W & H Conveyor Systems, Inc.

National Labor Relations Board - Board Decisions

Aug 6, 1980

250 N.L.R.B. 1426 (N.L.R.B. 1980)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
United Brotherhood of Carpenters and Joiners of
America, Local No. 1914, AFL-CIO (W & H
Conveyor Systems, Inc.) and Roy Washburn.
Case 28-CB-1497
August 6, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND TRUESDALE
On May 12, 1980, Administrative Law Judge
Harold A. Kennedy issued the attached Decision in
this proceeding. Thereafter, Respondent filed ex-
ceptions and a supporting brief, and the General
Counsel filed a brief in answer to Respondent's ex-
ceptions.
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 at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' 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 Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the Respondent, United Broth-
erhood of Carpenters and Joiners of America,
Local No. 1914, AFL-CIO, Phoenix, Arizona, its
officers, agents, and representative, shall take the
action set forth in said recommended Order, except
that the attached notice is substituted for that of
the Administrative Law Judge.
' Respondent has in effect 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
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect. Standard Dry Wall Prod-
ucts. Inc.. 91 NLRB 544 (1950), enfd. 188 F2d 362 (3d Cir. 1951). We
have carefully examined the record and find no basis for reversing his
findings.
APPENDIX
NOTICE TO MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT operate our exclusive hiring
hall in disregard of the provisions of the col-
lective-bargaining agreement dated July 31,
1976, or any successor agreement.
WE WILL NOT refuse to dispatch Roy Wash-
burn or any other person to his or her rightful
employment.
WE WILL NOT in any like or related manner
restrain or coerce employees in the exercise of
the rights guaranteed them in Section 7 of the
Act.
WE WILL notify W & H Conveyor Systems,
Inc., in writing, that we have no objection to
the employment of Roy Washburn.
WE WILL make whole Roy Washburn for
the loss of pay or benefits he may have suf-
fered by reason of the discrimination against
him, plus interest.
UNITED BROTHERHOOD OF CARPEN-
TERS AND JOINERS OF AMERICA,
LOCAL No. 1914, AFL-CIO
DECISION
HAROLD A. KENNEDY, Administrative Law Judge:
This case, which was heard in Phoenix, Arizona, on Sep-
tember 11, 1979,1 presents the issue whether the Re-
spondent Union, United Brotherhood of Carpenters and
Joiners of America, Local No. 1914, AFL-CIO, violated
the National Labor Relations Act, as amended (herein
called the Act), on or about May 2 in connection with
the operation of an exclusive hiring hall by refusing to
refer a worker named Hoy Washburn to W & H Con-
veyor Systems, Inc. (herein called W & H), an employer
engaged at the time in installing a conveyor belt system
at the Sky Harbor Airport in Phoenix. Having consid-
ered the whole record and determined that Respondent
did violate Section 8(b)(1)(A) and (2) of the Act by re-
fusing to refer Washburn as alleged, I recommend entry
of an order proscribing such violations. 2
Admitted Allegations and Contested Charges
The Respondent Union is a labor organization as de-
fined in Section 2(b) of the Act. W & H is a New York
corporation with its principal office and place of business
located in Carlstadt, New Jersey. On May 7 Roy Wash-
All dates herein refer to 1979 unless otherwise stated The General
Counsel has requested that certain corrections be made in the transcript
Respondent has not objected to any of the proposed corrections, and the
corrections are therefore ordered as requested.
I Sec 8(b) provides, in part, that it shall be an unfair labor practice for
a labor organization or its agents-
(I) to restrain or coerce (A) employees in the exercise of the rights
guaranteed in section 7: Provrded, That this paragraph shall not
impair the right of a labor organization to prescribe its own rules
with respect to the acquisition or retention of membership therein
(2) to cause or attempt to cause an employer to discriminate against
an employee in violation of subsection (a)(3) or to discriminate
against an employee with respect to whom membership in such orga-
nization has been denied or terminated on some ground other than
his failure to tender the periodic dues and the initiation fees uniform-
ly required as a condition of acquiring or retaining membership
250 NLRB No. 182
1426
CARPENTERS, LOCAL NO. 1914
burn, an individual, filed the charge herein which was
served on the Respondent on the same day. W & H is
engaged in the business of building and installing con-
veyor belt systems. W & H is an employer engaged in
commerce within the meaning of Section 2(2), (6), and
(7) of the Act. Between April 19 And the date of the
complaint, which was issued on May 30, W & H pur-
chased goods and materials valued in excess of $50,000
and caused them to be transported in commerce to the
Sky Harbor jobsite directly from suppliers located in
States other than Arizona.
