Bricklayers Local 1 (Denton's Tuckpointing)

National Labor Relations Board - Board Decisions

Aug 26, 1992

308 N.L.R.B. 350 (N.L.R.B. 1992)

350
308 NLRB No. 63
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Intervenor’s exceptions and the similar contentions of the
amicus regarding the lawfulness of the union-security clause of the
relevant collective-bargaining agreement clearly go beyond the scope
of both the complaint allegations and the litigation in this proceed-
ing. We therefore deny the exceptions as raising matters not properly
before us.
We agree with the Intervenor that the judge erred in two matters:
the union-security clause is found in art. II of the collective-bargain-
ing agreement rather than ‘‘Article III’’ as the judge indicated, and
in his third conclusion of law the proper section of the Act is Sec.
8(b)(1)(A) rather than ‘‘8(a)(1)(A).’’ These errors were inadvertent
and do not affect our disposition of this case.
2 We find no merit in Respondent Local No. 1’s exception to the
judge’s finding that its $8/monthly work permit fee violates Sec.
8(b)(1)(A). Although not specifically alleged in the complaint, the
‘‘fee’’ issue was closely related to the complaint’s subject matter,
i.e., the Respondent Local’s unlawful work permit procedure, and it
was fully litigated. See, e.g., Longshoremen ILA Local 1426 (Wil-
mington Shipping), 294 NLRB 1152, 1158 (1989). In this regard, we
do not pass on the validity of the monthly ‘‘travel service dues’’ au-
thorized under the constitution of the International Union of Brick-
layers & Allied Craftsmen concerning traveling local members work-
ing in another local union’s jurisdiction. On this record, the travel
service dues charged to traveling members and the work permit fee
the Respondent charged to all nonmembers of Local No. 1 appear
to be entirely separate matters.
We also deny the Respondent’s exception regarding the extent of
its backpay obligations under the judge’s remedy. See Sheet Metal
Workers Local 355 (Zinsco Electrical), 254 NLRB 773, 773–774
(1981), enfd. in relevant part 716 F.2d 1249 (9th Cir. 1983).
1 The underlying unfair labor practice charge, and amended charge,
were filed and served upon Respondent, respectively, on July 5 and
August 19, 1991.
2 The Intervenor, Mason Contractors Association of St. Louis, ap-
peared at the hearing and thereafter submitted its brief for the limited
purpose of a determination whether the contract provision cited here-
after in the text, relating to the composition of an Association—
member-employer’s work force, is unlawful. While the Intervenor’s
interest is focused solely on the lawfulness of the contract clause,
it appears to request, in addition, ‘‘. . . guidance as to how that
clause is improper. . . .’’ While I shall rule on the lawfulness of the
clause, and provide a basis for that ruling, to the extent Respondent
perhaps seeks guidance, in addition, as to what a lawful clause
would constitute, I will refrain from any such additional statement.
3 The General Counsel’s brief also contains a motion to correct
transcript. Neither counsel for Respondent nor counsel for Intervenor
object to the motion which is hereby granted in its entirety.
Bricklayers, Tuckpointers, and Stone Masons of the
International Union of Bricklayers and Allied
Craftsmen, Local No. 1 of St. Louis, Missouri,
AFL–CIO (Denton’s Tuckpointing, Inc.) and
Charles N. Ezell, Jr. and Mason Contractors
Association of St. Louis, Party to the Contract.
Case 14–CB–7643
August 26, 1992
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS OVIATT
AND RAUDABAUGH
On February 10, 1992, Administrative Law Judge
Robert W. Leiner issued the attached decision. The Re-
spondent and the Intervenor filed exceptions and sup-
porting briefs, and the National Right to Work Legal
Defense Foundation, as amicus curiae, also filed a
brief with respect to the judge’s decision.
The National Labor Relations Board has delegated
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 briefs and has de-
cided to affirm the judge’s rulings, findings, and con-
clusions1 and to adopt the recommended Order.2
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Bricklayers, Tuckpointers,
and Stone Masons of the International Union of Brick-
layers & Allied Craftsmen, Local No. 1 of St. Louis,
Missouri, AFL–CIO, its officers, agents, and represent-
atives, shall take the action set forth in the Order.
Frenchette C. Potter, Esq., for the General Counsel.
Eugene P. Walsh, Esq., of Clayton, Missouri, for the Re-
spondent.
James N. Foster Jr., Esq. (McMahon, Berger, Hanna,
Lanihan, Cody & McCarthy), of St. Louis, Missouri, for
the Intervenor.
DECISION
STATEMENT OF THE CASE
ROBERT W. LEINER, Administrative Law Judge. This mat-
ter was heard in St. Louis, Missouri, on October 16, 1991,
on General Counsel’s complaint dated August 19, 1991,1
which alleges, in substance, that the above-captioned Re-
spondent, Bricklayers, Tuckpointers, etc., Local No. 1, AFL–
CIO (the Union) violated Section 8(b)(1)(A) and (2) of the
National Labor Relations Act, by maintaining and enforcing
a provision in a collective-bargaining agreement requiring
certain employers, including Denton’s Tuckpointing, Inc., to
give unlawful preference in employment to members of Re-
spondent; by requiring certain applicants for employment to
obtain work permits issued by Respondent prior to working;
by requiring certain applicants for employment to become
members of Respondent prior to being permitted to work for
certain employers; by refusing to issue union membership
cards, or work permits, to employees and applicants for em-
ployment, thereby causing or attempting to cause an em-
ployer to unlawfully refuse to hire an employee and there-
after causing an employer to terminate an employee, all in
violation of the Act. Respondent’s timely filed answer denies
certain allegations of the complaint, admits others, but denies
the commission of unfair labor practices.2
At the hearing, all parties were represented by counsel,
were given full opportunity to call and examine witnesses, to
submit relevant oral and written evidence and to argue orally
on the record. The parties have elected to submit posthearing
briefs which have been carefully considered.
