Wilshire Fremont Associates

National Labor Relations Board - Board Decisions

Sep 30, 1980

252 N.L.R.B. 1044 (N.L.R.B. 1980)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
International Union of Operating Engineers, Local
No. 12, AFL-CIO (Wilshire Fremont Asso-
ciates) and Kulbir S. Dhillon. Case 31-CC-
1248
September 30, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MI MBERS
JENKINS AND PENI.LO
On July 28, 1980, Administrative Law Judge
Russell L. Stevens issued the attached Decision in
this proceeding. Thereafter, the General Counsel
filed limited exceptions and a supporting brief, and
the Respondent filed a brief in response to General
Counsel's exceptions.
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, as
modified herein. 2
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, as modi-
fied below, and hereby orders that the Respondent,
International Union of Operating Engineers, Local
No. 12, AFL-CIO, Sherman Oaks, California, its
officers, agents, and representatives, shall take the
I The General Counsel has excepted to the Administrative Law
Judge's statement that "Sometime in the afternoon Whisman was told by
Quinn, or by Al Schwartz, the owner-builder, that the existence of the
picket line was dependent upon Dhillon's presence on the job.' As point-
ed out by the General Counsel, it is clear from the record that the state-
ment was in fact made by Whisman rather than to him. We therefore cor-
rect this inadvertent error
2 In the section entitled "The Remedy" the Administrative Law Judge
recommended that Respondent cease and desist from the conduct found
violative of the Act and post an appropriate notice. The General Counsel
excepts, arguing that Respondent should also have been ordered to make
the Charging Party whole for initiation or reinstatement fees and dues
paid to Respondent Respondent counters that it would be punitive to re-
quire it to reimburse the Charging Party because, subsequent to his em-
ployment with Wilshire remont Associates, the Charging Party used his
union membership to obtain other jobs. In view of the foregoing, we
shall require Respondent to reimburse the Charging Party and/or the
Employer, Wilshire Fremont Associates, for any dues or fees paid to the
Union by them only for the period the Charging Party spent in the
employ of Wilshire Fremont Associates Determination of the amount in-
volved and the identity of the payee or payees carl best be left to the
compliance stage of this proceeding. We will not require Respondent to
reimburse the Charging Party for any dues or fees paid subsequent to his
employment with Wilshire Fremont Associates. We shall amend the Ad-
ministrative Law Judge's recommended Order and notice accordingly
252 NLRB No. 149
action set forth in the said recommended Order, as
so modified:
1. Insert the following as paragraph 2(a) and re-
letter the subsequent paragraphs accordingly:
"(a) Reimburse Kulbir S. Dhillon and/or the
Employer, Wilshire Fremont Associates, as the
case may be, for any initiation fees, dues, or other
moneys unlawfully exacted during Dhillon's em-
ployment with Wilshire Fremont Associates, plus
interest, as set forth in Florida Steel Corporation,
231 NLRB 651 (1977). (See, generally, Isis Plumb-
ing & Heating Co., 138 NLRB 716 (1962).)"
2. Substitute the attached notice for that of the
Administrative Law Judge.
APPENDIX
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT engage in, induce, or encour-
age individuals employed by persons engaged
in commerce, or in industries affecting com-
merce, to engage in strikes or refusals, in the
course of employment, to use, manufacture,
process, transport, or otherwise handle or
work on goods, articles, materials, or com-
modities, or to perform services with the
object of forcing or requiring Kulbir S. Dhil-
ion, a self-employed person, to join the Union.
WE WILL reimburse Kulbir S. Dhillon and/
or the Employer, Wilshire Fremont Asso-
ciates, as the case may be, for any initiation
fees, dues, or other moneys unlawfully paid to
us during Kulbir S. Dhillon's employment at
Wilshire Fremont Associates, plus interest.
INTERNATIONAL UNION OF OPERAT-
ING ENGINEERS, LOCAI_ UNION No.
12, AFL-CIO
DECISION
STATEMENT OF THE CASE
RUSSELL L. STEVENS, Administrative Law Judge: This
case was heard in Los Angeles, California, on June 16,
1980.' The complaint, issued on January 31, 1980, is
based upon a charge filed on November 19 by Kulbir S.
