Carpenters & Joiners, Local 1620

National Labor Relations Board - Board Decisions

Jan 3, 1974

208 N.L.R.B. 94 (N.L.R.B. 1974)

94 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Carpenters and Joiners of America , Local 1620 (David
M. Fisher Construction Company ) and Charles R.
Carlson . Cases 27-CB-753 and 27-CC-500
January 3, 1974
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND PENELLO
On August 15, 1973, Administrative Law Judge
James T. Rasbury issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief, and the General
Counsel filed limited exceptions and a supporting
brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings,
findings,' and conclusions2 of the Administrative
Law Judge and to adopt his recommended Order.3
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that Respondent, Carpenters and
Joiners of America, Local 1620, Rock Springs,
Wyoming, its officers, agents, and representatives,
shall take the action set forth in the said recommend-
ed Order, substituting the attached notice for that of
the Administrative Law Judge.
i The Respondent has 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 Products,
Inc, 91 NLRB 544, enfd. 188 F.2d 362 (C A 3, 1951) We have carefully
examined the record and find no basis for reversing his findings
2 While we agree with the Administrative Law Judge's finding that
Respondent violated Sec 8(b)(4)(ixii )(B) by fining those members who
continued to work after the walkout , we find ment in Respondent's
exception to the Administrative Law Judge' s consideration of the alleged
refusal to refer member to Fisher Although the charge herein was filed
within 6 months of the fining of the members, there is no evidence in the
record that Respondent refused to refer carpenters to Fisher within the 6
months preceding the filing of the original charge Accordingly, we are
precluded by Sec. 10(b) of the Act from considering whether the alleged
refusal to refer violated Sec 8 (b)(4)(i)(ii)(B), and we shall not adopt this
finding of the Administrative Law Judge
3 The General Counsel filed limited exceptions to the failure of the
Administrative Law Judge to include in the notice to employees and
members the affirmative action designed to effectuate the policies of the Act
recommended in pars . 2(a), (b), and (c) of his recommended Order Since
the requested modification conforms with our customary practice, we find
ment to the General Counsel's exceptions and have therefore substituted
the attached notice for the notice recommended by the Administrative Law
Judge
APPENDIX
NOTICE To EMPLOYEES AND MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
To all members of Carpenters and - Joiners of
America, Local 1620
To all employees of Fisher Construction Company
J. E. Acoustics Corporation
Following a hearing during which all parties were
given an opportunity to present evidence and
argument, it has been determined that Carpenters
and Joiners of America, Local 1620, violated the law
by committing certain unfair labor practices. In
order to remedy such conduct we are required to post
this notice. Carpenters and Joiners of America, Local
1620, intends to comply with this requirement and to
abide by the following:
WE WILL NOT restrain and coerce the employer
in the selection of its representatives for the
purposes of collective bargaining or the adjust-
ment of grievances.
WE WILL NOT fine or threaten loss of member-
ship to employees, or supervisors, of Fisher
Construction Company, because they persist in
their desires to render services for the Fisher
Construction Company, an employer with whom
this Union has no labor disputes.
WE WILL NOT in any manner prohibited by
Section 8(b)(4)(i) or (ii)(B) of the National Labor
Relations Act threaten, coerce, or restrain Fisher
Construction Company, or any other person
engaged in commerce or in an industry affecting
commerce, where, in either case, an object thereof
is to force or require the named employer, or any
other person, to cease using, handling, or other-
wise dealing in the product or services made
available by J. E. Acoustics Corporation, or to
cease doing business with that firm.
WE WILL NOT in any manner prohibited by
Section 8(b)(4)(i) or (u)(B) of the National Labor
Relations Act induce or encourage any individual
employed by Fisher Construction Company, or
by any other person engaged in commerce or in
an industry affecting commerce, to engage in a
strike or refusal, in the course of his employment,
to use, manufacture, process, transport, or other-
wise handle or work on any goods, articles,
materials, or commodities, or to refuse to perform
any other services, where an object thereof is to
force or require the named employer, or any other
person, to cease using, handling, or otherwise
dealing in the products or services made available
208 NLRB No. 27
CARPENTERS & JOINERS, LOCAL 1620 95
by J. E. Acoustics, or to cease doing business with
that firm.
WE WILL withdraw and rescind the fines levied
against George Pickard, Charles Carlson, Cecil
Swift, and Thomas Moore.
WE WILL correct all pertinent records relating
to the aforesaid fines and threatened loss of
membership by expunging all references thereto
from the Respondent's records and we will advise
the International Union of Carpenters and
Joiners of America of such action.
WE WILL notify George Pickard, Charles
Carlson, Cecil Swift, and Thomas Moore, in
writing, that the fines against them have been
rescinded and that all entries, including any
communications to the International Union, have
been expunged from the records of the Union.
CARPENTERS AND
JOINERS OF AMERICA,
LOCAL 1620
(Labor Organization)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be
altered, defaced, or covered by any other material.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, U.S. Custom House, Room 260, 721
19th Street, Denver, Colorado 80202, Telephone
303-837-3551.
restrained or coerced the employer in the selection of his
representatives in violation of Section 8(b)(1)(B); and (3)
whether this same alleged misconduct by the Respondent
was also violative of Section 8(b)(4)(i) and (ii)(B) of the
Act.
