Sheet Metal Workers Local 40

National Labor Relations Board - Board Decisions

Oct 26, 1972

199 N.L.R.B. 1058 (N.L.R.B. 1972)

1058 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Local Union No. 40, Sheet Metal Workers ' Interna-
tional Association, AFL-CIO (Capitol Ventilating
Company) and Robert M. Schneider and Robert J.
Temple. Cases 1-CB-1929 and 1-CB-1989
October 26, 1972
DECISION AND ORDER
BY MEMBERS JENKINS, KENNEDY, AND PENELLO
On June 23, 1972, Administrative Law Judge'
William F. Scharnikow issued the attached Decision
in this proceeding. Thereafter, the Charging Parties
filed exceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,2 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 Rela-
tions Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the complaint herein be, and it hereby is,
dismissed.
i The title of "Trial Examiner" was changed to "Administrative Law
Judge" effective August 19, 1972.
2 The Charging Parties have excepted to certain credibility findings made
by the Administrative Law Judge. It is the Board's established policy not to
overrule an Administrative Law Judge's resolutions with respect to credibili-
ty unless the clear preponderance of all of the relevant evidence convinces
us that the resolutions were incorrect . Standard Dry Wall Products, Inc, 91
NLRB 544, enfd. 188 F.2d 362 (C.A. 3). We have carefully examined the
record and find no basis for reversing his findings.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
WILLIAM F. SCHARNIKOW. Trial Examiner: The com-
plaint as amended in the above consolidated cases alleges,
in substance, but the answer of the Respondent Union de-
nies , that the Respondent Union committed unfair labor
practices affecting commerce within the meaning of Sec-
tions 8(b)(1)(A), (2), and 2(6) and (7) of the National Labor
Relations Act, as amended, 29 U.S.C., Sec. 151 et seq. (here-
in called the Act) by causing and attempting to cause Capi-
tol Ventilating Company to discharge or otherwise
discriminate against its employees Robert M. Schneider and
Robert J. Temple on or about November 30, 1971, and
thereafter to refuse to reinstate them to their former or
substantially equivalent positions because Schneider and
Temple were not members of the Respondent Union.
Pursuant to notice, a hearing was held in Hartford,
Connecticut, before me the designated Trial Examiner on
April 13 and 14, 1972. The General Counsel, the Respon-
dent Union, and Robert Schneider appeared by counsel and
were afforded full opportunity to be heard, to examine and
cross-examine witnesses , and to introduce evidence bearing
upon the issues. Since the close of the hearing, the General
Counsel and the Respondent Union have submitted beefs
which have been duly considered.
Upon the entire record in the case, and from my obser-
vation of the witnesses , I make the following:
FINDINGS OF FACT
I THE RESPONDENT-UNION
The Respondent Union , Local Union No . 40, Sheet
Metal Workers' International Association, AFL-CIO, is a
labor organization within the meaning of the Act.
11 THE EMPLOYER
Capitol Ventilating Company (hereinafter referred to
as Capitol) is a Connecticut corporation with its principal
office and place of business in Hartford, Connecticut, where
it is, and has been, engaged in the manufacture, sale, and
distribution of sheetmetal fabrications and related prod-
ucts. In the course of its business operations, Capitol annu-
ally ships to points outside the State of Connecticut, from
its place of business in Connecticut, goods of a value ex-
ceeding $50,000.
I find that Capitol is, and has been at all material times,
an employer engaged in commerce and in operations affect-
ing commerce within the meaning of the Act, and that it will
effectuate the policies of the Act for the Board to entertain
jurisdiction in these cases.
III THE ALLEGED UNFAIR LABOR
PRACTICES
A. Introduction
The present cases arise out of Capitol's layoffs of a
number of its sheetmetal workers, including Robert
Schneider and Robert Temple, on November 30, 1971. At
that time, Capitol was, and had been for a number of years
a member of Associated Sheet Metal Roofing and Insulat-
ing Contractors, Inc., and, like other members of this Asso-
ciation was employing sheetmetal workers under the terms
of a master contract between the Association and the Re-
spondent Union, hereinafter referred to simply as the Un-
ion. The contract included a union-security clause effective
on the eighth day following hire, a clause committing the
Union to furnish sufficient numbers of duly qualified jour-
neyman and apprentice sheetmetal workers, and an adden-
dum VII giving retention and rehire preferences in layoffs
to "journeymen, if qualified to perform the work, who have
three (3) or more years of service in the collective-bargain-
ing unit."
