Local #16, International Union of Elevator Constructors

National Labor Relations Board - Board Decisions

May 4, 1977

229 N.L.R.B. 439 (N.L.R.B. 1977)

LOCAL #16, INT'L UNION OF ELEVATOR CONSTRUCTORS
Local # 16, International Union of Elevator Construc-
tors, AFLCIO (Westinghouse Elevator Company,
a Division of Westinghouse Electric Corporation)
and Bobby Neal Jones. Case 15-CB- 1764
May 4, 1977
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO, AND
WALTHER
On January 11, 1977, Administrative Law Judge
Jennie M. Sarrica issued the attached Decision in
this proceeding. Thereafter, the Respondent filed
exceptions and a supporting brief. The General
Counsel filed exceptions, a brief in support of
exceptions, and a brief in support of the Administra-
tive Law Judge's Decision as to matters not ad-
dressed by the aforementioned exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,1 and conclusions of the Administrative Law
Judge and to adopt her recommended Order. 2
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the Respondent, Local # 16,
International Union of Elevator Constructors, AFL-
CIO, New Orleans, Louisiana, its officers, agents,
and representatives, shall take the action set forth in
the said recommended Order.
I The Respondent has excepted to certain credibility findings made by
the Administrative Law Judge. It is the Board's established policy not to
overrule an Administrative Law Judge's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect. Standard Dry Wall Products,
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have
carefully examined the record and find no basis for reversing her findings.
2 In accordance with our normal procedure, the "pay" to be reimbursed
to the discriminatee includes not only the wages specifically mentioned by
the Administrative Law Judge, but any benefits which he lost as a result of
the discnmination.
DECISION
STATEMENT OF THE CASE
JENNIE M. SARRICA, Administrative Law Judge: This is a
proceeding under Section 10(b) of the National Labor
Relations Act, as amended (29 U.S.C. 151, et seq.),
hereinafter referred to as the Act. Based on charges filed on
March 12, 1976,1 a complaint was issued on June 10,
presenting allegations that Local # 16, International Union
of Elevator Constructors, AFL-CIO, hereinafter referred
to as the Respondent or as Local 16, committed unfair
labor practices within the meaning of Sections 8(bXIXA)
and (2) and 2(6) and (7) of the Act. The Respondent filed
an answer denying that it committed the violations of the
Act alleged. Upon due notice, the case was heard before
me at New Orleans, Louisiana, on August 2 and November
16. Representatives of all parties entered appearances and
had an opportunity to participate in the proceeding.
Based on the entire record, including my observation of
the witnesses, and after due consideration of briefs and
argument, I make the following:
FINDINGS AND CONCLUSIONS
I. JURISDICTION
Westinghouse Elevator Company, a Division of Westing-
house Electric Corporation, hereinafter called Westing-
house, is a Pennsylvania corporation with offices and a
place of business in New Orleans, Louisiana, where it is
engaged in the business of construction, installation, and
servicing of elevators and escalator equipment. During the
year preceding issuance of the complaint, a representative
period, Westinghouse, in the course and conduct of its
business operations, purchased and received goods valued
in excess of $50,000 directly from points located outside the
State of Louisiana.
The National Elevator Industry, Inc., hereinafter re-
ferred to as NEII, is an association of employers engaged
in the business of construction, installation, and servicing
of elevators and escalator equipment throughout the
United States. Said association exists in part for the
purpose of representing employer-members in the negotia-
tion and administration of collective-bargaining agree-
ments with labor organizations. Westinghouse is now, and
at all times material has been, a member of NEII.
Respondent admits and I find that Westinghouse and
National Elevator Industry, Inc., are at all times material
herein employers within the meaning of Section 2(2) of the
Act, engaged in commerce and in operations affecting
commerce within the meaning of Section 2(6) and (7) of the
Act.
I All dates are in 1976, unless otherwise specified.
