Carpenters Local 1456 (Underpinning Constructors)

National Labor Relations Board - Board Decisions

Feb 28, 1992

306 N.L.R.B. 492 (N.L.R.B. 1992)

492
306 NLRB No. 88
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
2 We shall modify the judge’s recommended Order and the notice
to conform more fully to the violation found.
Dockbuilders Local Union No. 1456, of the United
Brotherhood of Carpenters and Joiners of
America, AFL–CIO (Underpinning and Foun-
dation Constructors, Inc.) and Robert Heaney.
Case 2–CB–13323
February 28, 1992
DECISION AND ORDER
BY MEMBERS DEVANEY, OVIATT, AND
RAUDABAUGH
On October 24, 1991, Administrative Law Judge
Raymond P. Green issued the attached decision. The
Respondent filed exceptions and a supporting brief.
The General Counsel filed a brief in support of 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,1 and con-
clusions and to adopt the recommended Order as
modified.2
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent,
Dockbuilders Local Union No. 1456, of the United
Brotherhood of Carpenters and Joiners of America,
AFL–CIO, New York, New York, its officers, agents,
and representatives, shall take the action set forth in
the Order as modified.
1. Substitute the following for paragraph 1(b).
‘‘(b) In any like or related manner restraining or co-
ercing employees in the exercise of the rights guaran-
teed them by Section 7 of the Act, except to the extent
that those rights may be affected by an agreement re-
quiring membership in a labor organization, as a con-
dition of employment, as authorized in Section 8(a)(3)
of the Act.’’
2. Substitute the attached notice for that of the ad-
ministrative law judge.
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
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT cause or attempt to cause Underpin-
ning and Foundation Constructors, Inc., or any other
employer to refuse to hire or otherwise discriminate
against Robert Heaney because he is not a member of
our Union, his membership having been terminated for
some reason other than his failure to tender the peri-
odic dues and initiation fees uniformly required as a
condition of acquiring or retaining membership.
WE WILL NOT in any like or related manner restrain
or coerce employees in the exercise of the rights guar-
anteed them by Section 7 of the Act, except to the ex-
tent that those rights may be affected by an agreement
requiring membership in a labor organization as a con-
dition of employment.
WE WILL notify Underpinning and Foundation Con-
structors, Inc. in writing that we have no objection to
the employment of Robert Heaney and we will furnish
him with copies of such notification.
WE WILL make Robert Heaney whole for any loss
of earnings and benefits he may have suffered as a re-
sult of the discrimination against him.
DOCKBUILDERS LOCAL UNION NO.
1456, OF THE UNITED BROTHERHOOD
OF CARPENTERS AND JOINERS OF AMER-
ICA, AFL–CIO
Leah Z. Jaffe, Esq. and David A. Pollack, Esq., for the Gen-
eral Counsel.
Ira A. Sturm Esq. (Manning, Raab, Delay & Sturm), for the
Respondent.
Arthur Z. Schwartz, Esq. (Lewis, Greenwald, Kennedy,
Lewis, Clifton & Schwartz), for the Charging Party.
DECISION
STATEMENT OF THE CASE
RAYMOND P. GREEN, Administrative Law Judge. This case
was tried in New York, New York, on September 16, 1991.
The charge was filed June 29, 1990, and the complaint was
issued on March 15, 1991. In substance the complaint al-
leged that on or about June 28, 1990, the Union caused the
Employer, Underpinning and Foundation Constructors, Inc.,
to refuse to hire Robert Heaney, whose membership in the
Union had been terminated for reasons other than his failure
to pay the required periodic fees and dues.
493CARPENTERS LOCAL 1456 (UNDERPINNING CONSTRUCTORS)
1 For many years, Heaney was employed by the city of New York
and by 1990 had not yet worked a sufficient time with private con-
tracting employers to be eligible for a vested pension. Under the col-
lective-bargaining agreement, employers make contributions to a
jointly administered pension fund based on the amount of time
worked by the covered employee. Therefore, unless a man can find
work with a covered employer, no contributions will be made on his
behalf to the fund.
