Millwrights, Local 1080

National Labor Relations Board - Board Decisions

Feb 14, 1973

201 N.L.R.B. 882 (N.L.R.B. 1973)

882 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Lower Ohio Valley District Council of Carpenters,
Millwright Local No. 1080 (Commercial Contract-
ing Corporation) and Richard E. Brunner. Case
25-CB-1363
February 14, 1973
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND KENNEDY
On August 23, 1972, Administrative Law Judge'
Gordon J. Myatt issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief, and the General Counsel filed
limited exceptions and a supporting brief. Respon-
dent also filed an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings and
findings of the Administrative Law Judge, but not
his conclusions or recommendations.
The Administrative Law Judge concluded that
Respondent Union herein violated Section 8(b)(1)(A)
and (2) of the Act by refusing to allow Richard E.
Brunner, a union member in good standing, to sign
the job referral list maintained at the union hall until
he provided a written statement declaring that he
would not engage in millwright contracting for a
period of 12 months. Respondent excepts to these
conclusions, and we find merit in the exceptions.
The essential facts are not in dispute. Pursuant to
agreement with Associated General Contractor-Ev-
ansville (hereinafter AGC), Respondent operates an
exclusive hiring and referral hall for millwright
employees. Brunner is and has been a member in
good standing of Respondent since 1963. Sometime
in July 1967, Brunner became an independent
contractor or employer performing millwright work,
and as such he signed a collective-bargaining
agreement with Respondent. Pursuant thereto, Brun-
ner employed Respondent's members on all his
projects in the territorial jurisdiction of Respondent.
Having only intermittent success as an employer in
obtaining contracts for millwright work, however,
Brunner attempted to secure employment in the
same type of work by getting on Respondent's
referral list in September 1969. Respondent refused
to allow Brunner to sign the referral list, and an
I The title of "Trial Examiner" was changed to "Administrative Law
Judge" effective August 19, 1972.
2 This requirement is not embodied in the agreement between Respon-
official, Keown, told him that he would be permitted
to sign the list only if he submitted to Respondent a
letter stating that he was no longer an employer in
the contracting business and that he would not enter
the business for a period of 12 months.2 Thereafter,
Brunner again attempted to register on the list, but
was denied for lack of such a letter.
Brunner continued to appear at the union hall
almost daily during July 1971 in an unsuccessful
effort to sign the referral list. On August 3, 1971, he
again was told by Keown that he could not sign the
list unless he gave Respondent the above-mentioned
letter. Nevertheless, on August 6, 1971, Respondent
did refer Brunner to a millwright job with Commer-
cial Contracting Corporation. After completing this
job in September 1971, Brunner returned to Respon-
dent's hall, and another official of Respondent
allowed Brunner to sign the referral list. On advice of
its attorney, Respondent permitted Brunner's name
to remain on the referral list thereafter. In October
1971, Brunner worked as a contractor or employer,
and also as an employee at another job outside
Respondent's jurisdiction. Respondent offered job
referrals to Brunner in December 1971, and January
1972, which Brunner declined for personal or health
reasons.
On January 20, 1972, Brunner filed the original
charge in this case. In April 1972, Respondent
offered Brunner four different referrals, all of which
Brunner refused because he was a contractor or
employer currently engaged in remodeling houses.
The complaint herein charged that Respondent
unlawfully prevented Brunner from signing the
referral list between July 20, the start of the 6-month
period provided for in Section 10(b), and September
15, 1971. The Administrative Law Judge sustained
the complaint in part, on the ground that Respon-
dent's conduct was unfair, irrelevant, invidious,
arbitrary, and capricious; was without legitimate
purpose; and therefore breached Respondent's statu-
tory duty of fair representation within the meaning
of Miranda Fuel Company, Inc., 140 NLRB 181,
enforcement denied 326 F.2d 172 (C.A. 2). The
Administrative Law Judge concluded that Respon-
dent thus violated Section 8(b)(1)(A) and (2). We
agree with Respondent's exceptions to these findings
and conclusions.
