Local 176, United Brotherhood of Carpenters, etc.

National Labor Relations Board - Board Decisions

Jan 19, 1959

122 N.L.R.B. 980 (N.L.R.B. 1959)

980 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the several States and tend to lead to labor disputes burdening and obstructing
commerce and the free flow thereof.
V. 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 affirmative action
designed to effectuate the policies of the Act.
It will be recommended that, in accordance with the Board's usual policies, the
Respondent make whole Gould and Page for any loss of pay suffered as a result
of the discrimination against them by payment to each of them of a sum of money
equal to the amount which, absent the unfair labor practices, he would normally
have earned as wages from and after June 12, 1956, less net earnings.
The General Counsel asks that the remedy here include provision for the reim-
bursement of all fees and dues paid by employees as a result of the illegal union-
security clause, citing as authority therefor the case of J. S., Sr., Brown E.F.-Olds
Plumbing & Heating Corporation, 115 NLRB 594. I find that case inapplicable
here. The contract there involved was a closed-shop agreement. The instant con-
tract is not closed shop. As I interpret the decisions, Board policy in the type of
situation here presented is to order dues or fee reimbursement only where there
is evidence of coercive exaction, such as closed shop, involuntary checkoff, or other
coercive tactic. Brown-Olds, supra, Bowman Transportation, Inc., 112 NLRB 387.
Cf. Hibbard Dowel, 113 NLRB 28. See also Braswell Motor Freight Lines, 213 F.
2d 208 (C.A. 5); Shedd-Brown Mfg. Co., 213 F. 2d 163 (C.A. 7); Local 404,
International Brotherhood of Teamsters, etc. (Brown Equipment & Manufacturing
Co.) 100 NLRB 801, 205 F. 2d 99 (C.A. 1); and cases cited in Brown-Olds, supra.
Dues and fees reimbursement will therefore not be recommended.
Upon the basis of the above findings of fact, and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. Local 1566, International Longshoremen's Association, is a labor organization
within the meaning of Section 2(5) of the Act.
2. Maritime Ship Cleaning and Maintenance Co. is engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
3. By causing Maritime Ship Cleaning and Maintenance Co. to discriminate
against applicants for employment in violation of Section 8(a)(3) of the Act, and
by contracting with the Philadelphia Marine Trade Association on March 18, 1957,
for a union-security clause requiring union membership as a condition of em-
ployment, the Respondent has engaged in and is engaging in unfair labor practices
within the meaning of Section 8(b)(2) of the Act.
4. By restraining and coercing employees and applicants for employment in the
exercise of rights guaranteed in Section 7 of the Act the Respondent has engaged
in and is engaging 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 within the
meaning of Section 2(6) and (7) of the Act.
6. The Respondent has not engaged in unfair labor practices by entering into
the March 1954 agreement with the Philadelphia Marine Trade Association re-
quiring union membership as a condition of employment.
[Recommendations omitted from publication.]
Local 176, United Brotherhood of Carpenters and Joiners of
America, AFL-CIO , and its business agent , Albert A. Fournier
and Dimeo Construction Company. Case No. 1-CB-399. Janu-
ary 19, 1959
DECISION AND ORDER
On February 12, 1958, Trial Examiner Arthur E. Reyman issued
his Intermediate Report in the above-entitled proceeding, finding
that the Respondent had engaged in and was engaging in certain
122 NLRB No. 119.
LOCAL 176, UNITED BROTHERHOOD OF CARPENTERS, ETC. 981
unfair labor practices and recommending that it cease and desist
therefrom and take certain affirmative action, as set forth in the
copy of the Intermediate Report attached hereto. Thereafter, the
Respondent and the General Counsel filed exceptions to the Inter-
mediate Report and supporting briefs.'
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error Was committed.
The rulings are hereby affirmed. The Board has considered the
Intermediate Report, the exceptions and briefs, and the entire record
in the case and hereby adopts the findings,2 conclusions, and recom-
mendations of the Trial Examiner with the modifications and addi-
tions noted below.'
We have found that the Respondent Union maintained an unlaw-
ful oral agreement with the Employer, Dimeo Construction Co., re-
quiring job clearance from the Union in order to obtain employment
and giving hiring preference to union members. Such an agreement
inevitably coerced employees and applicants for employment to pay
union initiation fees and dues. It would not effectuate the policies
of the Act to permit the retention of the payments of these union
initiation fees, dues, and all other moneys which have been unlaw-
fully exacted from employees. As part of the remedy, therefore, we
shall order the Respondent Union to refund to the employees in-
volved the initiation fees, dues, and all other moneys unlawfully
exacted from them as a price of their employment.4 This remedy
1 The Respondents requested oral argument . The request is hereby denied because the
record, the exceptions , and the briefs adequately present the issues and the positions of
the parties.
2 We note typographical errors in dates in the Intermediate Report respecting the years
Nels Johnson was employed on the Rogers High School project . The complaint alleged,
and the Trial Examiner correctly found, discrimination against Johnson in 1957. The
record also shows that Johnson had been employed on the same project in 1956. We
correct any dates at variance with these in the Intermediate Report.
We also correct the Trial Examiner 's reference to Joseph Hargrove as a trustee of the
Respondent . Hargrove became a trustee after the dates alleged in the complaint. To the
extent that we find the Respondent Union bound by Hargrove 's actions , we rely only on
the fact that he was a steward.
8 The Respondents contest the jurisdiction of the Board . The record shows that during
the year 1957 , the Employer rendered services on an out -of-State building project in an
amount exceeding $50,000. We find that the Employer is engaged in commerce and that
it will effectuate the policies of the Act to assert jurisdiction. Local 148 , Truck Drivers
and Warehousemen's Union, etc. (Harry Griffin Trucking ), 114 NLRB 1494 . We agree
with the Trial Examiner that the Respondents violated Section 8(b) (1) (A ) and (b) (2)
of the Act. Unlike the Trial Examiner , however, we do not rely on the Respondent
Union ' s own laws . We therefore do not adopt the Trial Examiner 's reference to them
in the Intermediate Report.
We find that the Respondents violated Section 8 ( b) (1) (A) and ( 2) of the Act for the
reasons stated in Mountain Pacific Chapter of The Associated General Contractors, 119
NLRB 883 , wherein the standards applicable for a lawful exclusive hiring hall are set
forth.
4 Our order requiring reimbursement of initiation fees, dues , and other moneys will be
limited to the Respondent Union . See Local 420, United Association of Journeymen, etc.,
111 NLRB 1126 , 1127-1128 . The Respondent Union's liability for reimbursement shall
include the Period beginning 6 months prior to the filing and service of the charge herein
and shall extend to all such moneys thereafter collected.
982 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of reimbursement is, we believe, appropriate and necessary to ex-
punge the coercive effect of the Respondent's unfair labor practices.'
It has been found that the Respondent attempted to cause the
Employer to discriminate against Nels Johnson. As the Trial Exami-
ner did not find that Johnson suffered any monetary loss, we shall
not hold the Respondents accountable for any back pay.
We shall direct the Respondents to notify the Employer and Nels
Johnson that it has no objection to the employment of Nels Johnson.
ORDER
Upon the entire record in the case and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondents, Local 176,
United Brotherhood of Carpenters and Joiners of America, AFL-
CIO, its officers, representatives, agents, successors, and assigns, and
its business agent, Albert A. Fournier, shall :
1. Cease and desist from :
(a) Giving effect to, entering into, renewing, maintaining, or en-
forcing any agreement, arrangement, understanding or practice with
Dimeo Construction Co., requiring employees or applicants for em-
ployment to be or become members of, or to obtain clearance or
approval from, the Respondent Union as a condition of employment,
except as authorized by Section 8(a) (3) of the Act.
(b) Causing or attempting to cause Dimeo Construction Co., to
refuse employment to Nels Johnson or any applicant for employment
because he is not a member of, or has not secured clearance or
approval from, the Respondent Union, in violation of Section 8(a)
(3) of the Act.