Respondent employs the following persons: Lee Kelly,
business manager; Leroy Jones, assistant business man-
ager; and Susan Francis, secretary.
Respondent is a party to a collective-bargaining agree-
ment which provides for operation of an exclusive hiring
hall by Respondent whereby signatory employers obtain
all carpentry, millwright, and drywall workmen to be
employed within Respondent's area jurisdiction. W & H
is a signatory employer to said agreement. The collec-
tive-bargaining agreement includes the following provi-
sions:
704.3-Each dispatching office shall maintain ap-
propriate registration lists or cards, kept current,
and referrals will be made in the following order of
preference:
704.3.1-Group "A". Workmen who are properly
qualified, (as hereinafter provided) whose names are
properly registered, and who have been formerly
employed for a period of at least sixty (60) days by
any individual Contractors signatory to this Agree-
ment in a craft covered by this agreement or other
agreements containing this procedure between the
union and other employers in the state of Arizona
within the immediately preceding two (2) years.
704.3.1.1-Individual Contractors may requisition a
workman specifically by name from Group "A" for
the same craft in which he was previously em-
ployed, provided said workman is properly regis-
tered and available for such employment.
706-Registration. No workman shall be refused
registration or dispatchment because of his Union or
non-union status, if he is otherwise entitled to dis-
patchment. Preference in dispatchment is based
solely upon the requirements of Pararagraphs 704.3
and 704.4 hereof.
Paragraph 10 of the complaint alleges that on or about
May 2 W & H requested Respondent to refer Washburn
to W & H for employment; that Washburn "was proper-
ly qualified and registered as a workman in Group 'A"';
and that "Respondent, by its agent, Lee Kelly, refused"
to do so "for arbitrary and invidious reasons and because
of his opposition to the Respondent's leadership." The
complaint further alleges that such conduct (I) has
caused or attempted to cause an employer to discrimi-
nate in violation of Section 8(a)(3) of the Act and there-
by violated Section 8(b)(2) (pars. I I and 12) and (2) has
restrained and coerced employees in the exercise of their
rights guaranteed in Section 7 of the Act and thereby
violated Section 8(b)(l)(A) (par. 13d).
At the hearing the parties filed a written stipulation
which provides that Kelly and Jones have been agents of
the Respondent during the relevant time period within
the meaning of Section 2(13) of the Act. The stipulation
also provides that Respondent and W & H were, during
the period April 19-May 31, parties to a collective-bar-
gaining agreement which provided for operation of an
exclusive hiring hall by Respondent by which Respond-
ent referred to signatory employers all carpentry, mill-
wright, and drywall workmen within Respondent's area
jurisdiction. The collective-bargaining agreement dated
July 31, 1976, and covering the period July 31, 1976-
May 31, 1979, was made a part of the stipulation which
also included a statement to the effect that Respondent
and W & H have been, since June I, parties to a new
collective-bargaining agreement which "contains no ma-
terial changes in the provisions governing the operation
of the exclusive hiring hall by the Respondent."
The Testimony
The testimony is largely undisputed.
Roy Edward Washburn, the Charging Party, is a mill-
wright and has been a member of Local 1914 for ap-
proximately 7 years. He has been active in the Local's
affairs over the years, particularly during the Union elec-
tion campaign which began in December 1978 and ended
with an election on June 12. Washburn had supported a
losing slate which consisted of Chuck Graham as a can-
didate for business agent, Gene Hodges as a candidate
for president, and himself as a candidate for recording
secretary. (On cross-examination Washburn mentioned
Maurice Robinson also as a member of the opposition
slate.) During the campaign, according to Washburn, he
used the phone, handed out literature, and campaigned
"all of the time." He did not believe that he had told
Business Manager Kelly or Assistant Business Manager
Jones of his candidacy. On cross-examination he agreed
that he had been outspoken concerning union affairs but
denied that he had always been critical of the administra-
tion of the Union by Kelly. "I've given it to them in
things I felt they've done wrong," he said. Washburn
said he had once been a good friend of Assistant Man-
ager Jones, with whom he had worked prior to the time
Jones became an officer of the Union. Washburn recalled
that he had criticized the operation of the Union's hiring
hall during a particular conversation with Jones and was
told, in effect, that it was none of Washburn's business
how the hiring hall was run.3
Washburn said he was told by a friend, Ed Hines, then
acting steward on the W & H job at Sky Harbor Air-
port, that the W & H superintendent would ask the
Union to refer Washburn on May 2 to work at Sky
Harbor. Hines had reported to Washburn that he had
recommended Washburn to the superintendent as a
"good worker and good welder" after the superintendent
had inquired about the identity of a good welder with
I Jones tesillred he did nol recall "that par( of the consersallon.