229 NLRB No. 68
439
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
II. THE LABOR ORGANIZATION
Respondent is now, and has been during all times
material herein, a labor organization within the meaning of
Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
Westinghouse Elevator Company, hereinafter referred to
as Westinghouse, has been a party to and bound by a
standard agreement for the term March 24, 1972, to July 8,
1977, negotiated with Respondent by NEII. This agree-
ment requires, inter alia, that elevator mechanics and
helpers be hired through referral by Respondent. This
agreement provides in part that:
An employer shall hire experienced mechanics and
helpers who permanently live in the area, are seeking
employment and are qualified to perform the work
required by the employer before hiring a transient
employee or a new inexperienced employee.
Elsewhere the contract specifically allows the hiring of
nonresidents "where there are no qualified mechanics
available in the local Union."
It is alleged in the complaint that Respondent failed and
refused to refer Bobby Neal Jones for employment by
Westinghouse because of his lack of membership in
Respondent and, thus, attempted to cause, and caused,
Westinghouse to discriminate against Jones in violation of
Section 8(a)(3) of the Act, thereby engaging in unfair labor
practices within the meaning of Section 8(b)(I)(A) and (2)
of the Act.
Since 1970 Bobby Neal Jones has been a member of the
Shreveport, Louisiana, Local No. 98, International Union
of Elevator Constructors, where he is classified as an
elevator constructor mechanic. Because of the scarcity of
work in the Shreveport area Jones came to New Orleans
around the first of February seeking employment. As a
result he was called to work for Dover, under Construction
Superintendent Gene Hunter, who assigned him to work at
the Oschner Hospital project. Before going to work in the
New Orleans area, Jones received a verbal clearance to
work as an out-of-area mechanic from LeRoy Phillips,
business representative of Local 16.
On Thursday, March 4, Phillips came to the Oschner
jobsite and was told by Hunter and Dover District
Manager Paul Dyminck that a layoff would take place the
following day, March 5, in which three temporary
mechanics 2 would be reduced to helpers, and six helpers
and one mechanic would be laid off. Phillips was given the
names of the individuals affected. He proceeded to the
shack of the mechanic-in-charge and spoke to the employ-
ees present advising of the impending layoff. He also stated
there was no reason for the men to miss any worktime, as
Westinghouse was then hiring. He told them to come by
the union office on Monday and he would try to place
them with Westinghouse. Phillips mentioned the names of
A temporary mechanic is an experienced helper who has not passed the
mechanic's test but who is permitted to serve as a temporary mechanic when
no certified mechanics are available.
various individuals affected, but did not mention Jones
whose name, he admitted, was on the list for layoff.
B. Operative Events
On March 5, Hunter came to the jobsite and told Jones
he was laid off. Jones went to the office of William J.
Printz, district field manager of Westinghouse, and in-
quired of the possibility of work for that employer in the
Shreveport area. Printz advised that the Company had a
full complement of elevator mechanics in Shreveport but
inquired whether Jones would be willing to work in the
New Orleans area without the expenses usually required to
be paid for "out-of-town mechanics." Jones indicated his
willingness to accept this condition, and Printz stated he
could put Jones to work Tuesday morning on a job on the
riverfront.
Printz called Phillips and stated he would like to hire
Jones if Phillips would clear him. Phillips stated he was not
in favor of clearing Jones because the Respondent had
some Local 16 helpers who could be upgraded to
temporary mechanic. Printz told Phillips he wanted to hire
more qualified individuals and wanted to hire Jones
because he was a "full fledged" mechanic.
Jones went to the Respondent's office on Monday,
March 8, seeking clearance and a referral to Westinghouse.
Phillips refused this request on the ground that Local 16
had helpers on the bench and one of them had previously
worked as a temporary mechanic. Phillips told Jones he
was going to take care of his "local people" first before any
"out-of-town" mechanics went to work through his local.
Phillips stated he was going to call Printz and try to get
"everybody in the local" working; meanwhile, Jones
should wait.
Jones called Printz on March 9 and advised Printz he
was unable to get clearance from Phillips. Printz stated he
could not understand why Jones could not obtain the
clearance because he had spoken with Phillips specifically
asking for Jones and had ascertained that Phillips had
helpers he wanted to refer as mechanics but Printz had
indicated he had enough helpers.