(c) In any other manner restraining or coercing employees of, or
applicants for employment with, Dimeo Construction Co., in the
exercise of their rights guaranteed in Section 7 of the Act, except
to the extent that such rights may be affected by an agreement re-
quiring membership in a labor organization as a condition of employ-
ment, as authorized by Section 8(a) (3) of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Reimburse all employees of Dimeo Construction Co. for
moneys illegally exacted from them in the manner and to the extent
set forth in the section herein entitled "The Remedy."
(b) Notify Dimeo Construction Co. and Nels Johnson, in writing,
that it withdraws objections to the employment of Nels Johnson.
(c) Post at the Union's offices and meeting halls in Newport,
Rhode Island, copies of the notice attached hereto marked "Ap-
s See N.L.R.B. v. Broderick Wood Products Co., 261 F. 2d 548 (C.A. 10), enfg. 118
NLRB 38.
LOCAL 176 , UNITED BROTHERHOOD OF CARPENTERS , ETC. 983
pendix."6 Copies of said notice , to be furnished by the Regional
Director for the First Region , shall, after being duly signed by the
Respondent Union's representative and by Albert A. Fournier, be
posted by the Respondent Union immediately upon receipt thereof,
and maintained by it for sixty ( 60) consecutive days thereafter in
conspicuous places, including all places where notices to its members
are customarily posted. Reasonable steps shall be taken by the
Respondent Union to insure that said notices are not altered, defaced,
or covered by any other material.
(d) Mail to the Regional Director for the First region signed
copies of the notice attached hereto marked "Appendix ," for posting,
by Dimeo Construction Co., the Company willing, on the Rodgers
High School project in Newport ( if said project is still in progress)
or on any other project on which Dimeo Construction Co. may be
engaged in Newport, Rhode Island, for sixty ( 60) consecutive days,
in places where notices to employees and prospective employees are
customarily posted. Copies of said notice , to be furnished by the
Regional Director for the First Region, shall, after being duly signed
by the Respondent Union's representative and Albert A. Fournier,
be forthwith returned to said Regional Director for such posting.
(e) Notify the Regional Director for the First Region in writing,
within ten ( 10) days from the date of this Order, what steps they
have taken to comply herewith.
MEMBER FANNING took no part in the consideration of the above
Decision and Order.
6In 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."
APPENDIX
NOTICE TO ALL MEMBERS OP LOCAL 176, UNITED BROTHERHOOD OF
CARPENTERS AND JOINERS OF AMERICA, AFL-CIO
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify you that :
WWE WILL NOT give effect to, enter into, renew, maintain, or
enforce any agreement, arrangement, understanding, or practice
with Dimeo Construction Co., under which employment of car-
penters by Dimeo Construction Co., is conditioned upon the
applicant obtaining a clearance or referral slip from Albert A.
Fournier or his successor, and preferential treatment is accorded
to members of our organization in the issuance of such clearance
or referral slips, except to the extent that the requirement of
984 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
clearance or approval by a labor organization is lawfully imposed
under the conditions stated in Mountain Pacific Chapter of The
Associated General Contractors, 119 NLRB 883.
WE, WILL NOT cause or attempt to cause Dimeo Construction
Co., its officers, agents, successors, or assigns, to discriminate
against employees or applicants for employment because they
have not received a clearance or referral slip from the business
agent of our organization, or in any other manner to discrimi-
nate against them in violation of Section 8(a) (3) of the Act.
WE WILL NOT in any other manner restrain or coerce employees
of, or applicants for employment with, the above-named em-
ployer, its successors, or assigns, in the exercise of their rights
guaranteed in Section 7 of the Act, except to the extent that
such rights may be affected by an agreement requiring member-
ship in a labor organization as a condition of employment, as
authorized by Section 8(a) (3) of the Act.
WE WILL notify Nels Johnson and Dimeo Construction Co.,
in writing, that we have no objection to the employment of
Nels Johnson.
WE WILL reimburse all employees of Dimeo Construction Co.
for initiation fees, dues, and all other moneys illegally exacted
from them as a condition of employment.
LOCAL 176, UNITED BROTHERHOOD OF CARPENTERS
AND JOINERS or AMERICA, AFL-CIO,
Labor Organization.
Dated---------------- .By-------------------------------------
(Reapresentative ) (Title)
ALBERT A. FOURNIER, BUSINESS AGENT, LOCAL
176, OF THE UNITED BROTHERHOOD OF CARPEN-
TERS AND JOINERS or AMERICA, AFL-CIO,
Individual.
Dated----------- ----- By-------------------------------------
(ALBERT A . FoURNSER)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
On May 14, 1957, Dimeo Construction Co. filed a charge against Local 176,
United Brotherhood of Carpenters and Joiners of America , AFL-CIO, and its
business agent, Albert Fournier , charging that the Local and its business agent had
engaged in and were engaging in unfair labor practices within the meaning of Sec-
tion 8 (b)(1)(A) and ( 2) of the National Labor Relations Act, as amended, 61
Stat. 136 et seq.; 29 U.S.C., Section 151 et seq., hereinafter referred to as the Act.
Subsequently , on July 26, 1957, the General Counsel of the National Labor Rela-
tions Board on behalf of the Board by the Regional Director for the First Region
issued a complaint against Local 176 and its business agent, Albert A. Fournier,
LOCAL 176, UNITED BROTHERHOOD OF CARPENTERS, ETC. 985
alleging that the Union and Fournier had engaged in and were engaging in unfair
labor practices within the meaning of Section 8(b)(1)(A) and (2) of the Act.I
The complaint in essential part alleges that the Union and Fournier, from on or
about April 22, 1957, have restrained and coerced and are restraining and coercing
employees of the Company in the exercise of rights guaranteed in Section 7 of the
Act, by (a) maintaining and enforcing an oral agreement, work arrangement, under-
standing, or practice which requires or has the effect of inducing or attempting to
induce the Employer to discriminate in regard to terms or conditions of hire or
tenure against employees by reason of nonmembership in the Union; (b) main-
taining a work arrangement or practice whereby preference in hiring, employment,
or employment rights has been and is granted to the Union; (c) compelling or
attempting to compel the Employer to employ only persons approved by the Union
and/or Fournier; (d) and inducing and encouraging or attempting to induce and
encourage members of the Union to refuse to work with employees not members
of the Union. It further is alleged that the Union and Fournier have, since on
or about April 22, 1957, attempted to cause and compel the Company to dis-
criminate against employees, including specifically one Nels Johnson, in regard to
hire or tenure or other conditions of employment, by attempting to compel the
Employer to deny employment to Johnson because of his lack of membership in
the Union. The Respondent Union and the Respondent Fournier filed timely
answer to the complaint, effectively denying the asserted violations of the Act and
setting up several affirmative defenses. In their answer, the Respondents ques-
tioned whether the interstate activities of the Company are of sufficient quantity
to satisfy the jurisdictional requirements of the Board; the Respondents denied
that Nels Johnson is an employee within the meaning of the Act but asserted that
he is employed by the Company as a supervisor; that at the time of the violations
alleged in the complaint as to Nels Johnson, he was a member in good standing
of United Brotherhood of Carpenters and Joiners of America, AFL-CIO, Local
1695, Providence, Rhode Island, and while voluntarily maintaining that status
should not be able to avail himself of benefit of the provisions of Section 7 of
the Act, in order to assert rights which in practice would be "contrary to the Con-
stitution and Laws of said Brotherhood."
On the issues drawn by the complaint and the answer, this case came on for
hearing before the Trial Examiner at Newport, Rhode Island, on September 24,
1957, and was concluded and closed on the following day. At the hearing all
parties were represented by counsel, were afforded full opportunity to be heard,
to examine and cross-examine witnesses, to introduce evidence pertinent to the
issues, to argue orally upon the record, and to file briefs and proposed findings
of fact and conclusions of law.
