Carpenters Local 64

National Labor Relations Board - Board Decisions

Jun 27, 1973

204 N.L.R.B. 590 (N.L.R.B. 1973)

590 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Local No. 64 , Falls Cities District Council of Carpen-
ters, United Brotherhood of Carpenters and Joiners
of America, AFL-CIO (Western Dry Wall Compa-
ny, Inc.) and Billy Smith . Case 9-CB-2225
June 27, 1973
DECISION AND ORDER
BY MEMBERS JENKINS , KENNEDY AND PENELLO
On March 15, 1973, Administrative Law Judge Ar-
nold Ordman issued the attached Decision in this
proceeding, finding that the Respondent had not en-
gaged in the unfair labor practices alleged in the com-
plaint and recommending that the complaint be
dismissed in its entirety, as set forth in the Adminis-
trative Law Judge's Decision. Thereafter, the General
Counsel filed exceptions and a supporting brief; the
Respondent filed exceptions and a supporting brief;
and the Charging Party filed exceptions, a supporting
brief, and a brief in answer to the Respondent's excep-
tions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has reviewed the rulings made by the
Administrative Law Judge at the hearing and finds
that no prejudicial error was committed. The rulings
are hereby affirmed. The Board has considered the
Administrative Law Judge's Decision, the exceptions
and briefs, and the entire record in this case, and
hereby adopts the findings,' conclusions, and recom-
mendations of the Administrative Law Judge only to
the extent consistent herewith.
1. The Administrative Law Judge found that T. A.
Pitts, the president of Respondent Local 64 and secre-
tary-treasurer of the District Council, was not acting
on behalf of the Respondent during the events herein,
but rather was acting solely as an agent of the District
Council. Inasmuch as the District Council had not
been named as a respondent, the Administrative Law
Judge dismissed the complaint. In reaching this con-
clusion, the Administrative Law Judge rejected the
theory advanced by both the General Counsel and the
Charging Party that, because the District Council had
been created by and had been delegated virtually all
the authority of the Respondent and its sister locals,
liability for the conduct of the District Council's agent
' The Administrative Law Judge, although referring to the Respondent as
a labor organization in his Decision, failed to make a specific finding with
respect to the status of the Respondent as a labor organization under the Act
The Respondent admitted in its answer to the complaint, and we find, that
it is a labor organization within the meaning of Sec 2(5) of the Act.
must be imputed to the locals themselves. Contrary to
the Administrative Law Judge, we find merit in this
argument.
The Respondent and its sister locals in the area
established the District Council pursuant to the con-
stitution and bylaws of the International Union.
While that document defines the duties and respon-
sibilities of the District Council, it does not require the
locals establishing the District Council to delegate to
it any authority other than the legislation of working
and trade rules and general disciplinary rules gov-
erning the operation of the locals and membership.
Here, however, the Respondent and six of it seven
sister locals in the area have by practice stripped
themselves of virtually all the responsibilities normal-
ly assumed by a labor organization. Thus, the record
discloses that seven of the eight locals have delegated
to the District Council the authority to negotiate, sign,
administer, and police the collective-bargaining
agreements with the area employers, to handle griev-
ances, and to issue work permits. In contrast to these
vital functions assumed by the District Council, these
locals have merely retained certain ministerial respon-
sibilities, most notably the collection of dues from
their respective memberships. It is thus clear that the
District Council is a service organization working on
behalf of, and promoting the interests of, its affiliates,'
including the Respondent herein, and, in view of our
finding below that Pitts was acting specifically in fur-
therance of Respondent's interests, we conclude that
Pitts was an agent of the Respondent for all purposes
and at all times material herein.
2. The Administrative Law Judge further conclud-
ed that, if Pitts' conduct were attributable to the Re-
spondent, it would constitute a violation of Section
8(b)(1)(A) and (2) of the Act. We agree, and as we
have found that Pitts was in fact an agent of the
Respondent, we further find that such violation oc-
curred and that a remedial order is required.
The facts are fully and accurately set forth in the
Administrative Law Judge's Decision. In summary,
they disclose the following events:
On February 22 or 23, 1973, Smith, Williams, Da-
vidson, and Parrett, all members of a Carpenters local
in Berea, Kentucky, drove to Western Dry Wall Com-
pany, Inc., in Louisville, Kentucky, seeking employ-
ment. There they met with Don Martin, field manager
of the Company, who informed them that he had jobs
available for them and instructed them to fill out tax
forms for wages and to report to him the following
day to begin work for Western. Martin, however, also
advised them to see Pitts first to obtain work permits,
apparently assuming that they would be issued with-
2 Cr United Brotherhood of Carpenters and Joiners of America, Local Union
No 1818 (N C Monroe Construction Co) 181 NLRB 48.