199 NLRB No. 178
SHEET METAL WORKERS LOCAL 40 1059
In the layoff of November 30, 1971, Capitol laid off 14
of its journeymen and 4 of its apprentices because of lack
of work. Five of the laid-off journeymen were union mem-
bers and the other nine, including Schneider and Temple,
were not union members although, like the Union men, they
had so-called "referrals" from the Union. The referral slip
simply stated that the man was "referred." It contained no
language which would in itself indicate that it was a "per-
mit" although the terms "permit" and "permit man" appar-
ently were frequently used to describe nonunion employees.
On December 7, 8, and 9, Capitol completed its layoffs by
laying off another five journeymen all of whom were union
members.
The General Counsel contends that the Union told
Capitol to lay off all the "nonunion men" first in the No-
vember 30, 1971, layoffs, and thereby committed an unfair
labor practice within the meaning of Section 8(b)(1)(A) and
(2) of the Act by causing Capitol to discriminate against
Schneider and Temple and the other nonunion sheetmetal
workers t because they were not members of the Union. But
the Union denies having had any communication with Cap-
itol concerning who was to be laid off on November 30,
1971. Moreover it asserts that Capitol's inclusion of
Schneider and Temple and the other nonunion referral men
was required by addendum VII of the contract, not because
they lacked union membership, but because they did not
have the 3-years' service as journeymen "in the collective-
bargaining unit."
In developing his case with respect to this issue, the
General Counsel contends in effect that the Union has used
the provisions of the union-security clause of the contract,
and an exclusive hiring hall practice or arrangement devel-
oped under the contract, to assure the hire of, and to control
the preferences accorded, its members while limiting admis-
sions of other "referral" employees to union membership.
But these particular arguments of the General Counsel
based upon the manner in which the Union has assertedly
used the union-security clause and an alleged actual exclu-
sive hiring hall practice or arrangement find no support in
the record and may as well be disposed of at this point.
Certainly, what evidence there is indicates that the Union
does not require an employer to discharge nonunion em-
ployees after the 8-day grace period. On the contrary, it
appears that Schneider and Temple as well as other nonun-
ion employees laid off on November 30, 1971, had worked
for Capitol for several years before being laid off for lack
of work. Nor does the evidence show that an actual and
general exclusive hiring hall practice or arrangement had
come into existence . For the representatives of only two
contracting employers testified and from their testimony as
well as that of Schneider, Temple, and the Union represent-
atives, it appears that while most of the sheetmetal workers
hired by the employers are initially sent out by the Union
with referral slips, there are "numerous occasions"2 when,
as in the cases of Schneider and Temple, the employer hires
a nonunion sheetmetal worker and then sends him to the
Union for the same type of "referral slip" as is given to a
1 The other "nonunion" sheetmetal workers laid off are not named in the
complaint as the subjects of the asserted discrimination.
2 The phrase is from the testimony of Leonard Mohn, general manager
of Capitol.
union member referred to the employer in the first instance
by the Union. And, as Business Agent Ford explained, the
referral slip which was thus issued in triplicate to both union
and nonunion applicants provided one copy for the Union's
office, one for the Union's steward, and one for the employ-
er and served as a record of the man's employment for the
purposes of the welfare fund to which the employer was
required to make contributions which it then reported to the
Union.
B. Temple's and Schneider's Employment and
Their Attempts to Join the Union
Temple was hired by Capitol on or about July 1, 1969,
and Schneider on or about November 4, 1970. Both men
worked for Capitol continuously until they were included in
the layoff of November 30, 1971. Although each of them
had had previous experience as a sheetmetal worker, only
Schneider had worked for an employer (Liner-Atwill Co.)
under the Association's master contract with the Union
and, in that case, from April 1970 until the end of October
1970, or only for a period of 8 months at the most. In the
cases of both Temple and Schneider, Capitol had hired
them and then sent them to the Union for referrals and the
Union had issued the requested referral slips.