Upon the entire record in this case, and from his observation of the witnesses,
the Trial Examiner makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF DIMEO CONSTRUCTION CO.
Dimeo Construction Co., a corporation duly organized under and existing by
virtue of the laws of the State of Rhode Island, maintains, and during the times
material hereto maintained, its principal office and place of business at 511 West-
minster Street in the city of Providence in the State of Rhode Island. At this
place, and at other places of business located in the Commonwealth of Massa-
chusetts, this corporation has engaged in and is engaged in the business of general
construction. During all the times material hereto this corporation, in the course
and conduct of its business, has caused and still causes large quantities of sand,
gravel, concrete, steel, asphalt, road building machinery, and other related ma-
terials used by it in its business to be purchased and transported in interstate
commerce from and through various States of the United States other than the
State of Rhode Island, and in such other States performs services for which it
derived income during the year 1957 in excess of $100,000.
During the year 1957, Dimeo Construction Co. as general contractor held a
contract for construction work at Murray Universalist Church, Attleboro, Massa-
i Dimeo Construction Co. will sometimes be referred to herein as the Employer or the
Company ; Local 176 , United Brotherhood of Carpenters and Joiners of America , AFL-CIO,
as the Union or Local 176 ; Albert A. Fournier , as Fournier ; the General Counsel of the
National Labor Relations Board or his counsel as the General Counsel ; and the Regional
Director for the First Region as the Regional Director . The National Labor Relations
Board will be referred to as the Board.
986 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
chusetts, valued at approximately $240,000, for which, at the time of the hearing
herein, the corporation had been paid approximately $138,000, with the project
still in progress.
Dimeo Construction Co. is a member of Associated General Contractors of
America, Rhode Island Chapter, and of the Southern Massachusetts and Northern
Rhode Island Association of General Contractors. Its vice president, Alexander
J. Dimeo, is secretary of the Rhode Island Chapter of Associated General Con-
tractors of America, and a member of its labor relations committee, which nego-
tiates on behalf of employers collective-bargaining agreements with various building
trades unions.2
The Trial Examiner finds that it will effectuate the policies of the Act for the
Board to assert jurisdiction herein. He further finds that Dimeo Construction Co.
is engaged in commerce and in activities affecting interstate commerce within the
meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Local 176, United Brotherhood of Carpenters and Joiners of America, AFL-CIO,
is a labor organization within the meaning of Section 2(5) of the Act; and Albert
A. Fournier was during all times material hereto business agent for said labor
organization and as such its agent within the meaning of the Act.
III. THE UNFAIR LABOR PRACTICES
Preliminary Findings
The Company was the successful bidder as general contractor for the construc-
tion of the new Rogers High School at Newport, Rhode Island. The Company
was awarded the contract by the city of Newport represented by the Newport
High School Commission in the month of March 1955. The written specifications
for the project as undertaken by the general contractor, besides technical building
requirements, contained other provisions including the following condition:
[Specifications of General Conditions-p. 34-Section 34 paragraph (a)
Wage Rates and Employment]
(a) In accordance with chapter 291, General Laws of Rhode Island, 1938,
as amended, the Contractor shall make every effort to give employment
preference to citizens of the State who are qualified to perform the work to
which the employment relates. If such citizens of the State cannot be obtained
in sufficient number, then citizens of the United States are to be given such
preference. Other applicable provisions of the law herein before named shall
apply to the work under this contract.
Local 176 holds the jurisdiction of the United Brotherhood of Carpenters and
Joiners locally in Newport, and maintains a carpenter's hall in that city. The
jurisdiction of this local union also includes the town of Middletown, the town of
Portsmouth, the town of Jamestown, Prudence Island, and Block Island. The
bylaws of Local 176 currently in effect provide in part:
Article VIII
Working Rules
SEC. 8. A contractor shall be entitled to a superintendent, but all foremen
and journeymen shall be members of this Local and shall carry the correct
working card, and also that no Carpenter shall be allowed on any job without
an Introductory Card stamped by the Business Agent. . . .
* * * * * * *
Article X
*
Fines and Penalties
a Dimeo testified that approximately 25 general contractors are members of the Rhode
Island Chapter of Associated General Contractors of America ; that during the year 1956
Dimeo Construction Co. bid on approximately $20,000,000 for work in Rhode Island ; and
that of his own knowledge, as secretary, and from trade reports, that amount or volume
of work went to members of the Rhode Island Chapter.
LOCAL 176, UNITED BROTHERHOOD OF CARPENTERS, ETC. 987
SEC. 7. Any member who desires to work in another jurisdiction from
which he would return home daily or who does not desire to transfer his
membership, shall before going to work secure a working card from the Local
Union or District Council in whose jurisdiction he may go to work. .
Any member going to work before obtaining a working card or depositing
his clearance card will be subject to a fine of not less than $25.
Shortly after the Company obtained the award of bid for the construction of the
new high school in Newport, Dimeo arranged to meet Fournier for lunch at a
local Newport hotel. Dimeo introduced himself to Fournier and at this time they
discussed the construction job and the anticipated requirements by Dimeo for car-
penters on this construction project. According to Dimeo, he told Fournier that
he was interested in hiring carpenters in the near future; there was some discussion
about the Company bringing carpenters in from other areas and at this time
Fournier told Dimeo that in the hiring of carpenters they would have to be
"cleared through the hall" and that Dimeo would not be able to hire carpenters
who came directly to the job but that each one would have to come through the
carpenter's hall-that is, be "cleared" through the hall. According to Dimeo the
conversation in that respect ended with an understanding that when Dimeo was
ready to hire carpenters, he would telephone Fournier or see him and arrange for
their employment. Subsequently, and until at least April 1957, it was the practice
of the Company, if it needed additional carpenters on the job, for either Dimeo
or the superintendent to telephone Fournier to that effect, or, when Fournier
visited the job, he would be informed as to the requirements of the Company for
other carpenters. There is no question but that Dimeo sought. out Fournier pri-
marily to establish a labor source for carpenters on the new project and that
Fournier did, at the request of the Company, furnish carpenters as needed as
construction on the project progressed. After their first meeting, Fournier furnished
Dimeo with a copy of the bylaws of Local 176 and a copy of the agreement gov-
erning working conditions then existing between Local 176 and the employers in
the Newport and surrounding area.
At this first meeting Dimeo brought up the subject of the employment of one
Steincamp, a carpenter employed in Providence, and told Fournier that he would
like to bring him down to Newport to operate the sawmill. Fournier did not make
a commitment with respect to Steincamp. About 2 or 3 weeks later, Dimeo again
brought up the subject of Steincamp after Fournier had sent one Marshall and
Hargrove to him, and Dimeo again suggested that he would like to put Steincamp
on as the next man to operate the sawmill. Fournier informed Dimeo that "Mr.
Marshall is going to be your saw man." Later on that same day, Dimeo tele-
phoned Fournier and told him he did not feel that he should be forced to put a
man on the saw; that it was Fournier's business to select the job of steward, but
anything beyond that was up to him, at which point, Dimeo said, Fournier became
indignant and asked in effect if Dimeo was going to tell him what to do with his
men in Newport and further said "If you want any carpenters from down here,
you are not going to try to tell me how to run my business"; that when the job
first started, six or eight carpenters were employed; and that after the first em-
ployment of carpenters Steincamp some 4 weeks later was put to work on the job.
The Assignment of Nels Johnson to the Rogers High School Project
Nels Johnson has been employed for some 21 years by the Company on con-
struction projects, where he has worked as a carpenter , as a carpenter foreman,
and as a superintendent . He is, and during the times material hereto was, a dues-
paying member in good standing of Local 1695 , United Brotherhood of Carpenters
and Joiners of America , AFL-CIO, Providence , Rhode Island . During the course
of his employment with the Company he has worked in Providence , in Attleboro,
Massachusetts , and in a number of other places at various locations, sometimes
as a working carpenter and at other times as a carpenter foreman and as company
superintendent.