1427
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
some conveyor work experience. 4 Washburn, who said
he had been out of town when called by Hines, went to
the union hall and signed up on the "A" list on April 30
as he was qualified to do. Washburn thereafter filed the
charge in this proceeding when he learned another man
had been sent by the Union to the W & H job at Sky
Harbor. 5
Lee Kelly, business manager of Local 1914 for about 7
years, was first called by the General Counsel and later
by Respondent as a defense witness. He explained the
operation of the Union's hiring hall-how workers
signed up in a book and how referrals were thereafter
made. A union secretary at the end of each week would
"take off" from the book the names of workers who had
worked for a signatory contractor the specified time and
then prepared an "A" list. Kelly agreed that W & H had
requested Washburn on May 2, that he was on the "A"
list at the time, and that another person, Audie Red-
strom, had been sent instead.
Kelly agreed that a provision in the collective-bargain-
ing agreement, section 704.3.1.1, allows an employer to
call in and ask for a specific worker on the "A" list. He
had "no quarrel" with the provision, he said, and agreed
that there was a valid purpose in having the provision:
Well, I suppose it's to give the contractor the
right to hire people that have worked for him in the
past that are good workers and probably skilled in a
special part of the craft that they need, whether it
be a carpenter or a millwright. He may be a good
high man and they would like to have him. A lot of
people can't climb high. He may be a good welder.
Kelly indicated that there were 49 other workers on the
list when W & H called in for Washburn, and he was
concerned about the proper treatment of the other work-
ers. 6 Kelly said there were problems in the local Union
because of the dishonesty of some members. He said he
talked "dozen of times" about workers jumping the list
or soliciting work.
Kelly indicated that he was opposed to allowing a new
contractor in the area to invoke section 704.3.1.1 in order
that the Union might stop a "buddy system" that allows
workers to "jump the list." He agreed, however, that the
buddy system would continue with old contractors con-
tinuing to call in for specific workers by name. Kelly
was of the view that when a new contractor comes into
the area and does not know any of the workers "a little
judgment" is called for. He said he knew in the instant
case that the contractor "had never been there and he
didn't know anybody" and "he [the contractor] didn't
have the right to request somebody by name." Kelly
4 Dirk Van Everdingen. W & H's superintendent at Sky Harbor, indi-
cated that Hines had mentioned Washburn's name unsolicited but that he
(Van Everdingen) had told Hines he would be calling the Union for an-
other man.
5 Washburn said the Union did refer him to the W & H Airport job in
June and that he continued to work there until he got a better job some-
time in August. (Resp. Exh 10.)
6 Asked by a General Counsel's attorney whether the Union had been
unable to fill a call for four men for the W & H job, Kelly replied:
I couldn't answer that; I doubt it very much, we had plenty of
people on the list
agreed that the Union had on no other occasion applied
the 704.3.1.1 provision against a new contractor but cited
a 1959 directive from his union headquarters in Indiana-
polis as supporting his position.7 According to Kelly, the
directive "pretty well states that the contractor should
not hire anybody unless they have worked for them
before, and we have had that posted on our board many,
many times. . ."s
Kelly agreed that he had fired Ed Hines as steward on
the W & H airport job on May 12, the day after Hines
had given the National Labor Relations Board a state-
ment about this matter. Kelly said he could dismiss a ste-
ward at any time, and he did so for Hines, "blatant at-
tempt to bypass the hiring hall procedure." He never no-
tified Hines of his replacement as steward and replaced
him by simply designating Ken Carey as the new ste-
ward on the W & H airport job.
Kelly stated that he did not know that Washburn had
campaigned actively for Chuck Graham but "was aware
that Washburn would campaign for anybody against
me." On defense Kelly testified that he did not know
Washburn was a candidate for office until the second
Saturday in May but he acknowledged however that
Washburn had been opposed to his policies "for many
years."
