John Armer Air Conditioning Co.

National Labor Relations Board - Board Decisions

Sep 22, 1971

193 N.L.R.B. 295 (N.L.R.B. 1971)

JOHN ARMER AIR CONDITIONING CO. 295
John Armer Air Conditioning Company and Kenneth
Nay
United Association of Journeymen and Apprentices of
the Plumbing and Pipefitting Industry of the United
States and Canada , Local 469, AFL-CIO (John
Armer Air Conditioning Company ) and Kenneth
Nay. Cases 28-CA-2143 and 28-CB-571
September 22, 1971
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
KENNEDY
On May 6, 1971, Trial Examiner Irving Rogosin
issued his Decision in the above-entitled proceeding,
finding that Respondents had engaged in and were
engaging in certain unfair labor practices in violation
of the National Labor Relations Act, as amended,
and recommending that they cease and desist there-
from and take certain affirmative action, as set forth
in the attached Trial Examiner's Decision. Thereafter,
the Respondent Employer, the Respondent Union,
and the General Counsel filed exceptions to the Trial
Examiner's Decision, and supporting briefs; the
Charging Party then filed an answering brief to
exceptions of Respondent Employer and Respondent
Union.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this proceeding to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and
the entire record in this proceeding, and hereby
adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner.
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 Trial Examiner and hereby orders that
Respondent John Armer Air Conditioning Company
of Phoenix, Arizona, its officers, agents, successors,
and assigns, and Respondent United Association of
Journeymen and Apprentices of the Plumbing and
Pipefitting Industry of the United States and Canada,
Local 469, AFL-CIO, its officers, representatives, and
agents, shall take the action set forth in the Trial
Examiner's recommended Order.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
IRVING ROGOSIN, Trial Examiner: The consolidated
complaint, hereinafter referred to as the complaint, issued
October 29, 1970, alleges that on about March 5, 1970,
Respondent Union engaged in unfair labor practices within
the meaning of Section 8(b)(2) and (1)(A), and Section 2(6)
and (7), and Respondent Employer, in unfair labor
practices within the meaning of Section 8(a)(3) and (1), and
Section 2(6) and (7) of the Act.'
Specifically, the complaint alleges that, on about March
5, 1970, Respondent Union requested Respondent Employ-
er to terminate the employment of Kenneth Nay because he
was not a member of Respondent Union, because he failed
to assist and support Respondent Union in a dispute with
Respondent Employer, and "for related arbitrary, invidious
and unfair reasons"; that on said date, Respondent
Employer, yielding to Respondent Union's request, termi-
nated said Nay's employment, and thereafter failed and
refused to reinstate him, and on about March 6,
Respondent Union threatened to refuse to permit said Nay
to work in the jurisdiction of Respondent Union.2
Respondent Union's answer admits the procedural
allegations, and the agency of named union representatives,
but denies generally the remaining allegations of the
complaint, and alleges affirmatively that it caused Respon-
dent Employer to terminate said employee pursuant to the
lawful terms of an existing collective-bargaining agreement
with Respondent Employer, "governing priority and
seniority in employment." Respondent Employer's answer
admits the procedural allegations with respect to it, and
denies, for lack of information, or generally, the remaining
allegations of the complaint.
Hearing was held on February 9, 1971, at Phoenix,
Arizona, before the duly designated Trial Examiner. All
parties, including the Charging Party, were represented by
i The charge in each of said cases was filed on July 14, and served on
each of the respective parties, on July 17, 1970 Designations are as
follows the General Counsel, unless otherwise stated, his representative at
the hearing, Respondent Union or the Union, United Association of
Journeymen and Apprentices of the Plumbing and Pipefitting Industry of
the United States and Canada, Local 469, AFL-CIO; Respondent
Employer, John Armer Air Conditioning Company, the Charging Party,
Kenneth Nay, an Individual, the Act, the National Labor Relations Act, as
amended, 61 Stat. 136, 73 Stat 519, 29 U.S.C. Sec 151, et seq., the Board,
the National Labor Relations Board Unless otherwise stated, all events
occurred in 1970
2 In response to a ruling on Respondent Union's pretrial motion, the
General Counsel furnished the Union with a bill of particulars, alleging
that Respondent Union requested Respondent Employer to terminate
Nay's employment because he was a "traveler," i.e., a member of another
local union of the international Union with which Respondent Union was
affiliated, and that such request was for an "arbitrary, invidious and unfair
reason" The General Counsel further alleged that under Respondent
Union's prevailing policy, when members of its local are terminated , in this
instance because of alleged dissatisfaction with their work , "travelers" are
required to cease their work. When Nay failed to comply with this policy,
Respondent Union requested Respondent Employer to terminate him, in
part, because he failed to assist and support Respondent Union in its
dispute with Respondent Employer concerning the termination of union
members
193 NLRB No. 43
296 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
counsel, were afforded full opportunity to be heard, to ex-
amine and cross-examine witnesses, to introduce evidence
relevant and material to the issues, to argue orally and to
file briefs and proposed findings of fact and conclusions of
law. At the conclusion of opening statements by counsel,
both Respondents moved to dismiss the complaint. The
motions were denied without prejudice to their right to
renew before the close of the hearing. Respondent
Employer rested at the close of the General Counsel's case,
and renewed the motion to dismiss. The motion was denied.