Upon the entire record, including my observation of the
demeanor of the witnesses, and after due consideration of
the briefs filed by the General Counsel and the Union, I
make the following:
FINDINGS OF FACT
1. JURISDICTION
The Fisher Construction Company (herein Fisher) is
now and at all times material herein has been a corporation
duly organized under and existing by the virtues of the
laws of the State of Wyoming and maintains an office and
place of business at Rock Springs, Wyoming. In the course
and conduct of its business operations in the State of
Wyoming, Fisher annually purchases and receives goods
and materials valued in excess of $50,0D0 directly from
points and places outside the State of Wyoming.
J. E. Acoustics (herein Acoustics) is a Wyoming
corporation engaged in the business of interior finishing
and in the course and conduct of its business operations in
the State of Wyoming annually purchases and receives
goods and materials valued in excess of $50,000 directly
from points and places outside the State of Wyoming. The
Respondent's answer admits and I herewith find that both
Fisher and Acoustics are now and at all times material
herein have been employers engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act. The
Respondent's answer admits and I herewith find that now,
and at all times material herein, the Carpenters and Joiners
of America, Local 1620, is a labor organization within the
meaning of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
DECISION
STATEMENT OF THE CASE
JAMES T. RASBURY, Administrative Law Judge: This case
was tried at Rock Springs, Wyoming, on May 17 and 18,
1973.1 The original charge in Case 27-CB-753 was dated
February 17, 1973, and filed February 20, 1973, complaint
issued on March 29, 1973. An amended charge in Case
27-CB-753 dated March 31, 1973, was filed on April 2,
1973, and the charge in Case 27-CC-500 was dated March
31, 1973, and filed on April 2, 1973. On April 13, 1973,
there was issued an order consolidating cases, and an
amended complaint and notice of hearing. The primary
issues are whether the Respondent Union (1) unlawfully
restrained or coerced employees in the exercise of their
Section 7 rights in violation of Section 8(b)(l)(A); or (2)
1 The relevant events herein occurred in 1972 and all dates hereinafter
will be in the year 1972 unless otherwise indicated
2 It was not fully explained, nor was it necessarily relevant to this
dispute, but one might conclude that Fisher became a signatory to the labor
agreement with the Respondent about the time the Rock Springs job was
undertaken, which was probably its first major construction job in
A. Background Events
Fisher at all times material herein was the general
contractor engaged in building a Holiday Inn at Rock
Springs, Wyoming. Fisher and Respondent were signato-
ries to a collective-bargaining agreement . The agreement
covered the period from July 16, 1970, throughuJuly 15,
1973 although Fisher did not become a signatory until May
15 (see G.C. Exh. 4).2 The interior finishing of the Holiday
Inn project was subcontracted to Acoustics. Acoustics was
not a signatory to the then current labor agreement
between the Wyoming State Council of Carpenters and the
Wyoming Contractor's Association, Inc. (G. C. Exh. 4),
although it appears that it had been signatory to the
prior agreement (see Resp. Exh. B).3 Work was begun on
the Holiday Inn on May 16, and progressed without
serious incident until August 9.
Wyoming
3 Respondent 's answer alleged that Acoustics was a "party " to the then
current agreement, but had refused to sign the agreement resulting in a
threatened filing of unfair labor practice charges by Respondent against
Acoustics Whether there was or was not a contract between Respondent
and Acoustics is immaterial to a resolution of this dispute, but Respondent's
(Continued)
96 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Acoustics' employees first appeared on the job
August 7-their necessary materials having been placed on
the job a few days earlier. On the following day Willis
Meeks, business representative for the Respondent, ap-
peared on the job and was involved in a discussion with
George Pickard, at that time general foreman for Fisher,
Oliver Eccleman, foreman for Acoustics, Henry Meeks, the
Respondent's on-the-job steward, and Grant Taylor, a
plumber. At that time Mr. Willis Meeks announced that he
was going to shut the job down. According to Pickard-
whose testimony I credit in preference to Willis Meeks
wherever they differ-the conversation was brief and
pungent. Derogatory and uncomplimentary remarks were
made by Willis Meeks to Eccleman and about Acoustics
and Mr. Eye, the president of Acoustics. Pickard suggested
Willis Meeks should talk to Mr. Eye, but Meeks was only
interested in a signed agreement. Willis Meeks left the
jobsite and everybody went back to work-angry, but with
nothing settled.
Later in the day on August 8, Mr. Eye called Willis
Meeks and offered to hire some men through the
Respondent local, but Willis Meeks reiterated his position
that only a signed agreement could settle their differences.
On the morning of August 9, at a time when all the
carpenters working for Fisher were gathered around the
shed where their tools were kept, Henry Meeks, the job
steward, announced: "I am quitting, and I think that most
of these men here will quit also; I am quitting right now
and I want you to mail me my check; and I said it loud
enough that everyone could hear it and then I left." There
was contrary testimony as to whether the other carpenters
said they too were quitting and I have grave doubts that
term was used. According to Pickard, Meeks merely
announced in a loud voice that he "couldn't work with a
scab contractor and he wasn't going to work." In any event
all the carpenters employed by Fisher except Swift,
Carlson, Fedrizzi, and Pickard immediately followed
Henry Meeks' example and left thejob. Swift, Carlson, and
Fedrizzi followed very shortly thereafter, arriving at the
union hall between 9 and 9:30 a.m. and there found the
other "Fisher carpenters" engaged in conversation with
Willis Meeks.