Dhillon, an individual. The complaint alleges that Inter-
national Union of Operating Engineers, Local No. 12,
AFL-CIO (herein called Respondent or the Union) vio-
lated Section 8(b)(4)(i)(A) of the National Labor Rela-
tions Act, as amended (herein called the Act).
All dates hereinafter are within 1979, unless stated to be otherwise
Individuals are referred to by their last names
1044
OPERATING ENGINEERS, LOCAL NO 12
All parties were given full opportunity to participate,
to introduce relevant evidence, to examine and cross-ex-
amine witnesses, and to argue orally. Briefs, which have
been carefully considered, were filed on behalf of the
General Counsel and Respondent.
Upon the entire record, and from my observation of
the witnesses and their demeanor, I make the following:
FINDINGS OF FACT
I. JURISDICTION
Wilshire Fremont Associates (herein called Fremont)
is, and at all times material herein has been, a limited
partnership duly organized under and existing by virtue
of the laws of the State of California with an office and
principal place of business in Sherman Oaks, California,
and is engaged as owner-builder in the construction and
sale of condominiums at 4460 Wilshire Boulevard, Los
Angeles, California (herein called the jobsite).
At all times material herein Fremont subcontracted
construction work at the jobsite to Federal Steel Corpo-
ration, Ro West, Division of H. H. Robertson Company,
and other persons.
Federal Steel Corporation is a corporation duly orga-
nized under and existing by virtue of the laws of the
State of California with an office and principal place of
business in Long Beach, California, where it is engaged
in the business of steel fabrication and erection. During
the past 12 months, Federal Steel Corporation purchased
goods valued in excess of $30,000 for use at the jobsite
from suppliers who in turn purchased those goods from
sources located outside the State of California.
Ro West, Division of H. H. Robertson Company, is a
corporation duly organized under and existing by virtue
of the laws of the State of Pennsylvania with an office
and principal place of business in South El Monte, Cali-
fornia, where it is engaged in the sale and construction
of metal decking and siding. During the past 12 months,
Ro West, Division of H. H. Robertson Company, pur-
chased goods valued in excess of $20,000 for use at the
jobsite from sources located outside the State of Califor-
nia.
I find that Federal Steel Corporation and Ro West,
Division of H. H. Robertson Company are, and at all
times material herein have been, employers engaged in
commerce and in businesses affecting commerce within
the meaning of Section 2(6) and (7) of the Act.
I find that Fremont is, and at all times material herein
has been, a person engaged in commerce or in an indus-
try affecting commerce within the meaning of Section
8(b)(4) and Section 2(6) and (7) of the Act.
II. THE ABOR ORGANIZATION INVOI VEI)
International Union of Operating Engineers, Local No.
12, AFL-CIO, is, and at all times material herein has
been, a labor organization within the meaning of Section
2(5) of the Act.
III. THE ALI.EGED UNFAIR LABOR PRACTICES
A. Background3
Dhillon is, and at all times material herein has been, an
independent contractor engaged in the business of con-
struction inspection. In 1971, 1972, and 1973 Dhillon was
a member of the Union, but he quit paying union dues,
without notice to the Union, in 1973 because at that time
he planned to discontinue working.
In June 1979 Dhillon signed a contract with Fremont,
pursuant to which he began working as an independent
on-site inspector at Fremont's jobsite where approximate-
ly 30 employees were working for Fremont's subcontrac-
tors.4 Dhillon employed no one other than himself at the
jobsite. Dhillon's contract provided for a fee of approxi-
mately $20 per hour.
In July 1979 Orville Whisman, a business representa-
tive and special representative in charge of inspectors
and survey representatives for the Union, came to the
jobsite, talked with Quinn about the possibility of a union
contract with Fremont, 5 talked with Dhillon, and at-
tempted to get Dhillon to join the Union. Dhillon de-
clined to join.
On September 26 at 7 a.m., Whisman and another
union representative, Steve Billey, commenced picketing
the jobsite with signs reading:
KUL.BIR S. DHILLON, INSPECTOR, UNFAIR. LOCAL
12, INTERNATIONAL UNION OF OPERATING ENGI-
NEERS, AFL-CIO. SANCTIONED BY L.A. BUII.DING
TRADES COUNCIl..