Members of the slate in opposition to his administra-
tion were not, according to Kelly, eligible to run for
office-and, therefore, presumably their candidacies pre-
sented no threat to him and gave him no reason to dis-
criminate against Washburn-as they did not comply
with a bylaw that required attendance of six (50 percent)
of the union meetings held during the preceding year.9
During his testimony on defense Kelly said "it isn't a
rule" that a new contractor cannot ask for a worker by
name. "[I]t's something I asked the contractor to comply
with for the good of his job and the good of all the jobs,
it's not a rule." But he pointed out that he was "a great
believer in a no request policy completely," adding, "but
I don't think I can get away with it." "I'd like to apply it
to all of them," he said. Kelly said there were three
other new contractors in the area and that he sought to
maintain the "same" policy (as followed in the case of W
& H's request for Washburn) with respect to referrals,
but, he said, "You can't change something overnight."
Kelly also said:
What I do is ask the contractor if it's all right with
him if we have a no request policy. That's entirely
different. It's got [sic] a ruling, I say, "Is it all right
Testifying on defense, Kelly could recall no other incident over the
past 7 years when an out-of-town contractor had asked for a worker by
name
8 But on cross-examination Kelly said he was not sure when the direc-
live was last posted The directive was received as Resp. Exh II. Kelly
said he relied on rule 5, which reads in part:
However an employer may request by name individuals formerly
employed by him on work performed in the geographical area of the
Local Union (District Council)
Asked if Washburn had not been employed some distance away on
out-of-town jobs during the preceding year. Kelly replied "Well, that is
where most of [thel work is
1428
CARPENTERS, LOCAL NO 1914
with you it we have a no request policy cause we
hire directly from the hall." He says, "Fine."
If the contractor will not comply with his policy, Kelly
does send the requested workers: "[t]here's nothing I can
do about it." ' °
Dirk Van Everdingen, superintendent of the W & H job
at Sky Harbor Airport, said he first met Local 1914
Manager Kelly on April 19 when he signed on with the
Union as a signatory contractor on behalf of W & H. He
recalled that Hines had suggested that he ask for Wash-
burn when requesting the Union for a new worker. He
did so when he called the Union and talked with a
woman (later identified as Susan Frances). I The woman
indicated there was a question about the referral of
Washburn and that, in fact, Audie Redstrom was re-
ferred rather than Washburn. Van Everdingen said he
talked with Kelly a few days later and was told by Kelly
that "he'd rather not have me request people by name."
Ed Hines, a member of Local 1914 for 7 years, cor-
roborated the testimony of previous witnesses-that he
had recommended Washburn to W & H Superintendent
Van Everdingen and that the superintendent had asked
the Union to refer Washburn to it for work at Sky
Harbor. He recalled Jones later told him that W & H as
a new company in the State had no right to ask for a
particular worker and that job referrals to the Company
would be "strictly by the list." Jones also told him,
Hines said, that he need not have given a statement to
the Labor Board. Hines was admittedly upset at the way
he was relieved as steward at the airport job but denied
that he had improperly injected himself into the hiring
hall controversy by suggesting Washburn to W & H.
Hines stated:
It's not an uncommon practice, because I did it and
because Roy Washburn was involved, that's what
this is all about. Had it been a couple other people I
could mention, nothing ever would have come
about, you know. I've seen jobs where possibly, I'd
say the better part of the job had been maned [sic]
by requests. I've seen this happen, but you know,
you go open up a can or worms and what's going
to come of it. Everybody's putting political under-
tones on this thing, and I don't have any hard feel-
ings toward Leroy Jones. I don't have any hard
feelings toward Lee Kelly. I guess they're doing
their job the best they know how, but you know
right's right. 12
10 Asked why he could recommend a person to a new contractor but
that Hines could not, Kelly pointed out: "[t]here's a difference in the po-
sition that we hold. This is my job to recommend to the contractor
people that can do the job."
II Hines made two calls to the Union; the first time he forgot to ask
for Washburn by name and then called back again.
iI Susan Francis, a secretary employed at Local 1914 and the one who
does "most of the dispatching under Mr. Kelly's direction." testified that
"(als far as I know" a contracting concern could not ask for a worker by
name unless he had worked for the company before. She said she told
Van Everdingen when he phoned and asked specifically for Washburn:
"[lit was my understanding there'd be no requests on the job, and I'd
have to check with Mr. Kelly." She said she checked with Kelly wvho
told her, "No, to go by the list That was the agreement."
Charles Graham, a member of Local 1914 for 12 years
and a former business manager of the Union, testified, as
Washburn and Hines had before him, that he was un-
aware of any rule which restricted a new contractor
from asking for referral of a specific worker. He said he
was also unaware of the Indianapolis union directive and
was of the opinion that it would not be applicable to
Local 1914 anyway.