The record in this case contains no direct evidence
whatsoever that Respondent's purpose was to en-
courage membership or membership regularity.
Indeed, Brunner was a member of Respondent in
good standing at the time of the events herein, and
there is no evidence that this status was adversely
dent and AGC, nor is it contained in the constitution , bylaws, or rules of
Respondent or its International union.
201 NLRB No. 112
MILLWRIGHTS, LOCAL 1080 883
affected by his contracting business. Moreover, the
record shows that Respondent uniformly applied its
requirement to all applicants who were also contrac-
tors. We note that this requirement did not affect the
membership status of any of the contractors .3
It is true that, under certain conditions, specific
proof of intent to encourage or discourage member-
ship is unnecessary to a finding of unlawful discrimi-
nation under Section 8(a)(3) or Section 8(b)(2).4
However, in its Radio Officers' Unions decision the
Supreme Court stressed that:
... this section does not outlaw all encourage-
ment or discouragement of membership in labor
organizations; only such as is accomplished by
discrimination is prohibited. Nor does this section
outlaw discrimination in employment as such;
only such discrimination as encourages or dis-
courages membership in a labor organization is
proscribed.
And not every form of union interference with
employment, though tending to encourage member-
ship, will support an 8(b)(2) violation, in the absence
of specific proof of prounion motivations Therefore,
the material question in the instant case involves the
issue of Respondent's purpose.?
We find that Respondent's purpose in refusing to
permit Brunner to sign the referral list was reasona-
ble and legitimate . We regard as analogous our
decision in Local 825, International Union of Operat-
ing Engineers, AFL-CIO (Associated General Con-
tractors of New Jersey), 187 NLRB No. 6. In that
case, the Board held that the union therein did not
violate Section 8(b)(l)(A) or (2) of the Act when it
refused an applicant a job referral. As in the instant
case , the applicant there was also an employer, and
had a collective-bargaining agreement with the
union. The refusal was prompted by the fact that the
applicant was an employer or independent contrac-
tor, and the union refused to refer him "for a
legitimate union purpose, namely, a desire to limit
referrals to individuals who are employees under the
Act." 8
We find this reasoning applicable to the instant
case. The record shows that the purpose of Respon-
dent's requirement,9 and its complained-of refusal to
refer Brunner, was to limit its referrals to employees
whom it has a duty to represent, a duty it does not
owe to employers. Furthermore, the simple fact that
Brunner was between jobs as a contractor when he
asked to be referred as an employee does not detract
from the reasonableness of Respondent's require-
ment that he at least affirm that he would not
become an employer for 12 months in return for
being allowed to sign the referral list.10 Such a
requirement appears reasonable as an effort to assure
that the employment opportunities for those who,
day in and day out, are rank-and-file employees, are
not prejudiced by competition from those who have
operated, and intend in the immediate future to
operate, as contracting employers. Carr Glass and
Paint Company, 190 NLRB No. 82.
Finally, we note that the record does not show, nor
did the Administrative Law Judge find, any other
reasons for Respondent's conduct which might be
characterized as unfair , irrelevant , or invidious. We
therefore find no merit in the Administrative Law
Judge's reliance upon Miranda Fuel, supra. For the
foregoing reasons, we find that the General Counsel
has not sustained his burden of proof that Respon-
dent has violated Section 8(b)(1)(A) or Section
8(b)(2) of the Act in the instant case . Accordingly, we
shall dismiss the complaint in its entirety.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the complaint
herein be, and it hereby is, dismissed in its entirety.
3 Keown so testified without contradiction.
4 Radio Officers' Union of the Commercial Telegraphers Union AFL [A. H
Bull Steamship Company] Y. N. L. R. B., 347 U.S. 17.