At the close of the evidence, the Charging Party moved, in
effect, for summary judgment on the ground that Section
8(f),3 and the applicable collective-bargaining provisions,
are unconstitutional. The motion was denied. Respondent
Employer renewed its motion to dismiss. Ruling having
been reserved, the motion is disposed of by the findings and
conclusions hereinafter made. The parties declined to argue
orally, reserving the right to file briefs. The Charging Party
filed a brief on March 11; the General Counsel, Respon-
dent Employer, and Respondent Union, on March 15,
1971. On March 18, the Charging Party filed
"Recommended Findings of Fact and Conclusions of
Law." Although filed late, they have been considered, and
have been treated as proposed findings of fact and
conclusions of law. To the extent they are consistent with
the findings and conclusions hereinafter made, they have
been adopted.
Upon the entire record in the case,4 the resolution or
reconciliation of conflicting testimony, the appearance and
demeanor of the witnesses, and the briefs, which have been
carefully considered, the Trial Examiner makes the
following:
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYER
The complaint alleges , Respondents' answers admit, and
it is hereby found that, at all times material herein, John
Armer Air Conditioning Company, a corporation duly
organized under the laws of the State of Arizona, has been
engaged as an air-conditioning contractor in the building
and construction industry.
During the year preceding issuance of the complaint, a
representative period, Respondent Employer purchased
and caused to be transported and delivered to its place of
business in Phoenix, Arizona, goods and matenals valued
in excess of $50,000, of which in excess of $50,000 was
transported and delivered to its place of business in
interstate commerce directly from States of the United
States other than the State of Arizona.
It is therefore found that at all times material herein,
John Armer Air Conditioning Company has been an
employer engaged in commerce and in operations affecting
commerce within the meaning of Section 2(2), (6), and (7)
of the Act, and the Board's jurisdictional standards.
II. THE LABOR ORGANIZATION INVOLVED
United Association of Journeymen and Apprentices of
the Plumbing and Pipefitting Industry of the United States
and Canada, Local 469, AFL-CIO, herein called Respon-
dent Union or the Union, is, and at all times material herein
has been, a labor organization within the meaning of
Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Discrimination in Regard to Hire and Tenure of
Employment; the Causing or Attempting to Cause
Such Discrimination by the Union
1. Introduction
Respondent Employer and Respondent Union are
parties to a multi-employer , statewide , collective-bargain-
ing agreement between Plumbing and Air Conditioning
Contractors of Arizona , collectively referred to as the
Contractors , and Local Union 469, the Union here, and
Local Union 741 of the United Association of Journeymen
and Apprentices of the Plumbing and Pipefitting Industry
of the United States and Canada , in behalf of their
members , dated June 1, 1969, to and including May 31,
1972, automatically renewable annually thereafter in the
absence of specified notice of termination or modification.5
The agreement covers all employees of the Contractors
performing the work of plumbing, heating , refrigeration
service, and piping work , as defined in a schedule attached
to the agreement , in the State of Arizona . Kenneth Nay was
a welder , a job classification covered by the agreement, and
a resident of the State of Utah since November 1952.
The collective-bargaining agreement provides, among
other things , for the conventional exclusive nondiscrimina-
tory hiring hall, with preferential hiring , with job referrals
based upon priorities established according to an "A", "B"
and "C" list system . Persons on the "A" list are comprised
of "workers being dispatched from within the jurisdiction
of Local 469, who are qualified for the job, who are
available for work , who are then duly registered as out-of-
work at the dispatching office, and who have worked for
signatory contractors of U. A. National Contractors in the
area and craft jurisdiction of Local Union 469 for at least
eight hundred (800) hours in each of the last three (3)
consecutive years preceding the date of their current
registration ." Persons on the "B " list are "workmen who are
duly registered on the "A" list of the Local Union (Local
469 or 741 , as the case may be) other than the one from
which the referral is being requested . By this provision it is
intended that all workmen demonstrating a record of
employment in the State of Arizona , sufficient to qualify
them for registration on the "A" list of either Local Union,
will be conclusively deemed to be on the "B " list of the
other Local Union; and each Union 's "A" list therefore will
be treated as the other Union's "B" list in the order of
priority of referrals . The "C" list consists of "any other
workmen who have not qualified under the other two
3 See Appendix A of the proceedings is corrected accordingly
I The General Counsel's unopposed motion to correct the record in S The agreement is designated as the Arizona Pipe Trades Agreement.
stated respects , dated March 8, 1971, is hereby granted , and the transcript
JOHN ARMER AIR CONDITIONING CO. 297
classifications, who have duly registered as out of work at
the dispatching office, and who are qualified for the job and
are available for work. (II, B. IV. a., b., c.) Generally,
persons on the "C" list are dispatched only after the persons
on the "A" and "B" list have all been dispatched.
The collective-bargaining agreement further provides:
11. Unemployed workmen, duly registered on the
"A" list, shall have the right to replace any workman
dispatched from the "C" list or who have the status of a
temporary employee, provided the employee to be
replaced has not yet worked enough to obtain a right to
be registered as an "A" or "B" list worker, and further
provided the "A" list workman in each case has the
ability to perform the work being performed by the
workman being replaced. To effect a replacement,
referral shall be issued in the same manner and order of
priority as if the job involved were vacant; and the
replaced employee shall be given a termination slip
showing the cause of termination.