On the entire record,3 including the briefs, and on my
most particular observation of the demeanor of the witnesses
as they testified, I make the following
351BRICKLAYERS LOCAL 1 (DENTON’S TUCKPOINTING)
4 In addition, Respondent admits that its financial secretary, Joseph
Schonlau, at all material times, has been and is an agent of Respond-
ent within the meaning of Sec. 2(13) of the Act.
5 For example, a first-day work force composed of nonunion em-
ployees who are not obliged, under the lawful 8-day union-security
clause, to become members of the Union, would face termination if
union members of more than 20 percent sought and obtained em-
ployment. Their alternative might be to seek immediate union mem-
bership, a status not required under the union-security clause.
Whether, and to what extent, such a dilemma and ambiguity of ob-
ligation might affect the lawfulness of the otherwise lawful construc-
tion industry union-security clause is an issue not before me.
FINDINGS OF FACT
I. DENTON’S TUCKPOINTING, INC. AS STATUTORY
EMPLOYER
Denton’s Tuckpointing, Inc., a Missouri corporation, with
an office and place of business in St. Louis, Missouri, (the
Employer), is in the building and construction industry as a
masonry contractor, providing tuckpointing and related serv-
ices for residential construction and is a member of the Inter-
venor, the Mason Contractors Association and St. Louis (the
Association). The Association, an organization of employers
in the construction industry, exists for the purpose, inter alia,
of representing its employer-members in negotiating and ad-
ministering collective-bargaining agreements with labor orga-
nizations, including Respondent. Denton’s Tuckpointing,
among other employer-members of the Association, at all
material times, has authorized the Association to represent
them in negotiating and administering collective-bargaining
agreements. In the 12-month period ending July 31, 1991,
members of the Association purchased and received at their
St. Louis, Missouri facilities goods, materials, and products
valued in excess of $50,000 from other enterprises located
within the State of Missouri, each of which other enterprises
received the said products, goods, and materials directly from
points outside the State of Missouri. The complaint alleges
and Respondent admits that, at all material times, the em-
ployer-members of the Association and Denton’s
Tuckpointing, in particular, have been and are employers en-
gaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
II. RESPONDENT AS A STATUTORY LABOR
ORGANIZATION
The complaint alleges, Respondent admits, and I find, that
at all material times Bricklayers, Tuckpointers, and Stone
Masons of the International Union of Bricklayers and Allied
Craftsmen, Local No. 1 of St. Louis, Missouri, AFL–CIO
(the Union) has been and is a labor organization within the
meaning of Section 2(5) of the Act.4
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Maintenance of an Alleged Unlawful Contract
Provision
The current collective-bargaining agreement (G.C. Exh. 3)
between Respondent and the Association, binding Denton’s
Tuckpointing, Inc., was entered into on June 20, 1990, and
expires May 31, 1993. It contains the following union-secu-
rity clause:
Article III. Recognition and Jurisdiction
Section 3. It is understood and agreed . . . that as a
condition of continued employment, all persons who are
hereafter employed by the Employer in the unit which
is the subject of this Agreement shall become members
of the Union not later than the eighth (8th) day follow-
ing the beginning of their employment or following the
execution date of this Agreement, whichever is the
later.
The complaint alleges, and Respondent admits, that since
on or about June 1990 (the month of execution of the exist-
ing collective-bargaining agreement), the Association and Re-
spondent have also maintained in the collective-bargaining
agreement article XII, section 7, which provides:
When members of Bricklayers Local Union No. 1 of
Missouri of the I.U. of B.A.C. are available they shall
constitute at least 80% of the bricklaying force of the
Employers at all times.
Respondent denies that the above-contract provision was
ever enforced. Association Executive Vice President Carl F.
Freeman testified, however, that the provision has appeared
not only in the current contract but in the last two contracts
between the Association and the Respondent; indeed, that the
clause has been in effect for about 20 years. While there is
no evidence that this contract was specifically enforced,
Freeman testified without contradiction, that the Union never
disclaimed the provision or told member-employers that it
was no longer in effect or told employers to disregard it.
The provision, on its face, plainly requires employers to
recognize and maintain a hiring and retention preference
among their employees based upon membership or nonmem-
bership in Respondent. It is essentially an 80-percent ‘‘closed
shop’’ clause and consequently restrains and coerces employ-
ees in the exercise of their Section 7 rights. Simply by main-
taining an agreement containing such a provision, Respond-
ent violates Section 8(b)(1)(A) of the Act. Carpenters Local
2396 (Tri-State Ohbayashi), 287 NLRB 760, 764 (1987). Ab-
sent a showing that Respondent had actually caused or at-
tempted to cause employers to discriminate in hiring and en-
forcing the clause, there can be no violation of Section
8(b)(2), ibd. But, the mere maintenance of such a provision
violates Section 8(b)(1)(A) of the Act, ibd.
