United Brotherhood Of Carpenters And Joiners Of America, Afl-Cio, Carpenters Local Union No. 316 (Bay Counties General Contractors Association)

National Labor Relations Board - Board Decisions

Oct 31, 1988

291 N.L.R.B. 504 (N.L.R.B. 1988)

504 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
United Brotherhood of Carpenters and Joiners of
America, AFL-CIO, Carpenters Local Union
No 316 (Bay Counties General Contractors As
sociation) and Cleve Wallace Graves Case 32-
CB-2756
October 31 1988
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND CRACRAFT
On March 29 1988 Administrative Law Judge
Gerald A Wacknov issued the attached decision
The Respondent filed exceptions and a supporting
brief
The National Labor Relations Board has delegat
ed its authority in this proceeding to a three
member panel
The Board has considered the decision and the
record in light of the exceptions and brief and has
decided to affirm the judge s rulings findings i and
conclusions and to adopt the recommended Order
as modified and set forth in full below
ORDER
The National Labor Relations Board orders that
the Respondent United Brotherhood of Carpenters
and Joiners of America AFL-CIO Carpenters
Local Union No 316 San Jose California its offi
cers agents and representatives shall
1 Cease and desist from
(a) Coercing and restraining employees by re
quinng them to attend prounion demonstrations or
engage in any other union activity under the threat
of losing their numerical ranking on the out of
work list
(b) Placing employees in a lower numerical rank
ing on the out of work list because they failed and
refused to attend a prounion demonstration
(c) In any like or related manner restraining or
coercing employees in the exercise of the rights
guaranteed them by Section 7 of the Act
2 Take the following affirmative action neces
sary to effectuate the policies of the Act
Based on our review of the stipulated record in this case we also
fmd that the Respondent departed from its established hiring hall proce
dures by issuing the July 30 1987 letter to its registrants The letter states
that attendance at the August 7 1987 rollcall is mandatory and that no
excuses will be accepted Certain hiring hall tickets introduced into evi
dence by the General Counsel indicate that registrants are permitted two
absences from or late arrivals to rollcalls provided they contact the Re
spondent ahead of time This apparent departure from previously estab
lished hiring hall procedures further supports our finding that the Re
spondent violated Sec 8(b)(1)(A) and (2) of the Act by threatening to
assign and thereafter assigning lower numbers on the out-of work list to
certain hiring hall registrants because they failed to attend a union rally
Se Operating Engineers Local 406 (Ford Construction) 262 NLRB 50 51
(1982)
(a) Make Cleve Wallace Elmer Carl Honea Jr
and other similarly situated individuals whole for
any loss of earnings suffered by them by reason of
the discrimination against them in the manner set
forth in the remedy section of the administrative
law judge s decision
(b) Restore Cleve Wallace Elmer Carl Honea
Jr and any other employees to their proper place
on the hiring hall list and remove from its records
any reference to the lower placements
(c) Post at its office and meeting halls copies of
the attached notice marked Appendix 2 Copies
of the notice on forms provided by the Regional
Director for Region 32 after being signed by the
Respondents authorized representative shall be
posted by the Respondent immediately upon re
ceipt and maintained for 60 consecutive days in
conspicuous places including all places where no
tices to members are customarily posted Reasona
ble steps shall be taken by the Respondent to
ensure that the notices are not altered defaced or
covered by any other material
(d) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply
2 If this Order is enforced by a judgment of a United States court of
appeals the words in the notice reading Posted by Order of the Nation
al Labor Relations Board shall read Posted Pursuant to a Judgement of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice
WE WILL NOT coerce or restrain hiring hall reg
istrants by requiring that they appear for rollcall at
locations other than our normal hiring hall in order
to cause them to attend prounion demonstrations