Superior Lumber Company was involved in building an
elementary school in Green River, Wyoming, which was
only 15 miles away from Rock Springs, and Acoustics was
a subcontractor on that job. Carlson asked if the carpenters
working for Superior Lumber Company were going to
come off the job also. According to Swift and Carlson,
Willis Meeks responded that the Superior Lumber Compa-
ny carpenters should be told what happened in Rock
Springs and that they were going to be asked to come off
the job, too.
Henry Meeks, Donald Meeks, and Roger and Bruce
Reed went to the Superior Lumber Company job and that
afternoon several of the Superior carpenters walked off the
job although they returned to work the following morning.
(However, Mr. Eye testified that minor incidents of
point of view lends credence to the allegation in the complaint (par VI, a)
that "at all times since August 8, 1972, Respondent has been engaged in a
labor dispute with Acoustics."
4 Pars A thru I, section 46, beginning at p. 45 of the constitution and
laws of the United Brotherhood of Carpenters and Joiners of America (G.C.
harassment, such as roughing up a finished taping job,
continued on the Green River school project and it was
finally necessary to assign the Superior Lumber Company
carpenters to finish the work.)
Pickard-whose status for Fisher changed from general
foreman to that of superintendent on August 9-went to
the union hall in the afternoon of August 9 to advise Willis
Meeks that Mr. Eye had agreed to hire a percentage, or
ratio, of carpenters from the Respondent local. Willis
Meeks responded that the whole organization would have
to sign up. At this time Pickard asked to have the
carpenters return to work for Fisher, but received a
negative response. Some time during this afternoon visit to
the Union, George Pickard asked for and obtained a
clearance card. According to Pickard, he was asked by
Willis Meeks what he was going to do and Pickard
responded by saying that he did not know.
Pickard testified that he talked to Willis Meeks again by
telephone on August 10 and I1 requesting carpenters for
the Fisher job, but to no avail. These telephone conversa-
tions were verified by Swift who had reported to the Fisher
job on August 10 to inquire what was happening, and who
returned to work on August 11.
On August 11, Swift obtained a clearance card from the
Union,4 after advising Willis Meeks that he intended to go
to Colorado to work. Swift returned to work for Fisher in
Rock Springs on August I1 as a carpenter foreman and
worked there until August 25 when he was moved to
Colorado by Fisher as the superintendent in charge of
building a Best Western Motel.
Carlson had gone to Nebraska shortly following the
"walk off." Upon learning from a fellow carpenter that the
Superior Lumber Company carpenters had gone back to
work, he called Pickard to ascertain the status of the
Holiday Inn job in Rock Springs. Pickard informed
Carlson that the Union was still refusing to refer men to
the job, but that Fisher was offering him (Carlson) a
salaried position if he wanted it. Carlson responded that he
would "be back to work Monday morning." Carlson
returned to Wyoming and obtained his clearance card
from Willis Meeks on August 14, telling him in response to
a question, that he did not know where he was going.
Carlson then went to work for Fisher in Rock Springs as a
carpenter foreman and continued in that capacity until
April 11, 1973.
On August 15 Pickard, Swift, and Carlson each received
notices from the Union that charges were being preferred
against them and each was invited to appear at the union
meeting on August 17 (see G.C. Exh. 9(a), 10(a), and
1 l (a)). On the same day the notices were dated, Pickard,
Swift, and Carlson went to the union hall where they were
handed a copy of the charges, a copy of the general
agreement, the bylaws, and the constitution. George
Pickard was informed by Willis Meeks, that if he would
quit his job the charges against him would be dropped, but
Exh 5) set forth in detail the use and purpose of a clearance card. In brief,
it is obtained by a member when he moves from one geographical
jurisdiction of the Union to another and it is the means of transferring
membership
CARPENTERS & JOINERS , LOCAL 1620
that the charges against Swift and Carlson would stick
regardless of what they did.5 Donald Meeks and Henry
Meeks were in the union hall at the time and there was an
exchange of comments about being disloyal to the Union.
Carlson again raised a question about the carpenters on the
Superior Lumber Company job at Green River being
allowed to continue working, but the testimony was vague
and veiled as to Willis Meeks' response and I can only
conclude that Carlson never received a satisfactory answer.
B. Nature of Charges Against Pickard, Swift, and
Carlson
Pickard was charged with violating section 26, paragraph
H, and section 24, paragraph C (G.C. Exh. 2, p. 3), of the
Carpenters' Local Union No. 1620 bylaws and trade rules
(G.C. Exh. 6); and section 7, paragraphs A and B,
constitution and laws of the United Brotherhood of
Carpenters and Joiners of America (G.C. Exh. 5). These
sections read as follows:
Stewards
Section 24. (C) In no event shall men work without a
steward.