To the extent Respondent defends by noting that there was
no proof of enforcement and that the contract provision was
not involved in the subsequent transactions between the
Charging Party and Respondent, these defenses, on the above
authority, are without merit. The essential vice in the contract
provision, again, is that its mere maintenance, requiring a
member-employer, like Denton’s Tuckpointing, Inc., to give
preference in hiring and retention of employment to members
of Respondent, unlawfully restrains and coerces the Section
7 rights of all employees, whether union members or other-
wise, within the meaning of Section 8(b)(1)(A) of the Act.5
352 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 Schonlau says he keeps the list of nonmembers merely to identify
them in case a union business agent runs across the nonmember on
a job, who identifies the individual, and checks it against Schonlau’s
list. Schonlau emphasized that, regardless of the need for bricklayers,
he never refers out nonunion bricklayers.
B. Respondent’s Unlawful Transactions with the
Charging Party
1. Background
The Charging Party, Charles N. Ezell Jr., prior to the in-
stant dispute, had been a nonunion bricklayer for more than
14 years. His trade specialty is ‘‘tuckpointing.’’ A
tuckpointer grinds out the mortar between bricks and, where
necessary, replaces defective mortar and bricks in sidewalks,
foundations, etc. He also caulks windows and swimming
pools.
William Denton, chief operating officer of the Employer,
heard of Ezell’s ability, called him on March 15 and asked
him to start on the following Monday, March 18, 1991,
working in the St. Louis area. When Denton told Ezell that
he would have to have a union card to go to work, Ezell told
him that he was not a member of the Union. Denton then
told him that if he came to St. Louis, Denton would give him
a letter to the Union stating that he would hire Ezell; that
Ezell should take the letter to the union hall, join the Union
and pay its membership fee. Then, Denton would put him to
work. Ezell said that he would do as Denton had suggested.
Ezell, as agreed, went to St. Louis and appeared at Denton’s
office early in the morning of March 18, 1991. Denton gave
him a letter (G.C. Exh. 4) to give to the Union.
Ezell went directly to the union head and gave the letter
to Joseph Schonlau, Respondent’s financial secretary.
Schonlau handles Respondent’s finances and sends union
bricklayers and tuckpointers out to jobs when the Union gets
a call for them. Schonlau testified that Respondent maintains
a referral system at its union hall for its members only. At
the time of the hearing, the Union maintained a list of over
200 out-of-work union members. Although the Union has a
list of nonmembers, it is not used for referral. Nonmembers
do not call into the union office for referral;6 only union
members are referred out by the union hall.
Schonlau further testified that although employers, bound
by the Association agreement, are permitted to employ em-
ployees who are not members of the union, such nonunion
employees are required to obtain from the Union ‘‘work per-
mits’’ before they go to work for employers. The work per-
mit is viable for 30 days and costs $8 per month. At the end
of 30 days, the nonunion employees are permitted to renew
the work permit. Union members are not required to have
work permits. Association employers may hire union mem-
bers without regard to the union hall list. Although union
members’ monthly dues are $8 per month, the same cost as
the work permit, the union members are referred to jobs and
receive a mortuary benefit for their dues. Since the beginning
of 1991, Shonlau has refused to issue work permits to non-
members. Nonunion employees, caught working for Associa-
tion employers without work permits, according to prior
practice, had been permitted to continue to work but paid for
work permits in all delinquent months.
The complaint alleges (par. 5(b)) that since on or about
January 5, 1991, Respondent has required nonunion appli-
cants for employment with employer-members of the Asso-
ciation to obtain union work permits in order to work for As-
sociation employer-members. By paragraph 5(c) the com-
plaint alleges that, since on or about January 5, 1991, Re-
spondent has required applicants for employment and non-
union employees of employer-members of the Association to
become members of Respondent before these individuals are
permitted to begin or continue working for the member-em-
ployers. The complaint alleges that these arrangements vio-
late Section 8(b)(1)(A) and (2) of the Act.
Schonlau admitted that since the beginning of 1991, he has
refused nonmembers both membership in the Union and
work permits. Since the evidence shows that he has refused
them work permits because of the large number of union
members who are out of work in the St. Louis area, and
since Schonlau admitted that applicants and nonunion mem-
bers must obtain union work permits before they are per-
mitted to work for employers who are bound by the Associa-
tion contract, it is clear that, since January 5, 1991, under
present conditions, a nonunion applicant or employee will
not be permitted to work at all for Association employers.
Since Respondent, as Schonlau admitted, refers for employ-
ment only union members from its out-of-work list, and
since Respondent will grant neither work permits nor union
membership to nonunion employees, Respondent’s proce-
dures, commencing certainly as early as the beginning as
1991, create ‘‘closed shop’’ conditions among the employers
bound by the Association contract. In order to work for em-
ployers bound by the Association contract, beginning January
1991, the applicant bricklayers or nonunion bricklayers are
discriminated against because of their lack of work permits
from or membership in the Union. Such arrangements, as al-
leged, restrain and coerce nonunion employees and cause or
attempt to cause unlawful discrimination in violation, respec-
tively, of Section 8(b)(1)(A) and (2). I also agree with Gen-
eral Counsel that the mandatory $8-per-month work permit
fee for nonunion employees violates Section 8(b)(1)(A). The
fee is not a service or referral fee since nonmembers are not
referred. The fee, on this record, serves no purpose except
to enrich the Union, to restrain nonmembers and to keep
track of employers employing nonmembers. Indeed, the re-
quirement of nonmembers obtaining union clearance, in the
form of a work permit, as a condition of gaining or retaining
employment, is merely part of closed-shop mechanics and
violated Section 8(b)(1)(A) and (2) of the Act.