5 Id at42-43.
6 Local 357, Teamsters (Los Angeles -Seattle Motor Express] v. N.L R.B.,
365 U.S. 667; N.L.R.B. v. News Syndicate Company, Inc., 365 U.S. 695.
7 Miranda Fuel, supra, 187-188 ; Shield Radio 8 T. V. Productions, Inc,
153 NLRB 68.
8 There , as in the instant case , the union 's requirement apparently was
established by local union policy.
9 Contrary to the contention of the General Counsel, Respondent's
requirement is not proscribed by the collective-bargaining agreement,
although it is not contained therein.
10 We note in this regard that Brunner , after getting on the referral list,
thereafter refused at least six referrals offered him by Respondent , and four
of those refusals were due to his commitments as an employer.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
GORDON J. MYATT, Trial Examiner : Upon a charge filed
on January 20, 1972, by Richard E. Brunner , an individual,
against Lower Ohio Valley District Council of Carpenters,
Millwright Local No. 1080, (hereinafter called the Union),
a complaint and notice of hearing was issued by the
Regional Director for Region 25 on February 29, 1972.
The complaint alleged , inter a/ia, that the Union had
entered into a collective-bargaining agreement on July 10,
1970, with Associated General Contractors of America,
Evansville Chapter, Inc. (hereinafter called AGC-Evans-
ville), covering employment of all journeymen millwrights,
millwright foremen , and millwright general foremen on
construction jobs performed by the employer members of
AGC-Evansville within the territorial jurisdiction of the
Union. The complaint further alleged that Commercial
Contracting Corporation (hereinafter called Commercial)
agreed to be bound by the terms of the collective-
bargaining agreement sometime prior to August 1, 1971.
The collective-bargaining agreement contained, among
884 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
other things, a provision that, during the first 48 hours
subsequent to submission of a job order for employees,
employers would only hire persons referred to them by the
Union. It is alleged that commencing on or about July 20,
1971, and continuing until September 15, 1971, the Union
refused to permit the Charging Party to register his name
on its employment list and failed and refused to consider
the Charging Party for referral for employment. By this
conduct it is alleged that the Union prevented employment
of the Charging Party by Commercial and other employer-
members of AGC-Evansville except for a period from
August 10 to September 10, 1971.
The Respondent 's answer admitted certain allegations
contained in the complaint, denied others, and specifically
denied the commission of any unfair labor practices.'
This case was tried before me on May 9, 1972, in
Owensboro, Kentucky. All parties were represented by
counsel and were afforded full opportunity to be heard and
to introduce relevant evidence on the issues . Briefs were
submitted by the General Counsel and the Respondent
and were fully considered by me in arriving in my decision
in this matter.
Upon the entire record herein, including my evaluation
of the testimony of the witnesses based on my observation
of their demeanor and upon consideration of the relevant
evidence, I make the following:
FINDINGS OF FACT
1. JURISDICTIONAL FINDINGS
It was stipulated by and between the parties that
Commercial Contracting Corporation is a concern duly
organized and existing under the laws of the State of
Michigan. Commercial maintains its principal office and
place of business in Troy, Michigan, and is engaged
continuously in the construction industry as a prime
contractor. During the past calendar year, Commercial, in
the course and conduct of its business operations,
purchased, transferred, and delivered to its jobsites in
various States of the United States goods and materials
valued in excess of $50,000. Said goods and materials were
delivered to the jobsites directly from States other than the
State wherein each site was located. Also during the past
year, Commercial performed construction services valued
in excess of $50,000 in States other than the State of
Michigan.