204 NLRB No. 102
CARPENTERS LOCAL 64 591
out difficulty . Following Martin 's advice , the men met
with Pitts the next day. When they requested the per-
mits , Pitts asked where they were from. When told
that they were members of a Carpenters local from
another area which was unaffiliated with the District
Council, Pitts exclaimed, "What in the hell is Martin
doing bringing another Local up here and me with 184
men loafing !" Pitts then ended the conversation, stat-
ing that he could do nothing for them until he contact-
ed Martin. The men, having been refused the work
permits, returned to Western Dry Wall where they
told Martin of their experience with Pitts . Martin then
phoned Pitts. In contrast to his position of the previ-
ous day, immediately after his conversation with Pitts
Martin's apparent intention to hire the applicants
suddenly changed . He apologized for having caused
them any problems but added that he no longer had
jobs available for them . Both Smith and Parrett subse-
quently phoned Martin on several occasions , inquir-
ing whether jobs were then available . Martin,
however, each time conditioned employment of their
obtaining work permits.
It is clear that Pitts' refusal to issue the work per-
mits to the individuals herein was motivated by his
desire to protect the interests of members of the Re-
spondent, many of whom were then unemployed. We
note in this regard that not only was the Respondent
the largest local in the area , but, furthermore , its mem-
bers engaged in the type of work for which Western
Dry Wall intended to employ these men, unlike those
of its sister locals whose members engaged in more
highly specialized work. We find, therefore, that Pitts'
refusal to issue the work permits was discriminatorily
based on the applicants ' lack of membership in the
Respondent. We further find, as did the Administra-
tive Law Judge, that the abrupt change in Martin's
intention to employ the applicants was occasioned by
the advice which Pitts gave him during their phone
conversation, pursuant to the understanding or prac-
tice between Pitts and Western Dry Wall, which is
clearly shown to have existed by the record, that all
applicants for employment at the Company must first
receive clearance from Pitts . We conclude , therefore,
that Pitts' conduct in refusing to issue the work per-
mits to the individuals herein and in causing Martin
to refuse to hire them violated Section 8(b)(1)(A) and
(2) of the Act.
The Respondent, however, alleges as a defense that
Pitts, rather than discriminating against the appli-
cants, was merely following the District Council's es-
tablished uniform practice of requiring the
presentation of a dues book in good order upon re-
quest for a work permit by a member of a Carpenters
local which is unaffiliated with the District Council.
The Respondent further argues that this practice is
unlawful under the proviso to Section 8(b)(1)(A) and
under Section 8(b)(2) of the Act, as it is solely for
internal union purposes. Even assuming, without de-
ciding, that such a demand for internal purposes
would have been valid, it is apparent that this was not
the Respondent's purpose. For the Administrative
Law Judge found that Pitts never requested the four
men to present their books, and evidence establishes
that, in fact, he refused to refer them because they
were from another local. Accordingly, we conclude
that the Respondent has committed the unfair labor
practices alleged in the complaint.
THE REMEDY
Having found, contrary to the Administrative Law
Judge, that the Respondent has engaged in unfair
labor practices, we shall order it to cease and desist
therefrom and take certain affirmative action de-
signed to effectuate the policies of the Act.
We have found that the Respondent caused the
Company to refuse to hire Billy Smith, Dicky Joe
Williams, Roger Dividson, and Leroy Parrett because
of their lack of membership in the Respondent's orga-
nization. We shall therefore order the Respondent to
notify Western Dry Wall Company, Inc., in writing,
and furnish copies to the above-named individuals,
stating that it withdraws its objections to their em-
ployment, if jobs are presently available. We also or-
der the Respondent to make each of the above-named
individuals whole for any losses they may have suf-
fered by reason of the discrimination against them, by
payment to them of a sum of money equal to the
amounts they would have earned as wages from the
date of the discrimination until their employment
would have been terminated for lawful reasons, or
until 5 days after the Respondent notifies Western
Dry Wall Company, Inc., and the above-named indi-
viduals that it has no objections to their employment.