2. The Charging Party visits the union hall
As above noted, Ezell, on Monday, March 18, 1991, went
to the union hall in St. Louis. There is no contradiction that
he gave Denton’s letter in an unsealed envelope to Schonlau
on that day. The letter (G.C. Exh. 4) reads:
I will give Charles Ezell a job if you will issue him a
card. He has been a bricklayer for 15 years.
The letter was unsigned. Ezell testified that he removed
the letter from the envelope, gave it to Schonlau, and that
Schonlau read the letter and returned it to Ezell.
Schonlau denied having read the letter. Rather, he testified
that Ezell told him that the letter was from Denton requesting
that Ezell be permitted to become a union member. In view
of Schonlau’s testimony, it is clear that he knew why Ezell
353BRICKLAYERS LOCAL 1 (DENTON’S TUCKPOINTING)
had come to him. In any event, I find that Schonlau told
Ezell that he ‘‘could not help him because there were too
many [union tuckpointers] out of work.’’ At that point, Ezell
told Schonlau that he had a family to support; that he had
been a tuckpointer for 14 years; that he had to work non-
union; and that he now had a chance to ‘‘go union’’ and that
Schonlau would not help him. Schonlau told Ezell to have
Denton call him and Schonlau would explain the Union’s re-
fusal to permit Ezell to become a union member. Schonlau
also told Ezell that, perhaps in a couple of weeks, he would
be able to let Ezell join the Union.
Ezell left the union hall, telephoned Denton and told him
that he was not able to join the Union. Denton told him that
he would ‘‘Try to pull a few strings to help [me] get in the
union.’’ Ezell did not work that day, Monday, March 18.
The complaint alleges (par. 6(a) and (b)) that on or about
March 18, 1981, Respondent refused to issue a union card
to Ezell thereby attempting to cause and causing Denton to
refuse to hire Ezell and that such conduct violates Section
8(b)(1)(A) and (2) of the Act.
Regardless whether Schonlau read the letter, there is no
dispute that he knew that the letter came from Denton; that
the object of the letter was to have the Union grant Ezell
union membership; and that the reason for such membership
was to permit Denton to employ Ezell as a tuckpointer.
Schonlau had already testified, in substance, that Association
employers could employ only union members or nonmem-
bers with union work permits; and he would now grant nei-
ther to nonunion employees. Schonlau said that he told Ezell
that he would not grant him union membership and that he
should have Denton call him for an explanation, all because
there were too many union tuckpointers out of work.
While the Board has consistently held that it is unneces-
sary to prove the existence of available jobs at the time when
unlawful discrimination on the basis of union membership
occurs, Utility & Industrial Construction Co., 214 NLRB
1053 (1974), it is clear that discrimination occurs even with-
out the existence of an actual job opportunity where the dis-
crimination occurs against applicants registering for employ-
ment. NLRB v. The Lummus Co., 210 F.2d 377, 381 (5th Cir.
1954). In short, Schonlau denied Ezell union membership or
a work permit, requisites to his being employed under the in-
stant actual ‘‘closed shop’’ conditions, not because Ezell re-
fused to tender or pay for the work permit or for periodic
dues and initiation fee uniformly required as a condition of
acquiring membership in the Union. Rather, he denied him
the permit or membership because there were too many St.
Louis union tuckpointers out of work at this time. This con-
stitutes an unlawfully discriminatory basis for the refusal:
making union membership or clearance a contition of gaining
employment in order to insure jobs for union members. The
Union, by its agent, Schonlau, as alleged, violated Section
8(b)(1)(A) and (2) of the Act by its refusal, on or about
March 18, 1991, to permit Ezell to become a union member
or to issue a work permit in the face of an actual job for
which he would have been hired but for Respondent’s unlaw-
ful conduct. As already noted, I would find the same viola-
tion even in the absence of the discriminatory motive. The
refusal to issue a work permit here is merely part of the me-
chanics of insuring ‘‘closed shop’’ conditions.
Respondent defends on several grounds. To the extent that
it argues that Ezell was not actually employed at the time of
the discrimination, such a defense, on the above authority, is
without merit. Applicants for employment, without regard to
the existence of a job, may not be unlawfully discriminated
against. The applicants are considered protected employees.
Alexander’s Restaurant & Lounge, 228 NLRB 165, 179
(1977); enfd. 586 F.2d 1300 (9th Cir. 1978). The final deter-
mination of job availability imposing backpay liability is
properly left to the compliance stage of Board litigation.
Apex Ventilating Co., 186 NLRB 534 fn. 1 (1970).
To the extent that Respondent denies that it caused Denton
not to hire Ezell and that Denton’s insistence on Ezell’s
union membership was a condition set by Denton, alone, the
record does not support such contention. Rather, the undis-
puted evidence is that whether or not Schonlau read the let-
ter, it is clear that he knew that Denton wanted to employ
Ezell and that a condition of that reemployment was his
union membership (the only other alternative was a union
‘‘work permit’’ which Schonlau said he would not issue).
Hence Schonlau knew that Denton sent Ezell to the Union
in order to fulfill the condition on which Denton would hire
him. Schonlau specifically testified that he would give Ezell
neither a work permit nor a union membership card because
there were too many local members out of work.