i Respondent 's answer denied knowledge of the facts alleged in the
jurisdictional allegations relating to Commercial and AGC- Evansville The
answer also denied that Commercial had entered into the collective-
bargaining agreement with Respondent and that the collective -bargaining
agreement contained an exclusive referral provision At the trial, however,
the jurisdictional facts were stipulated by the parties and the Respondent's
answer was amended accordingly. The Respondent also amended its answer
to admit that Commercial was a party to a collective -bargaining agreement
with the Union and that the collective -bargaining agreement did contain the
referral provision
2 The hiring hall provisions contained in the contract read as follows
Article III
Hiring Procedures
District Council United Brotherhood of Carpenters and Joiners of
America agrees to furnish competent Journeymen selected for
reference to jobs upon a non -discriminatory basis, such furnishing to
be made upon request of the Employer and with the Employer
retaining the right to reject or accept the applicants for employment
Associated General Contractors of America , Evansville
Chapter, Inc., is an association of employers . Its function
and purpose , among others , is to represent the employer-
members in collective bargaining with various labor
organizations and to enter into and service collective-
bargaining agreements resulting from the negotiations. The
employer-members of AGC-Evansville , have been, at all
times material herein , engaged in the construction industry
and each annually performs construction services valued in
excess of $50,000 in States in the United States other than
the State wherein each is incorporated and has its principal
office . In the course and conduct of their business
operations , each of the employer-members annually
purchases and causes to be shipped to their respective
jobsites goods and materials valued in excess of $50,000
directly from States other than the State wherein the
jobsites are located.
On the basis of the above, I find that Commercial, AGC-
Evansville , and the employer-members are , and have been
at all times material herein, individually and collectively,
employers as defined in Section 2(2) of the Act engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act.
11. THE LABOR ORGANIZATION INVOLVED
Lower Ohio Valley District Council of Carpenters,
Millwright Local No. 1080, AFL-CIO, is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background Facts
On or about July 10, 1970, AGC-Evansville and the
Union entered into a collective-bargaining agreement
covering all journeymen millwrights, millwright foremen,
and millwright general foremen all construction jobs
undertaken by employer-members in the territorial juris-
diction of the Union. The effective date of the contract is
from April 1, 1970, through March 31, 1973. The
collective-bargaining agreement provides that the Union
will maintain a nondiscriminatory hiring hall and have
exclusive right to furnish millwright employees to the
member-employers during the first 48 hours after a job
request is received. 2 Sometime prior to August 1, 1971,
Commercial agreed to be bound by the collective-bargain-
I The District Council shall establish and maintain open and
non-discriminatory employment lists for the use of individuals
desiring employment
2 All individuals desiring employment shall register at the
District Council office by appearing personally and shall
indicate name and address , and telephone number and Social
Security account number , qualifications and type of work
desired
3 Employers shall first call upon the District Council and
submit job orders District Council then calls the Local Union
having area jurisdiction of work indicating the number of
individuals desired , qualifications of each individuals [sic 1. and
location of the job , and the reporting date and time. If an
Employer requests individuals by name pursuant to Section 5,
hereof, he shall advise the District Council of the location of the
last job worked and the termination date thereof , with respect to
such individuals. Job order shall be submitted not less than
forty-eight (48) hours (Saturdays and Sundays and recognized
MILLWRIGHTS, LOCAL 1080 885
ing agreement between the Union and AGC-Evansville on
all construction work performed by Commercial within the
Union's territorial jurisdiction.
B. The Refusal To Allow Brunner To Sign the
Referral List
Brunner was a member of the Union since 1963. His
membership was not in question and he was classified as a
member in good standing from the time he joined the
Union until the time of the trial .3 Sometime in July 1967,
Brunner decided that he would become a contractor
performing millwright work . He first operated under the
name of Owensboro Mechanical Maintenance , but later
changed the name to Brunner Mechanical Erection. He
operated out of his own home and used his garage as a
storage place for his equipment and materials. He had no
office staff and he was not listed in the local telephone
directory under his business name . Brunner signed a
contract with the Union and employed his fellow union
members on all of his projects in the territorial jurisdiction
of the Union .4
Sometime in September 1969 (the record is unclear as to
the exact date), when Brunner was experiencing a long
interval between contracts, he went to the union hall and
attempted to sign the referral list indicating that he was
available for work as a journeyman . Keown , executive
director of the Council and financial secretary of the local,
refused to allow Brunner to place his name on the list.