12. Workmen referred from the "C" list and
temporary employees subject to replacement shall not
be kept employed to the extent or under circumstances
where such employment is preventing, or eliminating
the need for, full forty (40) hour per week employment
of fellow employees who have been referred from the
"A" or "B" lists. (Article II, B., 11, 12)
Kenneth Nay, the Charging Party, a welder, a job
classification covered by the contract, and a member of
Local 57, Salt Lake City, affiliated with the parent labor
organization of the Union involved here, obtained a travel
card from his Local in the latter part of December 1969,
and went to Phoenix, where he signed the out-of-work list
at the Local 469 hiring hall. On December 30, Nay was
dispatched as a welder to a contractor known as Arizona
York Refrigeration Company, as a "C" list employee, with
instructions to report to work on January 5, 1970. On
January 30, Nay was laid off that job in a reduction in
force.
On February 6, 1970, the Union again dispatched Nay as
a welder from the "C" list, this time to Respondent
Employer. The text of article II, subsections I 1 and 12, were
printed, without any indication as to their source, at the
bottom of the dispatch slip, and was followed by the
statement , "I have read the above and accept such
referral ." Nay signed the referral slip on the line marked
"applicant."
Nay was referred to a jobsite known as the Financial
Center in Phoenix, as part of a six-man crew, which
included Foreman Gary Kidney, Donald Case, and Gilbert
Zieke, both pipefitters, Donald Mann, a welder, and
another welder who left after working only a few days. The
welder who left the job was replaced by Jack Tucker. Nay
was the only man on the crew at that jobsite who had been
dispatched from the "C" list.
On March 4, 1970, Fred D. Huminik, jobsite superintend-
ent for Respondent Employer, discharged three members
of the crew, Kidney, Mann, and Zieke, because of
dissatisfaction with their work. On their termination
notices , however, the reason stated for the termination was
"reduction in force." Huminik testified that he gave that as
the reason because he was new in the area, had only
recently been appointed piping superintendent for Respon-
dent Employer, and because of his unfamiliarity with the
labor situation and his desire not to prejudice the work
record of these men, who he believed could possibly
perform well under different circumstances. It is undisput-
ed, however, that the actual reason, as stated to these
employees, and as subsequently reported by them to the
union representative, was their unsatisfactory work. Case,
the other pipefitter on the job, voluntarily quit his job the
same day in protest at what he believed to be the unfair
treatment of his three fellow-employees. Only Nay and
Tucker remained on the job.
Later that afternoon, the three discharged employees
went to the union hall and demanded that they be
permitted to "bump" Nay, pursuant to the union contract,
because, according to their termination slips , they had been
removed in a "reduction in force," while Nay was a "C" list
employee.
That afternoon, Roy Eugene Brooks, Respondent
Union's assistant business agent,6 telephoned Huminik and
notified him that since he had terminated three "A" list
journeymen in a reduction in force, as shown by their
termination notices, he should have terminated Nay.
Huminik explained that he had not terminated the men
because of a reduction in force, but for unsatisfactory work.
Brooks directed him to the pertinent sections of the
collective-bargaining agreement , relating to the hiring
procedures with particular reference to the "A", "B", and
"C" lists, and insisted that since the termination slips stated
as the reason a reduction in force, Huminik was required to
terminate Nay. Brooks told Huminik that if he failed to do
so, the Union would send out one of the "A" list men, who
had been terminated, to "bump" Nay. Huminik declined to
accept such a referral, stating that Nay had been
performing satisfactorily and that he preferred to retain
him on the job. He told Brooks, however, that he wanted to
think about it.
The following morning, March 5, Brooks again called
Huminik and, after reiterating that Huminik had violated
the contract, and stating that if he did not terminate Nay,
Brooks would send an employee to "bump" him, asked
Huminik whether he should dispatch a man to take Nay's
place. Huminik replied that he should not, and added that
after considering the matter, he would simply have Nay
work the remainder of the day, if that met with Brooks'
approval, and that he would then terminate him. Brooks
agreed, and there the matter was left. Later that day,
however, in a conversation at the jobsite, Huminik told Nay
that he would have to let him go because of the manner in
which he had discharged the "A" list men. Huminik
thereupon notified him that he was being terminated "per
union request," and this reason was inserted on his
termination slip. The Union sent no replacements to the
jobsite, and work on the job was suspended for 3 or 4 days.
The job was then reopened and completed with four
employees who had been employed by Respondent
Employer on another project in the same vicinity.
6 At the time of the hearing, Brooks was no longer employed by the since about June 20, 1970.
Union , but had been in the employ of the Pipe Trades Industry Program
298 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
After reporting to the union hall on the evening of March
5, and registering on the "C" list, Nay returned the
following morning and went to the union hiring hall where
men were being dispatched. He was not dispatched at that
time , and asked to see Jack Kienstra, Respondent Union's
business manager. At about 10:30 that morning, Nay was
admitted to Kienstra's office, where Assistant Business
Agent Brooks was also present. Nay inquired of Kienstra
about two jobs in Tucson that had been posted on the
bulletin board, and asked whether there was any possible
chance of his going out there. Kienstra told Nay that he
thought the jobs had been filled. Then, according to Nay,
Kienstra told him that "[i It might be a good idea if I went
back up into my own . . . local territory." Nay attempted
to explain that he remained on the job at the Financial
Center after the "A" men had been discharged, because he
had not been on the discharge list, but Brooks kept
interrupting to say that he had been trying to tell Nay that
under union policy, when a man was discharged for cause,
the "C" list man automatically "walk[s] off the job."
According to Nay, after stating that "[i]t would be a good
idea for [him] to take [his] card and go back into the Salt
Lake territory," Brooks stated that if he had anything to say
about it, Nay would never work in the Arizona territory
again . Nay told Kienstra that he would be traveling by way
of Las Vegas, and asked him if he would call the business
agent there to see whether there was any possibility of his
going to work in Las Vegas. Kienstra told him that he did
not think there was any point in his calling.