Although the testimony is blurred as to whether, when
he secured his referral, either man had signed a union mem-
bership application or had then been informed that such an
application would be considered, the Union thereafter
mailed both men several form letters requesting that they
appear at specified times to take the Union's "Journeyman
Qualification Test" and in the requests stated that "Your
failure to attend this meeting will result in further delay of
your initiation into Local 40 and may be construed to be
due to a lack of interest in acquiring membership in this
organization." Furthermore, when Temple and Schneider
did take the tests, it appears that one of the papers they
signed was an application for union membership.
Temple took the journeyman's test and failed it on
October 13, 1969, and again on January 12, 1970, each time
receiving a notice from the Union of his failure about 10
days after the test. Schneider failed the test on August 17,
1970, while he was working for Liner-Atwill but passed it on
November 9, 1970, within a week or so after he had begun
working for Capitol. Temple finally passed the test on No-
vember 8, 1971, shortly before he was laid off by Capitol on
November 30, 1971, although he was not given notice that
he passed until December 11, 1971. Neither man was admit-
ted to membership, however. Schneider's application was
turned down by the membership at meetings in November
1970 and again (after his layoff by Capitol) in December
1971. Temple's admission was never recommended to the
membership by the Union's examining board.
The Union apparently did not communicate with
Schneider after he had passed the journeyman's test but had
been rejected by the membership in November 1970, nor
with Temple after he had failed the test the second time on
January 12, 1970, concerning any continuing possibility of
their still being admitted to membership, until, in Temple's
case, he was notified of the November 8, 1971, examination
which he passed. Nor did either of the two men press any
1060 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
union official for admission until the beginning of Novem-
ber 1971 when Schneider went to see Business Agent Ken-
neth Ford. This, it will be noted, was roughly a year after
Schneider had passed the test but had been turned down by
the membership.
There is no real conflict between Schneider's and Busi-
ness Agent Ford's testimony concerning this conversation
in November 1971. Schneider asked whether it was still
possible to get into the Union after the membership had
rejected him in November 1970. He said in substance that
he had made a mistake in working for Capitol on a Univer-
sity of Connecticut job during a 3-day stoppage of work in
November 1970 due to the discharge of the Union's stew-
ard, John McBirdie. Both Schneider and Ford apparently
assumed that McBirdie's opposition to Schneider had
caused the membership to reject Schneider's application.
Ford told Schneider he could not help and that Schneider
should "wait and hope [that] it would blow over."
At about this time in November 1971, General Manag-
er Leonard Molin of Capitol had asked the Union about
getting "permit men" like Schneider and Temple and a few
others into the Union. As a result of this and apparently
similar complaints made to the Union's International, Inter-
national Representative Frank Weigel was assigned to in-
vestigate the complaints and Weigel along with Business
Agents Ford and James Wilkie visited Molin and ques-
tioned a number of the journeymen in the shop and
Schneider in the field (but not Temple) concerning their
qualifications as journeymen. Following this, Weigel rec-
ommended to the Union that those of the nonunion men
who had failed the test be reexamined.
As already noted, Temple was reexamined and passed
the test on November 8, 1971. The Examining Board, how-
ever, did not recommend to the membership that he be
admitted to membership. And while the Examining Board
did recommend that Schneider be admitted, the member-
ship at a meeting in December 1971, attended by Steward
McBirdie, again rejected the recommendation.
C. The November 30, 1971 , Layoffs
and Addendum VII
As already noted, on November 30, 1971, Capitol laid
off four apprentices, five Union journeymen, and nine of its
nonunion journeymen, including Schneider and Temple.
The remaining and 10th nonunion journeyman was a Jo-
seph Fappiano, a draftman, who was not laid off. And
between December 8 and 9, 1971, Capitol completed its
layoffs for lack of work by laying off five more union jour-
neymen.
There are two critical points which must be considered
in connection with these layoffs. One is the disputed ques-
tion of whether the Union dictated the selection of all nine
of the nonunion journeymen for layoffs. The other point,
which is not completely developed by the evidence, is
whether Capitol in making all the selections merely ob-
served the requirements of addendum VII of the contracts
so far as they were applicable.
On the first of these points, there is a conflict between
the testimony of General Manager Leonard Molin and
Business Agent Kenneth Ford. Molin testified that on No-
vember 30, 1971, the day of the bulk of the layoffs, he told
Ford on the telephone that he was laying off 20 men, that
Ford told him that the "nonunion" or "permit men" were
to go first, and that Molin said, "All right." When it was
suggested to Molin on cross-examination that Ford was not
in Hartford on November 30, Molin testified that the con-
versation with Ford occurred on or about November 30.