In the year 1946, Johnson worked at Newport for over 2 months on the Rogers
High School project, as a working carpenter , having first obtained and paid the
customary fee for a working permit for each 3 months of the period. These
permits were obtained from Fournier , business agent of Local 176. Thereafter he
was assigned to other projects as an employee of the Company at places other
than the Rogers High School project.
988 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Johnson completed work on one of the Company's jobs on a Friday. On the
following Sunday, April 21, 1957,3 Dimeo instructed him to report to the Rogers
High School project in Newport, with his tools, on the following morning and also
instructed him to get clearance from the Union before starting to work. Johnson
reported to Norman Poppe, the Company's job superintendent, at 8 a.m. on
Monday, April 22. He had his tools with him and informed Poppe then that he
was going to the union hall to obtain a working permit before starting to work.
At that time, Poppe introduced him to Joseph Hargrove, the union job steward,
also a trustee of Local 176. Poppe testified that Hargrove remarked that he
did not think that Johnson would be able to get a permit, but that he would call
Fournier and find out; that Hargrove later told him that he (Hargrove) had called
Fournier who had said that Johnson would not be able to obtain a working
permit. Hargrove testified that Johnson had asked him to stop by the hall and
obtain a working permit, that he told Johnson that he (Johnson) would have to get
it in person, and that he also told Johnson he would telephone Fournier "just in
case he was going out" after Johnson had asked if Fournier "would be there."
According to the testimony of Fournier, he received a telephone call from Har-
grove, who told him that "Nels Johnson was on the job, and he was going to
send him down to the office." Johnson arrived at carpenters' hall about 9 a.m.
He was refused a working permit by Fournier, who told him that there were a
number of Newport carpenters out of work or awaiting work, and that he would
"be glad to put his name on the list." According to Fournier, he had at that
time told Johnson that he could go to work without interference, but without a
permit card. After visiting carpenters' hall and talking to Fournier, Johnson
returned to the job and reported to Poppe, who assigned him to work involving
the erection of cabinets. However Johnson did not perform any work that day,
and left the project at about noon. On this morning, Poppe talked to Dimeo on
the telephone and as a result of that conversation Dimeo came to the project site
from Providence, arriving in early afternoon. After talking to Poppe, Dimeo
telephoned Fournier and told him that he had sent Johnson to the job
because I wanted him to work there at that time, I didn't have an opening
for him anywhere else, and he would be there on sort of temporary basis
until I got another opening for him working as a carpenter with his tools,
and that I had sent him to the Union because I had then-well, I knew that
was the procedure down here, to get clearance, so that he could work on the
job; and Mr. Fournier said that he was not going to give him a card, he was
not going to allow him to work down there, particularly since he had other
members of his union who were not employed. I told him also that he should
try to understand that there are people from his area working in areas other
than Newport, as a matter of fact, notably for me. I have people from
Newport working in Attleboro; and, as we know, there are people from
Newport working in Providence and people from Providence working in
Newport all the time; and that I felt that he had no right to deny Mr.
Johnson the right to work on the job. I also told him that I had no other
job for Mr. Johnson at that time; and, by not allowing him to work in
Newport, he was forcing me to lay him off, and he had worked for me for
21 years, and he wasn't going to be laid off.
With regard to this telephone conversation, Fournier said that Dimeo had called
him about 4:30 in the afternoon that Monday and asked him why he would not
give Johnson a permit; and Fournier replied
Well, I told him, it was impossible for me to give the man a permit because
I have so many local men loafing at this time, and Mr. Dimeo threatened me
with the Taft-Hartley Law. He said I could not refuse his man the right to
go to work, but I told him I wouldn't give him a permit.
There was some further conversation between these two men on that afternoon
during which Fournier remarked that the taxpayers had voted for the cabinets
that Johnson was assigned to work on and that he thought local carpenters had
the right to work on them; also, Fournier said, that some mention was made
about the McClellan Committee and reference made to the Newport High School
Commission. Late that day, Dimeo telephoned Johnson and instructed him to
report for work at the Rogers High School the next morning. Johnson did report
to work. Late in the day on that same Monday, Dimeo telephoned from Attleboro
and spoke to Poppe and instructed him to put Johnson to work and have Rodney
3 Unless otherwise noted, all dates hereinafter mentioned are for the year 1957.
LOCAL 176, UNITED BROTHERHOOD OF CARPENTERS, ETC. 989
Bowley, an apprentice carpenter, work with Johnson on the installation of the
cabinets on which Johnson was to work.4
After Johnson had reported to Poppe on Tuesday morning, Poppe advised
Dimeo by telephone that he was having difficulty in persuading Bowley to work
with Johnson. Dimeo again came to Newport arriving at approximately 1 p.m.
He found Johnson working alone on cabinets in one of the classrooms. Dimeo
then talked to Poppe, asking what the trouble was, in the presence of Bowley
and the job steward, Hargrove. Dimeo wanted to know why Bowley would not
work with Johnson and Poppe informed him that Bowley had refused to work
with Johnson because Charles McLeish, the foreman carpenter, had told Bowley
that he could not work with Johnson.5 Dimeo then told Bowley that he would
have to work with Johnson, that he, Dimeo, was
paying the bill on the job, and that for two years I had stood about all I
was going to down in Newport from the carpenters, and I thought it was about
time that I could give orders to the men, particularly since I was paying for
them; in other words, I could have a man work where I wanted him to work.
According to Bowley, Poppe had instructed him about 9 o'clock that Tuesday
morning to go to work with Johnson and that Bowley had replied that he had
instructions from the foreman, McLeish, to check with the job steward, Hargrove,
before he went to work with Johnson; that he did see Hargrove and that Hargrove
instructed him not to work with Johnson; that Bowley went back to Poppe and
told him that he was not going to work with Johnson; that Bowley so informed
Poppe and that the latter told him that there was work there for him to do and
that if he didn't want to do it he had to quit. After Dimeo had instructed
Bowley to return to work, Bowley again went to McLeish and, according to him,
McLeish told him to go ahead "that it will be all straightened out." At any rate
Bowley did go to work on cabinets-that is, the unloading of cabinets, that after-
noon and Johnson checked off the cabinets as they were unloaded by Bowley.
Earlier in the morning Poppe had instructed McLeish to have Bowley work with
Johnson on the installation of cabinets and according to Poppe, McLeish replied
that Poppe was "putting him on the spot, that Nels Johnson was not authorized
to be on the job, and that he could not instruct Rodney Bowley to work with
him." It is clear that Poppe did instruct Bowley to work with Johnson.6
The Work Stoppage of Wednesday, April 24
At about 4:15 o'clock in the afternoon of Tuesday, April 23, two of the car-
penters informed Poppe that they would not report for work on the following
morning. On that afternoon Hargrove, the job steward, had instructed Bowley
at about 4:30 p.m. not to report to work the following morning, telling him that
all the carpenters were to report to carpenters' hall for a meeting. The meeting
was set for 8 a.m., Wednesday morning.
The carpenters failed to report for work at the usual starting time (8 o'clock)
on Wednesday morning; Dimeo was so informed over the telephone by Poppe,
Dimeo at the time being in Attleboro; Dimeo then telephoned Fournier andi
asked him the reason for the failure of the carpenters to report to work. Ac-
cording to Dimeo, Fournier informed him that the carpenters refused to work.
while Johnson was on the job, whereupon Dimeo told Fournier that
for two years now I've been very patient with him and his boys in Newport..
He'd made it very miserable for me, and that I was just fed up with it, and.
that he had absolutely no right to force me to discriminate against Mr.
Johnson.
Dimeo said further that Fournier told him then that
he would go to the Commission and talk and present this whole-that is the
Newport High School Commission-and talk this whole problem over with
4 At that time the Company had five carpenters working on the job-four journeymen
and the apprentice, Rowley. Dimeo testified that he wanted three pairs of men working
together and therefore he instructed the superintendent, Poppe, to have Bowley work with
Johnson "as a partner."
