Local 58, Plumbers

National Labor Relations Board - Board Decisions

Dec 11, 1970

187 N.L.R.B. 152 (N.L.R.B. 1970)

152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Local Union No. 58, of the United Association of
Journeymen and Apprentices of the Plumbing &
Pipe Fitting Industry , AFL-CIO (Heyse Sheet
Metal) and Bob Quillin. Case 27-CB-555
December 11, 1970
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND JENKINS
On July 7, 1970, Trial Examiner Paul E. Weil issued
his Decision in the above-entitled proceeding, finding
that the Respondent had engaged in certain unfair
labor practices and recommending that it cease and
desist therefrom and take certain affirmative action,
as set forth in the attached Trial Examiner's Decision.
Thereafter, the Respondent filed exceptions to the
Trial Examiner's Decision and a supporting brief; the
General Counsel filed a brief in answer to the
Respondent's 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
powers in connection with this case to a three-member
panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and
the entire record in the case and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended , the National Labor
Relations Board adopts as its Order the Recommend-
ed Order of the Trial Examiner and hereby orders that
the Respondent , Local Union No. 58 , of the United
Association of Journeymen and Apprentices of the
Plumbing & Pipe Fitting Industry, AFL-CIO, its
officers , agents, and representatives , shall take the
action set forth in the Trial Examiner's Recommend-
ed Order.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
PAUL E. WEIL, Trial Examiner: On January 22, 1970, Bob
Quillin, an individual, filed a charge against Local Union
No. 58, of the United Association of Journeymen and
Apprentices of the Plumbing and Pipe Fitting Industry,
AFL-CIO, hereinafter called Respondent, alleging that
Respondent had caused Heyse Sheet Metal, hereinafter
called Heyse, to terminate the Charging Party for unlawful
reasons. The General Counsel, by the Regional Director for
Region 27 (Denver, Colorado), on March 6, 1970, issued a
complaint and notice of hearing against Respondent
alleging that the Respondent had caused Heyse to
discharge Bob Quillin because he was not a member and
because membership was denied him on grounds other than
his failure to tender periodic dues and initiation fees
uniformly required as a condition of acquiring or retaining
membership. By its timely filed answer Respondent denied
the jurisdictional facts, admitted the Union was a labor
organization, but denied the commission of any unfair
labor practices.
On the issues thus joined a hearing was held before me at
Colorado Springs, Colorado, on May 7, 1970. Respondent
and the General Counsel were represented by counsel. All
parties had an opportunity to appear and to adduce
evidence, to call witnesses, to examine and cross-examine
them, to argue on the record at the end of the hearing, and
to file briefs. Briefs were filed by the General Counsel and
by Respondent.
Upon the entire record in the matter, from my
observation of the witnesses and in consideration of the
briefs, I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
The Employer, the full name of which is Heyse Sheet
Metal and Roofing Company, operates in Colorado
Springs as a contractor doing roofing, sheetmetal, heating,
ventilating, air conditioning, and refrigeration for its
customers in the State of Colorado. It employs some 60
employees. Seventy percent of Heyse's work is commercial,
the rest being industrial and residential. The Employer
annually purchases from $150,000 to $200,000 worth of
goods of which 90 percent is shipped directly from outside
the State of Colorado to the Employer's place of business in
Colorado Springs.
Heyse is and at all times material herein has been an
employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Respondent is now and has been at all times material a
labor organization within the meaning of Section 2(5) of the
Act.
III. THE UNFAIR LABOR PRACTICE ALLEGED
Late in October 1969 Robert Quillen, en route to Denver
from his home outside the State of Colorado, stopped in
Colorado Springs and determined to move his family there
if he could find employment. He contacted Harold Heyse,
president of Heyse, who told him that if he moved to
Colorado he was sure that Quillin could find employment
there.
In late November Quillen arrived in Colorado Springs
and in the first week in December went to work for Heyse,
who suggested first that Quillin go to the union hall to be
approved by the Union. Quillen went to Respondent's hall
187 NLRB No. 22
LOCAL 58, PLUMBERS 153
on December 8 or 9 and obtained an application form and
blank affidavits of former employment to be filled out,
telling George Dragosh, the business agent, that he wanted
to become a member of the Union. A few days later he
returned to the hall with one of the affidavits and his filled-
out application. Quillin gave them to Dragosh telling him
that he would like to work as soon as possible and asking if
it were permissible for him to go to work if he found
employment.' Dragosh told him that this was not the union
rule but if he found a job he would not tell him to work or
not to. Dragosh also told him that the Union's executive
board would review his application and affidavits on a later
occasion and he would inform Quillin when this would take
place.