The loss of earnings will be computed in accordance
with the formula set forth in F. W. Woolworth Compa-
ny, 90 NLRB 289, together with interest thereon at the
rate of 6 percent per annum as set forth in Isis Plumb-
ing & Heating Co., 138 NLRB 716.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board hereby orders that the Respondent Local
No. 64, Falls Cities District Council of Carpenters,
United Brotherhood of Carpenters and Joiners of
America, AFL-CIO, Louisville, Kentucky, their offi-
cers , agents, and representatives, shall:
1. Cease and desist from:
592 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(a) Discriminating against Billy Smith, Dicky Joe
Williams, Roger Davidson, and Leroy Parrett or any
other applicant, by refusing to issue work permits to
them because of their lack of membership in Respon-
dent Local No. 64.
(b) Causing or attempting to cause Western Dry
Wall Company, Inc., to discharge or deny employ-
ment, or otherwise discriminate against the above-
named individuals, or any other applicant for employ-
ment because they are not members of Respondent
Local No. 64.
(c) In any like or related manner restraining or
coercing applicants for employment of Western Dry
Wall Company, Inc., in the exercise of their rights
guaranteed by Section 7 of the Act.
2. Take the following affirmative action which the
Board finds will effectuate the policies of the Act:
(a) Make Billy Smith, Dicky Joe Williams, Roger
Davidson, and Leroy Parrett whole for any loss of
earnings they may have suffered by reason of the
discrimination against them as set forth in the section
of this Decision and Order entitled "The Remedy."
(b) Notify Western Dry Wall Company and the
above-named individuals, in writing, that the Respon-
dent has no objections to their employment; also noti-
fy the above-named individuals, in writing, that
henceforth it will not coerce or restrain them by un-
lawfully infringing upon the rights guaranteed them
by Section 7 of the Act.
(c) Post at its office and meeting hall copies of the
attached notice marked "Appendix." 3 Copies of said
notice, on forms provided by the Regional Director
for Region 9, after being duly signed by the
Respondent's authorized representative, shall be post-
ed by the Respondent immediately upon receipt
thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all
places where notices to members are customarily
posted. Reasonable steps shall be taken by the Re-
spondent to insure that said notices are not altered,
defaced, or covered by any other material. The Re-
spondent shall also sign copies of the notice which the
Regional Director shall make available for posting by
Western Dry Wall Company, Inc., if it be willing.
(d) Notify the Regional Director for Region 9, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply here-
with.
3 In the event that this Order is enforced by a Judgment of a United States
Court of Appeals, the words in the notice reading "Posted by Order of the
National Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board "
APPENDIX
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to issue work permits or
otherwise discriminate against Billy Smith,
Dicky Joe Williams, Roger Davidson, and Leroy
Parrett, or any other applicant for employment at
Western Dry Wall Company, because of their
lack of membership in Local No. 64.
WE WILL NOT cause or attempt to cause Western
Dry Wall Company to deny employment, or to
otherwise discriminate against the above-named
individuals, or any other applicant for employ-
ment, because they are not members of Local
No. 64.
WE WILL NOT in any like or related manner re-
strain or coerce applicants for employment of
Western Dry Wall Company in the exercise of
their rights guaranteed by Section 7 of the Act.
WE WILL make whole the above-named indi-
viduals for any loss of earnings they may have
suffered by reason of our discrimination against
them.
LOCAL No 64, FALLS CITIES
DISTRICT COUNCIL OF CAR-
PENTERS, UNITED BROTHER-
HOOD OF CARPENTERS AND
JOINERS OF AMERICA, AFL-
CIO
(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, Federal Office Building, Room 2407,
550 Main Street, Cincinnati, Ohio 45202, Telephone
513-684-3686.
CARPENTERS LOCAL 64 593
DECISION
STATEMENT OF THE CASE
ARNOLD ORDMAN, Administrative Law Judge: Pursuant to
an unfair labor practice charge, timely filed, and complaint
issued thereon, hearing was held before me in Louisville,
Kentucky, on November 30, 1972, and January 5, 1973. The
critical allegation of the complaint is that Local No. 64,
Respondent herein, violated Section 8(b)(1)(A) and (2) of
the National Labor Relations Act, as amended, by causing
or attempting to cause Western Dry Wall Company, herein
called Western, to refuse to hire and/or to discharge certain
individuals because of their nonmembership in Respon-
dent.' At the conclusion of the hearing General Counsel and
Respondent argued orally and later submitted briefs.
