits labor organizations to
require, followed by his consequent separation from
Respondent Company's payroll, plainly resulted from his
failure to pay a previously levied fine. Respondent Union
does not herein contend-nor can it properly be found-
that such fines are compassed within the terms "periodic
dues" or "initiation fees" found within Section 8(b)(2)'s
proscriptive language. Business Representative Regnier
and Financial Secretary Bohanan may well have believed,
conscientiously, that their parent body's constitution and
bylaws mandated their demand for the concurrent pay-
ment of=outstanding fines when initiation fee, and dues
payments are tendered. If ' so, they were mistaken.
Whatever latitude Respondent Union may be permitted,
under the statute, with respect to regulating its -internal
concerns, that organization's representatives could not
lawfully require David Bresee's discharge because of his
refusal to pay the fine previously levied against him, or any
part of it. See International Longshoremen's and Warehouse-
men's Union Local 17, International Longshoremen's and
Warehousemen's Union, 172 NLRB 2016, 2017, 2018; Pen
and Pencil Workers Union, Local 19593, AFL (Parker Pen
Company), 91 NLRB 883, 886-887, in this connection. I
conclude and find, accordingly, that Bresee was denied
membership with Respondent Union on some ground
other than his failure to tender the periodic dues and
initiation fees which Respondent Union normally requires
as a condition of acquiring or retaining membership
therein.
3. Respondent Company's decision to discontinue
the employment of the Bresee brothers
a. The temporary layoffs
On September 29, so the record shows, Respondent
Company's secretary-treasurer directed Ralph and David
Bresee to, suspend work for the day because he foresaw a
possible project visit by Respondent Union' s representa-
tive, and did not wish the Bresee brothers discovered. on
Respondent Company's Bellevue project while he (Rood)
was not, likewise, present. Clearly, Respondent Company's
secretary-treasurer was then cognizant that Ralph and
David Bresee had not yet reached a satisfactory accommo-
dation with Business Representative Regnier regarding
their membership fees. When he directed their temporary
layoff, therefore, solely to forestall a possible 'union
confrontation, which he did not expect to be present to
ameliorate, Secretary-Treasurer Rood was discriminating
with regard to their employment tenure for statutorily
impermissible reasons; I so find.
Similar conclusions, however, cannot be considered
warranted, within my view, with regard to the Bresee
brothers' October 6 and October 9 layoffs.
With respect to Friday, October 6, the record shows
merely that Secretary-Treasurer Rood was still urging both
brothers to "get straight" with Respondent Union. General
Counsel has produced no reliable, probative, and substan-
tial evidence, however, that Respondent Company had
work available for them that day. Thus, despite Rood's
declaration that "if he didn't hear from the union before
Monday" there would be work for the Bresees then, no
determination can be considered warranted that Ralph and
David Bresee were denied Friday work because they were
not union members, or because they had not gotten
"straightened out" with that organization.
On October 9, when the Bresees reported for work, they
found the concrete foundation of Respondent Company's
next projected building newly poured and not completely
dry. And, when they queried Rood with respect to whether
they should proceed with framing work for the building's
outside walls, the latter declared that he would have his
regular hourly paid crew frame the building in question,
and that he would have the Bresees frame the next one.
(Concurrently, so the record shows, he, did remind both
brothers once more to "get straight" with Respondent
Union herein, declaring that he "had a lot of work" for
them if they did so.) With matters in this posture, General
Counsel's presentation, within my view, certainly provides
some ground for suspicion that Respondent Company's
secretary-treasurer did refrain from giving Ralph and
David Bresee October 9 work assignments because of their
unresolved union membership status. The record, however,
cannot be found to demonstrate preponderantly that
R -M FRAMERS , INC. 47
Rood's decision to postpone further work for the Bresees
derived from statutorily proscribed considerations. It
suggests with equal force that strong possibility that their
work that day would have suffered a, delayed start, and
that Rood's consequent decision to have his hourly rated
crew perform whatever, work could be done may have
derived, from business considerations. With respect to the
Bresee brothers' October 9 layoff, therefore, General
Counsel has, within my view, failed to sustain his burden
of proof.
b. Respondent Company's October 11 decision to
withhold further work
The testimonial and documentary record herein, capped
by Secretary-Treasurer Rood's concession within his
October 13 letter to this Board's Regional Office, previous-
ly noted, fully warrants a determination, which I make,
that Ralph and David Bresee were terminated and/or
denied further work on Respondent Company's Bellevue
project, on October 11, 1972, and thereafter, because of
their refusal to acquire union membership on Respondent
Union's terms.