To the extent Schonlau testified that it was not merely a
question of union tuckpointers out of work but too many
local bricklayers out of work, he appeared to imply that he
refused to give Ezell a work permit or union membership
card because Ezell was not from St. Louis and there were
too many St. Louis tuckpointers and bricklayers out of work.
Essentially, however, Schonlau ultimately testified that he
did not give Ezell the union card or the work permit because
there were too many members of the Union out of work. I
find that the basis of Schonlau’s discrimination against Ezell
was not the general conditions of St. Louis unemployment
but the unemployment of union tuckpointers and bricklayers
in St. Louis. Schonlau testified that he had 200 union mem-
bers on the out-of-work list.
Schonlau testified that Ezell could have worked for Den-
ton as a nonmember of the Union, but this testimony is es-
sentially a ‘‘Catch-22.’’ Thus, Schonlau testified that Ezell
could work for Denton either as a union member or non-
member, but if he worked as a nonmember, he would need
a work permit. Schonlau testified, however, as above noted,
that he would not grant union membership or issue a work
permit to Ezell because there were too many union members
out of work. Thus, on Schonlau’s own testimony, Ezell’s
right to be hired and employed by Denton whether with a
work permit (nonunion) or as a union member (Schonlau re-
fused) is clearly illusory.
I find that, as alleged, Respondent’s March 18, 1991 re-
fusal to grant a work permit or union membership to Ezell,
with or without the presence of unlawful motivation, violated
Section 8(b)(1)(A) and (2).
3. Respondent’s unlawful actions against Ezell on
May 21, 1991
As above noted, on March 18, 1991, Schonlau rejected
Ezell’s request for a work permit or union membership and
Ezell so informed Denton who said he would try to pull a
few strings to help Ezell become a union member.
354 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7 Again Schonlau testified that too many ‘‘tuckpointers’’ out of
work meant ‘‘union tuckpointers.’’
On March 20, 1991, Ezell sought to become a member of
Respondent’s sister local, Bricklayers Local No. 23, in Cape
Girardeau, Missouri. Thereafter, on March 25, 1991, while
still attempting to become a member of Local 23, Ezell tele-
phoned Schonlau and asked if Respondent would issue him
a work permit (for Denton) if he became a member of Local
23. Schonlau said that he would not issue him a work permit
because there were too many tuckpointers out of work. He
said nothing of Ezell complying with Respondent’s rules on
allowing members of sister locals to work in St. Louis. He
said that he might give him a work permit in a couple of
weeks.
By April 4, 1991, Ezell was able to join Local 23 and pay
$200 for a membership card. On that date, he telephoned
Denton and told him of his union membership. Denton told
him that he would put him to work because of the union card
and would ‘‘worry about a [Local No. 1] permit later.’’ Den-
ton told him that as long as he had a union card, Denton
would give him the job and that Respondent would thereafter
‘‘have to sell you a [work] permit.’’ Denton directed Ezell
to commence work Monday morning, April 8, 1991. Ezell
started work for Denton on April 8 and worked until May
21, 1991. Because Denton sent pension and welfare contribu-
tions on Ezell’s behalf to the Union, the Union discovered
that Ezell was working for Denton and was not a union
member. Ezell told Denton of this condition.
On May 21, 1991, while Ezell was loading a truck, Den-
ton told Ezell that they would have to visit the union hall.
They went to the hall and spoke with Schonlau. Denton told
Schonlau that he would like to continue to keep Ezell work-
ing and asked Schonlau to sell Ezell a work permit. Schonlau
refused, saying that there were still too many tuckpointers7
out of work and that he would not sell Ezell a work permit.
Ezell again told Schonlau how desperately he needed a job.
Denton told Schonlau that Ezell was a good worker and that
he did not want to hire any bricklayer out of the union hall;
he wanted Ezell to work for him. Schonlau again told them
that he would not issue Ezell a work permit because there
were too many tuckpointers out of work; but that he might
do so in a couple of weeks. Ezell further testified that Den-
ton, in Schonlau’s presence, told Ezell that he could not em-
ploy him any further and that Schonlau said nothing.
Schonlau denies being present. It is unnecessary to decide
this conflict.
After May 21, 1991, Ezell no longer worked for Denton.
The complaint (par. 6(c)) alleges that on or about May 21,
1991, Respondent refused to issue a work permit to Ezell by
which Respondent attempted to cause and caused Denton to
lay off the Charging Party.
Schonlau, essentially contradicting Ezell’s testimony, as
above noted, denied that he was present or heard Denton tell
Ezell that he could not put him to work or could not employ
him any further. Schonlau, however, admitted that imme-
diately prior to his conversation with Denton and Ezell on
the morning of May 21, 1991, he had a conversation with
Respondent’s pension and welfare director, James Hassler, at
the union hall. Hassler told Schonlau that he had spoken with
Denton concerning Ezell’s appearance on Denton’s em-
ployee-contribution sheet for the pension and welfare plan
and that he was not familiar with who Ezell was. Hassler
told Schonlau that Denton told him that Ezell was a pointer
working for Denton. Schonlau denied that Hassler said that
he had told Denton of the necessity of a work permit for
Ezell. Thus Respondent defends by asserting that Denton’s
termination of Ezell’s employment on May 21 was purely
Denton’s act without any coercion, demand or request by the
Union to discharge Ezell, ‘‘nor was there any conduct on the
part of the Union from which Denton would reasonable
infer’’ that the Union was coercing Denton to discriminate
against Ezell by firing him (R. Br. 12). Respondent denied
that Hassler was a union agent and he did not testify at the
hearing.