Foreman
Section 26. (H) Under no conditions shall any
carpenter, foreman, or superintendent assign work
specified in Trade Autonomy of the United Brother-
hood, as set forth in the Constitution and Laws of the
United Brotherhood, to other than members of the
Brotherhood.
Trade Autonomy
A Section 7. The trade autonomy of the United
Brotherhood of Carpenters and Joiners of America
consists of the milling, fashioning, joining, assembling,
erection, fastening and dismantling all materials of
wood, plastic, metal, fiber, cork and composition, and
all other substitute materials. The handling, cleaning,
erecting, installing and dismantling of machinery,
equipment and all materials used by members of the
Brotherhood.
B. Our claim of jurisdiction, therefore, extends
over the following divisions and subdivisions of the
trade: Carpenters and Joiners; Millwrights; Pile Driv-
ers, Bridge, Dock and Wharf Carpenters, Divers,
Underpinners, Timbermen and Core Drillers; Ship-
wrights, Boat Builders, Ship Carpenters, Joiners and
Caulkers; Cabinet Makers, Bench Hands, Stair Build-
ers, Millmen; Wood and Resilient Floor Layers, and
Finishers; Carpet Layers; Shinglers; Siders; Insulators;
Acoustic and Dry Wall Applicators; Shorers and
House Movers; Loggers, Lumber and Sawmill Work-
5 There is a conflict in the testimony on whether this statement was made
by Willis Meeks or Henry Meeks. On the basis of the credited testimony of
Pickard, Swift, and Carlson, I attribute this remark to Willis Meeks.
6 The exhibits admitted as evidence did not include an October 20th
letter addressed to Swift. However, the November 27 letter addressed to
Swift made reference to the October 20th letter and the $1,000 fine.
I The sections of the contract and the bylaws which Moore is charged
97
ers; Furniture Workers, Reed and Rattan Workers;
Shingle Weavers; Casket and Coffin Makers; Box
Makers, Railroad Carpenters and Car Builders, regard-
less of material used; and all those engaged in the
operation of woodworking or other machinery required
in the fashioning, milling or manufacturing of products
used in the trade, or engaged as helpers to any of the
above divisions or subdivisions, and the handling,
erecting and installing material on any of the above
divisions or subdivisions; burning, welding, rigging and
the use of any instrument or tool for layout work,
incidental to the trade. When the term "carpenter and
joiner" is used, it shall mean all the subdivisions of the
trade.
Carlson and Swift were each charged with violating
section 24, paragraph C, of the local bylaws and trade
rules (p. 2 and 4 of G.C. Exh. 2). This alleged violation was
also charged against Pickard and the language of the
referenced section is set out above.
Pickard, Swift, and Carlson elected to ignore the charges
and were tried in absentia by Respondent on October 6
(G.C. Exh. 2). By letter dated October 20 each was notified
that he had been found guilty and was fined $1,000. (See
G.C. Exh. 9b and I 1 e.) By letter dated November 27 each
man was notified that he had until December 31 to pay the
fine or his name would be stricken from the membership.
(See G.C. Exh. 9c, lob and I If) 6 None of the three-Pick-
ard, Swift, or Carlson-has paid the fine.
C. Nature of Charges Against Thomas Moore
Thomas Moore, a carpenter-member of Respondent, was
not involved in the earlier incidents heretofore related.
Moore was employed by Bechtel Corporation at the Jim
Bridger project, just outside Rock Springs, until November
21. Moore was recruited by Fisher to become a supervisor.
On November 21 before going to work for Fisher he went
to the union hall and sought an honorary withdrawal on
the basis that he was "going to take over and supervise
with a construction firm." At the direction of Willis Meeks,
Moore later made his request in writing (see letter dated
November 25 from Moore to Respondent which is a part
of G.C. Exh. 3). Moore worked for Fisher in Rock Springs
as a supervisor-trainee until March 1973 when he was
transferred to Trinidad, Colorado, where he has continu-
ously remained employed as a general superintendent
involved in building another Holiday Inn.
Moore never received his withdrawal card and on
December 14 was charged with violating section 5, pars.
(b) and (h) of the then current labor management
agreement (G.C. Exh. 4 at pp. 4 and 5), and section 20,
paragraph B, and section 24, paragraph C of the Respon-
dent's bylaws and trade rules (G.C. Exh. 6).7
Moore elected to ignore the charges and was tried and
found guilty in absentia. He was notified by letter dated
with having violated are as follows: section 5, paragraph b (of article ill.).
"All individuals desiring employment shall register at the Union by
appearing personally and shall indicate name, address, telephone number,
and type of work desired, social security account number, and qualifica-
tions (h) Each individual, upon being referred, shall receive a referral slip to
be transmitted to the employer representative at the jobsite " Bylaws and
Trade Rules. Section 20, paragraph B: "Members shall comply with any
(Continued)
98 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
February 7, 1973, that he had been fined $1,000 (G.C. Exh.
8a) and later notified on March 7, 1973, that unless the fine
was paid by April 7, 1973, his name would be stricken from
the membership (G.C. Exh. 8b).