Further, that record shows clearly that Respondent
Company's secretary-treasurer was fully aware-both Bresee
brothers were being denied their contractually mandated
union membership for reasons other than their failure to
tender initiation fees and dues. Within his brief, General
Counsel notes, cogently and correctly, that:
Rood had full knowledge of the Bresees' attempted
tender of dues and initiation fees from [their] conversa-
tion at the car with Regnier on October 5. Rood also
knew of Regnier's refusal to take Ralph's money
without the signing of an application and the refusal to
take David's money without payment of the fine.
The record shows, likewise, that Respondent Company's
secretary-treasurer was subsequently fully advised, before
the Bresee brothers' October 11 departure from Respon-
dent Company's project, regarding their prior efforts to do
"everything [they] could" towards reaching some accom-
modation with Respondent Union's representatives.
With matters in this posture, I conclude and find that
Secretary-Treasurer Rood, when he decided to terminate
and/or withhold further work from Ralph and David
Bresee, had "reasonable grounds for believing that [union]
membership was denied. .. [them] . . . for reasons other
than [their] failure . . . to tender the periodic dues and the
initiation fees uniformly required" consistent with Section
8(a)(3)'s second proviso. Accordingly, when the Bresee
brothers were terminated and/or denied further work, for
reasons previously set forth herein, the Respondent
Company discriminated against them in violation of
Section 8(a)(3) and (1) of the statute; I so find.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent Company and Respondent
Union set forth in section III, above, since they occurred in
connection with Respondent Company's business opera-
tions described in section I, above, had, and continue to
have, a close, intimate, and substantial relation to trade,
traffic, and commerce among the several States. Absent
correction, such, conduct would tend to lead to labor
disputes,burdening and obstructing commerce and the free
flow of commerce.
THE REMEDY
Since I have found that Respondents did engage and
continue to engage in unfair labor. practices, I shall
recommend that they be ordered to cease and desist
therefrom, and to take certain affirmative action, including
the posting of appropriate notices, designed to effectuate
the policies of the Act, as amended.
Specifically, I shall recommend that Respondent Com-
pany be ordered to offer Ralph and David Bresee
immediate and full reinstatement to their former positions
or, should those positions no longer exist , to substantially
equivalent positions without prejudice to their seniority or
other rights and privileges. Further, I shall recommend that
Respondent Union be ordered to send a written notice to
Respondent Company, with copies to Ralph and David
Bresee, stating that it has, no objection to their reinstate-
ment and continued employment.
Respondent Company and Respondent Union should
further be required, jointly and severally, to make Ralph
and David Bresee whole for any pay losses which they may
have suffered because of the discrimination practiced
against them. So far as Respondent Company is con-
cerned, separately, Ralph and David Bresee should be paid
sums of money equal to that which each normally would
have earned on September 29, 1972, when they were
temporarily laid off for statutorily proscribed reasons. So
far as Respondent Union and Respondent Company are
concerned, jointly and severally, Ralph and David Bresee
should be paid sums equal to that which each normally
would have earned between October 11, 1972, when
Respondent Company discriminatorily failed or refused to
continue or renew their employment, and the date of
Respondent Company's offer of reinstatement, less their
respective net earnings during the period designated. Their
backpay should be computed by calendar quarters,
pursuant to the formula which the Board now uses. F. W.
Woolworth, Company, 90 NLRB 289, 291-294. Interest
thereon should likewise be paid, computed at 6 percent per
year. See Isis Plumbing & Heating Co., 138 NLRB 716, in
this,connection.
CONCLUSIONS OF LAW
In the light of the foregoing findings of fact, and upon
the entire record ' in this case, I make the following
conclusions of law:
1. Respondent Company, R -M Framers, Inc., ' is an
employer within the meaning of Section 2(2) 'of the Act,
engaged in commerce and business activities which affect
commerce within the meaning of Section 2(6) and (7) of
the Act, as amended.
2. Respondent Union, United Brotherhood of Carpen-
ters and Joiners of America, Local Union No. 1797,
AFL-CIO, is a labor organization within the meaning of
Section 2(5) of the Act, as amended, which admits
employees of Respondent Company to membership.
48 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. When it attempted to cause and did cause Respon-
dent Company to suspend, terminate, and/or deny further
employment to both-Ralph and David Bresee, because of
their purported failure or refusal to seek or acquire union
membership status, Respondent Union engaged, and has
continued to engage, in unfair labor practices within the
meaning of Section 8(b) and (2) of the Act, as amended.