Although Schonlau admitted that, as a matter of normal
‘‘procedure,’’ Hassler, upon discovering Ezell’s nonunion
status from Denton, would tell her of the necessity of a work
permit, there was no proof that Hassler said this to her. In
any event, I agree with Respondent that Denton interpreted
Hassler’s phone call as proof that the Union had discovered
the presence of a nonmember (Ezell) on the Denton job. This
phone call to Denton, I have already concluded, prompted
Denton to bring Ezell to see Schonlau about these matters on
the morning of May 21.
The evidence is not disputed and Respondent concedes (R.
Br. 14) that on the morning of May 21, Denton and Ezell
came to see Schonlau for the purpose of obtaining a work
permit which Schonlau then refused to issue to Ezell. As Re-
spondent further concedes (R. Br. 14) Schonlau knew (pursu-
ant to his conversation with Hassler) that Ezell was em-
ployed by Denton and that Ezell was not a member of the
Union (R. Br. 14). The facts remain, however, that, as Re-
spondent admits, it refused on May 21 to issue Ezell a work
permit; that a work permit is necessary in order to have a
non member work for an employer bound by the Association
contract; and that that work permit must be issued before the
employee goes to work. Schonlau also knew that Ezell was
working for Denton and needed membership or a work per-
mit to continue to do so.
Schonlau also testified concerning Respondent’s conduct
when one of its business agents discovers a nonunion em-
ployee already working on the job without a work permit.
The normal procedure, as I understood his testimony, was
that the union business agent who discovers a nonmember
working on an Association job requires the nonmember to
pay for a work permit for each month that he worked. Even
that procedure, however, was not allowed to Denton and
Ezell. It is clear, and I find, that the reason he did not issue
the work permit to Ezell on May 21 was because, as
Schonlau earlier testified, there were too many of Respond-
ent’s union tuckpointers in St. Louis out of work. Schonlau
testified that Ezell never told him that he was a member of
Local 23 (contrary to Ezell’s testimony concerning his al-
leged March 25, 1991 telephone call to Schonlau). Assum-
ing, arguendo, however that Schonlau’s testimony denying
knowledge of Ezell’s Local 23 membership is credited, then,
to the extent Respondent defends on the ground that Ezell
did not follow the International Union constitution with re-
gard to the constitution’s travel rules, such a defense is plain-
ly irrelevant. The uncontradicted testimony, indeed
Schonlau’s own testimony, is that he did not refuse to issue
a work permit to Ezell because of Ezell’s noncompliance
with travel rules concerning membership in the sister local.
355BRICKLAYERS LOCAL 1 (DENTON’S TUCKPOINTING)
8 I have already concluded the requirement of an $8-per-month
work permit fee is unlawful, and that the present work permit re-
quirement, on this record, is unlawful because it is merely part of
a closed-shop apparatus.
Rather, Schonlau’s own testimony was that he denied issuing
the work permit to Ezell because there were too many
‘‘members’’ (i.e., Respondent’s members) out of work.
Respondent quite correctly notes that if Schonlau’s denial
of Ezell’s testimony is credited (Ezell testified that Schonlau
told Denton that he could not put Ezell to work), Schonlau
never directed Denton to terminate Ezell’s employment. On
the other hand, he did not have to. All he had to do, as he
did, was to refuse to issue the work permit. Schonlau’s testi-
mony is that a work permit is necessary in order for a non-
member to even proceed to work; or if a nonmember is dis-
covered working for an Association member, he is permitted
to continue to work provided he pays for a current work per-
mit and back work permits at the rate of $8 per month.8
Ezell was not permitted this historical alternative. Schonlau
flatly refused to issue him a permit and flatly stated that the
reason was because of too many (St. Louis area) union mem-
bers out of work. When Schonlau, in Denton’s presence, re-
fused to issue Ezell the permit, Ezell and Denton having spe-
cifically presented themselves to Schonlau at the union hall
because the Union discovered Ezell’s nonunion status, the
natural and foreseeable consequences of Schonlau’s refusal
was for Denton to refuse to continue and to terminate Ezell’s
employment. Schonlau, even if I discredit Ezell, cannot de-
fend behind the assertion that he did not, in haec verba, di-
rect that Denton terminate Ezell’s employment. The Schonlau
refusal to issue Ezell the work permit in Denton’s presence
had that immediate effect and consequence, regardless
whether or not Schonlau was present when Denton actually
told Ezell that he could no longer employ him. A labor orga-
nization may be found to have engaged in unlawful discrimi-
nation, within the meaning of Section 8(b)(2) of the Act, in
terms of causation of a violation of Section 8(a)(3) of the
Act, without an express demand for the discriminatory result.
A labor organization’s discriminatory conduct may be in-
ferred from all the circumstances of the case. See Teamsters
Local 980 (Auburn Constructors), 268 NLRB 894, 900
(1984); Food & Commercial Workers Local 454 (Central
Soya of Athens), 245 NLRB 1295, 1299 (1979).