WE WILL NOT assign employees a low number
on the out of work list because they refused to
attend the August 7 1987 prounion demonstration
at Minton & Company and we will pay backpay
and interest to registrants who have been adversely
affected by our conduct
WE WILL NOT in any like or related manner re
strain or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act
291 NLRB No 88
CARPENTERS LOCAL 316 (BAY COUNTIES CONTRACTORS) 505
WE WILL restore Cleve Wallace Elmer Carl
Honea Jr and any other employees to their proper
places on the hiring hall list and remove from our
records any reference to the lower placements
It is unlawful to condition placement on the out
of work list on a registrants union activity
UNITED BROTHERHOOD OF CARPEN
TERS AND JOINERS OF AMERICA
AFL-CIO CARPENTERS LOCAL
UNION No 316
Raoul Thorbourne Esq for the General Counsel
Michael B Roger Esq (Van Bourg Weinberg Roger and
Rosenfeld) of San Francisco California for the Re
spondent
cated within the State of California which sellers or sup
pliers received such goods in substantially the same form
directly from outside the State
It is admitted and I find that the Association and
each of its constituent member employers are now and
have been at all times material employers engaged in
commerce within the meaning of Section 2(2) (6) and
(7) of the Act
II THE LABOR ORGANIZATION INVOLVED
It is admitted that the Respondent is and has been at
all times material a labor organization within the mean
ing of Section 2(5) of the Act
III THE ALLEGED UNFAIR LABOR PRACTICES
A The Issue
DECISION
STATEMENT OF THE CASE
GERALD A WACKNOV Administrative Law Judge
Pursuant to notice a hearing regarding this matter was
held before me in Oakland California on January 7
1988 The initial charge was filed on August 10 1987 by
Cleve W Graves an individual An amended charge
was filed on September 22 1987
Thereafter on September 22 1987 the Regional Di
rector for Region 32 of the National Labor Relations
Board (the Board) issued a complaint and notice of hear
ing alleging a violation by United Brotherhood of Car
penters and Joiners of America AFL-CIO Carpenters
Local Union No 316 (Respondent) of Section 8(b)(1)(A)
and (2) of the National Labor Relations Act (the Act)
The parties were afforded a full opportunity to be
heard to call to examine and cross examine witnesses
and to introduce relevant evidence Since the close of
the hearing briefs have been received from the General
Counsel and counsel for Respondent
On the entire record and based on my observation of
the witnesses and consideration of the briefs submitted I
make the following
FINDINGS OF FACT
I JURISDICTION
At all times material the Bay Counties General Con
tractors Association (the Association) has been a volun
tary association of employers engaged in the construc
tion industry in California and has been organized for
the purpose inter alia of representing its constituent
member employers in negotiating and administering labor
agreements with the collective bargaining representatives
of certain employees of its constituent member employ
ers including Respondent
The constituent member employers of the Association
annually in the course and conduct of their respective
business operations collectively purchase and receive
goods or services valued in excess of $50 000 directly
from suppliers located outside the State of California
and collectively purchase and receive goods or services
valued in excess of $50 000 from sellers or suppliers lo
The principal issue raised by the pleadings is whether
the Respondent coerced and restrained employees in vio
lation of Section 8(b)(1)(A) and (2) of the Act by assign
ing them lower numbers on the hiring hall list because
they failed and refused to attend a union rally or demon
stration
B The Facts
The Respondent and other union members of the Car
penters 46 Northern California Counties Conference
Board and the Association (together with other employ
er members of a multiemployer bargaining group) have
maintained in effect and enforced a collective bargaining
agreement that sets forth the wages rates of pay hours
of employment and terms and conditions of employment
of an appropriate unit of employees of the member em
ployers of the Association and that contains a provision
calling for the operation of exclusive hiring halls by the
constitutent member labor organizations of the confer