8 Hargrove and MacLeish, as well as Fournier, testified at the hearing herein, and the
Trial Examiner in making his findings has considered the testimony of these witnesses.
O According to the testimony of Johnson, after the unloading and checking in of the
cabinets was completed, he and Bowley set to work erecting them in the classrooms.
990 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
them; and he said that his carpenters paid for the school, and they have the
first right to work on it. I told him that I have a charge of getting this job
done; and, if I can't get it done with his men I'm going to get it done with
some other men, because I've got to get it done, number 1; number 2, he had
struck me repeatedly during the course of this job for little petty things.
Fournier's version of this telephone conversation with Dimeo on Wednesday
morning is in substance the same as reported by Dimeo except that Fournier was
not examined directly as to whether or not he had said his men refused to work
with Johnson. (Fournier, on the afternoon of April 23, had instructed the job
steward to notify the carpenters to report for a meeting at the carpenters' hall
the following morning at 8 a.m.)
As a result of the Wednesday morning telephone conversation between Dimeo
and Fournier, the two men met at the job site at about 1 o'clock that afternoon.
Also present were Poppe, Johnson, McLeish, and Dr. Samuel Adelson, a member
of the Newport High School Commission. The points of difference between the
Union and the Company were discussed with Dr. Adelson. According to Dimeo,
discussion centered chiefly around the refusal. of the carpenters, that is, the New-
port carpenters, to work with Johnson; according to Fournier, the principal topic
of discussion was the right of Poppe to issue instructions regarding the assignment
of work to carpenters directly instead of transmitting them through the job fore-
man. At the request of Fournier, it was arranged that the parties would meet
that evening before the full Commission at its regularly scheduled meeting. The
meeting was held in the library of the old Rogers High School at about 8 o'clock
on the evening of Wednesday, April 24. Several members of the High School
Commission were present as were Fournier, McLeish, Hargrove, Joseph Nickelson,
attorney for the Local, Dimeo, and Poppe.
Dimeo and Fournier are in agreement in their testimony that Dr. Adelson
opened the discussion with respect to the company-union dispute by remarking
that a representative of the Carpenters' Union was there and wished to make a
statement and that Fournier thereupon did make a statement. Here again, however,
Fournier and Dimeo differ as to where the emphasis was in connection with the
purpose of their appearance before the Commission that evening. Fournier says
that he stated that the reason he was there was to find out
who was going to give the orders to my carpenters, and also to find out on
the accusations that Mr. Dimeo said that the commissioner was aware of what
I was trying to do to him on that job;
He denied that at any time the matters of the carpenters' refusal to work with
Johnson was given any significant attention at that meeting. He said that it was
agreed by Dimeo "that we would go back to work with the understanding that
Charles McLeish would give the orders to the carpenters of Local 176." Ac-
cording to Dimeo, Fournier told the Commission that
this is a Newport job and he had members from his Union who had prefer-
ence to work on the job over some from outside such as Mr. Johnson, and
he said that he had allowed Mr. Johnson to work there at an earlier time,
but now he had men loafing, and he didn't feel, he wasn't going to let him
on the job and he wasn't going to let his carpenters work with Mr. Johnson.
He said, if I wanted to keep him there, it would be all right; but he wasn't
going to have anybody work with him.
Dimeo said that Fournier also brought up the question of the chain of command-
that is, whether orders should go from the superintendent to the men or from
the superintendent to the foreman carpenter and then to the men. Dimeo also
said that he spoke to the members of the Commission and informed them in
general concerning practices in the running of a job and told them that in general
the Company always tried to follow the practice of having the superintendent
give the orders to the foreman carpenter who in turn delegated jobs to the in-
dividual carpenters.? Dimeo testified that after further discussion in which every-
7 On this particular construction job Poppe testified that he usually instructed the
carpenter foreman regarding work to he done and assignments to be made and that the
carpenter foreman assigned carpenters to work according to orders received by him from
Poppe. Dimeo 'testified that so far as he knew, orders were usually given in the morning
when the superintendent met with the 'foreman carpenter and they decided between them-
selves what was going to be done that day, except there were instances when the foreman
carpenter might be at the other end of the job after the morning meeting with the
superintendent or not readily available, and a particular piece of work had to be done,
LOCAL 176, UNITED BROTHERHOOD OF CARPENTERS, ETC. 991
one took part, the Commission chairman asked what was to be done in order to
effect a settlement of the dispute , and that Fournier then said that first he wanted
to be sure that his carpenters were not going to work with Johnson, and second,
he brought up the question of the "chain of command." Dimeo said to this he
replied that so far as the chain of command was concerned it was not going to be
changed in any way from the practice prevailing before this meeting and that
second, he was not going to let Johnson go or lay Johnson off unless he was
specifically instructed by the Commission to do so. Dimeo was in substantial
agreement with Fournier in saying that the meeting ended with the understanding
that the carpenters would return to work providing they did not have to have
anyone from the Local work with Johnson as a partner.
The carpenters did return to work after this meeting but thereafter Johnson
worked on the job by himself without a partner or helper and so far as the record
herein shows, did not subsequently ask for or obtain a permit or working card
from Local 176.8
The Suspension of Nels Johnson
Johnson received a registered letter signed by the recording secretary of Local
176, dated May 6, 1957, to the following effect:
DEAR SIR AND BROTHER : Charges have been preferred against you on the
Dimeo Construction Job, Rogers High School, Wickham Road, Newport,
Rhode Island , for violating the General Constitution , and our Trade Rules of
Local 176, which are as follows:
In the By-Laws under Article X, Section 7 which reads as follows:
SECTION 7-Any member who desires to work in another jurisdiction from
which he would return home daily or who does not desire to transfer his
membership , shall before going to work secure a working card from the local
union or district council in whose jurisdiction he may go to work. He shall
pay for such working permit a charge of not less than two dollars per month
and if less than two years a member he shall pay any difference in initiation
fee, and shall be subject to all local assessments levied exclusively for direct
trade purposes by and for the use of the local union or district council. Any
member going to work before obtaining a working card or depositing his
clearance card will be subject to a fine of not less than $25.00.
In the General Constitution under Section 55, Paragraphs A, B, and C
which read as follows:
A. Any officer or member who becomes an habitual drunkard , or is guilty
of improper conduct , or wrongs a fellow-member , or defrauds him, or commits
an offense discreditable to the United Brotherhood , shall be fined, suspended
or expelled.
B. Any officer or member who endeavors to create dissension among the
members or works against the interest and harmony of the United Brother-
hood, or who advocates or encourages division of the funds or dissolution of
any Local Union, or the separation of a Local Union from the United
Brotherhood , or embezzles the funds , shall be expelled and forever debarred
from membership in the United Brotherhood.
C. An officer or member who wilfully slanders an officer or member of the
United Brotherhood, or violates the Trade Rules of the locality in which the
member is working, or fraudulently receives or attempts to misapply the
money of any Local Union, or of any member or candidate intrusted to such
member for payment , shall be fined , suspended or expelled , as the Local
Union may decide.
You are privileged to appear at the next meeting of Local 176 to be held
on May 20th, 7:30 P.M., 398 Thames Street, Newport, Rhode Island, at which
and in such case the superintendent would give direct orders to the carpenters or orders
to the laborers or bricklayers, but nevertheless, as a general rule, it was the custom to
"go through" the foreman carpenter.
9 Except that on August 5, 1957, Johnson was assigned by the Company to go to the
Rogers High School job to do some finishing work. Prior to then and after he had
finished his original work at Rogers High School he had been employed on other company
projects. On this particular day, he saw a Mr. Sunderland who was at that time the
company superintendent and after seeing Sunderland, called the carpenters' hall in
Newport, Local 176, and made application for a working card or permit. He testified
that he was told that he would not be given a permit ; that he went to work on that day
and worked again on August 7 and a part of August 8. He said no other carpenters were
on the job; that it was Fournier who refused him a permit over the telephone.