Keown told Brunner he would be permitted to sign the list
only if he submitted a letter stating that he was no longer in
the contracting business and that he would not contract for
a period of 12 months . Keown also issued instructions to
the Union 's office staff , making it clear that Brunner was
not to be allowed to sign the referral list until he provided
the Union with such a letter. Keown acknowledged at the
trial that there was no provision in the constitution and
bylaws of the International Union or in the trade rules and
bylaws of the local or in the contract between the Union
and AGC-Evansville that required Brunner to make such a
declaration before he was referred to a job as a journey-
man. He did state, however, that he had received a letter
from the International regarding referral of members who
were also engaged in contracting . Keown could not
produce the letter nor could he recall the contents, beyond
the general statement that it was a requirement for a
member who was a contractor to indicate that he would no
longer engage in contracting before being referred to work.
The intervals between Brunner 's jobs as a contractor
became longer and he continued to go to the union hall to
attempt to sign the referral list . Each time he appeared, the
office staff would not permit him to sign the list, pursuant
to Keown's instructions . It apparently was the custom of
the union members to gather at the hall or in a nearby
restaurant while waiting for referrals each day. Brunner
testified that on several occasions he approached Keown in
the restaurant and told him that he needed employment as
a journeyman because he was "hurting ." In each instance,
Keown advised Brunner that he would not send him out
until he provided the Union with the letter , as previously
requested. When Brunner questioned the need for such a
letter, Keown replied that it was a ruling of the Interna-
tional Union. According to Brunner , he appeared almost
daily at the union hall between March and July 1971, in an
effort to sign the referral list . Each time he was denied
permission to do so.
On August 3, 1971, Brunner went to the union hall
accompanied by Allen, a fellow union member . He asked
Keown personally if he could sign the "book." 5 Keown
again told Brunner that he would only be allowed to sign
the list if he gave the Union the letter, which Keown stated
he would "keep on his desk for 12 months ." Keown
testified that he did not mean he would not refer Brunner
for 12 months, but that he would hold the letter for that
period of time ; presumably, to cause Brunner to adhere to
the agreement that he would not engage in contracting.
Brunner continued to assert his need for employment as he
was unable to get contracting jobs, but to no avail. On
August 6, Keown did send Brunner out on a job, even
though his name was not on the referral list. Brunner went
to work for Commercial Contracting as a millwright
working on a dust collector at the Alcoa Aluminum plant.
This was a dirty and undesirable job and it was apparent
that none of the other millwrights wanted to work on it.
After completing the job with Commercial Contracting
in the middle of September 1971, Brunner went back to the
union hall and attempted to sign the referral list . This time
he was accompanied by a fellow union member, who was
also treasurer of the local . The office secretary told
Brunner that she was under instructions not to allow him
holidays excluded) prior to the hour when the employer wishes
him to report for work.
4. If the District Council is unable to refer the number
individuals desired within forty-eight (48) hours after the
submission of such job order, the Employer may procure
additional Employees up to the desired number from any other
source, provided that the Employer shall immediately notify the
Local Union of the names of the Employees hired and the job
location.
5. Individuals available and qualified to fill the job order shall
be referred in the following order.
(a) First , individuals in the order of their registration who within
two (2) years immediately preceding the job order performed
the work of the type covered by the Collective Bargaining
Agreement in the geographical area of the Local Union.
(b) Next, all other individuals , in the order of their registration
(c) Provided , an Employer may request by name individuals
formally employed by him on work performed in the geographi-
cal area of the District Council, who within two (2) years
immediately preceding the job order performed work of the
type covered by the Collective Bargaining Agreement in the
geographical area of the District Council.
6. Available for employment means that the individual shall
be currently registered and shall be either present at the Local
Union office or present at a location where he can be reached
by telephone.
3 The testimony indicates that Brunner's membership dues were current,
although he was delinquent on a few assessments. All union members were
assessed $4 a week , if they worked more than 4 hours 2 days a week.
