Local 1070, United Brotherhood of Carpenters

National Labor Relations Board - Board Decisions

May 31, 1962

137 N.L.R.B. 439 (N.L.R.B. 1962)

LOCAL 1070, UNITED BROTHERHOOD OF CARPENTERS 439
Order terminated as of the date of his death (June 6, 1960); (6) the entitlements of
Marlin and Lipari, under the Board's Order terminated on the date each rejected
Respondent's bffer of reinstatement (October 17 and 20, 1960, respectively); and (7)
Weand's entitlements under the Board's Order terminated as of the date of his resig7
nation (January 6, 1961). Further, that the Order recommended herein, if affirmed
by the Board, or, such Order as the Board may determine to issue after consideration
of exceptions, if any, to this Supplemental Intermediate Report, be filed with the
United-States Court Of Appeals for the Fifth Circuit and copies be served upon the
parties to this proceeding. Further, if any party is aggrieved by the Board's Order
which issues pursuant to these proceedings it shall initiate appropriate action in
the United States Court of Appeals for the Fifth Circuit within 20 days after the
filing of the Board's Order in that court.
Local 1070 of the United Brotherhood of Carpenters and Joiners
of America (B. W. Horn Company ) and Ray Marruffo. Case
No. 21-CB-1619. May 31, 1962
DECISION AND ORDER
On March 6, 1961, Trial Examiner Wallace E. Royster issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. Thereafter, the Respondent filed
exceptions to the Intermediate Report and a supporting brief.'
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The Board has considered the Intermediate Report and the entire
record in this case, including the exceptions and brief, and hereby
adopts the findings, conclusions, and recommendations of the Trial
Examiner.2
ORDER
The Board adopts the Recommended Order of the Trial Ex-
aminer as its Order with the following changes :
1. Paragraph 2(d) of the Recommended Order shall be modified
to read: Notify the Regional Director for the Twenty-first Region,
in writing, within 10 days from the date of this Order of the steps
the Respondent has taken to comply herewith.
1 The Respondent's motion to reopen the record to introduce additional evidence is
denied . Respondent seeks to establish that the Employer, by a memorandum agreement in
1956, adopted the terms of the Southern California General Contractors agreement dated
May 1, 1954. From the Respondent's own testimony it is clear that the 1954 agreement
(not in evidence) has been superseded by the 1959 General Contractors agreement which
is in evidence. Further, even if we assume that the Employer is bound by the 1959 agree-
ment , the agreement contains nothing that would justify or excuse Respondent's conduct
herein.
2In addition to Insulation Contractors of Southern California, Inc., et al., 110 NLRB
638, which the Trial Examiner cited, we also rely on Brunswick Corporation (Local
Union 65, United Brotherhood of Carpenters and Joiners of America, AFL-CIO), 135
NLRB 574,_and Falstaff Brewing Corporation (Brewers and'Mfaltsters Local Union No. 6,
etc.), 128;'NL'RB 294, enfd. 301 F. 2d 216 (C.A. 8).
137 NLRB No. 52.
440 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. The notice shall be modified so that the words "A Decision and
Order" are substituted for the words "The Recommendations of a
Trial Examiner." 3
3. The following is to be inserted in the notice below the sentence
beginning "This notice must remain posted . . .": Employees may
communicate directly with the Board's Regional Office, Eastern Co-
lumbia Building, 849 South Broadway, Los Angeles, California,
Telephone Number: Richmond 9-4711, Ext. 1031, if they have any
question concerning this notice or compliance with its provisions.
a In the event that this Order is enforced by a decree of a United States Court of
Appeals , there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order"
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon a charge duly filed by Ray Marruffo , the General Counsel of the National
Labor Relations Board issued a complaint on December 20, 1960, alleging that
Local 1070 of the United Brotherhood of Carpenters and Joiners of America, herein
called the Respondent , had engaged in unfair labor practices within the meaning
of Section 8(b)(1)(A) and (2 ) and Section 2(6) and ( 7) of the National Labor
Relations Act, 61 Stat. 136, herein called the Act.