2. The issues; contentions of the parties
Baldly stated, the issues are whether Respondent Union
caused or attempted to cause Respondent Employer to
terminate Nay's employment, and whether Respondent
Employer acceded to the Union's demand, thereby
encouraging membership in a labor organization.
The General Counsel contends broadly that Nay was
actually discharged because of his lack of membership in
Respondent Union. Additionally, the General Counsel
contends that Respondent Union demanded that Nay's
employment be terminated because he failed to comply
with alleged union policy under which "C" registrants were
required to leave the job whenever an "A" registrant was
discharged.
Respondents both contend that Nay's discharge was
dictated by the provisions of article II, B., 11. and 12.,
previously quoted. The General Counsel maintains that
these provisions of the collective-bargaining agreement
have no application to the circumstances of this case
because subparagraph II purportedly deals merely with the
right of an "A" registrant who has been terminated in a
reduction in force to replace any workman dispatched from
the "C" registration list, and does not apply where the "A"
workman becomes unemployed because he has been
Respondent Employer suggests that any ambiguity in the language of
section 11. of the collective -bargaining agreement should be resolved by
arbitration . Although the collective -bargaining agreement contains
grievance and arbitration procedures including provision for a joint
conference and arbitration board, involving , among other matters,
interpretation of performance of any of the terms or conditions of the
agreement , neither of the parties to the collective -bargaining agreement has
terminated for cause. Thus, the General Counsel argues, in
effect, that the provisions of subparagraph II would be
applicable only where the employer resorts to a reduction in
force, in which case he might be required to dismiss the "C"
man in order to make a place for the "A" workman.
Subparagraph 11 makes no distinction between workers
who are unemployed as a result of reduction in force and
those who have been discharged for cause, the distinction
which the General Counsel seeks to make. While the
language of subparagraph 11 is not altogether free from
ambiguity,7 the reasonable construction of this provision is
that, in the case of a vacancy resulting from a reduction in
force, workmen dispatched from the "C" list may be
replaced by unemployed registrants on the "A" list, as long
as the workmen on the "C" list have not acquired status as
an "A" or "B" registrant, and the "A" man is capable of
performing the work then being performed by the "C" list
workmen.
Respondent Union maintains that, since the reason given
on the termination slips of the three "A" list employees was
a reduction in force, the Employer was required under the
applicable provisions of the collective-bargaining agree-
ment to permit the Union to dispatch replacements in the
prescribed "manner and order of priority" as if the job
involved had been vacated.
There is no dispute that the three "A" class workmen
were discharged because of their employer's dissatisfaction
with their work performance. The fact that Respondent
Employer saw fit to indicate on their termination notices
that they were discharged in a reduction in force rather
than for cause, is not conclusive as to the actual reasons for
their discharge. Superintendent Huminik has satisfactorily
explained why he used the euphemism "reduction in force"
for discharge for cause, namely, because he was new to his
position and because he did not wish to jeopardize the
future employment opportunities of the three men.
Moreover, it is undisputed that when the three discharged
"A" class workmen reported to the Union, they acknowl-
edged that they had been discharged because of dissatisfac-
tion with their work, the reason also given by the jobsite
superintendent to Assistant Business Agent Brooks.
Assuming, for the sake of argument, that subparagraphs I I
and 12 apply whenever there is a vacancy, whether resulting
from a reduction in force or a termination for cause, it is
reasonable to suppose that the Union would have sought to
replace the three "A" class workmen with other registrants
from the "A" list. Obviously, the three class "A" workmen,
who had been discharged because of unsatisfactory work,
would not have been entitled to be redispatched to the job
because in the employer's view, they had not demonstrated
"the ability to perform the work" required of them.
Moreover, under existing policy, the Union would not
dispatch the same employees to the employer who had only
just discharged them. It would, therefore, be specious to
argue that under the applicable hiring provisions, the
sought to obtain an interpretation of the provisions in question or has
indicated any intention of doing so. It should be noted that the Act
expressly provides that the Board's power to prevent the commission of
unfair labor practices "shall not be affected by any other means of
adjustment or prevention that has been or may be established by
agreement , law, or otherwise . .." (Sec. 10.(a))
JOHN ARMER AIR CONDITIONING CO. 299
employer was required to discharge the "C" list man
because his continued employment was "preventing or
eliminating the need for, full forty (40) hours per week
employment of fellow employees who had been referred
from the "A" or "B" list." (Emphasis supplied.) Respon-
dent Union has not contended, nor is there any evidence,
that there were unemployed "A" list men, other than the
three who had been terminated, on the register when Nay
was terminated , nor has Respondent Union contended that
Nay was terminated to provide employment for other class
"A" or "B" list men who had been unemployed for "full
forty (40) hours per week employment." If, then, it be
assumed that there were no such class "A" or "B" list men
who were so unemployed, there would obviously have been
no occasion to terminate Nay, a class "C" registrant. This
gives rise to the inference that Respondent Union was not
so much concerned with obtaining employment for
unemployed workmen on the "A" or "B" list, as in denying
employment to Nay, a "C" list workman who had been
retained while "A" list employees had been discharged,
albeit for unsatisfactory work.