Ili. ANALYSIS
A. Respondent's Contentions
Respondent argues that the Section 8(b)(4)(i) and (ii)(B)8
allegations of the complaint should be dismissed because
the charge was filed April 2, 1973, which was more than 6
months after the August 9 "walk off" and also more than 6
months after the union charges were filed against Pickard,
Swift, and Carlson thus barred by Section 10(b) of the
Act.9 The April 2, 1973, charge, however, grew out of the
identical set of circumstances applicable to the original
charge. While it wai necessary to issue a new complaint
and then an order consolidating the cases, rather than an
amended complaint, this was purely an administrative
matter stemming from the agency's internal procedure of
categorizing or labeling cases.1° An amended complaint
alleging additional violations of the Act which may have
occurred more than 6 months before the issuance of said
complaint, but which is directly related to the same
circumstances giving rise to the original charge, is not
barred by Section 10(b), provided the original charge was
timely. See N.L.R.B. v. Dinion Coil Company, Inc.,
201 F.2d 484 (C.A. 2, 1952). There the court said:
A complaint, as distinguished from a charge, need
not be filed and served within the six months , and may
therefore be amended after the six months . If a charge
was filed and served within six months after the
violations alleged in the charge , the complaint (or
amended complaint), although filed after the six
months, may allege violation not alleged in the charge
if (a) they are closely related to the violations named in the
charge and (b) occurred within six months before the
filing of the charge. [Emphasis supplied.]((
Respondent also contends the original charge was
untimely, because the "walk off" and the union charges
against Pickard , Swift , and Carlson occurred more than 6
months before the charge was filed . However, the original
and all conditions of current contracts ." section 24 , paragraph C•"In no
event shall men work without a steward."
8 This section reads as follows . "It shall be an unfair labor practice for a
labor organization or its agents . to engage in, or to induce or encourage
any individual employed by any person engaged in commerce or in an
industry affecting commerce to engage in, a stoke 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 services; or (u) to threaten , coerce, or restrain any person
engaged in commerce or in an industry affecting commerce , where in either
case an object thereof is . (B) forcing or requiring any person to cease
using, selling, handling, transporting, or otherwise dealing in the products of
any other producer, processor, or manufacturer , or to cease doing business
with any other person, .
9 The relevant portion of Section 10(b) reads as follows "Provided, that
no complaint shall issue based upon any unfair labor practice occurring
more than six months poor to the filing of the charge with the Board and
the service of a copy thereof upon the person against whom such charge is
made, . "
charge was timely filed because it alleged the act of fining,
as being the unfair labor practice. The charge and the
complaint alleged the fine to have been assessed October
19 and this conforms to the documentary proof received at
the hearing. The original charge, filed and served February
20, 1973, was well within 6 months of the alleged
proscribed conduct and is in conformance with Section
10(b) of the Act. In Allis-Chalmers Manufacturing Compa-
ny, 149 N LRB 67, affd. 388 U.S. 175, Trial Examiner Harold
Summers disposed of this same argument therein raised by
Respondent with these words: "Where, as here, imple-
menting action is taken within the 6-month period, Section
10(c) (sic] does not bar the proceeding." (Cf. Local Lodge
1424, International Association of Machinists [Bryan Manu-
facturing Co.], 362 U.S. 411.) This statement was adopted
by the Board without comment. (See fn . 12, p. 76 of the
Board decision). Also see International Brotherhood of
Electrical Workers, Local 716, 203 NLRB No. 52.
Respondent contends that the refusal by the employees
(members) to provide services for Fisher was without its
knowledge or approval and Respondent cannot be held
responsible for the individual desires of the employees not
to perform their skills for a particular employer. While this
is an accurate statement of the law, the premise does not,
in my opinion, comport with the facts. I credit the
testimony of Pickard relating to Willis Meeks' statement
and conduct on August 8 on which occasion he appeared
at the Fisher jobsite and announced he was going to shut
the job down unless Acoustics signed an agreement with
Respondent. Willis Meeks is the business representative
of Respondent and admitted to being an agent of
Respondent in the answer filed herein. Furthermore Willis
Meeks' announced course of conduct , insofar as the Fisher
job was concerned, reached fruition the following morning
when his brother, Henry Meeks, the steward on the job,
announced in a voice loud enough to be heard by all the
other carpenters, "I am quitting, and I think that most of
these men here will quit also; I am quitting right now and I
want you to mail me my check." 12 This is one type of
inducement leadership by an agent 13 of the Union which
the Act proscribes when, as occurred here , it results in
services being withheld from an employer with whom the
Union has no dispute, with an object of forcing or
requiring that employer to cease doing business with
another employer.
10 Secondary boycott-type cases are numbered with a CC or CE
designation while the more frequent situations of an alleged violation by a
company or a union toward an employee or member are designated with
either CA (for companies) or a CB (for unions) numbering sequence
I I This early decision has been consistently followed by the Board with
approval of the courts, and numerous case citations, both old and new, may
be found in the Labor Relations Digest and index , section 36 053 published
by the Bureau of National Affairs
12 While this quote is from Henry Meeks' own testimony and certainly
amounted to inducement and encouragement to the other employees to
cease providing services, the other versions of Henry Meeks' statement on
this particular occasion attribute to him remarks about working with scabs
These comments coming from the union steward might be fairly
characterized as verbal threats or coercion tending to restrain other union
members in their course of conduct.