Pursuant to notice the matter was tried before Trial Examiner Wallace E. Royster
in Los Angeles, California, on January 16, 1961. The General Counsel and the
Respondent were represented by counsel. Following the close of the hearing the
parties stipulated to a correction of the transcript which is hereby made. Briefs
have been received and considered
Upon the entire record in the case and from my observation of the witnesses, I
make the following findings of fact:
1. JURISDICTION
B. W. Horn Company, herein called Horn, is a California corporation engaged
in the business of construction . In 1960 Horn purchased materials such as glass,
furnaces , heaters, lumber, registers , compressors , and piping, having a value in
excess of $68,000 from California suppliers who in turn had received such materials
from points outside the State of California. In the same year Horn performed con-
struction services amounting to $556,000 for the United States Air Force and
amounting to $266,000 for the United States Navy
The Respondent is a labor organization admitting to membership certain of
Horn's employees.
II. THE UNFAIR LABOR PRACTICES
Ray Marruffo came to Horn's employ in 1959 as a laborer. In August 1960,
desiring to use Marruffo in carpenter work, Horn's superintendent , Allen Luker,
accompanied Marruffo to Respondent 's office in El Centro. There Marruffo made
application to join the Respondent and signed a form of apprenticeship agreement.
At the time Horn had no sort of contract with the Respondent and was party to
no apprenticeship agreement . The visit to Respondent 's office and the application for
membership seems, to the extent that a representative of Horn was involved, to
have been a gesture of comity.
Later in August, Marruffo became a member of the Respondent and almost im-
mediately left El Centro to work for Horn at another location.
Charles D. Thomas, Respondent's business representative , testified that he is
secretary of what is known as the Joint Apprenticeship Council, herein called JAC.
an entity which functions to appraise the qualifications of carpenter apprentices and
to oversee their training . Although the participation of employers in JAC activities
is contemplated and perhaps desired , in the El Centro area only members of the
Respondent share in its operation . Thomas testified that by a letter dated August
16 Marruffo was directed to appear before a JAC committee on August 25.
Marruffo failed to appear with the result that the JAC members present voted to
"remove" Marruffo from his job. Thomas testified that the matter became moot
LOCAL 1070, UNITED BROTHERHOOD OF CARPENTERS 441
because on August 26 Marruffo voluntarily left El Centro for other employment
with Horn.
On September 29 Marruffo returned to El Centro and notified the Respondent
that he was resuming the same job with Horn that he had left about a month before.
Within a few days the Horn projects in the area and perhaps others were closed
down by reason of a strike called by the Respondent. After 2 or 3 days the strike
ended and all returned to work.
In the late evening of October 5, Marruffo encountered Thomas in an El Centro
bar. A heated argument developed between them leading to blows. Marruffo
testified that Thomas became angered when Marruffo questioned him about the
reason for the work stoppage, and complained that he had lost wages without
knowing why he should abstain from working. Thomas testified that Marruffo
lost his temper when Thomas told him that he had not met his obligations as an
apprentice and would no longer, in consequence, be permitted to work in that
capacity for Horn. In consideration of the events on the following day, October
6, 1 see no necessity for resolving the conflict between the version of Marruffo and
that of Thomas.
In the afternoon of October 6, at about 3:30, Thomas came to the Horn construc-
tion site where Marruffo was working. Passing Superintendent Luker without a
word, Thomas strode to the point where Marruffo was standing and struck him.
When Marruffo assumed an attitude of defense, Thomas told him that he had 30
minutes to get off the job and an hour to get out of town.' Turning to Luker,
Thomas ordered him to remove Marruffo from the job. When Luker asked that
the request or order be put in writing, Thomas angrily answered that he need not do
so and that Luker (also ,a member of the Respondent) might find himself off the
job too if he continued to argue the matter. A moment or two later Thomas told
Luker that Marruffo could no longer work because of a decision by the JAC.
Luker protested, ". . . you can't just up and take his book." Thomas answered,
"The hell I can't. He's got no book." 2 Luker then told Marruffo that he could
no longer work.