Under the circumstances of this case, Schonlau’s refusal to
issue the work permit on May 21, 1991, I find, was conduct
which was intended to cause, caused, or attempted to cause,
Denton to terminate Ezell’s employment in violation of Sec-
tion 8(b)(2) of the Act. This is so because, under actual prac-
tice in existence, the work permit is a precondition of any
employment by an employer-member bound by the Associa-
tion contract who employs nonunion members. In short,
Ezell could not work for Denton without union membership
or a work permit; as a matter of actual practice, Schonlau
and Denton knew this to be true; Denton and Ezell visited
Schonlau to get the permit; Schonlau refused to issue the
work permit (for unlawful reasons) in Denton’s presence and
ipso facto caused, without a formal demand, Denton to termi-
nate Ezell. That, it seems to me is sufficient Schonlau con-
duct, under the circumstances, to ‘‘cause or attempt to
cause’’ Denton to refuse to continue Ezell’s employment in
violation of Section 8(a)(3), thus violating Section 8(b)(2) of
the Act. In this respect there is a sufficient ‘‘nexus’’ between
Schonlau’s May 21 conduct and Denton’s failure to continue
Ezell’s employment, cf. Brand Mid-Atlantic, Inc., 304 NLRB
853 (1991), to meet the test of 8(b)(2) causation. Compare:
Laborers Local 332 (D’Angelo Bros.), 295 NLRB 1036
(1989), with Holiday Inn Riverfront, 250 NLRB 99, 102
(1980) (Cobbs incident). Even if Schonlau did not act for the
specific purpose of causing the resulting Denton conduct, he
nevertheless acted knowing that this particular result would
follow. That is sufficient causation. Schonlau, as a matter of
actual practice under the contract binding Denton, knew that
Denton, whose visit to Schonlau was for that very purpose,
would not continue to employ Ezell without a union work
permit or union membership. Since Schonlau’s refusal to
grant either was prompted by a desire to unlawfully eliminate
nonunion (or non-St. Louis union) competition for St. Louis
jobs, his actions against Ezell are discriminatory and unlaw-
ful, as they would be even without the unlawful motive.
CONCLUSIONS OF LAW
1. Denton’s Tuckpointing, Inc., a member of Mason Con-
tractors Association of St. Louis, Inc., is an employer en-
gaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
2. Respondent, Bricklayers, Tuckpointers, and Stone Ma-
sons of the International Union of Bricklayers and Allied
Craftsmen, Local No. 1 of St. Louis, Missouri, AFL–CIO, is
a labor organization within the meaning of Section 2(5) of
the Act.
3. By maintaining any agreement with the Association, or
with any other employer, that requires the employer to give
preference in hiring or employment to employees based on
membership or nonmembership in any labor organization,
Respondent violated Section 8(a)(1)(A) of the Act.
4. By charging a fee to nonmembers for issuance or main-
tenance of a work permit, Respondent violated Section
8(b)(1)(A) of the Act.
5. By failing and refusing to issue nonmembers of Re-
spondent work permits or membership cards in Respondent,
which work permits and membership cards are conditions of
employment or continued employment with employers who
are members of the Association, because of reasons other
than the employees’ failure to tender periodic dues and initi-
ation fees uniformly required as a condition of acquiring or
retaining membership in Respondent, Respondent unlawfully
discriminated against employees in violation of Section
8(a)(3) of the Act, thereby violating Section 8(b)(1)(A) and
(2) of the Act.
6. By causing Denton’s Tuckpointing, Inc. to terminate the
employment of Charles N. Ezell Jr. because of his nonmem-
bership in Respondent or because Respondent failed and re-
fused to issue him a work permit, Respondent, by this dis-
criminatory practice, unlawfully encouraged membership in
Respondent in violation of Section 8(a)(3) of the Act, there-
by violating Section 8(b)(2) and (1)(A) of the Act.
7. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
356 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
9 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
10 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
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
THE REMEDY
Having found that Respondent has engaged in certain un-
fair labor practices, I shall recommend that the Respondent
cease and desist therefrom and take certain affirmative action
in order to effectuate the purposes of the Act.
As above noted, I refused to further elaborate, for the ben-
efits of the Association or others, what I believe would cre-
ate a lawful clause relating to membership in the union as
a condition of employment. I have, in any event, rec-
ommended to the Board that it find that the 80-percent man-
ning clause (art. XII, sec. 7) be found unlawful. I have also
separately found unlawful Respondent’s failure and refusal to
issue work permits or union membership cards because too
many union members are out of work, where the work per-
mits and other membership cards are a condition of gaining
or retaining employment with members of the Association.
Since I have found that Respondent caused Denton’s
Tuckpointing to terminate the Charging Parties’ employment,
it is recommended, that Respondent immediately notify, in
writing, Denton Tuckpointers, and all other members of the
Association, that it has no objection to the Charging Party’s
employment by any of such members as a Tuckpointer or for
any other position for which he is qualified and to request
of Denton’s Tuckpointing, in particular, his reinstatement. I
shall further recommend that Respondent make the Charging
Party whole for any loss of wages and benefits suffered by
reason of the discrimination against him from March 18,
1991, the date of Respondent’s initial unlawful discrimina-
tion against him, to the date of his reinstatement by Denton’s
Tuckpointing, Inc. to his former or substantially equivalent
job, or to the date he secures substantially equivalent em-
ployment with some other employer, less his net earnings
during this period. The loss of earnings shall be computed
in the matter prescribed in F. W. Woolworth Co., 90 NLRB
289 (1950), with interest computed in accordance with Board
policy set forth in New Horizons for the Retarded, 283
NLRB 1173 (1987).