Ford denied that he had such conversation with Molin
about the November 30, 1971, layoffs. He testified that he
was out of the Hartford area from November 28 until the
evening of November 30. Moreover, Ford testified that the
last time he had any conversation with Molin about the
layoff of men with less than 3-years' service in the bargain-
ing unit was in May 1971 when the Union had filed a
grievance against Capitol.
From Molin's as well as Ford's testimony it appears
that the meaning and application of this 3-year service pro-
vision found in addendum VII were in fact raised by the
Union in an arbitration proceeding after Capitol in a May
1, 1971, layoff had retained eight of the nine nonunion
sheetmetal workers eventually laid off on November 30,
1971 (including Schneider and Temple). But the two men
disagreed as to what, if any, interpretation was then-given
to the term, "journeymen," and the phrase, "three (3) or
more years of service in the collective-bargaining unit," as
the result of the arbitration award in favor of the Union.3
Molin testified that "this three years confuses me. At advice
of counsel during this joint adjustment board and panel
hearing, our attorney came up with a definition of the three
years. He said that, as long as a man worked in sheet metal
in the trade-whether union or nonunion-it contributed
towards the three years...." (Emphasis supplied.) But
Ford testified that it was the Union's position, not only in
dealing with Molin in May 1971, but in the course of the
Union's original proposal and negotiation of addendum VII
in the 1968 contract negotiations , that the term "journey-
men" referred to men employed in fact as journeymen,
regardless of union accreditation, and that "three (3) or
more years of service in the collective-bargaining unit" re-
ferred to "the men's length of employment with employers
who were signatory to the agreement-all employers, not any
individual employer." (Emphasis supplied.)
Accepting Ford's interpretation, of course, neither
Schneider nor Temple had the requisite "three (3) or more
years of service in the collective-bargaining unit" under
addendum VII and were therefore among those subject to
initial selection for layoff under the contract. Whether un-
der this interpretation, the other eight nonunion journey-
men laid off on November 30, 1971 , also lacked 3 years of
service "in the bargaining unit" or whether any of the Union
employees retained by Capitol also lacked the requisite 3
years of service, are matters which were not developed in the
evidence. The Union suggests that Capitol in fact observed
addendum VII as interpreted by the Union rather than
acceded to any request by Ford merely that all "nonunion"
3 Counsel for the Union offered in evidence the documents, including the
decision in favor of the Union, in the "arbitration proceeding," which he
contended established the Union's interpretation But, on objection by the
General Counsel and my inspection of the papers, it did not appear to me
that on their face they indicated any construction of addendum VII and I
therefore rejected the proffered exhibits.
SHEET METAL WORKERS LOCAL 40
or "permit men" be discharged first. But it is the General
Counsel with his general burden of proof who has the inci-
dental burden, as one of the elements of this general burden,
of showing that Capitol's selection for the layoffs of Novem-
ber 30, 1971, was dictated by the Union's requests to Capitol
that "nonunion" or "permit men" be discharged first rather
than by the requirements of addendum VII. And the Gener-
al Counsel has failed to meet this particular burden by not
producing any evidence either that some of the "nonunion"
men laid off had 3 years of service in the collective-bargain-
ing unit or that some of the union employees who were
retained lacked the protecting service requirement.
D. Evidence as to Conversations Concerning
Schneider and Temple after
Their Layoff
One of the provisions of addendum VII is that:
The Employer, when hiring within thirty (30) days of
his most recent lay-off, shall rehire journeymen, if qual-
ified to perform the work , with three (3) or more years
of service in the collective bargaining unit laid off with-
in the thirty (30) day period by said Employer before
hiring or re-hiring journeymen with less than three (3)
years of service in the collective bargaining unit. This
shall not apply to employees discharged for cause.
Against the background of this provision , there was
testimony concerning conversations which the General
Counsel contends establishes the Union's refusal to permit
Capitol and also Liner-Atwill to hire Schneider or Temple
for available jobs both during and after the 30 -day period
following their layoff by Capitol. The following is a summa-
ry of this evidence.