Thomas seems to have assumed that the continued employment of Marruffo
as an apprentice was at the sufferance of JAC; that if Marruffo failed to follow
routines applicable to apprentices JAC could bring about his removal from the
job. This is a curious concept for JAC was in no sense Marruffo's employer and had
no contract with Horn giving it any voice in respect to who should become or
remain an employee of Horn. The Respondent argues that JAC is not a labor
organization and this appears to be true. But it is an organiztion in which the
Respondent participates and which exists for the benefit of Respondent's member-
ship. Thus had the JAC demanded the removal of Marruffo from the job the
responsibility of the Respondent for this action would have to be considered. But
it did not happen that way.
The evidence is that on August 25 JAC decided that Marruffo should no longer
work but no report of this action was sent to Horn or to Marruffo. The latter
was permitted to clear out of the Respondent on August 29 and to return his clear-
ance card on September 29 without any sort of notice that he was delinquent in his
obligations as an apprentice. Not until the day following his fight with Thomas
was he disturbed in his employment. The Respondent says that his discharge was
brought about because he had failed to do those things which an apprentice is
obliged to do and that on October 6 in reference to Marruffo, Thomas was acting
as secretary of JAC-not as business representative of the Respondent.
Even if it be true that JAC could have demanded the removal of Marruffo without
involving the Respondent in a violation of the Act, it is clear that Thomas on October
6 was not acting in vindication of any JAC decision. Obviously he was using the
prestige and practical power of the Respondent to punish Marruffo because of the
incident at the bar. The interest of JAC was not and could not have been served
by the ultimatum that Marruffo leave town within the hour or the warning to
Luker that his protests might lose his job for him. Thomas was angry, his dignity
was ruffled, his authority and judgment had been challenged. He retaliated by
using his office as business representative to bring about Marruffo's discharge. He
had no contractual authority to affect Horn's employees in any way but only a few
II base these findings upon the credited testimony of Marruffo as well as that of
Jiminez and Cato, Horn employees who were standing nearby. Thomas did not, in his
testimony, clearly controvert the version I have credited
The conversation between Luker and Thomas set forth above is from the credited testi-
monv of Luker Thomas denied only that there was mention of a "union book" in respect
to Marruffo. He did not deny threatening Luker with loss of employment if he persisted
in his request for a written demand for Marruffo's removal.
442 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
days earlier Horn had been forced to cease work because of a strike by the car-
penters and this circumstance must have been weighed when Luker was directed
to remove Marruffo from the job.
A discharge made to mollify a labor organization encourages membership in
that organization and stands as a warning to employees that the favor and good will
of responsible union officials is to be nurtured and sustained . Such a discharge
violates Section 8(a)(3) of the Act3
Obviously and concededly Thomas caused the discharge of Marruffo . I find that
he did so as an agent of the Respondent . The Respondent thereby caused Horn to
discharge Marruffo in violation of Section 8(a)(3) of the Act and thereby violated
Section 8 (b)(2) of the Act.
By causing the discharge of Marruffo the Respondent has restrained and coerced
employees in the exercise of rights guaranteed in Section 7 of the Act and has thereby
violated Section 8 (b) (1) (A) of the Act.
III. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The unfair labor practices of the Respondent set forth in section II, above, oc-
curring in connection with the operations of Horn 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.
IV. THE REMEDY
Having found that the Respondent has engaged in unfair labor practices it will be
recommended that it cease and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
Having found that the Respondent has caused Horn to discriminate against Ray
Marruffo it will be recommended that the Respondent make Marruffo whole for any
loss of earnings sustained by reason of the discrimination from October 6, 1960, to
the date Respondent requests his reemployment. Back pay shall be computed in
accordance with the Board 's formula stated in F. W. Woolworth Company, 90 NLRB
289.
Upon the basis of the foregoing findings of fact and on the entire record in the
case I make the following:
CONCLUSIONS OF LAW
1. B. W. Horn Company is an employer engaged in commerce within the meaning
of Section 2(2) and Section 2(6) and (7) of the Act.
2. Local 1070 of the United Brotherhood of Carpenters and Joiners of America
is a labor organization within the meaning of Section 2 (5') of the Act.