Leroy Jones, president of Local 1914 since 1978 and as-
sistant business representative since 1979, was called by
both the General Counsel and the Respondent. He said
he did not know that Washburn was seeking office him-
self until mid-May 1979.13 Jones acknowledged, howev-
er, that he "had been aware for quite sometime that Mr.
Washburn disagreed with Kelly's administration." Jones
said he did not recall discussing Washburn's opposition
to Kelly's administration with Kelly, but he thought it
was "common knowledge."
Jones testified that Hines had telephoned him some
time prior to May 2 and inquired about the possible re-
ferral of Washburn to the W & H airport job. His re-
sponse was, he said, "I'd have to wait and see at the time
the request came in .... " Several weeks later, accord-
ing to Jones, Hines came to the union office and "apolo-
gized to me for being involved with these charges and I
told him that I was disappointed that he had not used the
grievance procedure through the District Council...."
He denied making any threats against Hines.
Jones said he tried to reach Washburn for a job with
Robert E. White, a local contractor who had specifically
asked for Washburn, but he said he was unable to reach
him at his home.
Discussion
The Circuit Court of Appeals for the Ninth Circuit re-
cently stated in N.L.R.B. v. International Association of
Bridge, Structural and Ornamental Iron Workers, Local
433 [Associated General Contractors of California, Inc.],
600 F.2d 770 (9th Cir. 1979), enfg. 228 NLRB 1420
(1977):
On a number of previous occasions, we have held
that it is an unfair labor practice in violation of §§
8(b)(1)(A) and 8(b)(2) for a bargaining representa-
tive to act in an unreasonable, arbitrary, or invi-
dious manner in regard to an employee's employ-
ment status. Kling v. N.L.R.B., 503 F.2d 1044, 1046,
88 LRRM 2385 (9th Cir. 1975). See, e.g., N.L.R.B.
v. Bricklayers Local No. 7, 563 F.2d 977, [96 LRRM
3202] (9th Cir. 1977). By wielding its power arbi-
trarily, the Union gives notice that its favor must be
curried, thereby encouraging membership and un-
questioned adherence to its policies. Laborers and
Hod Carriers Local No. 341 v. N.L.R.B., 564 F.2d
834, 839-40, 97 LRRM 2287 (9th Cir. 1977). No
specific intent to discriminate on the basis of union
membership need be shown; if the foreseeable result
of discrimination is the encouragement of union
'] He agreed later on cross-examination, however, that he was aware
earlier that Washburn was supporting Graham for union office
1429
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
membership, it must be supported by a legitimate
purpose. Id .....
Even more recently the same court in N.L.R.B. v. La-
borers' International Union of North America, Local 300,
AFL-CIO [Memorial Park Development Assn., Inc.], 613
F.2d 203 (9th Cir. 1980), stated:
[A]lthough the union follows its hiring hall rules in
doing so, a single instance of discriminatory treat-
ment will support a finding of unlawful discrimina-
tion when those rules are not consistently followed.
As in Local 83 [Construction Bldg. Materials & Misc.
Drivers Local 83 v. N.L.R.B., 590 F.2d 316 (9th Cir.
1979)], the Union here did not consistently follow
its hiring hall rules. To be sure, the rules in this case
have a contractual basis, while in Local 83 it ap-
pears that the rules merely represented established
union practice. See id. at 510. Even so, the principle
is the same. When a union introduces an element of
discretion into what is otherwise a non-discretion-
ary process, the union may be held accountable for
discriminatory exercise of that discretion.
Quoting from the Board's decision in International Broth-
erhood of Electrical Workers, Local 592 (United Engineers
& Construction Co.), 223 NLRB 899, 901 (1976):
[A]uthority support the view that where referral
under an exclusive hiring hall agreement is condi-
tioned upon clear and unambiguous standards set
forth in that agreement, the refusal to refer an em-
ployee who qualifies for referral under such stand-
ards, without more, suffices to establish, prima facie,
a violation of Section 8(b)(2) and (1)(A) of the Act.
Thus, in International Association of Heat & Frost In-
sulators & Asbestos Workers, AFL-CIO, Local 22
(Rosendahl, Inc.), 212 NLRB 913 (1974), a labor or-
ganization was held to have violated Section 8(b)(2)
and (I)(A) of the Act by refusing to refer a
member, under a contractual request by name pro-
vision, despite the absence of specific evidence that
the Union, in doing so, was motivated by a desire to
encourage union membership. Pursuant to the hold-
ing in Rosendahl, supra, under an exclusive hiring
arrangement a labor organization is under a duty to
conform with and apply lawful contractual stand-
ards in administering registry, preference and refer-
rals, and any departure therefrom resulting in a
denial of employment to a member falls within that
class of discrimination which inherently encourages
union membership. See, e.g., Radio Officers' Union
of the Commercial Telegraphers Union, AFL [A. H.