13 For recent cases holding that union stewards are agents of the Union,
see International Brotherhood of Electrical Workers, Local 640 (Brown
Wholesale Electrical Co), 190 NLRB 456, and Glaziers & Glassworkers,
Local 513 (Linclay Corp), 191 NLRB 461.
CARPENTERS & JOINERS, LOCAL 1620
Clearly, this background evidence is indicative of
Respondent's real desire to have Acoustics removed from
the job by putting pressure on the general contractor-
Fisher. This conclusion is amply supported by Respondent's
continued refusal to refer carpenters to Fisher in spite of
Pickard's thrice repeated request for carpenters following
the "walk off" on August 9. There is no proof in the record
that Respondent had a quarrel with Fisher before the
"walk off." Willis Meeks so testified. Yet the evidence is
overwhelming that Respondent did have a serious labor
dispute with Acoustics.
Respondent argues that the union proceedings (including
the fining and threatened loss of membership unless the
fine was timely paid) were internal union proceedings
concerning its own rules with respect to retention of union
membership as permitted by the proviso to Section
8(b)(1)(A). The soundness of this argument turns on the
purpose or motivation behind the fine. Willis Meeks has
been the business representative of Respondent for the past
10 years and-albeit the questions posed and Meeks'
answers are somewhat confusing-there is nothing in the
testimony to indicate that heretofore any member has been
fined in an amount greater than $50 during Meeks' 10-year
term as business representative. In this instance-although
the charges against each of the four men involved were
somewhat different-each man was fined exactly the same
amount, $1,000. This is a sum 20 times greater than any
fine assessed during the prior 10-year period. And for what
reason? While Respondent would have one believe the men
were fined because of violating internal union rules relating
to their membership obligations, I find these excuses to be
a weak coverup; a pretext in an effort to hide the real
reasons.
Respondent had no argument with Fisher, but it was
determined to prevent Acoustics from doing business in its
geographical jurisdiction unless, or until, Acoustics became
signatory to the statewide agreement (G.C. Exh. 4).
Pickard, Swift, Carlson, and Moore wanted to work for
Fisher and refused to go along with Willis Meeks' plan to
violate the Act. When each man persisted in his desires and
rights to earn a living for himself and family in a manner
wholly within the concepts of good unionism, but contrary
to Willis Meeks' desires, reasons were contrived to place
severe and undue pressure on each of these individuals.
Not only was the fine so excessive in amount in
relationship to prior fines as to bear no fair relationship to
the legitimate purposes to be served, but the threatened
loss of membership could result in economic strangula-
tions. The Supreme Court has made it clear
in N.L.R.B. v. Boeing Co., 412 U.S. 67 (1973),
that reasonableness of the fine is not the criteria for
a violation of Section 8(b)(1)(A) of the Act. This admoni-
tion I have studiously observed, but the severity of the
fine-particularly as it relates to past practice-may be
considered as part of the total picture in ascertaining the
reason or purpose for the fine. In Local 138, International
Union of Operating Engineers (Charles S. Skura), 148
NLRB 679, the Board makes it crystally clear that it is the
99
reason for the fine rather than the severity which makes the
action of the union unlawful. In this instance, I am
convinced from all the evidence that Respondent's reason
for the fine was in furtherance of its illegal course of
conduct (enmeshing a neutral employer in a quarrel not his
own) and therefore violative of Section 8(b)(1)(A). In the
Boeing decision, supra, the Court said at 73:
The underlying basis for the holding of Allis-
Chalmers . . . was not that reasonable fines were
noncoercive under the language of Section 8(b)(l)(A)
of the Act, but was instead that those provisions were
not intended by Congress to apply to the imposition by
the union of fines not affecting the employer-employee
relationship and not otherwise prohibited by the Act.
The fines in this dispute were for the purpose of affecting
the employer-employee relationship and were in further-
ance of a course of conduct on the part of the Respondent
that is proscribed by the Act.
Respondent has argued that the complaint should be
dismissed because the union members involved herein have
not exhausted available internal union procedures. This
argument is misplaced and is not applicable to government
proceedings in an unfair labor practice case. The Board
said in the Skura case, supra: "While the validity of rules
requiring exhaustion of internal union remedies has
generally been recognized by the courts, the effect of such
rules is to create a defense which may be utilized by a labor
organization in an action brought against it by a member.
The rule is enforced in appropriate circumstances by the
tribunal, by requiring that the complaining member
exhaust his internal remedies before the tribunal will
consider the merits of the case." (The footnote then cited
Detroy v. American Guild of Variety Artist, 286 F.2d 75
(C.A. 2), cert. denied 366 U.S. 929). Denying the
Respondent Union's contentions, which were identical to
those made herein, the Board proceeded to find an
8(b)(1)(A) violation of the Act.