In attempting to determine Respondent Union's motive
for demanding Nay's termination, it may be noted that
when Respondent Employer discharged the three class "A"
employees, Donald Case, pipefitter on the same job, left the
jobsite in protest at the discharge of his three fellow-
employees. This lends credence to Nay's testimony that
Assistant Business Agent Brooks told him, when he
reported to the union hall on the morning of March 6, that
he should have left the jobsite when the three "A" list men
were discharged under a local union rule which required
"travelers" (out-of-state union card carriers) to walk off the
job in protest when local union men are discharged. The
fact that Respondent Union denies the existence of any
such rule, and that neither Business Agent Kienstra nor
Assistant Business Agent Brooks could recall what they
said to Nay on this occasion regarding such a rule, does not
negate the likelihood of their having made such a
statement . Nor, does the blanket assertion by Kienstra and
Brooks, that there were other instances , between 6 and 10,
according to Brooks, in which "C" men had been
"bumped" by "A" men, under the provisions of the
contract, and that such instances had not been confined to
"C" men who were on a "travel card," establish the absence
of discrimination in Nay's case.8
It thus appears that Respondent Union's real motivation
for demanding Nay's termination was not that it was acting
pursuant to the hiring provisions of the agreement, but that
Respondent Union resented the prospect that a class "C"
list man , who was a "traveler" and member of another
local, who had refused to walk out in protest at the
discharge of "A" list men, was permitted to remain on the
8 According to Respondent Union, some 30 members of the Local
Union , as well as 80 or 90 nonmembers , were registered on the "C" list
The Board said.
An exclusive hiring hall is not per se unlawful and it may be
implemented lawfully by a requirement that local employees be given
preference in employment opportunities While the testimony relating
to the Union's objective in seeking to replace Ward with a local welder
makes reference to "union men" or "local union men" as well as
"local men," such testimony is insufficient to rebut the substantial
evidence that the Union was very much concerned with the
unemployment status of local residents The fact that such employees
job. It follows that if Respondent Union demanded and
caused Nay's discharge because he did not comply with
purported union policy, Respondent violated Section
8(b)(2) of the Act, by causing the employer to discriminate
in regard to Nay's hire or tenure of employment to
encourage membership in the Union. Even in the absence
of such policy, Brooks' statement to Nay, to the effect that
he was being disciplined for violating local union policies,
constituted restraint or coercion in the exercise of employee
rights guaranteed in Section 7 of the Act.
Under these circumstances, Everett Construction Compa-
ny, Inc., 186 NLRB No. 40, is distinguishable on the facts.
There, the Board held that neither the union nor the
employers violated the Act when, pursuant to a valid,
nondiscriminatory, exclusive hiring hall agreement, the
Union caused the discharge of an employee who was not a
local resident so that his job could be filled by a resident in
the area.9 The preponderance of the credible and reliable
testimony here establishes that Respondent Union's actual
reason for demanding Nay's termination was that he had
failed to support the Union by leaving his job in protest at
the discharge of the three class "A" workmen, thereby
interfering with his right to refrain from engaging in union
activity.
The fact that Respondent Union had previously dis-
patched Nay from the "C" list to another employer on
December 30, 1969, and had permitted him to register on
March 5, 1970, is insufficient to establish the absence of
discriminatory motivation in this instance. It may be noted
that Brooks conceded that in his conversation at the union
hall, Nay, who had withdrawn his travel card from the
Union, inquired about job openings in Tucson and was
advised by Kienstra that the jobs would probably have
been filled by the time he reached Tucson. When Nay told
Kienstra that he was returning to Utah by way of Las
Vegas, and asked him to call the business agent with regard
to possible employment there, Kienstra told him that there
would be no use in his calling. While this evidence, standing
alone, may be insufficient to establish animosity or hostility
toward Nay because of his failure to abide by purported
union policy, the evidence furnishes some corroboration for
Nay's credited testimony that Brooks told him that "if he
had anything to say about it [Nay] would never work in the
Arizona territory again."
Insofar as Respondent Employer is concerned, the fact
that it acceded to the Union's demand for Nay's discharge
in the belief that it was required to do so by the hiring
provisions of the collective-bargaining agreement, is no
defense to its unlawful conduct.
As the Board has early held,
... in the ultimate analysis, it is the employer, and
only the employer, who controls the hiring and
were union members does not derogate from the Union's lawful
interest in securing employment for them . The Union's objection to
the employment of Ward, a nonresident on the ground that local
welders were out of work , cannot be ignored solely because Ward,
unlike his competitors, was not a member of the Union. This
circumstance creates no more than a suspicion that the Union would
not have sought his discharge , despite his out-of -town status , if he had
been a union member
See also International Union of Operating Engineers, Local 302, affiliated
with AFL-CIO, 186 NLRB No 4, and cases cited.
300 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
discharge of his employees. Recognizing this, this Board
and the courts have frequently held that it is the duty of
an employer to resist the usurpation of his control over
employment by any group that seeks to utilize such
control for or against any labor organization, and that
the Act affords no immunity because the employer
believes that the exigencies of the moment require that
he capitulate to the pressures and violate the statute." io
Upon the basis of the foregoing findings of fact, and
upon the entire record, it is hereby found that, by causing
Respondent Employer to terminate the employment of
Kenneth Nay on March 5, 1970, because he did not assist
and support Respondent Union with regard to the
termination of the three class "A" employees and union
members, Respondent Union has caused Respondent
Employer to discriminate in regard to the hire and tenure of
employment of an employee, thereby engaging in unfair
labor practices within the meaning of Section 8(b)(2), and
restraining and coercing employees in the exercise of their
rights guaranteed in Section 7 of the Act; and by
terminating the employment of said Kenneth Nay on said
date, thereby discriminating in regard to his hire and tenure
of employment to encourage membership in a labor
organization , Respondent Employer has engaged in unfair
labor practices within the meaning of Section 8(a)(3), and
has interfered with, restrained, and coerced employees in
the exercise of rights guaranteed in Section 7 of the Act,
thereby engaging in unfair labor practices within the
meaning of Section 8(a)(1) of the Act. I'
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent Union, set forth in section
III, above, occurring in connection with Respondent
Employer's operations 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.