Quillin returned to the union hall about December 15 or
16 taking two more affidavits of former employment and
leaving them with the Union's secretarial employee.
On January 12 Quillin met with the Union's executive
board.2 The executive board consisted of Dragosh, the
business agent , and five or six members of the Union.
Quillin met with the executive board for a period from 45
minutes to an hour during the course of which they looked
over his application and affidavits and asked a few
questions concerning his prior experience. During the
conversation Quillin stated that he was employed by Heyse
and it appears that all or most of the executive board
members warned him against going to work for Heyse on
the ground that he could not expect employment to be of a
permanent nature. It appears that the Union had furnished
at least three other employees to Heyse over the past years,
none of whom continued in his employment after a short
period. According to Heyse he discharged two of them and
the third quit. According to testimony of Dragosh, Heyse
discharged two of them apparently on a mistaken belief
that they were incompetent and the third quit because
Heyse was working him only part time.
During the course of the meeting the executive board
explained to Quillen that the initiation fee was $200 and that
he would have to pay an additional $25 to take a
competency examination in his specialty, refrigeration.
Quillin testified that he offered to pay the $225 at that time
but that the executive board told him that they would have
to take his application before the membership before they
could accept his check .3
During the course of the meeting Quillin was informed
that the Union had three men at that time out of work who
were employed in neighboring cities on traveler cards.
According to Quillin he was told that it would be out of
order for the Union to give him a card when they had men
actually seeking employment who were out of work. He
testified that they returned the affidavits to him but
retained his application. He understood from this that his
application was being rejected and departed after thanking
them sardonically because he was in the process of buying a
home and was glad they had decided it was the thing for
them to do to put him out of work.
The testimony of all Respondent' s witnesses had quite a
different cast. According to them on their explanation of
the possibility that Quillin would not be permanently
employed by Heyse and the difficulty he might find in
getting other employment in Colorado Springs, he with-
drew his application stating that he intended to go on to
Denver and find work there and that at the time he thanked
them for helping him avoid the error of paying $225 for
membership for a job that he would not be able to hold. In
the light of the subsequent developments recited below I do
not credit all the members of the executive board and Mr.
Dragosh but credit Quillin that he did not ask them to
withdraw his application but, rather, hoped that they would
approve him for membership in the Local.
The next morning Quillin went back to Heyse and
informed him of what had taken place at the union meeting
the night before. He asked Heyse to write a letter to the
Union stating that he was an acceptable employee and that
Heyse had work for him. Heyse did this and Quillin worked
through the 13th. On the 14th after having a report from his
superintendent that there was unrest on the job because he
was working a nonunion man Heyse discharged Quillin.
The next day Quillin returned to Heyse and asked if he had
heard from Dragosh with regard to his application after
Heyse's letter was received. He also called Dragosh by
telephone and asked what kind of progress was being made
on his being accepted by the Union so he could go back to
work. Dragosh said he did not know it was going to be done
and that he did not like people coming in from out of town
telling him how to run his business .4 After the charges were
filed in the instant case Dragosh called Quillen and asked
him if he had gone back to work for Heyse. Quillin said he
had not and Dragosh told him he could go back to work.
Quillin asked whether he could have a work permit or a
union card and Dragosh said that he did not have one for
him. Quillin asked for return of money that had been
deducted from his pay for health and welfare benefits and
vacation benefits and Dragosh said that the money was not
Quillin's. Quillin rejoined that until the Union accepts or
declines his application it is his money because he paid
taxes and had it taken out of his check. Quillin then called
Heyse and asked if he could come back to work. Heyse told
him without a union card he could not use him and said
that the Union was trying to put Heyse in the meddle and
make him the goat. Quillin told Heyse on this occasion of
his telephone call from Dragosh.
It appears that another refrigeration man who had been
in business for himself but had worked for Heyse for a
period of 14 years in the past went out of business and went
back to work for Heyse on January 12, the morning on
which Quillin met with the executive board. Immediately
after Quillin left the executive board this other employee,
Bernie Miller, was approved by the executive board for
readmission to the Union.
Under the circumstances of the activities taken by
Quillin, Heyse, and Dragosh after the executive board
1 It appears that at this time Quillin was already employed by Heyse
2 The executive board was identified by Quillin as the Union's "board
of review " It is clear from the record however that the executive board and
the board of review were the same.