No employee of any subcontractor crossed the picket
line to work. 6 Quinn and Dhillon talked with Whisman,
and asked the reason for the pickets. Whisman referred
them to the Union's attorney. Quinn thereafter talked
with the Union's attorney, and talked further with Whis-
man. Sometime in the afternoon Whisman was told by
Quinn, or by Al Schwartz, the owner-builder, 7 that the
existence of the picket line was dependent upon Dhil-
Ion's presence on the job. At approximately I or 1:30
p.m. Quinn advised Dhillon to go home, since all the
subcontractors' employees had left, and to return "when
this matter is settled with the Union."
On September 27 or 28, Quinn tried to get Dhillon to
join the Union in order that Dhillon could return to the
job, but Dhillon declined. Quinn talked with Dhillon on
a This background summary is based upon credited testimony and ei-
dence that is not in dispute
4 Fremont then had no employees at the jobsite other than the job su-
perintendent, Walt Quinn, and one temporary machine operator
a Fremont did not then enter into a contract with the Union, but did
sign a union agreement in December in order to obtain the services of the
machine operator referred to above.
Whisman and Billey were replaced by Isto other pickets at approxi-
mately 10 am.
' Quinn testified that he asked Whisman on September 2 if there
would be a picket line the fiolloving day. and Whisman asked if Dhillon
was going to he on the job Quinn replied "No." and Whisman said there
would not be a picket line Whisman testified that "the owner of the pro-
lect" called him, and said Dhillon would not be back on the job. to
which Whisman replied. "Well, if he is not back on the job, the picket
line son't he there" D)hillon credibly testified that Quinn called
Schwari, o(n the telephone on September 27 Quinn's version is credited
1045
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
several occasions thereafter, and tried to get him to join
the Union and return to work, but Dhillon continued to
refuse. Ultimately, Quinn proposed that Fremont would
pay the union initiation fee, and Dhillon agreed. Dhillon
went to the union hall, talked with Whisman, agreed to
join the Union, and obtained a work clearance from
Whisman. That same day, October 5, Dhillon returned to
work for Fremont, and later, approximately November
8, joined the Union. Dhillon has continued to pay union
dues to the present. Dhillon worked at the jobsite until
February 1980.
B. Contentions of the Parties
The General Counsel contends that Respondent violat-
ed the Act by forcing Dhillon, through picketing at the
jobsite, to join the Union.
Respondent contends that the picketing was informa-
tional, to inform the public that Dhillon was unfair to
Local 12's members because he was charging less than
the union contract amount of approximately $29 per
hour.
C. The July Incident
Whisman contends that his visit with Dhillon in July
was almost incidental; that he was not particularly con-
cerned with whether or not Dhillon joined the Union;
and that he learned at the time of the visit, by radio call
to the Union and by looking at Dhillon's union card, that
Dhillon was a suspended union member because of fail-
ure to pay dues, rather than a nonunion member.
Dhillon and Quinn contradicted Whisman. Their ver-
sion is that Whisman was quite seriously concerned
about Dhillon's not being a union member, and Dhillon
testified that he had no union card at the time of the inci-
dent. Dhillon further testified that Whisman was insistent
upon Dhillon's joining the Union. Dhillon acknowledged
that Whisman talked with him about union benefits, but
Whisman's contention that such was the extent of his
persuasion is unrealistic. Dhillon nad been a union
member for approximately 2-1/2 years, and there was no
necessity for Whisman to explain union benefits. Dhil-
Ion's testimony that Whisman was putting pressure on
him is consistent with Whisman's emphasis upon union
benefits as a part of that pressure. It may well be, as con-
tended by Respondent, that Whisman did not specifically
threaten Dhillon with retaliation if he did not join, but
Dhillon testified in a manner that shows Whisman put
considerable heat on him to join, and Quinn's testimony
corroborates that impression.
Dhillon and Quinn are credited, and it is found that
the July incident constituted a clear signal to Quinn and
Dhillon that the Union did not approve of Dhillon's
working at the jobsite without holding union member-
ship.