Brunner's delinquency on certain of the assessments did not jeopardize his
membership standing with the Union.
Between the time he started contracting and 1971 , Brunner had six or
seven jobs within the area serviced by the Union and several jobs in other
areas , including Pennsylvania. His business was not continuous, however,
and there were long periods between jobs when he had no work as a
contractor.
5 In their testimony , the witnesses interchangeably referred to the "list,"
the "book ," and the "board" It was clear, however, that they were
describing the referral list maintained by the Union.
886 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to sign the list. Brunner left the hall and went out to the
parking lot where he encountered Edge, assistant business
agent of the Union. Brunner complained about not being
allowed to sign the list. Edge told him that these were
standing instructions, but that he would not stop Brunner
from signing the list if he attempted to do so. Brunner then
returned to the office and placed his name on the referral
list. His name remained on the list as being available for
employment, but he did not receive any referrals from the
Union for the balance of the month of September; nor
during October, or November 1971 6 During part of the
month of October 1971 Brunner left the area and worked
for a firm in Pennsylvania, where he had previously been
employed. He also worked a portion of that month in the
Owensboro area for a bakery company. He had secured
this job as a contractor.
On December 23, 1971, Brunner was in the restaurant
near the union hall and he met Keown. Keown offered
Brunner a ,job, but he refused because he and his wife
planned to go to Chicago to visit their grandchildren
during the holidays. In January 1972, Brunner was offered
another job by Keown. Brunner was ill at the time and he
refused to accept the referral. The testimony indicates that,
during the month of April 1972, Keown offered to refer
Brunner to jobs on four different occasions.? Each time
Brunner refused because he was self-employed as a general
contractor engaged in remodeling homes. This type of
work was not within the trade jurisdiction of the Union.
C. The Union Constitution and Bylaws and the
Collective-Bargaining Agreement
The local trade rules and bylaws of the Union contain
nothing which relates to union members who are also
contractors. Nor are there any provisions in the collective-
bargaining agreement between the Union and AGC-
Evansville which relate to contractors who are union
members. The only provision that refers to this category of
union member is found in the constitution and bylaws of
the International Union. In the section relating to
"admission of members," section 44, subparagraph J,
provides:
A member can remain a contractor or enter into the
business of contracting, provided the member pays the
Union scale of wages, obeys Trade Rules and complies
iS Keown testified that although Brunner signed the list contrary to his
instructions to the office staff, he allowed Brunner 's name to remain there
pursuant to advice from his attorney.
r During the latter part of 1971, and also during the early part of 1972,
Brunner registered with the Carpenters Local which is the sister local to the
Millwright Union He was sporadically sent out onjobs as a carpenter The
record is unclear however as to the exact dates that Brunner was employed
as a carpenter
s In that case the Supreme Court conceded that hiring halls may very
well tend to encourage union membership, but held that the Act only
banned that "encouragement or discouragement" which was "accomplished
by discrimination " Id at 674-675 (citing Radio Officers Union v. N L R B
347 U.S 17, 42-43)
9 The Miranda case involved the reduction seniority and employment
opportunities of an employee pursuant to a provision contained in the
collective-bargaining agreement between the union and the employer A
majority of the Board held that employees had a statutory right "to be free
from unfair or irrelevant or invidious treatment by their exclusive
bargaining agent in matters affection their employment," and that this right
is breached when a union insists upon taking action against an employee
with the Constitution and Laws of the United Brother-
hood governing contracting members and does not do
any lump work, piece-work, or sub-contracting for a
carpenter contractor, and further provided, the mem-
ber furnishes material and labor on the work contract-
ed for and does not belong to nor become a member of
any contractors' or employers' association. Any viola-
tion of this rule shall be punished after due trial of a
fine or expulsion. A contracting member shall not be
eligible as an officer, Business Representative, or
delegate of a Local Union, or eligible to vote for
officers, Business Representative(s) and delegates and
shall not be eligible to vote on the wage question.