3 All of the executive board members testified that Quillin at no time
offered to pay any moneys on that occasion and some of them testified
that he made no statement with relation to the initiation fee. However
Dragosh on cross-examination, after being refreshed with his pretrial
affidavit, testified that Quillin indicated that he could pay the initiation fee
without making arrangements for paying it over a period of time.
4 Dragosh's testimony is not quite consistent with Quillin's in this
regard. I credit Quillin
154 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
meeting, it appears quite clear to me and I find that Quillin
did not withdraw his application from the executive board
but rather was told that it would not be considered at that
time . He obviously thought that the reason therefor was
that the executive board did not consider that he would
have a job with Heyse for very long, which occasioned his
asking Heyse to write a letter stating to the contrary. He
then called Dragosh to ascertain whether Heyse's letter had
made a difference in the Union's posture and found that it
had not. It was not until after his filing of the charge that
Dragosh took the step of informing Heyse and Quillin that
the Union withdrew its objection to Quillin.
The Union relies primarily on the defense that Quillin did
not become a member of the Union because he voluntarily
withdrew his application but contends that in any event the
Union did not cause or attempt to cause Heyse to discharge
Quillen. Heyse's testimony in this regard, although appar-
ently unwillingly given, was that, after he discharged
Quillen, Quillin asked him a number of times if he had
heard anything from the Union relative to his going to work
and that he called Dragosh and asked whether the Union
would give clearance to his employment of Quillin and on
each occasion was told that Quillin had not been cleared by
the executive board, that the Union had men on the bench,
that they were working in Denver and Dragosh would see
whether he could send them to him.
Dragosh testified that he was unable to supply men to
Heyse because of the three men who were refrigeration
specialists two were unacceptable to Heyse and the third
refused to work for him.
Af r the General Counsel repeatedly refreshed his
recollection Heyse testified that, as he had stated in his
affidavit taken during the investigation of the matter, he
called Dragosh on the morning of January 13 after the
executive board meeting "and asked him what I was
supposed to do now or asked him if he [Quillin ] didn't have
a union card. He [Dragosh ] said he had other men available
on the bench and they didn't feel they needed additional
men, and he [Quillin] is a nonunion man so I will have to
lay him off." Dragosh denied stating that Heyse would have
to lay Quillin off or in any way indicating to Heyse that
Quillin could not be employed unless he was cleared by the
Union. I discredit his denial. While it is true that Heyse was
a very reluctant witness it is clear from the record that he is
operating in Colorado Springs as a union employer and he
was obviously aware of the fact that he would not exactly
gain friends with the Union, from which he drew many of
his employees, by his testimony. I have discredited Dragosh
above with regard to his conversations with Quillin and
with regard to the executive board meeting. I do not credit
him in this regard either. I find and I believe that he
explicitly informed Heyse that he could not use Quillin
without the Union's approval. I find corroboration to this
conclusion in the letter written by Heyse to Dragosh on
January 15 at the request of Quillin. Heyse commenced the
letter with the statement "Af your request, we have
terminated Bob Quillin." (Emphasis supplied.) I am not
unaware that Heyse attempted on examination by the Trial
5 In the event no exceptions are filed as provided by Section 102 46 of
the Rules and Regulations of the National Labor Relations Board, the
findings , conclusions, recommendations, and Recommended Order herein
Examiner and by General Counsel to evade the direct
question as to the "request" he referred to his in January 15
letter. However, when he was confronted by his affidavit, I
believe he testified in accordance with the facts. According-
ly I find that Respondent attempted to cause and caused
Heyse to discharge Quillin and that this resulted from
Respondent's refusal to approve Quillin's application for
membership or to permit him to work on a permit basis for
Heyse. This action on the part of the Union constitutes a
violation of Section 8(b)(2) and 8(b)(1)(A) and I so find.
CONCLUSIONS OF LAW
1. The Respondent is a labor organization within the
meaning of Section 2(5) of the Act.
2. Heyse is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
3. By causing Heyse to discharge Quillin as found
herein, Respondent has engaged in unfair labor practices in
violation of Section 8(b)(2) and (1)(A) of the Act and
affecting commerce within the meaning of Section 2(6) and
(7) of the Act.
THE REMEDY
Having found that Respondent has engaged in unfair
labor practices I shall recommend that it cease and desist
therefrom and take certain affirmative action designed to
effectuate the policies of the Act.