Upon the entire record, upon my observation of the wit-
nesses, and upon consideration of the oral argument and the
briefs, I make the following:
followed by Martin with respect to applicants for work who
were members of outside Carpenter locals. Martin directed
the four men to go see T. A. Pitts to obtain their work
permits. T. A. Pitts is secretary-treasurer of the District
Council and president of Local No. 64. Pitts did not issue
the work permits. Pitts testified that the reason for his nonis-
suance of the permits was that the four men did not produce
their union dues books upon his request and that such pro-
duction was a precondition to issuance of the permits. The
four men testified that Pitts never asked them for their
union dues books. This was the single testimonial conflict.
The parties are in essential agreement, and I find, that
two issues are presented. These issues are:
1. Whether T. A. Pitts was, at all times material herein,
an agent of Respondent, acting in its behalf. Involved in this
issue also is the precise relationship between Local No. 64,
Respondent herein, and the District Council.
2. Whether the conduct of Pitts, if attributable to Re-
spondent, constituted a violation of Section 8(b)(1)(A) and
(2) of the Act.
FINDINGS AND CONCLUSIONS
I JURISDICTION
Respondent admits, and I find, that Western is an em-
ployer within the meaning of Section 2(2), (6), and (7) of the
Act and that Respondent is a labor organization within the
meaning of Section 2(5) of the Act.
Western, a Kentucky corporation located in Louisville, is
a dry wall subcontractor serving the building and construc-
tion industry. During tha past year, a representative period,
Western purchased and received from out-of-state sources
goods and materials valued in excess of $50,000.
Jurisdiction is properly asserted herein.
11 THE ALLEGED UNFAIR LABOR PRACTICES
A. Background and Issues
With a single exception , hereinafter noted , the evidence
in this case is virtually undisputed. The situation here in-
volved arose when four individuals, Billy Smith, Dicky Joe
Williams, Roger Davidson, and Leroy Parrett, members of
Carpenter locals outside the jurisdiction of the Falls Cities
District Council, came to Louisville to seek employment
with Western. Don Martin, field manager for Western, told
the men he had jobs for them but that because they came
from outside the District Council jurisdiction, they would
have to obtain work permits. This was the uniform practice
i At the outset of the hearing General Counsel sought to add Falls Cities
District Council of Carpenters as a respondent . Notwithstanding that Local
No. 64 was the only labor organization named in the charge and the com-
plaint as the offending party and all references to the offending labor organi-
zation were in the singular, General Counsel contending that the real
intention of the Charging Party and the General Counsel was to designate
two organizations as respondents , Local No. 64 and the Council, and that
the failure of the charge and complaint to do so was the result of "error"
Inasmuch as Section 10(b) of the Act permits issuance of a complaint only
against the "person" charged, General Counsel was not permitted to add the
District Council as a respondent . General Counsel has apparently aban-
doned his contention in this regard.
B. The Facts
1. The relationship between Local No. 64 and the Dis-
trict Council; the status of T. A. Pitts
The District Council is an organization chartered by the
Brotherhood of Carpenters and Joiners of America to ser-
vice the members of its affiliated Locals within its geograph-
ical jurisdiction. There are eight local unions in the District
Council, one of which is Local No. 64. The District Council
is party to a collective-bargaining agreement with the Gen-
eral Contractors Association of Louisville, Inc., governing
the terms and conditions of employment of employees rep-
resented by the District Council who are employed by con-
tractor members of the Association. By virtue of a
memorandum agreement between Western and the District
Council, dated August 14, 1970, the terms of that collective-
bargaining agreement were made applicable, at all times
relevant here , to Western employees represented by the Dis-
trict Council.
The function of the District Council is to negotiate and
administer collective-bargaining agreements on behalf of
the members of its constituent locals, to process all griev-
ances, and to issue work permits to members of Carpenter
locals coming from outside the jurisdiction of the District
Council. The District Council is also responsible for polic-
ing the jobs to which the collective-bargaining agreement is
applicable. In discharging this responsibility, the District
Council utilizes, in part, the services of business agents of
its constituent locals. These business agents are paid by their
respective locals but, with respect to their policing work, are
subordinate to, and answerable to, the District Council.
Delegates to the District Council are elected to those
positions by the respective constituent locals. Those dele-
gates, in turn , elect the officers of the District Council. T. A.
Pitts was elected as a delegate to the District Council by the
membership of Local No. 64, and the District Council dele-
gates in turn elected him as secretary-treasurer of that body.