Finally, Whisman's contention that he only was con-
cerned that Dhillon was charging less than union mem-
bers is inconsistent with his acknowledgement that he
tried to get Dhillon to join the Union. Clearly, Dhillon's
union membership was sought for one principal reason-
to require that he charge the same amount that union
members charged. As later demonstrated by events,
Dhillon had only two choices-join the Union or be
without work.
D. The Reason for the Picketing
Whisman explained his reasoning:
Because Kulbir Dhillon was unfair to the mem-
bers that Local 12 represents and the employer
entity as a whole, the industry, in that he was not
paying the wage, or the prevailing wage-or not
asking the prevailing contract [wage] per hour, and
undercutting what I consider the journeymen em-
ployees at a wage lesser, thereby taking work away
from members that I represent, or we represent.
Q. If Mr. Dhillon became a member of the
Union, would that situation be corrected in any
way?
A. No.
Q. You picketed one day at the jobsite. Why
didn't you go back the next day and picket?
A. Because I was called at the office and in-
formed that Kulbir Dhillon would no longer be on
the job.
Whisman thus contends that Dhillon was undercharg-
ing, yet he also contends that Dhillon would continue to
undercharge even as a union member. The facts of life
contradict that testimony. Further, the pickets were
pulled when Whisman was told that Dhillon was no
longer on the job, and they were not reinstated when
Dhillon returned to the job as a member-elect. Patently,
Dhillon could work as a member of the Union, but not
as a nonmember.
Whisman's testimony that he was not trying to force
Dhillon into union membership, and that all of the insis-
tence upon such membership originated with, or was
urged by, Fremont, appeared strained and contrived; it
was credibly contradicted by Quinn and Dhillon, and is
given no credence. Quinn credibly testified concerning
his conversations with Whisman:
I believe he told me that this was an information-
al picket line, in order to recruit Mr. Dhillon to join
the Union.
Q. Well, you say you talked to Mr. Whisman,
and Mr. Whisman said something concerning the
purpose of the picketing.
A. Yes. Mr. Whisman wanted Kulbir to join the
Union, and he suggested that I suggest to Kulbir
that he join the Union.
Q. Isn't it true that Mr. Whisman told you that
he didn't care whether Mr. Dhillon becomes a
member of the Union? Did he ever tell you that?
1046
OPERATING ENGINEE.RS, LOCAL NO. 12
A. No. On several occasions, he told me that he
wanted Kulbir to join the Union, and he urged me
to convince him to join the Union.8
Whisman testified that, a week or so prior to the pick-
eting he talked with Schwartz and asked to see Dhillon's
contract, in order to verify that Dhillon was an indepen-
dent contractor, and not an employee. The contract was
shown to Whisman. Quinn testified that he saw Schwartz
show Dhillon's contract to Whisman, but that he be-
lieves the incident was more than a week or so prior to
the picketing. Respondent contends that the picketing
was instituted soon after Whisman saw the contract in
order to protest Dhillon's below union scale fee charges.
However, that argument is not persuasive, since it is
clear that Whisman attempted to pressure Dhillon into
joining the Union. Only through union membership
could there be effective control of Dhillon's charges. In-
evitably, picketing of the worksite would deprive Dhil-
Ion of work. Any replacement potentially would be sub-
ject to the same retaliation if he was not a union
member.
E. Conclusion
Section 8(b)(4)(i)(A) of the Act states that it shall be
an unfair labor practice for a labor organization or its
agents:
. . to engage in, or to induce or encourage any in-
dividual employed by any person engaged in com-
merce or in an industry affecting commerce to
engage in, a strike or a refusal in the course of his
employment to use, manufacture, process, transport,
or otherwise handle or work on any goods, articles,
materials, or commodities or to perform any ser-
vices; or (ii) to threaten, coerce, or restrain any
person engaged in commerce or in an industry af-
fecting commerce, where in either case an object
thereof is:
(A) Forcing or requiring any employer or self-
employed person to join any labor or employer or-
ganization or to enter into any agreement which is
prohibited by section 8(e) . .
The parties agree that Dhillon was a self-employed
person at times relevant herein.
The fact that there was picketing, and the resultant re-
fusal of employees of subcontractors at the worksite to
continue on the job, is not in dispute.