ence board including Respondent
Pursuant to this agreement the Respondent has nor
mally operated and maintained a hiring hall at 2102 Al
maden Road San Jose California adjacent to Respond
ent s business offices at the same address The operation
of the hiring hall has included the use of an out of
work list under which registrants for work are entitled
to job referrals based on their relative positions on the
list
At a union meeting conducted on February 10 1987
Respondents membership passed a motion to endorse
the concept of a mobile hiring and dispatch hall There
after between February 10 and July 30 1987 three
hiring hall roll calls were held at locations away from
the normal hiring hall
On July 30 1987 Respondents business representative
Fred Wright sent the following letter to all hiring hall
registrants including Elmer Carl Honea Jr and Cleve
Wallace Graves the Charging Party as follows
506 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Roll Call Location for August 17 1987 (8 00 a in )
100 View Street Between Evelyn and Villa in
Mountain View
Minton & Company
Dear Brothers and Sisters
The Mill Cabinet Local Union #262 of the Santa
Clara Valley District Council is in need of our help
For the past twelve (12) weeks our brothers at
Local #262 have been involved in a bitter strike a
fight for their very existence
In a show of solidarity and support for our strik
ing brothers Local Union #316 in conjunction
with Local #668 and Local 1280 will again be
holding roll call in the field
The target is MINTON & COMPANY in Moun
tam View MINTON & COMPANY supplies mill
work pre hung doors and hardware They are an
old family owned firm who up until now have
been union
To reach MINTON & COMPANY from San
Jose proceed North on Highway 280 to Highway
85 Proceed North on Highway 85 to Evelyn Ave
exit off of Highway 85 Turn left on Evelyn
Avenue to MINTON & COMPANY
Park in the lot across the street from MINTON
& COMPANY on Evelyn Avenue next to the rail
road tracks
Local #316 will hold our roll call in front of
MINTON S main office at 100 View Street be
tween Evelyn and Villa St
This is a mandatory roll call THERE WILL BE
NO EXCUSES THOSE WHO CHOSE NOT TO
SHOW UP WILL BE PUT AT THE END OF
THE OUT OF WORK LIST"
The Hiring Hall at 2102 Almaden Road will be
open for dispatch requests and sign ups ONLYl!!
On August 7 1987 Graves and Honea and perhaps
other hiring hall registrants appeared at Respondent s
normal hiring hall but were not permitted to place their
names on the out of work list At this time Business
Agent Dennis Pearsall told Graves that if he did not pro
ceed to the Minton jobsite to place his name on the out
of work list at that location his name would be dropped
to the bottom of the list Further on August 10 Re
spondent s Business Representative Fred Wright told
Graves that because he did not show up at the Minton
jobsite the previous Friday (August 7) his name had been
dropped to the bottom of the list
As a result of their failure to attend the August 7 1987
roll call at the Minton jobsite Respondent did drop
Graves and Honea and perhaps others to the bottom of
the out of work 'ist
Analysis and conclusions
The Respondent maintains that the July 30 1987
memo merely provides notification of a change of loca
tion for the biweekly roll call Thus the registrants are
required only to be present answer their name when it is
called and receive their number on the out of work list
thereupon they are free to leave This procedure argues
Respondent is no different than the procedure required
to be followed at the normal union hiring hall location
and requires no union activity on the part of the regis
trants I do not agree
The July 30 1987 letter is quite specific It solicits aid
in furtherance of a bitter strike in the form of a show
of solidarity and support for members of another local
who are engaged in a fight for their very existence
and requires that the registrants congregate for the roll
call in front of Minton s main office where apparently
picketing was being conducted Clearly regardless of
whether the registrants elected to carry a picket sign
their very prese-ice at the site mandated by Respondent
was orchestrated to be and was in fact union activity
See Mine Workers Local 1329 (Alpine Construction) 276
NLRB 415 431 (1985)
Although a union may discipline members who refuse