As secretary-treasurer of the District Council, Pitts had the
responsibility of negotiating and administering collective-
594 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
bargaining agreements, processing grievances, policing jobs
within the territorial jurisdiction of the District Council,
issuing work permits, and related duties.
Pitts was also president of Local No. 64. As president of
Local No. 64, an unpaid position, Pitts presided at meetings
of the Local. The Local played no role in the negotiation or
administration of collective-bargaining agreements, the
handling of grievances arising under such agreements, or
the issuance of work permits, all these functions having
been delegated to the District Council by Local No. 64 and
its seven sister locals. The functions Local No. 64, and its
sister locals, did perform consisted of holding meetings,
electing their own officers, collecting dues, and making pay-
ments to various organizations such as the District Council
and state and national bodies with which the locals are
affiliated. In addition, the locals process death claims and
handle other internal matters. While they do entertaingriev-
ances, such matters are referred by them to the District
Council for handling.
Local No. 64 is the largest local in the District Council
organization. Local No. 64 occupies its own premises at
4017 Dixie Hiway in Louisville, a 2-acre track with two
buildings on it. The main building has offices and a meeting
hall utilized by Local No. 64. Neighboring Carpenter locals
utilize the Local No. 64 meeting hall on occasion and pay
for its use. In addition, there are other offices in the main
building which Local No. 64 rents to the District Council
and to the Health and Welfare Departments. T. A. Pitts, a
secretary-treasurer of the District Council, occupies one of
the offices rented to the District Council.
In back of the main building is another building devoted
largely to the training of carpenter apprentices.
2. The facts relating to the work permits
As already noted, Smith, Williams, Davidson, and Parrett
came to Western to seek employment and were told by
Western's field manager Don Martin, that he had jobs for
them but that they would have to get work permits. This
occurred on February 22 or 23, 1972. On the following day
the four named individuals went to see Pitts pursuant to
Martin's advice. They went to the Local No. 64 building at
4017 Dixie Hiway, as directed by Martin, arriving about
noon. Because the building was closed during the noon hour
they remained in the vicinity until about I Pm when they
returned to find an individual whom they later learned was
Ernest Napier opening the door to the building. Ernest Na-
pier is financial secretary for Local No. 64.
Smith, spokesman for the group, asked for Pitts and Na-
pier said that Pitts was out. In the course of the ensuing
conversation Smith told Napier that they had come to get
work permits. Napier said they would have to get the per-
mits from Pitts and asked if they had their union dues books
with them. Smith said they did not.2 But Smith said they did
2 in fact, Parrett whose home local was Carpenters Local 17 in Bellaire,
Ohio, did have his union dues book with him All four applicants testified
that Napier examined Parrett's dues book and stated that it was in good
order Napier, who also testified, was not asked whether he examined
Parrett's dues book I find that Napier did examine Parrett's book and stated
that it was in good order
have their working cards with them which would show that
their dues payments were current and that a telephone call
to Local 1270 in Berea, Kentucky, the Carpenters local to
which Smith, Williams, and Davidson belonged, would veri-
fy their status. Smith further explained that if their dues
books were a prerequisite to obtaining work permits, as
Napier had indicated, they would drive back to Berea and
get them.3 Napier then suggested that they wait for the
arrival of Pitts. They did so.
Later in the afternoon the four individuals were told that
T. A. Pitts had returned and was back in the apprentice
school building. They went back to see Pitts. Smith told
Pitts they had a job with Western and needed work permits.
Pitts asked where they were from and Smith replied that
they were from Carpenters Local 1270 in Berea . Thereupon
Pitts ,exclaimed "What in the hell is Martin doing bringing
another •Local up here and me with 184 men loafing !" Pitts
added that he could do nothing for the four individuals until
he got hold of Martin. Pitts then went to his office and later
emerged, telling Smith and the others again that he could
tell them nothing until he reached Martin. Contrary to Pitts'
testimony, I find that at no time during his conversation
with the four men did he ask them for their dues books.4
Because it was now late in the afternoon, Smith and his
three companions went directly to Western to see Don Mar-
tin. Their understanding with Martin the previous day had
been that they would obtain work permits and report to
work. They told Martin that Pitts would not issue the per-
mits . Martin replied that he would call Pitts. After a brief
interval Martin reported back to them that Pitts had said
that they were first-class carpenters. Martin added, howev-
er, that he was sorry for having caused them all this trouble,
but that he could not use them. Martin advised them to
return home and call back the following week. Smith did
call Martin the following week and Martin asked whether
they had gotten permits. When Smith replied in the nega-
tive, Martin again volunteered to,call Pitts. A further call by
Smith to Martin about a week later met with a like re-
sponse.5
At about this time Smith, Davidson, Williams, and Par-
rett sought the intervention of the Brotherhood of Carpen-
ters and Joiners of America. Under the date of March 10,
3 It was undisputed that as a regular practice work permits were not issued
unless the member applicant presented his dues book . Working cards show
merely the status of the member's dues payments. Dues books show such
matters as the date the holder became a member, the amount of initiation
fee he paid , whether the member is in good standing, and related data. This
information , which does not appear on working cards, can have an -impact
on eligibility for a work permit, or on the necessity for paying a difference
in initiation fees to become eligible for a work permit.