V. THE REMEDY
Having found that Respondent Union has engaged in
unfair labor practices within the meaning of Section 8(b)(2)
and (1)(A), and that Respondent Employer has engaged in
unfair labor practices within the meaning of Section 8(a)(3)
and (1) of the Act, it will be recommended that Respondent
Employer be ordered to offer said Nay reinstatement to his
former job, or if that job no longer exists , to a substantially
equivalent position, without prejudice to his seniority or
other rights and privileges. It will also be recommended
that Respondent Union notify Respondent Employer, in
io Acme Mattress Company, Inc, etc., 91 NLRB 1010, 1015 See also H
Milton Newman , an Individual d/b/a H M Newman, etc, 85 NLRB 725,
729, and cases cited at in 15
ii In view of these findings , it is unnecessary to consider the Charging
Party's challenge to the constitutionality of Section 8(f) of the Act, and the
residence requirements imposed by section 11, B II of the collective-
bargaining agreement , on the authority of Shapiro v Thompson, 394 U S
618 (1969) and Keenan v. Board of Law Examiners of the State of North
Carolina, 317 F Supp 1350 (1970). Moreover, "The Board has often held
that , as an administrative agency created by Congress, it cannot question
the constitutionality of any part of the Act that created it but must leave
writing, with a copy to Nay, that Respondent Union will
not discriminate against Nay or any other job applicant in
selecting or referring them for employment through its
hiring hall procedures because of his nonmembership or
affiliation with said Respondent Union. It will, however,
further be recommended that Respondent Union and
Respondent Employer jointly and severally 12 be ordered to
make said Nay whole for any loss of earnings he may have
sustained by reason of the discrimination against him by
paying him a sum of money equal to that which he
normally would have earned as wages from the date of the
discrimination against him on March 5, 1970, to the date of
the offer of reinstatement, less his net earnings during such
period. With regard to Respondent Union, its liability for
backpay shall terminate 5 days after its notification to
Respondent Employer, as provided above. Backpay shall
be computed in the manner set forth in F. W. Woolworth
Company, 90 NLRB 289, with interest thereon in the
manner set forth in Isis Plumbing & Heating Co., 138 NLRB
716.
The discriminatory conduct in which Respondents have
engaged regarding the hire and tenure of employment of an
employee, strikes at the very essence of the Act, and it will,
therefore, be recommended that the Board enter a broad
cease and desist order.13
Upon the basis of the foregoing findings of fact, and
upon the entire record in the case, the Trial Examiner
makes the following:
CONCLUSIONS OF LAW
1. John Armer Air Conditioning Company, an Arizona
corporation, with its place of business in Phoenix, Arizona,
Respondent Employer herein, is, and at all times material
herein has been, an employer engaged in commerce and a
business affecting commerce within the meaning of Section
2(2), (6), and (7) of the Act, and the jurisdictional standards
of the Board.
2. United Association of Journeymen and Apprentices
of the Plumbing and Pipe Fitting Industry of the United
States and Canada, Local 469, AFL-CIO, Respondent
Union herein, is, and at all times material herein has been, a
labor organization within the meaning of Section 2(5) of the
Act.
3. By discharging Kenneth Nay on March 5, 1970, and
thereafter failing and refusing to reinstate him because he
refrained from engaging in union or other concerted
activities, Respondent Employer has discriminated in
regard to the hire and tenure of an employee to encourage
membership in a labor organization, thereby engaging in
unfair labor practices within the meaning of Section 8(a)(3)
and (1) of the Act.
such questions to the courts Unless and until the courts determined
otherwise, the Board will assume that all parts of the Act are
constitutional." Bluefield Produce & Provision Company, 117 NLRB 1660,
1663, Truck Drivers Union Local No 413, etc, 140 NLRB 1474, 1491;
Amalgamated Lithographers of America (Ind), etc, 130 NLRB 985, 991;
Laurence Typographical Union 570, 158 NLRB 1332, 1340, Drivers,
Salesmen, Warehousemen, Local 695. 152 NLRB 577, 580; Ets-Hokin, etc,
154 NLRB 839, 844; Big Town Super Mart, 148 NLRB 595, 605.
12 See Acme Mattress Company, 91 NLRB 1010, and cases cited.
13 N.L.R.B v Entwistle Manufacturing Co., 120 F.2d 532 (C.A. 4); May
Department Stores v. N L.R.B., 326 U S. 376
JOHN ARMER AIR CONDITIONING CO. 301
4. By demanding or requesting that Respondent
Employer terminate or discharge said Kenneth Nay for
refraining from engaging in union or concerted activities,
Respondent Union has engaged in unfair labor practices
within the meaning of Section 8(b)(2) and (1)(A) of the Act.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
Upon the basis of the foregoing findings of fact,
conclusions of law, and upon the entire record in the case,
and pursuant to Section 10(c) of the Act, the Trial
Examiner hereby issues the following recommended: 14
ORDER
A. John Armer Air Conditioning Company, of Phoenix,
Arizona, its officers, agents, successors and assigns shall:
1. Cease and desist from:
(a) Encouraging membership in United Association of
Journeymen and Apprentices of the Plumbing and Pipe
Fitting Industry of the United States and Canada, Local
469, AFL-CIO, or in any other labor organization of its
employees, by terminating or laying off any of its
employees or discriminating in any other manner in regard
to their hire or tenure of employment or any terms or
conditions of employment.