As found above, the object of the picketing was to
force or require Dhillon to join the Union. As noted by
counsel for the General Counsel, even if the forcing of
Dhillon to join the Union was only one object among
'Ihe hubject f charge for inspectiron ork as nol full litigated
hut hat matter is of onlk marginal releancrc I)hill on and Quilln tlstified
Ihal the customary charge is approxnialri 5$20 per hour, and Wvhiismla
lestifild that the union rate is approxinialic SN2q per hour The factl If
Iwot rate, is riot nilaterial in x c of the f iact t 1t lo all irspectors are
unionl mnemhers
others, rather than the sole object of the picketing, the
Act would have been violated.9
The allegations of the complaint are supported by the
record.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section I11,
above, occurring in connection with its operations de-
scribed in section I, above, have a close, intimate, and
substantial relationship to trade, traffic, and commerce
among the several States and tend to lead to labor dis-
putes burdening and obstructing commerce and the free
flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in unfair
labor practices within the meaning of Section
8(b)(4)(i)(A) of the Act, it will be recommended that it
be ordered to cease and desist therefrom, and to take
certain affirmative action designed to effectuate the poli-
cies of the Act.
Upon the basis of the foregoing findings of fact and
the entire record, I make the following:
CONCILUSIONS Oi LAW
1. Wilshire Fremont Associates is engaged in com-
merce within the meaning of Section 2(6) and (7) of the
Act.
2. Federal Steel Corporation and Ro West, Division of
H. H. Robertson Company, are, and at all times material
herein have been, persons engaged in commerce or in an
industry affecting commerce within the meaning of Sec-
tion 8(b)(4)(i)(A) of the Act.
3. International Union of Operating Engineers, Local
No. 12, AFL CIO, is, and at all times material herein
has been, a labor organization within the meaning of Sec-
tion 2(5) of the Act.
4. Respondent violated Section 8(b)(4)(i)(A) of the Act
by engaging in, or inducing or encouraging individuals
employed by persons engaged in commerce or in indus-
tries affecting commerce to engage in, strikes or refusals
in the course of employment to use, manufacture, pro-
cess, transport, or otherwise handle or work on goods,
articles, materials, or commodities, or to perform ser-
vices, with the object of forcing or requiring Kulbir S.
Dhillon, a self-employed person, to join the Union.
5. The unfair labor practices described in paragraph 4
above are unfair labor practices affecting commerce
within the meaning of Section 2(6) and (7) of the Act.
Upon the basis of the foregoing findings of fact, con-
clusions of law, and the entire record, and pursuant to
Section 10(c) of the Act, I hereby issue the following
recommended:
' 1.oca/ 814. i, ltl rnatrona rothrhod oJ lam,lcr Chauffeur. Harn-
houitwc n and Iltper, ,rJ i,ria (.Santimn Brhers. tc ). 208 N RB 184.
201 (1974), eid 546 1t 2d $9 I C Cir 1717h)
1047
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER'o
The Respondent, International Union of Operating En-
gineers, Local No. 12, AFL-CIO, Sherman Oaks, Cali-
fornia, its officers, agents, and representatives, shall:
I. Cease and desist from engaging in, or inducing or
encouraging individuals employed by persons engaged in
commerce or in industries affecting commerce to engage
in, strikes or refusals in the course of employment to use,
manufacture, process, transport, or otherwise handle or
work on goods, articles, materials, or commodities, or to
perform services, with the object of forcing or requiring
Kulbir S. Dhillon, a self-employed person, to join the
Union.
2. Take the following affirmative action, to effectuate
the policies of the Act:
(a) Post at its business offices and meeting halls copies
of the attached notice marked "Appendix."'' Copies of
'O In the event no exceptions are filed as provided by Sec. 10246 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall, as provided
in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.
I 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
said notice, on forms provided by the Regional Director
for Region 31, 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 thereafter, in conspicuous
places, including all places where notices to members are
customarily posted. Reasonable steps shall be taken by
Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(b) Furnish to said Regional Director copies of the
aformentioned notice for posting by Wilshire Fremont
Associates, that company willing, at the picketed prem-
ises.
(c) Notify the Regional Director for Region 31, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
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."
1048