All four men testified to the conversation with Pitts on this occasion. Pitts
corroborated their testimony in every material respect , as set forth above,
including Pitts' outburst as to "why in hell" Martin had not called him if
Martin needed men and that Pitts had people loafing. According to Pitts,
however, he did at one point ask the men for dues books and was told that
they did not have them . I discredit this portion of Pitts ' testimony It is clear
from Pitts' own testimony that he was angry that Martin had not notified him
that Western needed more men before Martin took it upon himself to take
on outsiders and that Pitts was not going to do anything until he talked to
Martin Moreover, Parrett did have his dues book with him and it strains
credulity to believe that Parrett would not have produced it, as he did
produce it for Napier, if Pitts had made the request I find , therefore, that
Pitts did not ask for the dues books
5 Parrett also called Martin during this period and was told by Martin that
his job was still open and he could go to work anytime he got a permit.
CARPENTERS LOCAL 64 595
1972, all four wrotg a letter to the president of the Brother-
hood complaining that they had not been hired at Western
and that jobs at Western were still available for them but
that Pitts had refused to issue them work permits. On April
4, 1972, the Brotherhood replied, stating that Pitts had ad-
vised that in his district work permits were issued only upon
presentation of a dues book which was in good order. The
Brotherhood letter further stated that if "Western Dry Wall
Company, Inc., has openings available and will employ you,
that you take your dues book to the office of the District
Council at Louisville, and if again refused a permit, advise
this office of same." Upon receipt of this letter Smith again
called Martin. This time Martin told Smith he did not need
any employees. Accordingly, Smith and his three associates
made no further effort to obtain permits from Pitts.'
On April 10, 1972, Joe T. Roberts, Esq., who appears as
attorney for the Charging Party in the instant proceeding,
wrote to the Brotherhood, with a copy to Pitts, stating that
Smith, Williams, Davidson and Parrett had retained his
firm to represent them in a claim for damages resulting from
Pitts' discrimination. On April 11, 1972, Pitts wrote to West-
ern that the four individuals had been denied work permits
"for the simple reason that they did not have dues books in
their possession." The letter went on to say that if Western
still had jobs for these individuals or like individuals, they
should be advised to present their dues books to assure the
issuance of work permits. So far as appears, no action result-
ed from this letter.
C. Analysis and Concluding Findings
1. The status of T. A. Pitts
The Respondent named in this proceeding is Local No.
64. Whether, by "error," or for other reasons not set forth,
the District Council is not named as a respondent . See foot-
note 1 , supra. The individual committing the alleged unfair
labor practice , if one occurred, is T. A. Pitts . Hence, it is
critical to determine whether Local No. 64 is answerable for
the conduct of Pitts , as General Counsel contends, or
whether , as Respondent contends , Pitts was acting in this
regard solely as agent for the District Council , thus immu-
nizing Local No . 64 from any responsibility for his conduct.
The complaint alleges that Pitts is an agent of Respon-
dent , acting in its behalf . The answer denies this allegation
and admits only that T. A. Pitts is secretary -treasurer of the
Falls Cities District Council of Carpenters.7
The relevant facts , already set forth , are quite clear. T. A.