Respondent's argument that there were no grievances
pending or in process between Respondent and Fisher, and
thus there can be no violation of Section 8(bxl)(B),
misconstrues the reach of the particular section. The
purpose of Section 8(b)(1)(B) is to permit the employer the
unfettered choice of his supervisors who have the authority
to handle grievances, those management representatives
who under normal circumstances would be expected to
present to the rank-and-file employees the viewpoint of
management when participating in the solution of employ-
ee-employer problems. It is not necessary that an actual
grievance be pending. In Oakland Mailers 14 the Board held
illegal, union actions which "were designed to change the
[employer's] representatives from persons representing the
viewpoint of management to persons responsive or
subservient to [the union's] will." In reaching the conclu-
sion that the union's imposition of discipline on supervisors
because of the manner in which they interpreted and
applied the collective-bargaining agreement violated Sec-
tion 8(b)(1)(B), the Board noted;
14 San Francisco-Oakland Mailers' Union No. 18 (Northwest Publications,
Inc.), 172 NLRB 2173.
100 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In enacting Section 8(b)(I)(B) Congress sought to
prevent the very evil involved herein-union interfer-
ence with an employer's control over its own represent-
atives. That [the union] may have sought the substitu-
tion of attitudes rather than persons, and may have
exerted its pressures upon the [employer] by indirect
rather than direct means, cannot alter the ultimate fact
that pressure was exerted here for the purpose of
interfering with the [employer's] control over its
representatives. Realistically, the employer would have
to replace its foreman or face de facto nonrepresenta-
tion by them.
The District of Columbia Circuit Court of Appeals while
disagreeing with the Board's holding in two recent cases
where the Respondent Unions had been found in violation
of Section 8(b)(1)(B) because of fining union member-
supervisors who performed rank-and-file work during a
strike period nevertheless went on to say, "Thus, there is
unanimous agreement on this court that Section 8(b)(1)(B)
prohibits union discipline of supervisory personnel for acts
performed by them in the course of their supervisory and
managerial duties." 15 There was never a contention made,
nor would the evidence have supported such an argument,
that the supervisors were actually performing struck work.
As has been heretofore indicated, the real purpose of the
Union's conduct was to force or bring about the resigna-
tion of Fisher's supervisory personnel.16
B. Summary
Summarizing the above comments relating to Respon-
dent's contentions and my analysis of the applicable law, I
am of the opinion that Respondent has violated Section
8(b)(l)(A) of the Act by fining employees Swift and
Carlson because the real purpose or real reason for these
fines was not the enforcement of internal union procedures
relating to the retention of membership therein, but was in
furtherance of an illegal course of conduct promoted and
fostered by its business agent,Willis Meeks, which conduct
restrained and coerced union members in the exercise of
their Section 7 rights. Respondent's fining of Pickard and
Moore I find to be a violation of Section 8(b)(1)(B).
Respondent's course of conduct in refusing to refer
carpenters to the Fisher job and in fining members who
insisted upon their right to perform services for Fisher,
with whom Respondent had no labor dispute, amounted to
coercion, restraint, inducement, and encouragement of
individuals employed by a person engaged in commerce to
strike, or to refuse to perform services, with an object of
forcing or requiring that person to cease doing business
15 International Brotherhood of Electrical Workers, AFL-CIO, and Local
134 v. N L R B., 71 LC § 13,892, and International Brotherhood of Electrical
Workers, Locals 641, 622, 759, 820, and 1263 v N.L.R B, 487 F.2d 1143,
both cases decided June 29, 1973 by the District of Columbia Circuit Court
of Appeals, en bane Cf N L R B v. Local 2150, International Brotherhood of
Electrical Workers, (Wisconsin Electric Power Co), 486 F 2d 602 (C A 7,
1973), wherein the Board was affirmed.
16 The evidence seems clear that each of the fined individuals, Pickard,
Swift, Carlson , and Moore , were supervisors within the meaning of Section
2(11) of the Act . However, the evidence is not crystally clear as to the
authority of Swift and Carlson to adjust grievances at the time the fines
with another person, which conduct I find to be in
violation of Section 8(b)(4)(i) and (ii)(B) of the Act.
III. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in section II,
above, occurring in connection with the operations of the
employers described in section I, above, have a close,
intimate, and substantial relation to trade, traffic and
commerce among the several States, and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
THE REMEDY
Having found Respondent to have engaged in unfair
labor practices, I shall recommend that it be ordered to
cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act.
On the basis of the foregoing findings of fact and upon
the entire record in the case, I make the following:
CONCLUSIONS OF LAW
1. Respondent is, and has been at all times material, a
labor organization within the meaning of Section 2(5) of
the Act.
2. David M. Fisher Construction Company is an
employer within the meaning of Section 2(2) of the Act.
The David M. Fisher Construction Company is engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act.
3. The J. E. Acoustics Corporation is an employer
within the meaning of Section 2(2) of the Act. J. E.
Acoustics Corporation is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
4. Supervisors George Pickard and Thomas Moore are,
each of them is, and at all times material have been,
supervisors within the meaning of Section 2(11) of the Act
and are representatives of the employer for the purposes,
among others , of adjusting grievances within the meaning
of Section 8(b)(1)(B) of the Act.
5. By fining the aforementioned supervisors and by
threatening them with loss of union membership, Respon-
dent restrained and coerced the employer in the selection
and retention of its representatives for the purpose of
collective bargaining or the adjustment of grievances, and
thereby has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(b)(1)(B) of the
Act.