Bull Steamship Company] v. N.L.R.B., 347 U.S. 17,
40-42 (1954). Thus, under established precedent a
proscribed discriminatory motivation is presumed
where, through its control of employment opportu-
nities, a labor organization demonstrates its power
by impairing an employee's tenure of employ-
ment. 1 4
" The Supreme Court stated in Radio Officers' Union:
The policy of the Act is to insulate employee's job from their organi-
zational rights. Thus, §§ 8(aX3) and 8(bX2) were designed to allow
The Board has declined to hold as unlawful per se
every interference with an employee's status for reasons
other than the failure to pay dues and initiation fees. In
International Union of Operating Engineers, Local 18,
AFL-CIO (Ohio Contractors Assn.), 204 NLRB 681
(1973), ' 5 the Board stated:
When a union prevents an employee from being
hired or causes an employee's discharge, it has dem-
onstrated its influence over the employee and its
power to affect his livelihood in so dramatic a way
that we will infer-or, if you please, adopt a pre-
sumption that the effect of its action is to encourage
union membership on the part of all employees who
have perceived that exercise of power.3 But the in-
ference may be overcome, or the presumption re-
butted, not only when the interference with em-
ployment was pursuant to a valid union-security
clause, but also in instances where the facts show
that the union action was necessary to the effective
performance of its function of representing its con-
stituency.
Thus the Supreme Court has sanctioned union
control over access to employment through hiring
hall agreements, 4 even though recognizing that "the
very existence of a hiring hall encourages union
membership." And this Board has found legitimate
a union's action in causing the layoff of an employ-
ee who insisted on working without receiving a
subsistence allowance called for by the collective-
bargaining agreement. s In such cases, the union's
actions, while incidentally encouraging union mem-
bership, were nevertheless essential to its effective
representation of employees.
3 Radio Officers' Union [A. H Bull Steamship Co.] v. NL.R.B.,
347 U.S, 17 (1954).
4 Local 357, Teamsters [Los Angeles-Seattle Motor Express] v
N.LR.B., 365 US. 667 (1961).
a Plant Corporation, fn 2, supra
In the instant matter, section 704.3.1.1 of the collec-
tive-bargaining agreement granted all signatory contrac-
tors, including those who were new in the area, the right
to request a worker by name from the Group "A" list.
W & H, through its superintendent, Dirk Van Everdin-
gen, made such a request for Roy Washburn at a time
when he was eligible for the assignment: He had been
previously employed as a millwright, and he was on the
"A" list and was available for employment. Respondent
refused to refer Washburn as requested by W & H. It re-
mains to be determined whether Respondent's action was
"necessary to the effective performance of its functions
in representing employees."
employees to freely exercise their right to join unions, be good, bad
or indifferent members or abstain from joining any union without im-
periling their livelihood.
's The Board's decision, 220 NLRB 147 (1975), was reversed and re-
manded on other grounds 496 F.2d 1308 (3d Cir. 1974). The same lan-
guage appears, however, in International Association of Heat & Frost Insu-
lators & Asbestos Workers. AFL-CIO. Local 22 (Rosendahl Inc.), 212
NLRB 913 (1974).
1430
CARPENTERS. LOCAL NO. 1914
The Respondent Union concedes that it has acted in a
manner inconsistent with the express terms of the collec-
tive-bargaining agreement, but it asserts that its "action
was necessary to the effective performance of its func-
tion of representing its constitutency" (citing Operating
Engineers. Local 18, supra). Respondent stated:
Kelly reacted reasonably to an unfair situation, by
imposing a hiring hall policy consistent in every
way with the referral-by-name provision of the col-
lective-bargaining agreement, which was designed
to assist employers, clearly not hiring hall registrants.
Kelly's clear intent was to prevent the manipulation
of the hiring hall by Hines and Washburn. This fact
is emphasized by Hines' removal as Union steward
following his clear involvement in efforts to under-
mine the hiring hall.
I reject Respondent's contentions.
The Respondent Union apparently sees no potential
for abuse by it through application of Kelly's "new con-
tractor" rule by which the Union has the power to
refuse the request for a specific worker by a new em-
ployer in the area in disregard of the plain terms of the
collective-bargaining agreement. The Union overlooks
the fact that it is the employer who is given the right to
request a worker by name, regardless of how the em-
ployer learns the identity of the worker.