3. By causing Horn to discharge Ray Marruffo the Respondent has engaged in and
is engaging in an unfair labor practice within the meaning of Section 8(b)(2) of
the Act.
4. By causing the discharge of Ray Marruffo the Respondent has restrained and
coerced employees in the exercise of rights guaranteed in Section 7 of the Act and
has thereby engaged in unfair labor practices within the meaning of Section 8(b)
(1)(A) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
RECOMMENDATIONS
Upon the entire record in the case it is hereby recommended that Local 1070 of
the United Brotherhood of Carpenters and Joiners of America, El Centro, California,
its officers, representatives , and agents shall:
1. Cease and desist from:
(a) Causing or attempting to cause B. W. Horn Company to discriminate against
employees in violation of Section 8(a) (3) of the Act.
(b) In any other manner restraining or coercing employees in the exercise of
rights guaranteed in Section 7 of the Act except in a manner permitted by Section
8(a)(3) of the Act.
2. Take the following affirmative action which I find will effectuate the policies
of the Act:
(a) Make whole Ray Marruffo for any loss of pay he may have suffered by rea-
son of his discharge from B . W. Horn Company, as provided in the Section herein
entitled "The Remedy."
sInsulation Contractors of Southern California, Inc, at at, 110 NLRB 638, 650.
MANHASSET MOTORS) INC. 443
(b) Notify Ray Marruffo and B . W. Horn Company in writing that it has no
objection to the employment of Marruffo in any capacity satisfactory to Horn and
that it requests Horn to return Marruffo to the employment from which he was
discharged.
(c) Post at its offices in conspicuous places including all places where notices to
members are customarily posted , copies of the notice attached hereto marked "Ap-
pendix." Copies of said notice to be furnished by the Regional Director for the
Twenty-first Region shall , after being duly signed by a representative of the Re-
spondent be posted by the Respondent immediately upon receipt thereof and be
maintained by it for 60 consecutive days thereafter . Reasonable steps shall be taken
by the Respondent to insure that such notices are not altered , defaced, or covered
by any other material.
(d) Notify the Regional Director for the Twenty -first Region in writing within
20 days from the date of receipt of this Intermediate Report and Recommended Order
what steps have been taken in compliance.
IT IS FURTHER RECOMMENDED that unless on or before 20 days from the date of
receipt of this report , the Respondent notifies the Regional Director for the Twenty-
first Region that it will comply with the foregoing recommendations , the National
Labor Relations Board issue an order requiring the Respondent to take the action
aforesaid.
APPENDIX
NOTICE TO ALL MEMBERS
Pursuant to the recommendations of a Trial Examiner of the National Labor Rela-
tions Board, and in order to effectuate the policies of the National Labor Relations
Act, we hereby notify you that:
WE WILL NOT cause or attempt to cause B. W. Horn Company to discriminate
against employees in violation of Section 8 (a) (3) of the Act.
WE WILL withdraw our objection to the continued employment of Ray Mar-
ruffo and request that he be returned to the employment from which he was
discharged.
WE WILL make Ray Marruffo whole for any loss of pay suffered as a result
of the discrimination against him.
WE WILL NOT in any other manner restrain or coerce employees in the exer-
cise of rights guaranteed them in Section 7 of the Act except in conformity with
Section 8 (a) (3) of the Act.
LOCAL 1070 OF THE UNITED BROTHERHOOD OF
CARPENTERS AND JOINERS OF AMERICA,
Labor Organization.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof, and must not be
altered, defaced , or covered by any other material.
Manhasset Motors, Inc. and Local 868, International Brother-
hood of Teamsters, Chauffeurs , Warehousemen and Helpers
of America , Ind. Case No. 9-CA-8211. May 31, 1960
DECISION AND ORDER
On March 22, 1962, Trial Examiner Lee J. Best issued his Inter-
mediate Report in the above-entitled proceeding, finding that the Re-
spondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the Intermediate Report
attached hereto. Thereafter, the Respondent filed exceptions to the
Intermediate Report and a supporting brief.
137 NLRB No. 50.