Twin City Carpenters District Council, Etc.

National Labor Relations Board - Board Decisions

May 26, 1965

152 N.L.R.B. 887 (N.L.R.B. 1965)

TWIN CITY CARPENTERS DISTRICT COUNCIL, ETC. 887
for Region 3, in writing, whether or not it will refrain from forcing
or requiring Capital Electrotype Company, Inc., by means proscribed
by Section 8(b) (4) (D), to assign the wort: in dispute to electrotypers
rather than to printing pressmen.
Twin City Carpenters District Council of the United Brotherhood
of Carpenters and Joiners of America , AFL-CIO [August
Cederstrand Company] and Archie L. Anderson . Case No.
18-CB-230. May 26,1965
DECISION X D ORDER
On March 15, 1965, Trial Examiner Frederick U. Reel issued his
Decision in the above-entitled proceeding, finding, that the Respond-
ent had not engaged in unfair labor practices as alleged in the com-
plaint and recommending that the complaint be dismissed in its
entirety, as set forth in the attached Trial Examiner's Decision.
Thereafter, the General Counsel filed exceptions to the Trial Exam-
iner's Decision and a supporting 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 powers in connection with this case to a three- member
panel [Members Fanning, Brown, and Jenkins].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and the brief, and the entire record
in the case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner)
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the National Labor Relations Board hereby adopts as its
Order the Order recommended by the Trial Examiner, and orders that
the complaint herein be, and it hereby is, dismissed in its entirety.
'We adopt the Trial Examiner 's conclusion that the complaint herein should be dis-
missed. In our opinion , the evidence on the record falls short of establishing that
Williams was in fact acting in his capacity as steward when he engendered the "unrest"
among the employees leading to Anderson 's discharge.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This case , heard in Minneapolis , Minnesota , on January 25 and 26, 1965,1 before
Trial Examiner Frederick U. Reel, pursuant to a charge filed the preceding October 7
'All other dates herein refer to the year 1964 , unless otherwise noted
152 NLRB No. 102.
888 DECISIONS OF, NATIONAL LABOR RELATIONS BOARD
and a complaint issued November 17, presents the question whether Twin City
Carpenters District Counsel of the United Brotherhood of Carpenters and Joiners of
America, AFL-CIO, herein called the Union , caused or attempted to cause August
Cederstrand Company, herein called the Company , to discharge the Charging Party,
Archie L. Anderson , because of Anderson 's lack of union membership . Upon the
entire record in the case , including my observation of the demeanor of the witnesses,
and after due consideration of the contentions expressed by General Counsel in his
brief and by Respondent 's counsel in oral argument , I make the following:
FINDINGS OF FACT
1. THE EMPLOYER AND THE LABOR ORGANIZATION INVOLVED
The Company, a Minnesota corporation engaged as a general construction con-
tractor, annually obtains in excess of $50,000 worth of materials from outside the
State, and during the year preceding the hearing furnished services valued in excess of
$100,000 each to such large interstate concerns as Chrysler Corporation and General
Mills. I find that the Company is engaged in activities affecting commerce within
the meaning of Section 2(6) and (7) of the Act. The Union is admittedly a labor
organization within the meaning of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICE
Archie Anderson , a carpenter who was expelled from the Union and is denied
membership therein for reasons unrelated to the payment of dues or initiation fees,
was hired by the Company on Wednesday , September 30, for work on a school con-
struction job at Savage, Minnesota , a suburb of Minneapolis . Anderson reported
for work the next day, Thursday , October 1 . He worked that day and also on Octo-
ber 2 , but he was discharged late on October 2 . The record is clear that the Company
discharged Anderson because of difficulties arising out of his lack of union member-
ship. The critical question in this case , however, is whether the Union or its agents
engaged in activity which caused the Company to take this action . Determination of
this issue requires a fairly detailed statement of the events of October 1 and 2.
When Anderson arrived at the job on October 1, he showed to both Harry Williams,
the job steward for the Union , and to Lowell Zube, the Company 's job superintendent,
a copy of an affidavit which the Union had filed in Federal district court in connection
with Anderson 's suit to set aside his expulsion from the Union . This affidavit, dated
March 3 , 1963 , and signed by Herbert Kortz, then secretary of the Union, recited
inter alia that the Union 's rules prohibiting union carpenters from working with
nonmembers had been modified by the National Labor Relations Act, and that "offi-
cers and agents of the [Union] have been effectively informed not to in any way
attempt to prevent Archie Anderson from working on any carpenter job ...... The
affidavit also goes into several other matters apparently germane to the proceeding
in which it was filed ; it covers six legal-size pages, double-spaced . Zube quite
understandably did not accept Anderson 's proffer of the affidavit , but Harry Williams,
the union steward, looked at the affidavit although he did not read its entire contents.