After his layoff , Schneider, according to his testimony,
went to Molin of Capitol and also to Jack Liner of Liner-
Atwill about getting a job. Schneider testified that he saw
Molin in the first week of December 1971 and again Janu-
ary, February, and March of 1972 ; that in December Molin
said he had jobs and might possibly rehire Schneider "after
the 30 days" in the contract ; that in January , Molin said he
had a job for Schneider but could not hire him ; that in
February, Molin said Schneider could have a job any time
he wanted it; but that in March 1972, Molin told Schneider
he could work for Capitol any time he could get a permit.
Schneider further testified , and Jack Liner corroborated his
testimony , that Schneider went to see Liner a number of
times after his layoff by Capitol and that Liner told him he
could have a job if he could get a permit.
Schneider testified that in the first week of December
1971, after he had seen Molin, he went to see Business Agent
Ford and asked him were there any jobs available; that
Ford said "he had approximately 14 men out of work and
he could not put [Schneider] to work"; that Schneider told
Ford he had a job with Capitol and asked Ford for a permit;
that Ford said , "Capitol won 't give you a job"; but that
Ford also explained that "under the contract people with
three (3) years in the bargaining unit get first crack at avail-
able jobs ," that Schneider did not qualify , and that he could
not send Schneider out "until those people who had pref-
erence were employed ." Ford, in his testimony, could not
recall any such conversation or that he had seen Schneider
1061
at all since his layoff, and I credit Schneider's testimony and
his version of this conversation with Ford. Consistent with
Schneider's testimony, however, Ford did testify (and I
credit his testimony) that the number of the Union's em-
ployer members constantly increased from 50 in November
1971 to more than 150 in March 1972.
Temple testified that in the first or second week in
December 1971 he went to see Molin of Capitol, and then
made a visit to the Union's office, where in addition to
speaking with Business Agent Ford he also spoke with Presi-
dent Tom Massimo about his admission to the Union. I find
upon Temple's uncontradicted testimony with respect to
this particular conversation 4 that he asked Massimo "about
the layoff ... about the results of my [journeymen's qualifi-
cation] test ... [but Massimo] said he knew nothing about
[it]"; and that Temple also asked Ford "about my test re-
sults" and that Ford said "it was out of his hands ... [and]
in the hands of the Examining Board."
Temple also spoke later to Business Agent Wilkie. He
testified without contradiction and I credit his testimony
that at least once each month in January, February, and
March 1972 he dropped in on Wilkie at the union hall and
that "he just asked [Wilkie] how things weregoing, and how
it looked for rehire. [Wilkie] kept telling me there was more
being laid off. He had labor disputes to contend with, and
it didn't look too good."
Leonard Molin of Capitol testified also as to several
conversations with Wilkie concerning Schneider's possible
rehire. He testified that once, within 30 days after the layoff
and again sometime later, he asked Wilkie if he could rehire
Schneider and Wilkie said, "No way." But Wilkie in his
testimony denied that Molin had ever asked whether Capi-
tol could put Schneider back to work or that Wilkie had
said, "In no way." I credit Wilkie's denial and find upon his
further testimony that Molin made two telephone calls to
Wilkie; that in the first call, Molin "wanted to know what
I was going to do about Schneider and Temple ... [and that]
I told him I wasn't going to do nothing"; and that in the
second telephone call Molin "wanted to know about
Schneider and Temple, [Wilkie] told him as far as [he] knew,
[he] didn't know what they were doing but ... they weren't
working for any of our contractors."
It should be noted from this summary, that although
Liner and Schneider testified that in their conversations
Liner assured Schneider he could have a job with Liner-
Atwill if he could get a permit, there is no evidence that
Liner or Schneider informed the Union of this. Indeed,
Business Agent Ford testified that Liner-Atwill made no
requests of the Union for sheetmetal workers after Novem-
ber 30, 1971. Accordingly, I find that the Union did not
refuse to refer Schneider to a job with Liner-Atwill after the
layoff of Schneider by Capitol on November 30, 1971.
As to the possible rehire by Capitol of Schneider or
Temple, the evidence which I have summarized was more
complicated. Before the 30 days following the layoff had
expired, the evidence (i.e., the credited testimony of
Schneider, Temple, Molin, and Business Agents Ford and
Wilkie) would show at most that the Union merely withheld
Massimo did not testify. Ford testified merely that he could not recall
having spoken with Temple about his admission to the Union after the
November 30, 1971, layoff.