4. When it temporarily laid off Ralph and David
Bresee because they were not members of Respondent
Union, or had not "straightened out" their status with that
organization, and when it thereafter terminated or with-
held further employment from both these employees,
pursuant to Respondent Union's demand or request
bottomed upon their purported failure or refusal to seek or
acquire union membership s̀tatus, with knowledge that
both complainants herein had tendered their contractually
required, initiation fees and periodic dues, Respondent
Company discriminated against them with regard to their
hire and tenure of employment to encourage union
membership; thereby Respondent Company engaged in,
and continues to engage in, unfair labor practices within
the meaning of Section 8(a)(3) of the statute. Likewise,
through its course of conduct described herein, Respon-
dent Company has interfered with, restrained, and coerced
employees with respect to their exercise of rights statutorily
guaranteed; thereby, Respondent Company has engaged
in, and continues to engage in, unfair labor practices
within the meaning of Section 8(a)(1) of the Act, as
amended.
5. The unfair labor practices herein found are unfair
labor practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act, as amended.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER1
A. Respondent Company, R-M Framers, Inc., its
officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) The encouragement of membership in Respondent
Union, United Brotherhood of Carpenters and Joiners of
America, Local Union No. 1797, AFL-CIO, through the
suspension, termination, or denial of further employment
for Ralph and David Bresee, or any other employees, or
through discrimination against employees, in any other
manner, with regard to their hire or tenure of employment
or any term or condition of their employment, except to
the extent which Section 8(a)(3) of the Act, as amended,
permits.
(b) Interference with, restraint, or coercion of employees,
in any like or related manner, with respect to their exercise
of rights which Section 7 of the Act, as amended,
guarantees.
I In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec.
102 48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
2. Take the following affirmative action, which will
effectuate the policies of the Act, as amended:
(a) Offer Ralph T. Bresee and David H. Bresee
immediate and full reinstatement to their former- positions
or, if those positions no longer exist, to substantially
equivalent positions, without prejudice to their seniority or
other rights and privileges, and, jointly and severally, with
Respondent Union herein make these complainants whole
for any loss of pay which they may have suffered by reason
of the discrimination practiced against them , in the manner
set forth within the remedy section of this Decision.
(b) Preserve, and, upon request, make available to the
Board and its agents, for examination and copying, all
payroll records, social security payment records, timecards,
personnel records and reports, and all other records
relevant and necessary to reach a determination with
respect to the amounts of backpay due Ralph and David
Bresee pursuant to this Order.
(c) Post within its Bellevue, Washington, jobsite, and/or
within any different jobsite where Respondent Company's
personnel may currently be working, copies of the attached
notice marked "Appendix A.'12 Copies of the notice, on
forms provided by the Regional Director for Region 19,
shall be posted immediately upon their receipt, after being
duly signed by Respondent Company's representative.
When posted, they shall remain posted, for 60 consecutive
days thereafter, in conspicuous places, including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by Respondent Company
to insure that these notices are not altered, defaced, or
covered by any other material.
(d) Notify the Regional Director for Region' 19, within 20
days from the date of this Order, what steps Respondent
Company has taken to comply herewith.
B. Respondent Union, United Brotherhood of Carpen-
ters and Joiners of America, Local Union No. 1797,
AFL-CIO, its officers, representatives, and agents, shall:
1. Cease and desist from:
(a) Causing, or attempting to cause R-M Framers, Inc. to
discriminate against employees with respect to their hire or
tenure of 'employment, by suspending , terminating, or
withholding further employment from Ralph and David
Bresee; or causing or attempting to cause Respondent
Company to discriminate against employees, in any other
manner, with regard to their hire or tenure of employment
or any term or condition of employment, except to the
extent which Section 8(a)(3) of the Act, as amended,
permits.
(b) Restraining or coercing employees, in any like or
related manner, with respect to their exercise of rights
which Section 7 of the Act, as amended, guarantees.
2. Take the following affirmative action, which will
effectuate the policies of the Act, as amended:
(a) Make Ralph T. Bresee, and David H. Bresee whole,
jointly and severally, with Respondent Company herein for
any losses of pay which they may have suffered by reason
2 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 read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board "
R -M FRAMERS, INC. 49
of the discrimination practiced against them, in the manner
set forth within the remedy section of this Decision.
(b) Send a written notice to Respondent Company, with
copies dispatched to Ralph and David Bresee likewise,
stating that it has no objection to their current employment
by Respondent Company, and will not oppose their
reinstatement.