to support legitimate union ends such discipline may not
adversely affect an employees employment status Food
& Commercial Workers Local 597 (S & M Grocers) 237
NLRB 1159 (1978) Thus as the Board stated in Long
shoremen ILWU Local 17 (Associated Metals) 173 NLRB
594 (1968)
We agree with the Trial Examiners ultimate con
clusion since the Respondents business agent
conceded that one of the reasons Kraus was refused
clearance was that the Respondent believed that he
had failed to perform his picket duty during the
strike at Associated As found by the Trial Examin
er a union violates Section 8(b)(2) of the Act by
imposing such a discriminatory condition upon re
ferral of an employee under a hiring arrangement
which makes referral a condition of employment
Accordingly we find that the Respondent
caused or attempted to cause Associated to dis
criminate against Kraus in violation of Section
8(a)(3) of the Act and thereby violated Section
8(b)(2) and (1)(A) of the Act
See also Radio Officers v NLRB 347 U S 17 (1954) Op
erating Engineers Local 450 (Tellepsen Construction) 122
NLRB 564 583 ( 1958) enfd 281 F 2d 313 (5th Cir
1960)
In Painters Local 277 v NLRB 717 F 2d 805 812 (3d
Cir 1983 ) the court states
Section 8(a)(3) 29 U S C § 158(a)(3) prohibits em
ployers from discriminating among employees in a
way that would encourage or discourage union
membership Section 8(b)(2) prohibits unions from
causing or attempting to cause employers to dis
criminate in violation of section 8(a)(3) The mem
bership to which section 8(a)(3) refers is thus in
corporated in section 8(b)(2) and is broad enough to
embrace participation in union activities and mainte
nance of good standing Local 100 United
Association of Journeymen v Borden 373 U S 690
83 S Ct 1423 10 L Ed 2d 638 (1963) The oft
quoted passage on this subject bears repeating here
The policy of the Act is to insulate employees
jobs from their organizational rights Thus sections
CARPENTERS LOCAL 316 (BAY COUNTIES CONTRACTORS) 507
8(a)(3) and 8(b)(2) were designed to allow employ
ees to freely exercise their right to be good bad or
indifferent members or abstain from joining any
union without imperiling their livelihood Radio
Officers Union v NLRB 347 U S 17 40 74 S Ct
323 335 98 L Ed 455 (1954) Specifically the
Union may not use its power to provide or with
hold job referrals in order to reward or punish a
worker for his union related activities
The Respondents discipline of Graves Honea and
other hiring hall registrants who refused to attend the
August 7 1987 roll call which was in effect a prounion
demonstration took the form not of internal union sanc
tions but rather of the loss of their numerical hiring hall
ranking and thus directly affected their employment op
portunities By such conduct the Respondent violated
Section 8(b)(2) of the Act Further by the June 30 1987
letter and August 7 and 10 1987 statements of Business
Agents Pearsall and Wright respectively the Respond
ent has violated Section 8(b)(1)(A) of the Act as alleged
CONCLUSIONS OF LAW
I Bay Counties General Contractors Association and
each of its constitutent members are employers engaged
in commerce within the meaning of Section 2(2) (6) and
(7) of the Act
2 The Respondent is a labor organization within the
meaning of Section 2(5) of the Act
3 The Respondent has violated Section 8(b)(1)(A) and
(2) of the Act as alleged
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices I shall recommend that it cease
and desist therefrom and take certain affirmative action
to effectuate the policies of the Act including the post
ing of an appropriate notice and the payment of backpay
for any loss of earnings suffered by Cleve Wallace
Graves Elmer Carl Honea Jr and other similarly situat
ed individuals who may have received a lower numerical
hiring hall ranking because they failed to attend the
August 7 1987 demonstration Loss of earnings shall be
computed in accordance with the Board s decision in
F W Woolworth Co 90 NLRB 289 (1950) with interest
on such backpay to be computed in accordance with the
Board s decision in New Horizons for the Retarded 283
NLRB 1173 (1987) 1
[Recommended Order omitted from publication ]
' Under New Horizons for the Retarded interest is computed at the
short term Federal rate for the underpayment of taxes as set out in the
1986 amendment to 26 U S C § 6621