Granted that Business Manager Kelly was concerned
about workers "jumping the list" by resort to the "buddy
system," Kelly's solution was neither authorized by the
collective-bargaining agreement nor rationally designed
to correct the supposed evil.
I am persuaded that Kelly seized upon the new con-
tractor rule to prevent the dispatch of Washburn to W &
H. The testimony of Washburn, Hines, and Graham that
the rule was previously unknown was convincing; the
testimony of the Union's secretary that it had always
been in effect ("as far as I know") was not. Kelly's appli-
cation of the new rule was admittedly inconsistent. After
applying it for the first time when W & H asked for
Washburn on May 2, he did not apply it to three other
new contractors in the area. The so-called International
directive, presumably sent to Local 1914 20 years earlier,
hardly provides a basis for creating or applying such a
rule that is contrary to the express terms of the collec-
tive-bargaining agreement."6 Kelly's testimony about the
posting of the directive was uncertain-and unconvinc-
ing.
More important, Kelly's new contractor rule could do
little to solve the supposed evil that Kelly wanted to
remedy. Kelly, himself, indicated that referrals to new
contractors were rare. The great majority of referrals in-
volve aid contractors, so the rule have had little effect in
stamping out "jumping the list" through use of the
"buddy system." I find Kelly refused to refer Washburn
to W & H on May 2 because of Washburn's activities in
opposition to Kelly's administration of the Union. I be-
"l Respondent states in its brief that it "has for many years maintained
an unwritten rule prohibiting registrants from 'jumping the list' by solicit-
ing their ovwn jobs, or by having friends solicit jobs" {Emphasis sup-
plied )
lieve Kelly conceived of his new contractor's rule,
which was not previously known to the workers or used
by the Union, in order to mask the real reason for refus-
ing to refer Washburn. Kelly's hostility toward Wash-
burn is also indicated by his immediate dismissal of Hines
as steward on the W & H job for supposedly undermin-
ing the hiring hall system. It is thus apparent that Kelly's
hostility extended to a person who would seek to help
Washburn.
That Kelly did not know Washburn himself was to be
a candidate for union office until mid-May (after the re-
quested referral of Washburn by W & H), that Kelly
may not have known that Washburn would support op-
position candidates, that Kelly may not have known that
Washburn and other members of his opposition slate may
not have been eligible for union office-all of these are
irrelevant considerations. Kelly did know of Washburn's
opposition to Kelly's administration for years, and I am
persuaded that such fact motivated Kelly not to refer
Washburn when specifically asked for by W & H's su-
perintendent, Dirk Van Everdingen, on May 2. Further,
that Respondent has referred Washburn on other occa-
sions and that it has allowed him "to openly criticize
Union officials" do not, of course, excuse Respondent
from failing to honor the request W & H made for
Washburn on May 2 and are not valid defenses to this
action.
There are some similarities between the instant case
and United Brotherhood of Painters, Decorators & Paper-
hangers of America, Local Union No. 487, AFL-CIO
(American Coatings, Inc.), 226 NLR8 299 (1976), wherein
the Board found that a union's "action and rationale"
had overcome the presumption of illegality, but there are
differences in the cases which make the latter case inap-
posite here. In American Coatings, the employer had
found some referrals by the union to be unsatisfactory,
and union officials were concerned about that fact. The
employer's foreman, Kappos, first asked for referral of an
employee named Reise, but at the time Reise "hadn't
signed the out-of-work list." Reise also complained that
he had not been later referred to the employer (who had
switched a brush painter to a spray job at the request of
the union and then determined that it needed referral of
another worker), but on that occasion it had not asked
"expressly for him."
Sheet Metal Workers International Association, Local
Union No. 202, AFL-CIO, 233 NLRB 732 (1977), also
cited by Respondent, is quite different from the instant
matter, however, and is easily distinguished. It is enough
to say that in that case the charging party had a long
(but remote) history of opposing the administration of
Union Business Representative Robert DeBartolo and
Business Manager Arthur Brown but "did not question
either Brown or DeBartolo concerning why he has not
been referred during this [relevant] period."