Concluding Findings
It is now well settled that hiring halls per se do not violate
the provisions of the Act. Local 357, International Brother-
hood of Teamsters v. N.L.R.B., 365 U.S. 667 (1961). The
problem that continues to plague the Board and the courts
in this type of case, however, involves the manner in which
hiring hall arrangements are administered by unions. It is
clear from the Local 357 decision that in order to establish
a violation of the Act in a hiring hall situation , there must
first be a determination as to whether the specific acts or
practices complained of are in fact discriminatory.8
The broad question then becomes one of ascertaining
what standard must be applied to determine if the actions
of the Union are unlawful. Local 357 dictates that the "true
purpose" or "real motive" underlying the Union's action
which affect the employment status of an employee is the
only standard by which the lawfulness of the conduct can
be measured. Id. at 675. The true purpose or real
motivation may be inferred from existing circumstances or
it may be a natural foreseeable consequence of the Union's
conduct. Once it is determined, however, that the foreseea-
ble result of the union's conduct encourages union
membership or membership regularity, the disputed
conduct may be evaluated in terms of legitimate employer
or union purposes in order to ascertain whether a violation
has been committed. Miranda Fuel Company, Inc., 140
NLRB 181, 188; enforcement denied 326 F.2d 172 (C.A.
2) .9
The test by which a union's conduct is to be evaluated in
these circumstances was succinctly stated by Trial Examin-
based on "considerations or classifications which are irrelevant, invidious,
or unfair " Id at 188 In that decision the Board majority stated.
. we do not interpret the Court's opinion [Local 3571 as permitting
unions and their agents an open season to affect an employee's
employment status for any reason at all-personal, arbitrary, unfair,
capricious, and the like-merely because the moving consideration
does not involve specific union membership or activities of the affected
employees
Although the Second Circuit disagreed with the Board in the Miranda case,
its decision turned on the finding that the conduct was in conformity with
the provisions contained in the collective -bargaining agreement A similar
issue was presented in New York Typographical Union No Six, Etc, 144
NLRB 1555. That case involved the reduction of the priority status and
employment opportunities of a proofreader because he held a full-time
position of a principal of a junior high school . The union 's actions were
based on a provision contained in its constitution and bylaws The Board
dismissed the complaint in that case and the Second Circuit affirmed on the
basis of the Miranda opinion . Lawrence F Cafero v N LR B, 336 F.2d 115
(C A 2, 1964)
MILLWRIGHTS, LOCAL 1080 887
er Harold X. Summers in Chicago Federation of Musicians,
Local 10, Etc., 153 NLRB 68. There the union employed a
"freeze rule" in order to regulate employment of its
members. Although Trial Examiner Summers did not find
a violation, he set forth the test to be applied as follows:
The test is the true purpose or real motivation of the
Union in pressing or asking for the action-does it seek
thereby, purely and simply, to build up the desire to
join or maintain union membership or to adhere to
union procedures? And/or is the stated objective of the
union's conduct so arbitrary, invidious, or irrelevant as
to indicate that it is a mask for encouraging member-
ship or membership regularity? [Id., 84.1
Examining the facts of the instant case in the light of the
above, I am of the opinion that the Union here did violate
the Act when it prevented Brunner from signing the
referral list. There was no provision in the constitution and
bylaws of the International Union, or in the trade rules and
bylaws of the local union which prevented union members
who were part-time contractors from being referred from
jobs as journeymen. Nor was there any provision con-
tained in the collective-bargaining agreement between the
Union and AGC-Evansville relating to this subject. In this
respect, the instant case differs from Miranda, supra, and
ITU No. Six, supra. But my decision here does not rest on
the fact that the disputed actions were not grounded upon
a provision in the collective-bargaining agreement or in the
constitution and bylaws. In my judgment, if the action
taken by the Union here is unlawful, it cannot be made
otherwise simply because it was pursuant to a contract
provision or a codified internal union requirement.