6. By fining and by threatening the loss of membership
unless said fines were paid the Respondent restrained and
were assessed against each of these individuals Pickard was at all times the
superintendent of the Fisher job and Moore was at all times a supervisor
trainee who very shortly became the superintendent of a construction job in
Trinidad, Colorado. The 8( b)(1)(B) violations found herein , therefore, are
confined to the conduct of Respondent as it was directed toward Pickard
and Moore. The 8(b)(1)(A) violations found herein are based upon the
conduct of the Respondent as it was directed toward Swift and Carlson
whose status as lower-level supervisors was not apt to involve them in the
solution of employer-employee grievances . Within the craft type unions, this
is not an uncommon occurrence and their status is more nearly akin to that
of a leadman rather than a true supervisor
CARPENTERS & JOINERS , LOCAL 1620
coerced Charles Carlson and Cecil Swift in the exercise of
rights guaranteed in Section 7 of the Act, and thereby
violated Section 8(b)(1)(A) of the Act.
7. By fining members Pickard, Carlson, Swift, and
Moore and by threatening loss of membership to these
individuals unless said fines were paid within a specified
period of time, Respondent has induced or encouraged
individuals employed by a person engaged in commerce or
in an industry affecting commerce to engage in, a strike or
refusal to perform services; and by coercing or restraining
a person engaged in commerce or in an industry affecting
commerce with an object of forcing or requiring said
person, Fisher Construction Company, to cease doing
business with another person, J. E. Acoustics, Respondent
has violated Section 8(b)(4)(i) and (ii)(B) of the Act.
8. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of the
Act.
Upon the foregoing findings of fact and conclusions of
law and the entire record, and pursuant to Section 10(c) of
the Act, I hereby issue the following recommended:
ORDERI7
Respondent, Carpenters and Joiners of America, Local
1620, its officers, agents, and representatives, shall:
1. Cease and desist from:
(a) Engaging in or inducing or encouraging any
individual employed by Fisher Construction Company, or
by any other person engaged in commerce or in an
industry affecting commerce, to engage in a strike or
refusal in the course of his employment, to use, manufac-
ture, process, transport, or otherwise handle or work on
any goods, articles, materials, or commodities, or to refuse
to perform any other services where an object thereof is to
force or require Fisher Construction Company, or any
other person, to cease using, handling, or otherwise dealing
in the products of any other producer, processor, or
manufacturer, or to cease doing business with J. E.
Acoustics Corporation.
(b) Threats, coercion, or restraint directed toward the
employees of Fisher Construction Company, or any other
person engaged in commerce or in an industry affecting
commerce, where an object thereof is to force or to require
Fisher Construction Company, or any other person, to
cease using, handling, or otherwise dealing in the products
or services made available by J. E. Acoustics Corporation,
or to cease doing business with that business enterprise.
(c) Fining members and threatening loss of membership
unless said fines are paid within a specified period of time
because said members persist in their lawful right to
11 In the event no exceptions are filed as provided in Sec. 102 46 of the
Rules and Regulations of the National Labor Relations Board, of 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
101
continue working for an employer with whom the Union
has no labor dispute.
(d) Fining member supervisors and threatening loss of
union membership unless said fines are paid within a
specified period of time because the supervisors have
persisted in their right to render services for an employer
with whom the Union has no labor dispute.
(e) In any like or related manner restraining or coercing
its members in their rights guaranteed in Section 7 of the
Act.
2. Take the following affirmative action designed to
effectuate the policies of the Act:
(a) Withdraw and rescind the fines levied against George
Pickard, Charles Carlson, Cecil Swift, and Thomas Moore.
(b) Correct all pertinent records relating to the aforesaid
fines and threatened loss of membership by expunging all
references thereto from the Respondent's records; advise
the International Union of Carpenters and Joiners of
America of its action.
(c) Notify George Pickard, Charles Carlson, Cecil Swift,
and Thomas Moore, in writing, that the fines against them
have been rescinded and that all entries including any
communications to the International Union, have been
expunged from the records of the Union.
(d) Following receipt of the attached notice marked
"Appendix," read it in a loud and clear voice at two
successive regular meetings in order to familarize the
members with the contents thereof.
(e) Post in conspicuous places at its offices and meeting
halls and other places where notices to its members are
customarily posted, copies of the attached notice marked
"Appendix." 18 Copies of said notice, on forms provided by
the Regional Director for Region 27, shall, after being duly
signed by an authorized representative of Carpenters and
Joiners of America, Local 1620, be posted immediately
upon receipt thereof, and be maintained by it for 60
consecutive days thereafter. Reasonable steps shall be
taken by Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(f) Sign and mail sufficient copies of the said notice to
the Regional Director for the 27th Region for posting by
Fisher Construction Company and J. E. Acoustics, these
companies being willing, at all locations where notices to
employees are customarily posted.
(g) Notify the Regional Director for the 27th Region, in
writing, within 20 days from the receipt of this Decision
and recommended Order as to what steps Respondent has
taken to comply herewith.
To the extent that the allegations of the complaint have
not been found to constitute violations of the Act, it is
recommended that they be dismissed.
18 In the event that the Board's 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 be changed to read
"Posted Pursuant to a Judgment of the United States Court of Appeals
Enforcing an Order of the National Labor Relations Board."