Thus, I find the General Counsel's complaint to be
fully supported by the evidence. Respondent's new con-
tractor rule was not known to the workers, it was discri-
minatorily applied to prevent the dispatch of Washburn
to the W & H job at Sky Harbor Airport and the rule
1431
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was not reasonably related to achieving a legitimate ob-
jective. 7
Based on the foregoing, I make the following:
CONCI.USIONS OF LAW
I. United Brotherhood of Carpenters and Joiners of
America, Local No. 1914, AFL-CIO, is a labor organi-
zation within the meaning of Section 2(5) of the Act.
2. W & H Conveyor Systems, Inc., is an employer en-
gaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
3. Respondent and W & H Conveyor Systems, Inc.,
were parties to a collective-bargaining agreement dated
July 31, 1976, under which Respondent has operated an
exclusive hiring hall.
4. Respondent violated Section 8(b)(2) and (I)(A) of
the Act by (a) operating the exclusive hiring hall in dis-
regard of the provisions of the collective-bargaining
agreement, and (b) refusing to dispatch Roy Washburn
when requested to do so by W & H Conveyor Systems,
Inc.
THE REMEDY
Having found that Respondent engaged in unfair labor
practices, I shall recommend issuance of an order that it
cease and desist therefrom, and that it take affirmative
action necessary to effectuate the policies of the Act. My
recommended Order will require that Respondent make
Roy Washburn whole for any loss of earnings he may
have suffered as a result of Respondent's unlawful con-
duct. Backpay is to be paid in accordance with decisions
in F W. Woolworth Company, 90 NLRB 289 (1950), Isis
Plumbing & Heating Co., 138 NLRB 716 (1972), and
Florida Steel Corporation, 231 NLRB 651 (1977). 8
Accordingly, upon the foregoing findings of fact and
conclusions of law, and upon the entire record, and pur-
suant to Section 10(c) of the Act, I hereby issue the fol-
lowing recommended:
ORDER' 9
The Respondent, United Brotherhood of Carpenters
and Joiners of America, Local No. 1914, AFL-CIO,
i. Respondent's request that the complaint be dismissed on the basis
that Collyer Insulated Wire. , Gulf and Western Systems Co., 192 NLRB
837 (1971), requires deferral to the grievance arbitration machinery pro-
vided by the collective-bargaining agreement must be rejected as it is not
the Board's policy to defer in cases involving alleged interference with
individual employees' basic rights under the Act. General American
Transportation Corporation 228 NLRB 808 (1977). and Potter Electric
Signal Company. 237 NLRB 1289 (1978). See also the Board's decision in
Iron Workers Local 433. suprao
i' As previously noted, Respondent referred Washburn to the W & H
Sky Harbor Airport job im June, and he left it later in the summer for
another position. Respondent's backpay liability, however, can best be
determined during a subsequent backpay proceeding
'' 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
Phoenix, Arizona, its officers, agents, and representa-
tives, shall:
1. Cease and desist from:
(a) Operating its exclusive hiring hall in disregard of
the provisions of the collective-bargaining agreement
dated July 31, 1976, or any successor agreement:
(b) Refusing to dispatch any individual who is entitled
to dispatch pursuant to hiring hall procedures set forth in
a collective-bargaining agreement.
(c) In any like or related manner restraining or coerc-
ing employees or applicants for employment in the exer-
cise of rights guaranteed to them in Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Operate its exclusive hiring hall in a nondiscrimina-
tory manner and in accordance with the provisions of
the collective-bargaining agreement of July 31, 1976, or
any successor thereto.
(b) Make whole Roy Washburn for any loss of earn-
ings and benefits he may have suffered in the manner set
forth in the section of this Decision entitled "The
Remedy."
(c) Notify W & H Conveyer Systems, Inc., in writing,
that it has no objections to it requesting Roy Washburn
for employment in the future.
(d) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all re-
cords pertaining to employment through its hiring hall,
and all records relevant and necessary for compliance
with this Order.
(e) Post at its business offices, hiring hall, and meeting
places copies of the attached notice marked "Appen-
dix." 20 Copies of said notice, on forms provided by the
Regional Director for Region 28, after being duly signed
by Respondent's authorized representative, shall be
posted by Respondent immediately upon receipt thereof,
and be maintained by it for 60 consecutive days thereaf-
ter, in conspicuous places, including all places where no-
tices to members are customarily posted. Reasonable
steps shall be taken by Respondent to insure that said no-
tices are not altered, defaced, or covered by any other
material.
(f) Notify the Regional Director for Region 28, in
writing, within 20 days from the date of this Order, what
steps the Respondent has taken to comply herewith.
findings, conclusions, and recommended Order herein shall, as provided
in Sec 102.48 of the Rules and Regulations, he adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.
20 In the event that 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 National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
1432