2 This particular job ended in September 1990 and some, but not
all the dock builders employed on the crew moved to another job.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs
filed, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent admits and I find that Underpinning and
Foundation Constructors, Inc. is an employee engaged in
commerce within the meaning of Section 2(2), (6), and (7)
of the Act. It also is admitted and I find that the Union is
a labor organization within the meaning of Section 2(5) of
the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
For many years the Union has had a collective-bargaining
relationship with an association of employers called the Gen-
eral Contractors Association of New York. The contract
which was in effect at the time of the events here, ran for
a term from July 1, 1987, to June 30, 1990. Pursuant to the
collective-bargaining relationship, employers may utilize the
Union as a source of employment. However, it is agreed that
the Union does not operate an exclusive hiring hall. In his
respect, the testimony showed at least half the jobs are ob-
tained through private contacts between employers and em-
ployees.
Robert Heaney was a member of the Union for about 35
years before his expulsion on June 25, 1990. In this respect,
he had been found guilty on March 15, 1989, of violating
certain provisions of the Union’s constitution. As a con-
sequence, Heaney was fined $1200 but thereafter refused to
pay the fine. Heaney was expelled from the Union because
of his refusal to pay the aforementioned fine and not for any
other reason. In this regard, his dues were paid up through
the period ending June 30, 1990, and the Union refused to
accept his dues thereafter. In short, Heaney’s expulsion from
the Union was for ‘‘some ground other than his failure to
tender the periodic dues and initiation fees uniformly re-
quired as a condition of acquiring or retaining membership.’’
George James, a union officer, testified that on several oc-
casions after Robert Heaney was fined, he urged him to pay
the fine and appeal the decision within the Union. James
states that he did this because he was concerned that if
Heaney was expelled from the Union this would adversely
affect his pension rights because they are dependent on
Heaney’s obtaining employment with companies contrac-
tually obligated to make payments to the pension fund.1
Robert Heaney’s son, William, was employed during June
1990 as a foreman for Underpinning and Foundation Con-
structors, Inc. That company had a contract with the Union
and was performing a job at West Fourth Street in Manhat-
tan. William Heaney testified that on June 28, 1990, having
been apprised that a drill rig was to arrive at the jobsite, he
decided to hire his father to perform work in relation to that
machine. He states that in accordance with his prior practice
as a foreman at other jobs, he called the union hall to inform
them that he intended to hire his father for this job. (In this
regard, the record shows that although not required, it is
common practice for foremen to advise the union hall when
people are hired directly by the employer without utilization
of the hiring hall.) In any event, when William Heaney
called the union hall, he happened to get James on the
phone. William Heaney’s testimony which I credit, was as
follows:
A. Okay. I told Mr. James that there was a drill rig
coming in and I wanted to put my father on it. And he
said that I couldn’t do it because my father is no longer
a member of 1456. So I told him that Mr. Devine or
the Local as a whole accepted his union dues for that
remaining quarter. And he said that money would be
refunded. And he said this was from the District. I be-
lieve it was from the International to the District Coun-
cil to the union.
ADMINISTRATIVE LAW JUDGE: What did Mr. James
say, forgetting about what happened, just what he said
. . . .
THE WITNESS: I believe he said the District Council.
ADMINISTRATIVE LAW JUDGE: Okay.
Q. Did he say why the money was being refunded?
A. Because my father refused to pay his fine.
Q. And did you hire your father?
A. No.
Q. Why not?
A. He didn’t have a union card.
There is no contention made by the General Council that
the Union by any of its agents, at any time, threatened Wil-
liam Heaney in an effort to get him not to hire his father.
Nor is there any contention or evidence that the Union en-
gaged in any other type of coercive action against William
Heaney or any other agent of Underpinning and Foundation
to that end.2
III. ANALYSIS
Section 8(b)(2) of the Act makes it an unfair labor practice
for a labor organization ‘‘to cause or attempt to cause an em-
ployer to discriminate against an employee in violation of
subsection (a)(3) . . . or to discriminate against an employee
with respect to whom membership in such organization has
been denied or terminated on some ground other than his
failure to tender the periodic dues and the initiation fees uni-
formly required as a condition of acquiring or retaining
membership.’’
Inasmuch as Robert Heaney’s membership in the Union
was terminated for reasons other than his failure to tender
periodic dues and/or initiation fees, the only issue in this
case is whether the Union, by virtue of the single conversa-
tion between James and William Heaney, caused, within the
494 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 In Bricklayers Local 6 (Linbeck Construction), 185 NLRB 756,
759 (1970), the Board held that a union may not enforce its bylaws
or internal union rules by causing or attempting to cause an em-
ployer to discriminate, against the affected employee.