In a telephone conversation, after Printz learned that
Phillips had refused clearance to Jones, Phillips told Printz
that Jones had not followed the correct procedure in
seeking employment with Westinghouse-that Jones
should have gone through Local 16. Printz told Phillips he
could see nothing wrong with an applicant coming to his
office for an interview as long as Printz sent the applicant
to the local union for clearance before he was hired.
Jones had several subsequent telephone conversations
with Phillips trying to obtain a clearance so that he could
go to work for Westinghouse. Phillips refused such
clearance, stating that Jones might as well go back to
Shreveport because he was going to take care of "local
people" first. 3 Because Phillips refused a clearance for
3 The foregoing is based upon testimony which I have credited taking
440
LOCAL #16, INT'L UNION OF ELEVATOR CONSTRUCTORS
Jones, Printz did not hire Jones at that time.4
In summary, it is undisputed that Jones was offered
employment by Westinghouse, conditioned upon clearance
by Local 16 in accordance with the collective-bargaining
agreement; that Jones attempted to clear through Local 16
to go to work for Westinghouse; that Printz, on behalf of
Westinghouse, told Phillips of Local 16, that he was in need
of qualified mechanics and that he wished to hire Jones as
an experienced mechanic and wanted Local 16 clearance
for Jones' employment. It is admitted that at that time
none of the "men on the bench" had acquired the status of
"certified" mechanic, but were helpers only, except that
one among them had on occasion served as a temporary
mechanic. In other words there was no fully qualified
mechanic available to refer. It is further admitted that had
Jones been a member of Local 16, he would have been
cleared to work for Westinghouse when the request
therefor was made.
Discussion and Conclusion
Aside from a plea for discrediting the testimony of the
Charging Party, Respondent rests its defense entirely upon
cases allowing referral discrimination in certain circum-
stances based on "area residence." 5 However, as pointed
out by the General Counsel, there is no evidence whatso-
ever concerning the residence of the Local 16 members "on
the bench" alluded to by Phillips as having preference over
Jones. Although Phillips may have been referring to
individuals who were in fact area residents, it is clear he
was considering membership in Local 16 and not local
residency as the determinative factor, for he testified that if
Jones had been a Local 16 member he, Phillips, would have
referred Jones to Westinghouse, and this clearly without
regard to whether or not Jones was an area resident. I
conclude that Phillips refused clearance for Jones to work
for Westinghouse because of his nonmembership in Local
16.6 Respondent thereby violated the Act, as alleged. 7
into consideration internal consistency, corroboration, the inherent proba-
bilities, and the demeanor of the vanous witnesses. Although Hunter's
memory did not verify that Jones was initially hired by Dover to become a
contract keyman on the Taft project, I find that he led both Jones and
Phillips to believe this was the case and that the Oschner assignment was to
hold Jones as an employee until the Taft construction commenced. I do not
credit Phillips' denial that he refused clearance to Jones for the Westing-
house job: that he raised no objection to Printz hinng Jones but only sought
to have Printz give consideration to others laid off by Dover; that after
checking his mechanics-to-helpers ratio Printz advised that his mechanics
ratio was high and he needed no mechanics but selected by name four
helpers; that he asked "what about Jones" and Pnntz said. "Well Ijust don't
have anything for him. He might just as well go back to Shreveport": and
that when Jones called back he told Jones that Printz had decided against
hiring a mechanic because of the mechanics-to-helpers ratio, but to continue
checking with his office and if he could possibly put Jones to work he would
certainly do so. Phillips admitted that if he had had "all the people" busy he
would have allowed Jones to work for Westinghouse, and that when he
spoke with Printz he specified that there were local qualified people
available; that the only mechanic available was one who did not pass the
mechanics test until May 17 and who, although he had worked as a
temporary mechanic in the past, was among those laid off from the Oschner
job as a helper: that Printz had told him several times he wanted more
qualified men--he was tired of setting helpers up as temporary mechanics
and wanted people who knew what they were doing; and that if Jones had
been a member of Local 16, he definitely would have referred Jones to
Westinghouse. Printz testified there was a conversation with Phillips in April
concerning mechanics-to-helpers ratio and that the result of his check at
that time was that he had entirely too many helpers in relation to the skilled
mechanics employed.