(c) Post at its business office and meeting hall in Renton,
Washington, copies of the attached notice marked "Ap-
pendix B."3 Copies of the notice, on forms to be furnished
by the Regional Director of Region 19, shall be posted
immediately upon their receipt, after being duly signed by
Respondent Union's duly authorized representative. When
posted, they should remain posted for 60 consecutive days
thereafter in conspicuous places, including all places where
notices to members are customarily posted. Reasonable
steps shall be taken by Respondent Union to insure that
said notices are not altered, defaced, or covered by any
other material.
(d) Mail copies of Respondent Union's notice to the
Regional Director for Region 19, after such copies have
been signed as required herein, for posting by Respondent
Company, should it be willing, within its Bellevue,
Washington, jobsite, and/or within any different jobsite
where Respondent Company's personnel may currently be
rendering services.
(e) Notify the Regional Director for Region 19, within 20
days from the date of this Order, what steps Respondent
Union has taken to comply herewith.
3 See hi. 2, supra
APPENDIX A
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing , during which all parties were given an
opportunity to present evidence and argument, it has been
determined that we violated the law by committing an
unfair labor practice . In order to remedy such conduct, we
are being required to post this notice. We intend to comply
with this requirement, and to abide by -the following
commitments:
WE WILL NOT encourage membership in United
Brotherhood of Carpenters and Joiners of America,
Local 1797, AFL-CIO, through the suspension, termi-
nation, or denial of further employment for Ralph
Bresee and David Bresee, or any other employees, or
through discrimination against employees, in any other
manner, with regard to their hire or employment
tenure, or any term or condition of employment, except
to the extent which Section 8(a)(3) of the National
Labor Relations Act, as amended , permits.
WE WILL NOT interfere with , restrain, or coerce
employees , in any like or related manner, with respect
to their exercise of right which Section 7 of the
National Labor Relations Act guarantees.
WE WILL offer Ralph Bresee and David Bresee
immediate and full reinstatement to their former
positions or, if those positions no longer exist, to
substantially equivalent positions, without prejudice to
their seniority and other rights and privileges.
WE WILL separately, and jointly with Local 1797 of
the Carpenters Union, make Ralph Bresee and David
Bresee whole for any loss of pay which they may have
suffered by reason of the discrimination practiced
against them.
R-M FRAMERS, INC.
(Employer)
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 concern-
ing this notice or compliance with its provisions may be
directed to the Board's Office, Republic Building, 10th
Floor, 1511 Third Avenue, Seattle, Washington 98101,
Telephone 206-442-4532.
APPENDIX B
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing, during which all parties were given an
opportunity to present evidence and argument, it has been
determined that we violated the law by committing an
unfair labor practice. In order to remedy such conduct, we
are being required to post this notice. We intend to comply
with this requirement, and to abide by the following
commitment:
WE WILL NOT, cause, or attempt to cause, R-M
Framers, Inc., to discriminate against employees with
respect to their hire or employment tenure, by
suspending, terminating , or withholding further em-
ployment from Ralph Bresee and David Bresee, or in
any other manner, except to the extent which Section
8(a)(3) of the National Labor Relations Act, as
amended, permits. This means that we will not request
the discharge of any employee who is covered by a
union-shop agreement for any reason other than the
failure of such employee to tender the payment of his
initiation fee or periodic dues.
WE WILL NOT restrain or coerce employees of R-M
Framers, Inc., in any like or related manner, with
respect to their exercise of rights which Section 7 of the
National Labor Relations Act guarantees.
WE WILL notify R-M Framers, Inc., in writing that
we withdraw our requests for the termination of Ralph
Bresee and David Bresee, and we will notify each of
said employees in writing that we have withdrawn our
request for the termination or suspension of their
employment.
WE wILL, jointly and severally, with R -M Framers,
Inc., make whole Ralph Bresee and David Bresee for
50 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
any pay losses which they may have suffered by reason This is an official notice and must not be defaced by
of the discrimination practiced against them . anyone.
This notice must remain posted for 60 consecutive days
UNITED BROTHERHOOD OF from the date of posting and must not be altered, defaced,
CARPENTERS AND JOINERS or covered by any other material. Any questions concern-
OF AMERICA, LocAL UNION ing this notice or compliance with its provisions may be
No. 1797, AFL-CIO directed to the Board's Office, Republic Building, 10th
(Labor Organization) Floor, 1511 Third -Avenue, Seattle, Washington 98101,
Telephone 206-442-4532.
Dated By
(Representative) (Title)