(b) In any other manner interfering with, restraining, or
coercing its employees in the right to refrain from
exercising the rights guaranteed them in Section 7 of the
Act.
2. Take the following affirmative action, which it is
found is necessary to effectuate the policies of the Act:
(a) Offer Kenneth Nay immediate and full reinstatement
to his former job, or if that job no longer exists, to a
substantially equivalent position, without prejudice to his
seniority or other rights and privileges.
(b) Post at its plant and office in Phoenix, Arizona, copies
of the notice attached hereto and marked "Appendix B." 15
Copies of said notice to be furnished by the Regional
Director for Region 28 shall, after being signed by a duly
authorized representative of Respondent Employer, be
posted immediately upon receipt thereof and maintained
by it for a period of 60 consecutive days thereafter in
conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall
be taken by Respondent Employer to ensure that such
notices are not altered, defaced, or covered by other
material.
(c) Notify the Regional Director for Region 28, in
writing, within 20 days from the date of receipt of this
decision and recommended Order what steps Respondent
Employer has taken to comply herewith.16
B. United Association of Journeymen and Apprentices
of the Plumbing and Pipe Fitting Industry of the United
States and Canada, Local 469, AFL-CIO, its officers,
representatives, and assigns, shall:
1. Cease and desist from:
(a) Requiring, instructing, or inducing Respondent
Employer, its agents, successors, or assigns, to terminate or
lay off employees because they have refrained from
engaging in union or concerted activities on behalf of the
Union.
(b) In any other manner causing or attempting to cause
Respondent Employer, its agents, successors or assigns to
discriminate against its employees in violation of Section
8(a)(3) of the Act.
(c) Restraining or coercing employees of Respondent
Employer, its successors or assigns, in the exercise of their
right to refrain from any or all of the concerted activities
guaranteed by Section 7 of the Act.
2. Take the following affirmative action, which, it is
found, is necessary to effectuate the policies of the Act:
(a) Notify Respondent Employer, in writing, with a copy
to Nay, that Respondent Union has no objection to his
employment, and will not discriminate against him or any
other job applicant in selection for employment, because he
is not a member of Respondent Union or because he
refrains from engaging in union or other concerted
activities.
(b) Post in conspicuous places in its business office, hiring
hall, and meeting places copies of the attached notice
marked "Appendix C." 17 Copies of said notice, on forms
provided by the Regional Director for Region 28, after
being duly signed by Respondent Union's authorized
representative, shall be posted by it 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. Reason-
able steps shall be taken by Respondent Union to ensure
that said notices are not altered, defaced or covered by any
other material.
(c) Sign and mail sufficient copies of said notices to the
Regional Director for Region 28, for posting by Respon-
dent Employer at all locations where notices to employees
are customarily posted, if said Respondent Employer is
willing to do so.
(d) Notify the Regional Director for Region 28, in
writing, within 20 days from the receipt of this decision,
what steps Respondent Union has taken to comply
herewith.18
C. John Armer Air Conditioning Company, its succes-
sors and assigns, of Phoenix, Arizona, Respondent
Employer, and United Association of Journeymen and
Apprentices of the Plumbing and Pipe Fitting Industry of
the United States and Canada, Local 469, AFL-CIO,
Respondent Union, its officers, representatives and agents,
shall:
14 In the event no exceptions are filed as provided by Section 102 46 of
the Rules and Regulations of the National Labor Relations Board, the
findings , conclusions , and recommended Order herein shall, as provided in
Section 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
11 In the event that the Board 's Order is enforced by a Judgment of the
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 "
16 In the event that this recommended Order be adopted by the Board,
paragraph (b)(3) thereof shall be modified to read. "Notify said Regional
Director, in writing, within 20 days from the date of this Order, what steps
Respondent Employer has taken to comply therewith "
17 See fn 15
18 See In 16.
302 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1. Jointly and severally make Kenneth Nay whole for
any loss of pay he may have suffered because of the
discrimination against him, by payment to him of a sum of
money equal to the amount he normally would have earned
as wages from March 5, 1970, the date he was discriminato-
rily terminated, to the date of Respondent Employer's offer
of reinstatement, and Respondent Union's notification to
Respondent Employer, as provided above, less his net
earnings during said period, loss of earnings to be
computed in the manner set forth in the section entitled
"The Remedy."
2. Preserve and, upon request, make available to the
Board or its agents for examination and copying all payroll
records, social security records, timecards, personnel
records and reports, and all other records necessary or
useful to determine or compute the amounts of backpay
due if any.
3. Notify said Kenneth Nay, if he is presently serving in
the Armed Forces of the United States, of his right to
reinstatement, upon application, in accordance with the
Selective Service Act and the Universal Military Training
and Service Act of 1948, as amended, after discharge from
the Armed Forces.
IT IS FURTHER RECOMMENDED that, unless on or before 20
days from the date of receipt of this Decision, Respondent
Employer and Respondent Union notify said Regional
Director in writing that they will comply with the
recommended Order, the National Labor Relations Board
issue an order requiring said Respondents to take the
aforesaid action.