CONCLUSIONS OF LAW
1. Westinghouse Elevator Company, and National
Elevator Industry, Inc., an association of employers, are
employers engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
2. Respondent, Local # 16, International Union of
Elevator Constructors, AFL-CIO, is a labor organization
within the meaning of Section 2(5) of the Act.
3. By refusing, in the operation of its exclusive hiring
hall arrangement, to refer Bobby Neal Jones to a job with
Westinghouse and to clear Bobby Neal Jones for employ-
ment upon request by Westinghouse because he lacked
membership in the Union, Respondent restrained and
coerced Bobby Neal Jones in the exercise of rights
guaranteed by Section 7 of the Act in violation of Section
8(b)(1)(A) of the Act, and by attempting to cause and
causing Westinghouse to discriminate against Bobby Neal
Jones for the same reason contrary to the interdiction of
Section 8 (a)(3) of the Act Respondent thereby engaged in
unfair labor practices proscribed by Section 8(b)(2) and
(1)(A) of the Act.
4. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that an order
issue requiring it to cease and desist therefrom and to take
certain affirmative action designed to effectuate the
policies of the Act.
Having found that Respondent restrained and coerced
Jones in the exercise of his Section 7 rights by refusing, in
the operation of its exclusive hiring hall, to refer him to
employment with Westinghouse because of his lack of
membership in the Union, it will be recommended that
4 On June i, after the charges herein were filed, Jones received a
clearance from Respondent but for personal reasons did not begin working
for Westinghouse until June 14.
5 Respondent cites Legislative History of the Labor-Management
Reporting and Disclosure Act of 1959, p. 427, and the following case
precedent: Bricklayers, Masons and Plasterers' International Union of
America, Bricklayers, Masons, Marble Masons, Tile Layers and Terrezza
Workers Union No. 28, AFL-CIO (Plaza Builders, Incorporated), 134 NLRB
751 (1%961); Local Union No. 337, United Association of Journeymen and
Apprentices of the Plumbing and Pipefitiong Industry of the United States and
Canada, AFL-CIO (Townsend and Bottun, Inc.), 147 NLRB 929 (1964);
Metropolitan District Council, United Brotherhood of Carpenters and Joiners of
Philadelphia and Vicinit), 194 NLRB 159, 160 (1971).
In view of my holding, infra, I find it unnecessary to pass on the General
Counsel's additional argument that these cases do not establish a right to
discriminate on the basis of area residency where union membership is a
factor, or where the question of qualifications enters into the picture, or on
other factors which arguably may distinguish those cases from the instant
one. See A malganuated Meat Cutters and Butcher Workmen of North America
Local No. 576 (Westfield Thriftway Supermarket), 201 NLRB 922 (1973),
where nonmembership was the dominant consideration.
6 Accordingly, I find that the General Counsel's reliance on Bobby Nick
Ward v. N.LR.B., 462 F.2d 8 (C.A. 5, 1972), affd. on remand 198 NLRB
1113, and Bechtel Power Corporation, 223 NLRB 925 (1976), is well placed.
7 See Local No. 64, Falls Cities District Council of Carpenters, United
Brotherhood of Carpenters and Joiners of America, AFL-CIO (Western Dr,
Wall Compan)y, Inc.), 204 NLRB 590 (1973).