Pitts was president of Local No . 64, an unpaid position. His
duties as local president consisted essentially of presiding at
6 The findings concerning the telephone conversations between Smith and
Martin following their initial meetings are based on the credited testimony
of Smith, corroborated by Williams, Davidson, and Parrett to the extent the
latter three individuals had knowledge of these conversations. Martin testi-
fied that he had talked with Smith on the telephone on at least one occasion
but could not recall the content of the conversation or conversations
r Indeed, it was a result of an attempt by General Counsel at the opening
of the hearing to clarify the situation resulting from this allegation and the
answer thereto that General Counsel sought to add the District Council as
a party respondent. As noted, General Counsel has apparently abandoned
this effort and made no reference to it at the later stages of the hearing, or
in its oral argument and brief
meetings of the local . Local No. 64, like its seven sister
locals , who were also affiliated with the District Council,
had no role in the negotiation or administration of collec-
tive-bargaining agreements , the policing of those agree-
ments, the handling of grievances , or the issuance of work
permits. All those functions were delegated by the locals to
the District Council , a pattern not uncommon in the build-
ing and construction industry and a familiar and settled
practice under the constitution of the Brotherhood of Car-
penters and Joiners of America.
As president of Local No. 64, Pitts had no authority or
role to perform in the exercise of the functions delegated by
the eight locals to the District Council . On the other hand,
as secretary -treasurer of the District Council and its paid
operating official , Pitts did exercise these functions on be-
half of the District Council including t;:e negotiatio n and
signing of the collective-bargaining agreement and the sup-
plement thereto , the administration of that agreement, the
handling of grievances , and, particularly relevant here, the
issuing of work permits.
To be sure , Pitts, like the other delegates comprising the
District Council , was elected to the post of delegate by the
members of his own local. The membership of Local No. 64,
however, did not designate or elect him as secretary -treasur-
er of the District Council. He obtained that post by vote of
the delegates of the District Council and served all the locals
affiliated with the Council.
Under these circumstances it would appear obvious that
with respect to the critical issue here , the nonissuance of
permits to Smith , Williams, Davidson , and Parrett, the role
of T. A. Pitts was as agent for the District Council and not
as agent for Local No. 64 which had no authority to act in
this regard.
General Counsel argues, nonetheless , that Pitts is an
agent of Local No. 64 inasmuch as the District Council, in
whose behalf Pitts acted , is itself a creature of Local No. 64
and its seven sister locals and acts as a service agency for
those locals. General Counsel contends that the relationship
thus established is "symbiotic ," and that Local No. 64 (and,
presumably , the other seven locals ), having delegated their
powers and responsibilities to the District Council, cannot
evade liability for the District Council 's action in this re-
gard.
The Board has laid down explicitly the controlling criteria
here . In Carpenters Local Union No. 944 (Interstate Employ-
ers Association), 159 NLRB 563 ( 1966), in a quite parallel
frame of reference , the Board was confronted with the ques-
tion whether the local was responsible for the conduct of
George Learned, an organizer for the District Council of
Carpenters . The Board said (at 566):
The record reveals that Learned is a member of Car-
penters Local 944 , and is a delegate from his Local to
the Council . He is not an officer of the Local and is
paid in his capacity as organizer for the Carpenters
District Council by the Council and not the Local. To
hold Local 944 responsible for the conduct of the
Council and its agent , Learned, it must be shown that
the Council and its agents were acting as agents for
Local 944. The mere fact that Learned is a delegate
from his Local to the District Council does not create
596 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
an agency relationship between the Council and the
Local. [Footnote omitted.] Absent affirmative evidence
of an agency relationship, the General Counsel has
failed to meet his burden of proof, and we shall therefor
dismiss the complaint allegation against Carpenter Lo-
cal 944.
See also Metropolitan District Council of Carpenters, 149
NLRB 646, 652-3, 659 (1964), reviewed and modified in
respects not relevant here at 354 F.2d 594 (C.A. 7, 1965),
and 386 U.S. 612 (1967).
In the instant case Pitts, unlike Learned, was an officer
of the local, indeed, its president. However, as shown, his
function in that regard played no role in his conduct as an
officer and agent of Local No. 64. The applicability of the
principle enunciated in Local 944 is equally clear here.
General Counsel cites United Brotherhood of Carpenters
and Joiners of America, Local 1818 (N. C. Monroe Construc-
tion Co.), 181 NLRB 48 (1970), and Hodcarriers' and Con-
struction Laborers' Union Local 300 (Fiesta Pools, Inc.), 145
NLRB 911(1964) in support of its contention that Local 944
is answerable here for the conduct of the District Council
and its agent, T. A. Pitts. The cited cases do not support the
contention. Apart from the fact that the Board there did not
address itself to the precise question here in issue but merely
adopted the findings and conclusions of the respective Trial
Examiners in that regard, those cases are plainly distin-
guishable. In the Local 1818 case the Trial Examiner found
that Fain, counterpart of Pitts in the instant case, was elect-
ed to his post as business agent (one of three) of the District
Council by vote of the locals. Here, Pitts was elected to his
post as secretary-treasurer of the District Council not by
vote of the locals who had no voice in his selection but by
vote of the Council delegates. Similarly, the conclusion in
Hodcarriers' that the local was responsible for the conduct
of the Council in that case was predicated on the Trial
Examiner's finding that both organizations were engaged in
a joint enterprise, indeed, that the local had "supplied the
initial impetus" for the discriminatory action and that the
Council came into the picture thereafter.