1062 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
referrals under the 30-day preferential rehire provision of
addendum VII. As to the period more than 30 days follow-
ing the November 30, 1971, layoff, the contacts were be-
tween Business Agent Wilkie of the Union and Temple and
Molin. Temple, according to his pertinent testimony which
I have quoted in full, did not tell Wilkie there were Capitol
jobs available. And I have credited Wilkie's denial of
Molin's testimony that Molin had ever asked whether Capi-
tol could put Schneider back to work as well as Wilkie's
further testimony that Molin had merely asked "what I was
going to do about Schneider" to which Wilkie had replied
he was not going to do anything.
Upon the foregoing considerations, I conclude, con-
trary to the General Counsel's contention, that except for
the 30-day period following the layoffs which was covered
by addendum VII, the evidence does not establish any re-
fusal by the Union to permit Capitol or Liner-Atwill to hire
Schneider or Temple for available jobs.
E. Conclusions
Upon consideration of the foregoing evidence, I credit
the testimony of Business Agent Ford rather than that of
General Manager Leonard Molin of Capitol and find (1)
that the Union, whether through Ford or any other repre-
sentative, did not discuss who should be laid off by Capitol
at the time of the November 30, 1971, layoff; and (2) that
the Union, whether through Ford or any other representa-
tive, did not tell Molin immediately preceding the Novem-
ber 30, 1971, layoff that the "nonunion" or "permit men"
were to go first nor that Molin agreed to this. I further find
upon Ford's testimony, contrary to the implications, of
Molin's testimony, that in the dispute with Capitol concern-
ing the preceding layoffs contemplated by Capitol in May
1971, and in the original negotiations of addendum VII in
1968, the Union had taken the position that the term "jour-
neymen" in addendum VII referred to men actually em-
ployed by their employers as journeymen and that the
"three (3) or more years of service in the collective bargain-
ing unit" which would give them preference in retention and
hire referred to "the men's length of employment with em-
ployers who were signatory to the [master] agreement [with
the Union]." Upon these threshold factual findings, I con-
clude that the Union did not request that Capitol first lay
off all "nonunion men" including Schneider and Temple in
the layoff of November 30, 1971, nor did it by any such
revelatory request cause or attempted to cause Capitol to
lay off Schneider or Temple in violation of Section
8(b)(1)(A) or (2) of the Act because they and other so-called
"permit men" were not members of the Union.
This initial conclusion still leaves for consideration the
broader argument made by the General Counsel that the
Union, in taking its general position with respect to layoffs
under addendum VII, has used the union-security clause of
its master contract, and an exclusive hiring hall practice or
arrangement developed under the contract as well as the
provisions of addendum VII, to assure the hire of, and to
control the preferences accorded , its present members while
at the same time limiting and even excluding admission of
other "referral" employees to union membership.
As the Union points out, each individual element of the
contract which the General Counsel says it has misused, as
well as the Union's determination of who should be admit-
ted to membership, appears to be legal under the provisions
of the Act. Thus, the 8-day union-security clause is appar-
ently justified by Section 8(f)(2) in its application to sheet-
metal workers as employees "engaged primarily in the
building and construction industry."5 The clause in the con-
tract committing the Union to furnish duly qualified jour-
neymen and apprentice sheetmetal workers is also on its
face, absent a showing of discriminatory application, a valid
hiring hall provision. The Union's right to decide whom it
will admit to membership is preserved by the proviso to
Section 8(b)(1)(A) of the Act. And finally, the provisions of
addendum VII, as interpreted by the Union, are supported
by the approval given in Section 8(f)(4) of the Act to a
building and construction agreement, which "provides for
priority in opportunities for employment based upon length
of service with such employer, in the industry, or in the
particular geographical area."
All of this, of course, does not mean that the Union
may by calculated practice misuse the valid provisions of its
contract and deliberately bring about a discrimination in
the hire and tenure of nonunion employees to the advantage
of employees who are members of the Union. And the
General Counsel contends that the Union did so in the
present case. In essence, the General Counsel argues that
the hiring provision was perverted in practice to permit the
hire of only a limited number of nonunion men when "refer-
rals" were requested by the employers; that the Union did
not admit nonunion "referral" employees to union member-
ship, avoiding, however, any request for the discharge by
their employers under the union-security clause which
would have been a patent unfair labor practice; but that
instead, the Union relied upon the provisions of addendum
VII to eliminate the nonunion men when layoffs occurred,
since their tenuous hold upon their jobs made it unlikely if
not impossible for them to build up the protective "three (3)
or more years of service in the collective-bargaining unit."