The more basic issue is whether the conduct was based
on arbitrary, invidious, or irrelevant considerations or
classifications so as to encourage membership or compel
membership regularity. I find that the action taken by the
Union in this case was for the purpose compelling
membership regularity and demonstrating to one and all
that the Union could and would affect their employment
status and opportunities, if they did not comply with the
requirements of the union officials; no matter how
arbitrary or capricious or irrelevant those requirements
might be. There was no legitimate union purpose served by
the enforcement of the requirement against Brunner. By
way of justification, Keown stated that the Union did not
want members contracting one day and asking to be
referred out as journeymen the next day. But the facts
show that, when Brunner worked as a contractor, he
provided employment for his fellow union members by
hiring them through the Union. Nor did he attempt to be
referred when he was self-employed. Thus, it is clear that
the Union was not seeking to spread employment among
its members, but was exercising its power in an arbitrary
10 Two arguments advanced by the Respondent deserve brief mention at
this point. First , the Union claims that Brunner was not an employee, but
rather was an employer who was not entitled to sign the referral list. This
argument overlooks the Union's concession that Brunner not only
maintained his membership in the Union. but was also considered a
member in good standing Furthermore, there was no provision in the
local's trade rules and bylaws which deprived him of his membership status
because he engaged in contracting Indeed, the constitution and laws of the
parent union made specific reference to members who became contractors
manner to affect the employment status and opportunities
of members who were part -time contractors.
For these reasons, I find that the Union engaged in
unfair, irrelevant , and invidious conduct when it prevented
Brunner from signing the referral list and thereby breached
the statutory duty of fair representation to which he was
entitled. Accordingly, I find that the Union violated
Section 8(b)(l)(A) of the Act by this conduct. Miranda Fuel
Company, supra. I further find that the Union 's actions
regarding Brunner were based on arbitrary, capricious, and
irrelevant considerations which had the foreseeable result
of encouraging union membership and membership regu-
larity . Further, such conduct was without legitimate union
purposes . I find , therefore, that the Union violated Section
8(b)(2) of the Act.io
CONCLUSIONS OF LAW
1. Lower Ohio Valley District Council of Carpenters,
Millwright Local No. 1080, AFL-CIO, is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
2. Associated General Contractors of America, Evans-
ville Chapter, Inc., employer-members, and Commercial
Contracting Corporation are employers as defined in
Section 2(2) of the Act and are engaged in an industry
affecting commerce within the meaning of Section 2(6) and
(7) of the Act.
3. By unlawfully refusing to allow Richard E. Brunner,
a union member in good standing , to sign the job referral
list maintained at the union hall until he provided a written
statement declaring that he would not engage in millwright
contracting for a period of 12 months, the Union violated
Section 8(b)(1)(A) and 8(bX2) of the Act.
4. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that the Respondent has engaged in
certain unfair labor practices I shall recommend the
issuance of an order that it cease and desist therefrom and
that it take certain affirmative action necessary to
effectuate the policies of the Act. Since the complaint cites
July 20, 1971, until September 15, 1971, as the period
within which Brunner was prevented from signing the
referral list (although the initial refusal antedated that
time), I shall order the Union to make him whole for any
loss of earnings he may have suffered by not being referred
to jobs in proper rotation; except for the period August 10,
1971, to September 10, 1971, when he was referred to a
millwright job by the Union even though his name was not
on the list.
[Recommended Order omitted from publication.]
(sec. 44, J). It is clear that this provision did not contemplate the loss of
membership status for a union member who decided to become a
contractor.
The Union 's second contention was assuming Brunner was an employee,
none of his Sec. 7 rights were violated by the Union's actions . Miranda Fuel,
supra, disposes of this contention since conduct based on arbitrary,
invidious , or irrelevant considerations or classifications violates an
employee 's Sec . 7 right to fair representation by his bargaining representa-
tive.