992 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
time the trial committee members will be selected. You will please refer to
Section 56, Paragraph F of the General Constitution.
Subsequently he received a letter signed by the chairman of the trial committee
of Local 176, under date of May 20, 1957, to the following effect:
DEAR SIR AND BROTHER: You are hereby notified to appear before the Trial
Committee on Tuesday, May 28th, 1957, at 8:00 P.M., at the Carpenters' Hall,
398 Thames Street, Newport, Rhode Island, to answer to charges preferred
against you on May 6th, 1957, for violating the General Constitution, and
our Trade Rules of Local No. 176, on the Dimeo Construction Job, Rogers
High School, Wickham Road, Newport, Rhode Island.
Please refer to the General Constitution, Section 55, Paragraphs A, B, and
C and By-Laws of Local No. 176, Article X, Section 7.
Again he received a registered letter signed by the Recording Secretary of
Local 176, under date of August 6, 1957, as follows:
DEAR SIR AND BROTHER: Charges have been preferred against you on the
Dimeo Construction Job, Rogers High School, Wickham Road, Newport,
Rhode Island, for violating the General Constitution, and our Trade Rules of
Local 176, which are as follows:
In the By-Laws under Article X, Section 7 which reads as follows:
"SECTION 7-Any member who desires to work in another jurisdiction from
which he would return home daily or who does not desire to transfer his
membership, shall before going to work secure a working card from the local
union or district council in whose jurisdiction he may go to work. He shall
pay for such working permit a charge of not less than two dollars per month
and if less than two years a member he shall pay any difference in initiation
fee, and shall be subject to all local assessments levied exclusively for direct
trade purposes by and for the use of the local union or district council. Any
member going to work before obtaining a working card or depositing his
clearance card will be subject to a fine of not less than $25.00.
You are privileged to appear at the next meeting of Local 176 to be held on
August 19th, 1957 at 7:30 P.M., 398 Thames Street, Newport, Rhode Island,
at which time the trial committee members will be selected. You will please
refer to Section 56, Paragraph F of the General Constitution.
Finally he was given a copy of a letter by the recording secretary of Local 1695,
under date of August 6, 1957, from Local 176, as follows:
DEAR SIR AND BROTHER: This is to inform you that a member of Local
1695, Nels Johnson, was found guilty of all charges placed against him by
Local 176.
The charges were as follows: In the By-Laws of Local 176 under Article X,
Section 7 which reads as follows:
SECTION 7-Any member who desires to work in another jurisdiction from
which he would return home daily or who does not desire to transfer his
membership, shall before going to work secure a working card from the local
union or district council in whose jurisdiction he may go to work. He shall
pay for such working permit a charge of not less than two dollars per month
and if less than two years a member he shall pay any difference in initiation
fee, and shall be subject to all local assessments levied exclusively for direct
trade purposes by and for the use of the local union or district council. Any
member going to work before obtaining a working card or depositing his
clearance card will be subject to a fine of not less than $25.00."
In the General Constitution under Section 55, Paragraphs A, B, and C
which you may refer to.
At our meeting Monday evening, August 5th, the Trial Committee sub-
mitted its findings to the members of Local 176. The Trial Committee found
Nels Johnson guilty on all charges and the members of Local 176 voted to
put him on probation for a period of one year beginning August 5th, 1957.
The second letter of August 6, 1957, was delivered to him by mail at his home,
being transmitted by the recording secretary of his Providence Local 1695. He
received this last letter informing him that he had been put on probation for
1 year just a few days prior to the opening of this hearing on September 24.
Whether the action of Local 176 against Johnson as a member of the United
Brotherhood of Carpenters and Joiners of America, AFL-CIO, is relevant or ma-
terial herein must be limited for consideration as to whether or not this action by
LOCAL 17 6, UNITED BROTHERHOOD OF CARPENTERS, ETC. 993
Local 176 demonstrates an effort on the part of that Local to enforce its asserted
prerogative to insist that Johnson be kept off work in Newport as long as members
of the Newport Local were available for work at the Rogers High School project.
The Trial Examiner does not make any finding with respect to the correctness of
the procedures involved in regard to the internal affairs of either the International
Brotherhood or the internal affairs of either Local 176 or Local 1695. The only
relevancy to be accorded here as to the action of Local 176 against Johnson is in
respect to its attempted refusal to permit the employment in Newport of a member
of the Providence Local at a time when Newport carpenters were not at work
and were available for work. The Trial Examiner finds that Local 176 and its
agent Fournier did, in refusing to issue a clearance to Johnson, disregard the plain
provisions of the laws of the Union and acted in contravention of Section 8(b)(2)
of the Act.
Concluding Findings
Whether the Company Is or Was Engaged in Local Activities Only
The Respondents say that at the time the Company filed its charge herein, one
of its projects was the construction of a church in Attleboro, Massachusetts; that
the business of a contractor engaged in general construction, carried on in two or
more States does not have the effect of placing the contractor in interstate com-
merce; and that the general construction industry generally is local. Therefore, it
is argued, the Board should not take jurisdiction in this case. In support of this
position, counsel for the Respondents cite several cases which have been noticed by
the Trial Examiner and found inapposite to the instant case. Kansas City Struc-
tural Steel Co. v. Arkansas, 269 U.S. 148, involved the propriety of the imposition
of a penalty for a violation of a State statute requiring a foreign corporation to
qualify to do business within the State; Anderson v. Ship Owners Association, 272
U.S. 359, dealt with certain provisions of the Clayton Act resulting in a dismissal
of a prayer for injunction against an unlawful combination in restraint of trade and
for damages under that Act; and Claim of Mallia, 229 N.Y. 232 concerned unem-
ployment compensation benefits under the New York unemployment insurance law.
The argument made on behalf of the Respondents that the general construction
industry is essentially local as proved by the fact that the construction of the
church by Dimeo was a local operation is not in accordance with prior holdings
of the Board in landmark cases dealing with the construction industry. See, for
example, Carpenters Local Union No. 1028, etc. (Dennehy Construction Company),
111 NLRB 1025.
Whether Johnson Was or Is an Employee Within the Meaning of the Act
The Respondents contend that Johnson at the times material hereto was not an
employee within the meaning of the Act but was employed in a supervisory capac-
ity. It is contended that the facts disclose that prior to his employment on the
Rogers High School project, he had been employed by the Company on jobs where
he at times exercised supervisory powers as a superintendent and as a foreman;
and that the fact that there were periods of time when Johnson had no occasion or
opportunity to exercise supervisory powers did not cause a loss of the supervisory
status he once attained.
From the time Johnson reported to work in Newport for work on the Rogers
High School project on April 22, and during all of the time he performed work
and services on that job for the Company, including the last few days of work in
August, he worked as a working carpenter; except for 1 day he worked alone, and
there was no one under his supervision. He was subject to the orders of the car-
penter foreman or the superintendent, or Dimeo, as the case might have been on
any particular time or occasion. During this period of time he was an employee
within the meaning of Section 2(3) of the Act and was not a supervisor as the term
is defined in Section 2(11). The Trial Examiner so finds.
Contrary to the contention of Respondents that because over a period of some
20 years Johnson had at times been called upon to act in a supervisory capacity
he could never lose the status of his supervisor. his employment by the Company
on the Rogers High School job was as an employee subject to the supervision of
others. In N.L.R.B. v. Leland-Gifford Co., 200 F. 2d 620, 625 (C.A. 1) the court
said:
We agree, however, that not only an actual demotion in rank, but also a re-
version to routine production work for such an extended and wholly indefinite
period of time that the erstwhile supervisor could reasonably be said to have
505395--59-vol. 122-64
994 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
become a rank and file production worker for all practical purposes, would
work a loss of supervisory status even though both title and theoretical power
remained and might perhaps with an expansion in force be resumed at some
vague time far in the future.