The difficulty with the General Counsel' s argument,
and the reason it must fail in the present case, is that the
evidence does not support the necessary finding that the
Union by its practices and manipulation of the use of the
contract provisions has in this fashion deliberately set out
to eliminate or minimize the employment of nonunion
sheetmetal workers whom (like Schneider and Temple) it
has refused to admit to union membership. The complaint
alleges, and the evidence was directed, merely to the at-
tempted proof that the Union had caused Capitol to lay off
Schneider and Temple because they were not union mem-
bers. Even as to Schneider and Temple, there was no evi-
dence which would support a finding that the Union used
its journeymen qualifications test to discriminate against
Schneider or Temple on the occasions they failed the test.
And, while the Union's rejection of their membership appli-
cations for a lengthy period after they passed the test might
be regarded as unfair, not only was it the Union's right to
3 I find no ment in the General Counsel's contention that the coverage by
the contract and the union-secunty clause of shop employees , as well as field
employees of the same employer , illegally extended the 8 -day union-security
clause to them as employees who are not "engaged primarily in the building
and construction industry."
SHEET METAL WORKERS LOCAL 40 1063
refuse their admission under the proviso to Section
8(b)(1)(A) but the resulting delay in their admission did not
affect their tenure of employment nor therefore affect or
deprive them of any right they had been building to be
retained under addendum VII in spite of the November 30,
1971 layoff . As a result, only the individual experiences of
Schneider and Temple are provided by the evidence. Not
only are they consistent with the innocent and proper appli-
cation of the provisions of the Act but in themselves they
furnish no basis for concluding that their treatment was the
result of any improper general practice under the provisions
of the contract.
Thus , the defect in the General Counsel's general argu-
ment as to the subtlety of the Union 's practices within the
apparent confines of the legal contract provisions is that the
evidence provides no such sufficient statistical basis from
which the existence of any such practices could reasonably
be inferred . There is no evidence , for example, that the
Union has refused to give "referrals" to nonunion appli-
cants for employment ; that the Union has generally refused
to admit nonunion "referral" employees like Schneider and
Temple to membership in the Union ; or that the conse-
quence of any such refusal has materially interfered with
nonunion "referral" employees ' building up the 3 or more
years of service, in the collective-bargaining unit which
would give them the preference in retention and rehire in
layoffs provided by addendum VII. The omission of any
such evidence is particularly surprising in view of the fact
that seven other nonunion "referral" employees were also
laid off by Capitol along with Schneider and Temple on
November 30, 1971 . But we are given no evidence as to their
circumstances which might lead us to believe that they, like
Schneider or Temple (according to the General Counsel),
were also the victims of the Union 's deliberate discrimina-
tion against nonunion "referral" employees . If Schneider
and Temple were but instances of the Union 's general dis-
criminatory application of the means afforded by the con-
tract provisions and practices thereunder , it might be ex-
pected that there would be evidence of such other instances,
either in Capitol 's November 30, 1971 , layoff or in other
cases, and yet there was no such evidence.
In sum, upon the foregoing considerations , I have con-
cluded that the evidence does not show , as the General
Counsel contends , that the Union requested Capitol to lay
off its nonunion employees first, in the November 30, 1971,
layoffs ; that the Union misused the valid provisions of its
master contract , including addendum VII, to procure dis-
crimination by Capitol or any other employer against non-
union employees in layoffs ; or that the Union, by any such
acts at the time of, preceding, or following Capitol 's Novem-
ber 30, 1971, layoffs , caused or attempted to cause Capitol
to lay off Schneider or Temple because they were not mem-
bers of the Union and thereby committed unfair labor prac-
tices within the meaning of Section 8(b)(1)(A) or (2) of the
Act. I shall therefore recommend that the Board dismiss the
complaint.
Recommendations
Having concluded that the evidence does not support
the unfair labor practice allegations of the complaint, I
recommend the following:
ORDER
The complaint herein is hereby dismissed in its
entirety.