As I found Respondent caused Heyse to discriminatorily
terminate the employment of Quillin, I shall recommend
that Respondent notify Quillin and Heyse that it withdraws
any objection to Quillin's employment by Heyse and advise
that Heyse may employ Quillin for any work that is
available. I further recommend that Respondent make
Quillin whole for any loss of pay suffered by reason of the
discrimination against him. In making Quillin whole
Respondent shall pay to him a sum of money equal to that
which he would have earned as wages from the date of his
termination of employment as set forth herein to the date
on which Heyse offered Quillen reinstatement and Quillin
refused to accept it for personal reasons, less Quillin's net
earnings during such period. Backpay is to be computed on
a quarterly basis as prescribed in F. W. Woolworth
Company, 90 NLRB 289, with interest thereon at 6 percent
calculated in the manner set forth in Isis Plumbing &
Heating Co., 138 NLRB 716.
RECOMMENDED ORDERS
Upon the basis of the foregoing findings of fact and
conclusions of law and upon the entire record in the case, it
is recommended that Respondent, Local Union No. 58 of
the United Association of Journeymen and Apprentices of
the Plumbing and Pipe Fitting Industry, AFL-CIO, its
officers, agents, and representatives, shall:
1. Cease and desist from:
(a) Causing or attempting to cause Heyse Sheet Metal
and Roofing Company to layoff, discharge, or otherwise
shall, as provided in Section 102.48 of the Rules and Regulations, be
adopted by the Board and become its findings, conclusions , and order, and
all objections thereto shall be deemed waived for all purposes
LOCAL 58, PLUMBERS
discriminate against Bob Quillin or any other employee or
applicant for employment with Heyse because he is not a
member of Respondent for reasons unconnected with the
payment of dues and initiation fees regularly required of
employees.
(b) In any like or related manner restraining or coercing
employees in the exercise of rights guaranteed them in
Section 7 of the Act except to the extent that such rights
may be affected by a collective-bargaining agreement
authorized under the Act.
2. Take the following affirmative action designed to
effectuate the policies of the Act.
(a) Notify Heyse Sheet Metal and Roofing Company and
Bob Quillin that Respondent has no objection to Heyse's
employment of Quillin for any work which is available.
(b) Make whole Bob Quillin for any loss of pay he may
have suffered by reason of the discrimination against him in
the manner set forth in the section herein entitled "The
Remedy."
(c) Post at the business offices and meeting halls of the
Respondent copies of the attached notice marked
"Appendix."6 Copies of said notice, of forms provided by
the Regional Director for Region 27, after being duly
signed by Respondent's representative, shall be posted by it
immediately upon receipt thereof, and be maintained by it
for 60 consecutive days thereafter, in conspicuous places,
including all places where notices to members are
customarily posted. Reasonable steps shall be taken by
Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(d) Notify the Regional Director for Region 27, in
writing, within 20 days from the receipt of this Decision,
what steps have been taken to comply herewith.?
6 In the event that the Board's 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 be changed to read "POSTED PURSUANT TO A JUDGMENT OF
THE UNITED STATES COURT OF APPEALS ENFORCING AN
ORDER OF THE NATIONAL LABOR RELATIONS BOARD"
7 In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read. "Notify the Regional Director for
Region 27, in writing, within 10 days from the date of this Order, what
steps Respondent has taken to comply herewith "
155
APPENDIX
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT cause or attempt to cause Heyse Sheet
Metal and Roofing Company to layoff, discharge, or
otherwise discriminate against Bob Quillin because he is
not a member.
WE WILL NOT in any like or similar manner restrain
or coerce any of you in the exercise of rights guaranteed
by the National Labor Relations Act except to the
extent that such rights may be affected by a lawful
agreement authorized by that law.
WE WILL notify in writing Heyse Sheet Metal and
Roofing Company that we have no objection to the
employment of Bob Quillin by that Company for any
work that is available.
WE WILL make Bob Quillin whole for any loss of pay
he may have suffered by reason of our action which
resulted in his losing employment with Heyse Sheet
Metal and Roofing Company.
LOCAL UNION No. 58 OF
THE UNITED ASSOCIATION
OF JOURNEYMEN AND
APPRENTICES OF THE
PLUMBING AND PIPE
FITTING INDUSTRY,
AFL-CIO
(Labor Organization)
Dated By
(Representative ) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
Any questions concerning this notice or compliance with
its provisions may be directed to the Board's Office, New
Custom House, Room 260, 721 19th Street, Denver,
Colorado 80202, Telephone 303-297-3551.