Williams promptly telephoned Peter Woida, who had succeeded Kortz as secretary
of the Union , and advised Woida that Anderson was at work on the job. Woida
replied that he could do nothing about it. That morning both Williams and Anderson
went to work.
During the morning of October 1, Williams worked with another carpenter , Harvey
English . Williams observed that he might not be on the job very long. When Eng-
lish asked the reason, Williams replied that either he or Anderson would have to go,
as Anderson did not have a union card . During that morning Williams also men-
tioned to employees in other crafts that a man was on the job who was not a union
member.
During the lunch period that noon Williams asked Anderson to let him see the
affidavit again . Anderson replied : "I showed it to you once ; I am not telling you
anything more . You go and do as the District Council tells you to do, and I am not
telling you anything ." Williams angrily replied that he was leaving the job and that
he would not work with a nonunion man. Repeating these statements in a loud voice,
Williams walked toward his car, but Zube , who came up at that time, called after him,
"Why are you leaving? You have to have a reason . Stick around , stay around."
Williams came back about 15 minutes later and worked the rest of the day, as well as
the following day, near the end of which , as noted above , the Company discharged
Anderson.
TWIN CITY CARPENTERS DISTRICT COUNCIL, ETC. 889
During the 2 days of Anderson 's employment , his presence on the job resulted in
considerable discussion and unrest among the employees , and a consequent loss of
efficiency and of production . Job Superintendent Zube reported this matter by tele-
phone on two occasions to one Reuben Swanson , an estimator , at the company office.
On Thursday he advised Swanson that one of the men was threatening to walk off the
job because of Anderson , and on Friday he told Swanson that he feared some of the
plumbers might "take a vacation " because of Anderson . Swanson passed Zube's
reports on to Allen Cederstrand , a company officer, and after some discussion they
decided to discharge Anderson . According to Cederstrand , he feared that the
employees of the subcontractors , such as the plumbers and electricians , would not
work if Anderson remained on the job.
The foregoing facts, stripped to their essentials , establish that Anderson lost his job
because the Company feared labor trouble with various crafts would result from the
continued employment of a nonmember of the Union. Aside from the actions of
Union Shop Steward Williams no persons connected in anyway with the Union said
or did anything to cause Anderson 's discharge . Williams, although he did not ask
any carpenter or any other employee to walk off the job, did make the fact widely
known among the employees on the job that Anderson was not a union member and
that Williams would not work with him. The question is whether the Union is
responsible for Williams' actions, for it is clear that Williams caused or attempted to
cause the unrest which led to the discharge , and it is also clear that Williams was
motivated by Anderson 's lack of union membership.
On this record , however, I cannot find that the Union was responsible for Williams'
actions. He acquired his position as shop steward on this job because he was the first
carpenter hired for it. Had he quit the job another steward would have been named.
He did not rely on his position as steward in voicing his displeasure over Anderson's
employment . He did not urge any other employee to leave the job, except as such
urging may have been implicit in his publicizing the fact of Anderson's nonmember-
ship . Williams did not threaten any carpenter with a fine or with any other action of
any sort for working on the job with Anderson.
The Union was, of course, liable for acts done by Willaims in his capacity as
steward . But it is not liable for actions of Williams which he committed in an
individual capacity rather than as shop steward. See Building and Construction
Trades Council of Tampa and Vicinity , AFL-CIO; et al. (Tampa Sand and Material
Co.), 132 NLRB 1564, 1568-1569. In that case the Board found no union liability
for the conduct of Shop Steward Edwards, who walked off the job rather than handle
nonunion products , but the Board held the union liable for the conduct of Shop
Steward Reed , who threatened a construction superintendent that the carpenters
would walk off if nonunion goods were used. In the instant case, in my view,
Williams' conduct more closely resembles that of Edwards than that of Reed.