4 I shall leave to compliance any questions that may arise as to
whether Robert Heaney would have been laid off in September 1990
by the Company at the conclusion of the West Fourth Street job or
at any other time.
5 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.
6 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.’’
meaning of Section 8(b)(2), Underpinning and Foundation
Constructors, Inc. to refuse to hire Robert Heaney.3
In International Stereotypers Local 120 (Dow Jones), 175
NLRB 1066 fn. 3 (1969), the Board held that a union will
be found to have caused an employer to discriminate even
in the absence of threats or coercion, if the Union’s request
is acceded to. The Board stated:
The Trial Examiner held that ‘‘if Respondent’s objec-
tion to [Anderson’s transfer] had amounted to no more
than simple request, this might not have satisfied the
term ‘cause or attempt to cause’ as used in the Act.’’
We do not agree. In accordance with our previous hold-
ings, we hold in this case that a union’s efficacious re-
quest that an employer discriminate against an em-
ployee is unlawful . . . . We do not find it necessary,
therefore, to determine whether the Respondent’s re-
quest was fortified by a threat.
Although it is true that James did not initiate the conversa-
tion with William Heaney and did not make any threats, the
evidence does establish that he did say, in effect, that Heaney
could not hire his father for the drill rig job. Further, the evi-
dence shows that William Heaney did not hire his father as
a consequence of this conversation. Accordingly, under the
rationale of International Stereotypers, supra, I conclude that
the Union violated Section 8(b)(2) of the Act by causing the
employer not to hire Robert Heaney as alleged in the com-
plaint.
CONCLUSION OF LAW
By causing Underpinning and Foundation Constructors,
Inc. to refuse to hire Robert Heaney, the Union has engaged
in unfair labor practices affecting commerce within the
meaning of Section 8(b)(2) and Section 2(6) and (7) of the
Act.
REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, I find that it must be ordered to cease
and desist and to take certain affirmative action designed to
effectuate the policies of the Act.
Having found that the Union has caused Underpinning and
Foundation Constructors, Inc. not to hire Robert Heaney, I
shall recommend that it be ordered to notify that company,
in writing, that it has no objection to his hiring without re-
gard to his membership or his payment of any fines that he
may owe to the Union. I shall further recommend that the
Respondent make Robert Heaney whole for any loss of earn-
ings and other benefits he may have suffered by reason of
the discrimination against him from the date that he would
have been hired, less any net interim earnings.4 The amount
of backpay shall be calculated in accordance with F. W.
Woolworth Co., 90 NLRB 289 (1950), plus interest as com-
puted 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 recommended5
ORDER
The Respondent, Dockbuilders Local Union No. 1456, of
the United Brotherhood of Carpenters and Joiners of Amer-
ica, AFL–CIO, New York, New York, its officers, agents,
successors, and assigns, shall
1. Cease and desist from
(a) Causing or attempting to cause Underpinning and
Foundation Constructors, Inc., or any other employer to
refuse to hire or otherwise discriminate against Robert
Heaney, because he is not a member of the Union; his mem-
bership having been terminated for some reason other than
his failure to tender the periodic dues and initiation fees uni-
formly required as a condition of acquiring or retaining
membership.
(b) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Notify Underpinning and Foundation Constructors,
Inc., in writing, that it has no objection to the employment
of Robert Heaney and furnish such employee with copies of
such notification.
(b) Make Robert Heaney whole for any loss of earnings
and benefits he may have suffered as a result of the discrimi-
nation against him in the manner set forth in the remedy sec-
tion of the decision.
(c) Post at its union office in New York City copies of
the attached notice marked ‘‘Appendix.’’6 Copies of the no-
tice, on forms provided by the Regional Director for Region
2 after being signed by the Respondent’s authorized rep-
resentative, shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive days in con-
spicuous places including all places where notices to employ-
ees and 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.
(d) Sign and return to the Regional Director sufficient cop-
ies of the notice for posting by Underpinning and Foundation
Constructors, Inc., if willing, at all places where notices to
employees are customarily posted.
(e) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.