The Respondents for a special defense assert that Johnson was at the time of the
violation charge herein a member in good standing of Local 1695 (The Providence
Local) and by voluntarily maintaining that status availed himself of the benefit of
the provisions of the Act in order to assert rights, which in practice would be
contrary to the constitution and laws of the United Brotherhood of Carpenters and
Joiners of America, Local 1695, Providence. This argument is wholly specious.
To accept any such argument as valid would be to nullify the provisions of Sec-
tion 7 of the Act and make Section 8(b)(1) completely unenforceable.
Whether an Arrangement or Working Agreement Was Entered Into
Between the Company and the Union
With respect to the first meeting between Dimeo and Fournier, it seems clearly
apparent that Dimeo was seeking to establish the proper approach to the customary
dominant source of carpenter supply upon which he intended to rely in fulfilling
the Company's obligation under the contract with the Newport High School Com-
mission and the municipality for the construction of the new Rogers High School.
It will be recalled that at that meeting Dimeo did say to Fournier that he had
some men he would like to employ upon the project and that Fournier in effect
postponed any commitment in that respect at the time. The record shows that
Dimeo was unhappy at the selection made by Fournier of the man to work the
sawmill; the record is equally clear that Dimeo accepted McLeish as a foreman
upon introduction and request of Fournier.
Fournier maintained all through the dispute that the specifications for construc-
tion required that Dimeo first hire carpenters from Newport-this is an obvious
misconstruction of the Rhode Island statute, incorporated by reference into the
specifications, which simply requires the giving of preference of employment to
carpenters hall in Newport. Fournier was the man who usually did the "clearing."
citizens of the State of Rhode Island. Fournier insisted, particularly with respect
to Johnson, that each carpenter employed by Dimeo be "cleared" through the
Further it is proven that under the bylaws of Local 176, carpenters from other
jurisdictions were required to secure a working card "from the local union or
district council in whose jurisdiction he may go to work." Johnson complied with
this requirement when he first was employed, and had no difficulty in securing a
working permit for the approximately 3 months he was employed on the Rogers
High School project in 1955. Then, arbitrarily, Fournier refused to grant him a
working permit when Johnson reported for work on April 22, 1956. Fournier
was the man responsible for the work stoppage on April 24 and it was practically
upon his terms and conditions that the carpenters returned to work after that day.
The Respondents correctly point out that the record fails to disclose any instance
where a nonmember of Local 176 applied for work at the Rogers High School
job site and had been refused, and that the record does not disclose any instance
when Dimeo called Fournier for carpenters and a member of Local 176 was given
preference over a nonmember. But these facts do not constitute the true test of
whether or not the Respondents were in contravention of the Act in insisting that
Johnson be required to obtain a working permit from the Union or from Fournier
before he would be permitted to go to work. Fournier has testified that he told
Johnson he would not give him a working permit, but that he would not refuse
to permit Johnson to work. This statement was made in the face of the fact that
the carpenters on the project stopped work at Fournier's behest.
Further, that the work stoppage occurred, as is said, because of a dispute as
to the right of Dimeo or Poppe to make assignments of work, or because the
carpenters refused to work with Johnson because he did not have a working per-
mit, is a distinction without a difference. It is an established fact that McLeish
instructed Bowley not to work with Johnson, that Poppe and then Dimeo told
Bowley to go to work with Johnson, that Bowley hesitated to work with Johnson
on the instructions of McLeish or Hargrove, or both, a work stoppage ensued,
and work was resumed only when it was agreed that Johnson would work by
himself and with no other.
No written agreement with respect to the employment of carpenters on the
Rogers High School was made between the Company and Local 176. Therefore,
it becomes necessary to determine the answers to the following questions: Was
agreement reached between Dimeo and Fournier at their first meeting that only
union carpenters were to be hired by the Company? Or, stated another way, if
LOCAL 176, UNITED BROTHERHOOD OF CARPENTERS, ETC. 995
the Respondents become parties to an oral agreement or arrangement whereby
the Union undertook to supply the Company with all the carpenters it needed, and
if Dimeo agreed to employ only those union members who had first secured a
working card from Local 176?
To help solve these questions it seems expedient to quote verbatim from the
testimony of Fournier and Dimeo concerning their respective understanding of
what was agreed to at their first meeting. On direct examination, Fournier
testified as follows:
Q. Let me go back to a time prior to that. Did you ever meet and talk
to Mr. Dimeo relative to the employment of carpenters for the Rogers High
School job?
A. Yes, I did. We met at the Viking Hotel at the request of Mr. Dimeo.
He called me, and we had a little luncheon and talked about the job and
also talked about the men, the carpenters, and he asked me if I had a source
of carpenters here, and I said, Yes and he said "well, I will look to you
to help me out on this project." I said, "I will be glad to do everything I can
for you."
Q. Was there any written agreement of any kind made as a result of that
meeting relative to the employment of carpenters?
A. The only thing on that, he asked me for my by-laws of Carpenters'
Local 176 and also our contract, Newport Contractors Association.
Q. Did you furnish him with those documents?
A. That is right.
Q. Well, what was the result of that meeting? What was concluded or
agreed, if anything, between you and Mr. Dimeo at that time?
A. The only thing that was agreed was that he would call me up and ask
me to supply the men if he couldn't get them.
Dimeo testified:
Q. And what did you say and what did he say at this luncheon?
A. Well, I was interested in hiring carpenters in the near future at that
time and I informed him of this. We discussed my bringing carpenters in
from other areas. He told me that in the hiring of carpenters they would
have to be hired from the hall, and he made specific mention of this, that
I wouldn't be able to hire them as they came to the job looking for a job.
Everyone would have to come through the hall, be cleared through the hall.
A. Well, I mentioned to him that I was bringing down a superintendent
from Providence who is a carpenter, who was a carpenter by trade; and
also he said that I couldn't bring other carpenters into the area until, of
course they were cleared by his Union and the preference would be made
to members of his union.
Q. Between that time and April of 1957, would you describe the practice
employed by your firm in obtaining carpenters?
A. Well, in general, if I wanted additional carpenters on the job, I either
called Fournier on the phone or my superintendent called him on the phone;
or, when he visited the job, if we felt we needed carpenters, we told him
at that time we needed additional carpenters.
A reasonable inference that could be drawn from the conversation between
these two men as described by each of them would be that it was tacitly (at
least) understood between them that only union carpenters were to be employed
on the job. It may be inferred, too, that after Dimeo had examined the bylaws
of Local 176 he agreed to the requirements of the bylaws.9
The insistence by Dimeo that Johnson be permitted to work, the work stoppage
on April 24, the meeting with the Newport High School Commission-do not
destroy or dilute the inference that Dimeo for the Company and Fournier as
agent for Local 176 had reached an understanding that only a union carpenter
who had first secured a working card from Local 176 would be employed. Dimeo
said he wanted Steincamp on the job; his employment was deferred for several
weeks; "he [Fournier] emphasized that Marshal was going to be my sawman."
Dimeo acquiesced. Dimeo accepted McLeish as job foreman at the suggestion
of Fournier. The very fact that Dimeo, when he called Johnson on Sunday,
g Marked in evidence herein are copies of agreements between the Associated General
Contractors and the Teamsters' and Carpenters' Unions, each described as typical of
agreements in effect, and each containing union-security clauses.
996 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
April 21, to assign Johnson to the Newport job, instructed Johnson to get a
working card from Local 176 shows that Dimeo was in agreement with the
Union that this was the usual step to be taken to avoid difficulty with Local 176.
No one seems to have been more irritated than Dimeo when Fournier refused
to give Johnson a card. The compromise he effected at the meeting with the
High School Commission which provided that Johnson could work without a
card, alone , proves nothing in the way of showing a change in the practice
followed in the hiring of carpenters for work on this project.
if an employer does not expressly agree to hire only union labor through the
union hall, he cannot be said to be encouraging union membership by hiring
through the hall since he retains his right to hire nonunion labor at the job site.