General Counsel relies on Harry Paul Tiner , d/b/a Seago Construction Company,
141 NLRB 872, but in that case and in the other Board cases cited therein the
steward, for whose conduct the union was held liable, took action in his capacity as
steward, either in threatening a walkout or demanding a discharge . In this case
Williams uttered no threats or demands except to indicate that , like Edwards in the
Tampa case , he would not work under nonunion conditions . To be sure , Williams
made no secret of his views, but this again is comparable to Edwards who "told some
of the other carpenters that he was leaving but he did not ask them to go with him,
and none of the other carpenters stopped work" ( 132 NLRB at 1369). Of course, in
Tampa the violation alleged was inducing or encouraging a strike, whereas here the
alleged violation is causing or attempting to cause a discharge . But in this case as in
that, "To hold that a steward may not walk off the job because of his own unwilling-
ness to handle nonunion products [or work with a nonunion man] without fixing a
responsibility for an unfair labor practice upon his union is to foreclose the steward,
simply by reason of his office, from all individual freedom of action ." Tampa Sand
and Material Co., supra. In this case Williams not only walked off the job, but he
also publicized Anderson 's lack of union membership . This, too, however, he did
in his individual capacity ; indeed , from my observation of Williams and from his
testimony , I have no doubt that he would have been just as vocal and forthright in
this matter had he not been the union steward , a post he filled on this job solely
because of job seniority. Nothing in the Union's rules directs or authorizes a steward
to spread the word among other employees that a nonmember is employed . His duty
under those rules is to make reports to the District Council.
890 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
General Counsel relies on provisions in the Union's rules under which members
who work with nonmembers are subject to fines. The Union represents that it no
longer enforces any such rules which contravene the Act. Nothing in this record
suggests that Williams threatened to invoke that rule; on the contrary, English
although he testified "there was a chance of being fined for being there" also testified
that Williams did not threaten him with a fine or ask him to leave the job.
General Counsel relies on certain other episodes as establishing that the Union
"actively fomented action against Anderson." Some 2 or 3 years before the events
with which we are primarily concerned, the Union removed certain stewards who had
circulated petitions protesting Anderson's expulsion from the Union. This establishes
,animosity to Anderson, which the Union does not deny, but sheds no light on
whether Williams' 1964 conduct should be considered as performed in his capacity
as steward.
After Anderson's discharge by the Company he obtained employment on a job
run by the Antler Company. While he was at work there, a business representative of
the Union remarked to him: "I suppose I will get shot for talking to you. They got
everyone so scared they are afraid to talk to you. They told me about the affidavit
Kortz had signed." While Anderson was at work on that job, one Blanda, a "roving
superintendent" for Antler, asked if he had a union card, observed that "All of a
sudden we are having a lot of union troubles," and asked Anderson to speak to the
company estimator, one Jurek. The latter told Anderson that he was to be dis-
charged because of his nonmembership in the Union . Anderson thereupon stated
his position under the law , and after a conference between Anderson and the Com-
pany's president, Anderson continued to work until he left the Antler job in normal
course . Nothing in this sequence of events suggests any illegal action by the Union.
The record does reveal that at this time a number of business agents for various crafts,
including the carpenters , checked the cards of employees at another Antler project
at Hastings , Minnesota , and in the course of so doing mentioned that Antler had hired
a nonunion carpenter , Anderson , at another job. The carpenter foreman at Hastings
mentioned this matter to Blanda, thereby setting in motion the train of events
described above . There is no showing in the record that any union representative
expressed to any Antler representative any intention to interfere with Anderson's
employment.
Finally, General Counsel relies on testimony that at a steward 's meeting nearly 2
months after Anderson's discharge from the Company, and while he was working at
the Antler job, a union official responded to a steward inquiry as to what to do about
Anderson by admonishing the stewards to treat Anderson as they would any man
without a card. The testimony is sharply contradicted. As the event followed long
after the discharge which gave rise to the sole unfair labor practice alleged in this
proceeding , I find it unnecessary to resolve the credibility issue. Even if made, the
remark would shed no light on whether Williams was acting in his private capacity or
as a steward when he spread the word 2 months earlier that Anderson was a non-
member. In the event Anderson' has further difficulties on the job of the type reflected
here, however, the question whether the stewards were advised as alleged above may
become material.
In short, I find on this record that although the Company discharged Anderson
because of curtailed production arising out of disaffection among the employees
because of his want of union membership, and although Union Shop Steward Harry
Williams played a substantial role in advising the employees of Anderson 's employ-
ment and his nonmembership, Williams did so in an individual capacity, and not in
the exercise of his duties as shop steward. It follows that the Union is not liable
for the acts of Williams which led to the discharge.
CONCLUSIONS OF LAW
1. The Company is engaged in activities affecting commerce within the meaning
of the Act.
2. The Union is a labor organization within the meaning of the Act.
3. The Union has not engaged in the unfair labor practices alleged in of the
complaint.
RECOMMENDED ORDER
The complaint herein should be, and hereby is, dismissed