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended9
ORDER
The Respondent, Bricklayers, Tuckpointers, and Stone Ma-
sons of the International Union of Bricklayers and Allied
Craftsmen, Local No. 1 of St. Louis, Missouri, AFL–CIO, its
officers, agents, and representatives, shall
1. Cease and desist from
(a) Causing or attempting to cause Denton’s Tuckpointing,
Inc., an employer, to discriminate against Charles N. Ezell
Jr., or any other employee, because of their nonmembership
in Respondent or because they engaged in activities protected
under Section 7 of the Act except to the extent permitted by
Section 8(a)(3) of the Act.
(b) Maintaining any collective-bargaining agreement with
the Mason Contractors Association of St. Louis, or with any
other employer, that requires the employer to give preference
in the hiring or retention of employment to employees based
upon membership or nonmembership in any labor organiza-
tion except to the extent permitted by Section 8(a)(3) of the
Act.
(c) Charging a fee for work permits, failing or refusing to
issue to nonmembers of Respondent work permits or requir-
ing as a condition of gaining employment, membership in
Respondent in order to give preference in employment to ex-
isting members of Respondent.
(d) In any like or related manner restraining or coercing
employees in the exercise of their rights guaranteed by Sec-
tion 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Notify Denton’s Tuckpointing, Inc., and all members
of Mason Contractors Association of St. Louis, in writing,
that it has no objection to the employment of Charles N.
Ezell and to request his reinstatement by Denton’s
Tuckpointing, Inc.
(b) Make whole Charles N. Ezell Jr. for loss of earnings
he may have suffered by reason of the discrimination against
him commencing March 18, 1991, as set forth in the remedy
section of this decision.
(c) Notify all employer-members of the Association, bound
by a collective-bargaining agreement with Respondent, that
paragraph article XII, section 7, of the collective-bargaining
agreement between the Association and Respondent, effective
for the period June 20, 1990, through May 31, 1993, or any
amendments thereto or successors thereof containing such
clause, is unlawful.
(d) Post at its offices and meeting halls in St. Louis, Mis-
souri, copies of the attached notice marked ‘‘Appendix.’’10
Copies of the notice, on forms provided by the Regional Di-
rector for Region 14, after being signed by the Respondent’s
authorized representative, shall be posted by the Respondent
immediately upon receipt and maintained for 60 consecutive
days in conspicuous places including all places where notices
to members are customarily posted. Reasonable steps shall be
taken by the Respondent to ensure that the notices are not
altered, defaced, or covered by any other material.
(e) Forward to the Regional Director for Region 14 signed
copies of said notice for posting by Denton’s Tuckpointing,
Inc., or other members of the Association bound by the col-
lective-bargaining agreement above reference, if they are
willing, for 60 consecutive days, in places where notices to
members are customarily posted.
(f) Notify the Regional Director in writing within 20 days
from the date of this Order what steps Respondent has taken
to comply.
357BRICKLAYERS LOCAL 1 (DENTON’S TUCKPOINTING)
APPENDIX
NOTICE TO MEMBERS
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 vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
WE WILL NOT cause or attempt to cause Denton’s
Tuckpointing, Inc., an employer, to discriminate against
Charles N. Ezell, Jr., or any other employee, because of his
or their nonmembership in Bricklayers, Tuckpointers, and
Stone Masons of the International Union of Bricklayers and
Allied Craftsmen, Local No. 1 of St. Louis, Missouri, AFL–
CIO (the Union), or because he or they engaged in activities
protected under Section 7 of the National Labor Relations
Act.
WE WILL NOT maintain or otherwise give effect to any
collective-bargaining agreement with Mason Contractors As-
sociation of St. Louis (the Association), or with any other
employer or employer association, that requires the Employer
or the Association to give preference in the hiring or reten-
tion of employment to employees based upon membership or
nonmembership in any labor organization except to the ex-
tent permitted by Section 8(a)(3) of the Act.
WE WILL NOT fail or refuse to issue to nonmembers of the
Union work permits or require, as a condition of gaining em-
ployment with employers who are members of the Associa-
tion, membership in the Union in order to give preference in
employment to existing members of Respondent.
WE WILL NOT charge nonmembers a fee for issuing a
work permit.
WE WILL NOT in any like or related manner restrain or co-
erce employees in the exercise of their rights guaranteed by
Section 7 of the Act.
WE WILL notify Denton’s Tuckpointing, Inc., and all mem-
bers of the Association, in writing, that the Union has no ob-
jection to the employment of Charles N. Ezell and to request
his reinstatement by Denton’s Tuckpointing, Inc.
WE WILL make whole Charles N. Ezell Jr. for any loss of
earnings he may have suffered by reason of the Union’s dis-
crimination against him commencing March 18, 1991, plus
interest.
WE WILL notify all employer-members of the Association,
bound by a collective-bargaining agreement with the Union,
that paragraph article XII, section 7, of the collective-bar-
gaining agreement between the Association and the Union,
effective for the period June 20, 1990, through May 31,
1993, or any amendments thereto or successors thereof, con-
taining such a clause, that such clauses are unlawful and will
be given no further force or effect.
BRICKLAYERS, TUCKPOINTERS, AND STONE
MASONS OF THE INTERNATIONAL UNION OF
BRICKLAYERS AND ALLIED CRAFTSMEN,
LOCAL NO. 1 OF ST. LOUIS, MISSOURI, AFL–
CIO