In short, it is clear, both on Board authority and on
settled principles of the law of agency, that Pitts was not
acting in the matters relevant here as an agent of Local No.
64. It follows, as in Carpenters Local 944, that the complaint
against Local No. 64 in the instant case must be dismissed.
2. The issue as to the legality of the conduct of Pitts
In view of the foregoing finding, which is dispositive of
this case, only brief reference will be made to the second
issue posed at the outset of this decision, namely, whether
the conduct of T. A. Pitts, if attributable to Respondent,
would constitute a violation of Section 8(b)(1)(A) of the Act.
The parties agree, the record reflects, and I find that there
was no contractual arrangement between the parties here
involved providing for an exclusive hiring hall. On the other
hand, the record also reflects, and I find, that pursuant to
past practice and an understanding between Martin, field
manager for Western, and Pitts employment at Western was
conditioned on clearance by Pitts of applicants for employ-
ment.
Western is not charged as a respondent here. Hence, it is
unnecessary to decide whether Western committed an un-
fair labor practice when it refused to let Smith, Williams,
Davidson, and Parrett report for work unless they obtained
work permits from Pitts, secretary-treasurer of the District
Council. Also unnecessary to decide is whether the District
Council, acting through Pitts could properly condition the
issuance of work permits on the production of their dues
books in good order. The fact is, as heretofore found, that
Pitts did not ask the four individuals for their own dues
books. Rather his failure to issue the permits was motivated,
as his own testimony indicates, by his resentment against
Martin for taking on outsiders when members of locals
affiliated with the District Council were loafing. The crux
of the situation is that Pitts did not issue work permits to the
four individuals because they were members of outside lo-
cals and that Martin, pursuant to advice from Pitts or pur-
suant to the practice and his understanding with Pitts, did
not put the four individuals to works
Such conduct on the part of Pitts is impermissible discri-
mination On settled authority, eligibility of employees for
hire cannot be conditioned on nonmembership in a union
or in a particular union local.' That is what happened here.
Inasmuch as T. A. Pitts was an agent of the District
Council, a finding of violation by the District Council of
Section 8(b)(1)(A) and (2) of the Act, if charged, would be
warranted. However, the sole Respondent named here is
Local No. 64. As heretofore found, Pitts was not acting here
as an agent of Local No. 64. The allegations of the com-
plaint have not been sustained.
CONCLUSIONS OF LAW
Local No. 64, Falls Cities District Council of Carpenters,
United Brotherhood of Carpenters and Joiners of America,
AFL-CIO, the Respondent herein, has not violated Section
8(b)(1)(A) and (2) of the Act, as alleged in the complaint.
[Recommended Order omitted from publication.]
6 Respondent introduced District Council records indicating that work
permits had been issued to several applicants from outside locals during the
period relevant here. What the particular circumstances were in those instan-
ces does not appear What does appear is that in the instant situation Pitts
was deeply disturbed that Smith, Williams, Davidson, and Parrett came from
outside locals , that Pitts told them he had nothing to say to them until he
talked to Martin, and that they were not permitted to work.
9 Local 592, United Brotherhood of Carpenters and Joiners of America, AFL-
CIO (Brunswick Corporation), 135 NLRB 999, 1002, (1962), Local 541, Inter-
national Union of Operating Engineers, AFL-CIO (Koppers Company), 117
NLRB 1863 (1957), enfd 255 F.2d 703, 705 (C A. 3, 1958); Local392, United
Association of Journeymen and Apprentices of the Plumbing and Pipefitting
Industry (Schenley Distillers, Inc), 122 NLRB 613 (1958), enforced 277 F.2d
56 (C.A 7, 1960); Plumbers and Steamfitters Local 100 (Beard Plumbing
Company), 128 NLRB 398,406-408 (1960), enfd. 291 F.4d 927 (C A. 5, 1961),
Local Union No 742, United Brotherhood of Carpenters and Joiners of America
(J L. Simmons Company, Inc), 157 NLRB 451 ( 1966).