Sec. 8
APPENDIX A
(f) It shall not be an unfair labor practice under
subsections (a) and (b) of this section for an employer
engaged primarily in the building and construction industry
to make an agreement covering employees engaged (or
who, upon their employment, will be engaged) in the
building and construction industry with a labor organiza-
tion of which building and construction employees are
members (not established, maintained, or assisted by any
action defined in section 8(a) of this Act as an unfair labor
practice) because (1) the majority status of such labor
organization has not been established under the provisions
of section 9 of this Act prior to the making of such
agreement, or (2) such agreement requires as a condition of
employment, membership in such labor organization after
the seventh day following the beginning of such employ-
ment or the effective date of the agreement, whichever is
later, or (3) such agreement requires the employer to notify
such labor organization of opportunities for employment
with such employer, or gives such labor organization an
opportunity to refer qualified applicants for such employ-
ment, or (4) such agreement specifies minimum training or
experience qualifications for employment or provides for
priority in opportunities for employment based upon length
of service with such employer, in the industry or in the
particular geographical area: Provided, That nothing in this
subsection shall set aside the final proviso to section 8(a)(3)
of this Act: Provided further, That any agreement which
would be invalid, but for clause (1) of this subsection, shall
not be a bar to a petition filed pursuant to section 9(c) or
9(e)
'Section 8(f) is inserted to the Act by subsection (a) of Section 705
of Public Law 86-257 Section 705(b) provides'
Nothing contained in the amendment made by subsection (a) shall
be construed as authorizing the execution or application of agreements
requiring membership in a labor organization as a condition of
employment in any State or Territory in which such execution or
application is prohibited by State or Territorial law
(It is noted that Arizona is a right-to-work State.)
APPENDIX B
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT encourage membership in United
Association of Journeymen and Apprentices of the
Plumbing and Pipe Fitting Industry of the United
States and Canada, Local 469, AFL-CIO, or in any
other labor organization of our employees, by terminat-
ing or laying off any of our employees or discriminating
in any other manner in regard to their hire or tenure of
employment or any terms or conditions of employment.
WE WILL NOT in any other manner interfere with,
restrain, or coerce our employees in the right to refrain
from any or all of the concerted activities guaranteed
them by Section 7 of the Act.
WE WILL offer Kenneth Nay immediate and full
reinstatement to his former job or, if that job no longer
exists, to a substantially equivalent position without
prejudice to his seniority or other rights and privileges.
WE WILL, jointly and severally, with the aforesaid
Union, make said Kenneth Nay whole for any loss of
earnings he may have sustained by reason of our
discrimination against him, in the manner set forth in
the section of the Decision and recommended Order of
the Trial Examiner entitled, "The Remedy."
All our employees are free to engage in or refrain from
engaging in union or concerted activities on behalf of the
above-named Union or any other labor organization.
JOHN ARMER AIR
CONDITIONING COMPANY
(Employer)
Dated By
(Representative) (Title)
Notify said Kenneth Nay, if he is presently serving in the
Armed Forces of the United States , of his right to
reinstatement , upon application, in accordance with the
Selective Service Act and the Universal Military Training
and Service Act of 1948 , as amended , after discharge from
the Armed Forces.
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 compliance with
JOHN ARMER AIR CONDITIONING CO.
its provisions , may be directed to the Board 's Office, Room
207, Camelback Building, 110 W. Camelback Road,
Phoenix , Arizona 85013 , Telephone 261-3717.
APPENDIX C
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
To all: members , officers , representatives and agents
To all: employees of John Armer Air Conditioning
Company or applicants or registrants for employ-
ment and persons using our hiring hall, whether or
not members of United Association of Journey-
men and Apprentices of the Plumbing and Pipe
Fitting Industry of the United States and Canada,
Local 469 , AFL-CIO
WE WILL NOT require , instruct , or induce John Armer
Air Conditioning Company to terminate or lay off
employees because they refrain from engaging in union
or concerted activities on behalf of our Union.
WE WILL NOT in any other manner cause or attempt
to cause John Armer Air Conditioning Company, its
officers, agents, successors or assigns to discriminate
against its employees in violation of Section 8(a)(3) of
the Act.
WE WILL NOT restrain or coerce employees of John
Armer Air Conditioning Company its officers , agents,
successors , or assigns , in the exercise of the right to
refrain from any or all of the concerted activities
guaranteed them by Section 7 of the Act.
WE WILL , jointly and severally with the aforesaid
Employer , make Kenneth Nay whole for any loss of
earnings which he may have sustained by reason of our
discrimination against him , in the manner set forth in
303
the section of the Decision and recommended Order of
the Trial Examiner entitled , "The Remedy."
WE WILL notify John Armer Air Conditioning
Company, in writing , with a copy to Kenneth Nay, that
we have no objection to his employment , subject to any
valid provisions of our collective-bargaining agreement
with said John Armer Air Conditioning Company.
Dated By
UNITED ASSOCIATION OF
JOURNEYMEN AND
APPRENTICES OF THE
PLUMBING AND PIPE
FITTING INDUSTRY OF THE
UNITED STATES AND
CANADA, LocAL 469,
AFL-CIO
(Labor Organization)
(Representative ) (Title)
Notify said Kenneth Nay, if he is presently serving in the
Armed Forces of the United States , of his right to
reinstatement , upon application , in accordance with the
Selective Service Act and the Universal Military Training
and Service Act of 1948 , as amended , after discharge from
the Armed Forces.
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 compliance with
its provisions , may be directed to the Board 's Office, Room
207, Camelback Building , 110 W. Camelback Road,
Phoenix , Arizona 85013 , Telephone 261-3717.