441
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent post a notice designed to remove the continu-
ing coercive impact of such conduct. Having found that
Respondent caused Westinghouse to refuse to hire Jones
because of his nonmembership in Respondent organiza-
tion, it will be recommended that Respondent make Jones
whole for any loss of pay suffered by reason of Respon-
dent's unlawful conduct, by payment to him of a sum of
money equal to the amount he would have earned as wages
from the date of the discrimination until 5 days after
Respondent notified Westinghouse it had no objection to
Jones' employment in accord with the terms of the
contract; 8 the amount of backpay, if any, to be computed
in the manner set forth by the Board in F. W. Woolworth
Company, 90 NLRB 289 (1950), with interest to be
accorded in the manner set forth in Isis Plumbing &
Heating Co., 138 NLRB 716 (1962).
Upon the foregoing findings of fact, conclusions of law,
and the entire record in the case, and pursuant to Section
10(c) of the Act, I hereby issue the following recommend-
ed:
ORDER 9
The Respondent, Local #16, International Union of
Elevator Constructors, AFL-CIO, New Orleans, Louisi-
ana, its officers, agents, and representatives, shall:
1. Cease and desist from:
(a) Failing or refusing, in the operation of its exclusive
hiring hall, to refer Bobby Neal Jones for employment for
reasons that include his lack of membership in Local # 16.
(b) Causing or attempting to cause Westinghouse
Elevator Company, or any other employer, to refuse to hire
Bobby Neal Jones by discriminatorily refusing to refer or
clear him for employment for reasons that include his lack
of membership in the Union.
(c) In any like or related manner restraining or coercing
employees or applicants for employment in the exercise of
rights guaranteed by Section 7 of the Act.
2. Take the following affirmative action designed and
found necessary to effectuate the purposes of the Act:
(a) Make whole Bobby Neal Jones for any loss of pay he
may have suffered by reason of the discrimination
practiced against him in the manner set forth in the section
entitled "The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all such
records, reports, work lists, and other documents as may be
in its possession, custody, or control, which are necessary
or appropriate to analyze the amount of backpay that may
be due under the terms of this Order.
(c) Post at its business office, hiring hall, and meeting
hall copies of the attached notice marked "Appendix." '
Copies of said notice, on forms provided by the Regional
Director for Region 15, after being duly signed by the
Union's authorized representative, shall be posted by the
Union immediately upon receipt thereof, and be main-
tained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to
job applicants are customarily posted. Reasonable steps
shall be taken by the Union to insure that said notices are
not altered, defaced, or covered by any other material.
(d) Sign and mail a sufficient number of copies of said
notice to the Regional Director for Region 15 for posting
by Westinghouse Elevator Company and every employer
signatory to a collective agreement with the Respondent
that provides for the participation of such employer in the
Respondent's exclusive hiring facility, if they be willing, in
places where notices to their employees are customarily
posted.
(e) Notify the Regional Director for Region 15, in
writing, within 20 days from the date of this Order,what
steps the Respondent has taken to comply herewith.
8 See Amalgamated Meat Cutters and Butcher Workmen of North America,
Local No. 576, 201 NLRB 922 (1973). The evidence establishes that by
letters dated May 27, 1976, Respondent, through its attorney, notified both
Westinghouse and Jones that it had no objection to Jones' employment by
Westinghouse. Jones' employment, however, was delayed for reasons
relating to his own personal convenience. The precise date for termination
of backpay, therefore, remains to be determined in the compliance stage of
this proceeding.
9 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
10 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 AND APPLICANTS FOR
EMPLOYMENT
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT restrain or coerce any applicant for
employment pursuant to the exclusive hiring hall we
operate by refusing to refer them to jobs for reasons
that include lack of membership in Local # 16.
WE WILL NOT cause or attempt to cause Westing-
house Elevator Company, or any other employer, to
discriminate against Bobby Neal Jones by refusing to
refer or clear him for employment in violation of the
Act for reasons that include his lack of membership in
the Union.
WE WILL NOT in any like or related manner restrain
or coerce employees or applicants for employment in
the exercise of rights guaranteed in Section 7 of the Act.
WE WILL make whole Bobby Neal Jones for any loss
of pay suffered by reason of the discrimination
practiced against him.
LOCAL # 16,
INTERNATIONAL UNION OF
ELEVATOR CONSTRUCTORS,
AFL-CIO