If, however , the agreement is to hire only union members referred to the employer
through the union hall, then the practice becomes an unfair labor practice. Del E.
Webb Construction Co. v. N.L.R .B., 196 F. 2d 841 , 845 (C.A. 8).10
Upon the preponderance of the evidence and on the record considered as a
whole, the Trial Examiner finds that the Respondent Local 176 and the Re-
spondent Fournier violated Section 8(b)(2) and Section 8(b)(1)(A ) of the Act
by entering into an agreement , an arrangement , or understanding with the Com-
pany for the hiring of carpenters in an unlawfully discriminatory manner and by
participating along with the Company ( the employer ) in the operation of the
unlawful hiring practice thereunder.
The Trial Examiner also finds on the preponderance of the testimony and on
the record as a whole , that the Respondent Union by its officers and agents and
the Respondent Fournier have, since on or about April 22, 1957, attempted to
cause and compel the Company and Dimeo to discriminate against employees,
including specifically Nels Johnson in regard to hire or tenure or other conditions
of employment by attempting to compel the Company and Dimeo to deny employ-
ment to Johnson because of his lack of membership in the Respondent Union,
Local 176.
Section 8 ( b)(2) of the Act is explicitly directed at the elimination of improper
union interference with employee job opportunities and that section, in relevant
part, forbids "a labor organization or its agents . . . to cause or attempt to cause
an employer to discriminate against an employee in violation of subsection (a)(3)."
The latter subsection , with qualifications immaterial here, forbids employer "dis-
crimination in regard to hire or tenure of employment to encourage or discourage
membership in any labor organization ." By these related provisions , the Congress
has forbidden union interference with jobs where it is shown , first , that a union
has attempted to cause or succeeded in causing an employer to discriminate in the
exercise of his control over jobs, and secondly, that such discrimination tends to
encourage or discourage union membership . Radio Officers ' Union, etc. (A. H.
Bull Steamship Company ) v. N.L.R .B., 347 U.S. 17 , 42-43.
Local 176 also contends that neither Poppe, the Company's superintendent nor
Dimeo, himself, had authority to transfer or to assign Bowley to work with
Johnson and, therefore , the efforts of Hargrove, the job steward , to prevent that
assignment from being made effective could not have caused discrimination against
Johnson. But such a contention is fallacious . The supervisory authority vested
in Poppe, without more, may properly be assumed to carry with it the authority
to perform the essential function that the job necessarily entailed, including the
transfer of employees from one job to another in accordance with work demands.
That Poppe did at times and perhaps more times than not, convey his instruc-
tions to McLeish, the carpenter foreman , to make assignments of work did not
in the least affect his ultimate authority to transfer or assign employees on the job.
The underlying principles which control the determination of whether discrimina-
tion in employment has encouraged union membership have become well estab-
lished . Typically, union membership is encouraged where jobs are conditioned on
such membership . See, for example , N.L.R.B. v. Local 369, International Hod
Carriers ' Building and Common Laborers ' Union, etc ., 240 F . 2d 539 (C.A. 3);
N.L.R.B . v. Jarka Corporation of Philadelphia , 198 F. 2d 618 (C.A. 3). It makes
no difference in this situation that the employee discriminated against is a member
of a labor organization other than that causing the discrimination-such as a dif-
ferent local of the same international body (N.L.R.B . v. International Brotherhood
10 Cf. Myles Worstell, Business Agent o f Local 2029, etc . ( Baker & Coombs , Inc.), 114
NLRB 503 , 513; Local 369, International Hod Carriers ' Building and Common. Laborers'
Union., etc. (A. C . Frommeyer Co.), 114 NLRB 872, 879 and 240 F. 2d 539, 543 ( C.A. 3) ;
N.L.R.B . v. Local 420, United Association of Journeymen and Apprentices , etc. (J. J.
White, Inc.), 239 F. 2d 327, 330 ( C.A. 3).
LOCAL 176, LTNITED BROTHERHOOD OF CARPENTERS, ETC. 997
,of Boilermakers, etc., District 2, 232 F. 2d 393 (C.A. 2) cert. denied, 352 U.S.
909; N.L.R.B. v. Local 1423, Carpenters' Union, 238 F. 2d 832 (C.A. 5)), or a
subdivision within the same union (N.L.R.B. v. Operating Engineers, Local 12
(Crook Co., et al.) 216 F. 2d 161, 163, 164 (C.A. 8)), or that the employee is
forbidden under union rules of eligibility from acquiring membership (Radio Offi-
cers' Union, etc. v. N.L.R.B., 347 U.S. 17, 51-52). The controlling fact is non-
membership in the particular entity which causes the discrimination, for an adverse
effect on employment tenure which is attributable to such nonmembership "inher-
ently encourages" existing members to "retain good standing in the Union" and
"nonmembers ... to join." Radio Officers' Union, etc., supra, at p. 51.
The Trial Examiner finds that the Respondent Local 176 and the Respondent
Albert A. Fournier violated Section 8(b)(2) and 8(b)(1)(A) of the Act by
causing the employer, Dimeo Construction Co., to discriminate against Johnson
within the meaning of Section 8(a)(3) of the Act.II
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondents set forth in section III, above, occurring in
connection with the operations of the Employer, Dimeo Construction gCo., de-
scribed 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 the Respondents have engaged in unfair labor practices, the
Trial Examiner will recommend that each of them cease and desist therefrom
and take certain affirmative action designed to effectuate the policies of the Act.
Having found that the Respondents have caused Dimeo Construction Co. to
discriminate with respect to the employment of Nels Johnson, the Trial Examiner
will recommend that the Respondents notify Dimeo Construction Co., and Nels
Johnson in writing, that they have no objection to the employment of Nels John-
son by Dimeo Construction Co.
CONCLUSIONS OF LAW
1. Local 176, United Brotherhood of Carpenters and Joiners of America,
AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act.
2. Albert A. Fournier is the business agent of the Respondent Union and its
agent within the meaning of Sections 2(13) and 8(b) of the Act.
3. By entering into and participating in an agreement, arrangement, or under-
standing with Dimeo Construction Co. under which employment of carpenters by
Dimeo Construction Co. was conditioned upon the applicant obtaining a clearance
or referral slip from the Respondent Fournier or other agent of Local 176 and
preferential treatment was accorded by Fournier to members of the Respondent
Union in the issuance of such clearance or referral slips, the Respondents have
engaged in and are engaging in unfair labor practices within the meaning of
Section 8 (b)(2) of the Act.
4. By causing the employer, Dimeo Construction Co., to discriminate with re-
gard to the employment of Nels Johnson within the meaning of Section 8(a)(3)
of the Act, the Respondents have engaged in and are engaging in unfair labor
practices in violation of Section 8(b)(2) of the Act.
5. By the conduct aforesaid the Respondents have also restrained and coerced
employees and applicants for employment in the exercise of the rights guaranteed
in Section 7 of the Act, and thereby have engaged in and are engaging in unfair
labor practices within the meaning of Section 8 (b) (1) (A) of the Act.
6. 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 omitted from publication.]
"'Further on behalf of the Respondents it is said that the refusal of Fournier to grant
Johnson a working permit cannot be said to have had any adverse effect upon Johnson,
economically or otherwise. This position overlooks the fact that this is a proceeding in
the public interest and is not private litigation between Johnson and either or both of
the Respondents. The public interest is affected ; it is not required that monetary damages
be shown against an employee injured through violation of the Act before the Board has
the power to enter an order against a Respondent in any case to cease and desist from
unfair labor practices. National Licorice Company v. N.L.R.B., 309 U.S. 350, 362;
Agwilines. Inc. v. N.L.R.B., 87 F. 2d 146, 150 (C.A. 5).