New Mexico District Council of Carpenters and Joiners of America

National Labor Relations Board - Board Decisions

Jun 18, 1969

176 N.L.R.B. 797 (N.L.R.B. 1969)

NEW MEXICO DISTRICT COUNCIL OF CARPENTERS 797
New Mexico District Council of Carpenters and
Joiners of America ; United Brotherhood of
Carpenters and Joiners of America ( A.S. Horner,
Inc.) and Galen R. Wilson . Case 28-CB-462
June 18, 1969
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
BROWN AND ZAGORIA
September 13, 1968, upon a charge and amended charges
filed by Galen R. Wilson, herein Wilson, on May 23,
1968, June 10, 1968, and September 4, 1968, respectively
against New Mexico District Council of Carpenters,
herein the Council, and United Brotherhood of Carpenters
and Joiners of America, herein United Brotherhood, and
both Respondents herein. Each of the parties was afforded
full opportunity to participate at the hearing. Briefs
received from General Counsel and Respondents have
been fully considered.
Upon the entire record and my observation of the
witnesses, I make the following:
On March 13, 1969, Trial Examiner E. Don
Wilson issued his Decision in the above-entitled
proceeding, finding that the Respondents had
engaged in and were engaging in certain unfair labor
practices and recommending that they cease and
desist therefrom and take certain affirmative action,
as set forth in the attached Trial Examiner's
Decision. Thereafter, the Respondents filed
exceptions, with supporting arguments, to the Trial
Examiner's Decision.
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 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 Trial
Examiner's Decision, the exceptions and supporting
arguments, 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
Recommended Order of the Trial Examiner, and
hereby orders that the Respondents , New Mexico
District Council of Carpenters and Joiners of
America; United Brotherhood of Carpenters and
Joiners of America, jointly and severally, their
officers, agents, and representatives, shall take the
action set forth in the Trial Examiner's
Recommended Order.
'The General Counsel' s motion to correct certain errors in the transcript
of testimony , to which no opposition was filed , is hereby granted.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
E. DON WILSON, Trial Examiner: Pursuant to due
notice, a hearing in this case was held before me at
Albuquerque, New Mexico, on December 9, 1968. A
complaint was issued by the General Counsel of the
National Labor Relations Board, herein the Board, on
Findings of Fact
L THE COMPANY S BUSINESS
A. S. Horner, Inc., herein the Company, at all material
times has been a New Mexico corporation. The Company
has maintained its principal office and place of business at
Denver, Colorado, and has been engaged in the business
of general contracting and highway construction in New
Mexico. During the past 12 months, the Company derived
revenue in excess of $350,000, in part from a contract
with the State of New Mexico providing for the
construction of a portion of Interstate Highway 40, which
is a part of the National Interstate Highway program. At
all times material the Company has been an employer
engaged in commerce within the meaning of the Act.
II. THE LABOR ORGANIZATIONS
The Respondents at all material times have been labor
organizations within the meaning of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Issues
1. Did Respondents by filing charges and assessing a
fine against the Company' s superintendent for urging
carpenters to vote for the Company violate Section
8(b)(1)(B) of the Act?
2. Did Respondents attempt to cause the Company to
discriminate against nonunion employees and thereby
violate Section 8(b)(2) and 8(b)(1)(A) of the Act?
3. Is the complaint barred by Section 10(b) of the Act?
B. The Facts
The Council lost an election at the Company on June 5,
1967, by a vote of seven to five.
Before the election, by letter, the Company
communicated with all the employees in the Carpenters'
unit. The letter asked the employees to vote against the
Council. Wilson, along with the president of the Company
signed the letter. Wilson was the Company's
superintendent . He had substantially all the authority a
superintendent generally has on a highway construction
job. He hired and fired employees, etc. He had three or
four foremen of different crafts working under him. He
could and did adjust grievances. Wilson did his hiring
either from men who applied to the Company or to him
personally. He hired without regard to whether applicants
were union or nonunion members . The Company was
under no contractual obligation to hire from any union
hiring hall . The Company never requested the Council to
176 NLRB No. 105
798 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
refer applicants for employment from its hiring hall. On
June 5, 1967, the same day the Council lost the election,
Rodell Bloomfield,' an admitted agent of the Council,
preferred charges against Wilson for violating his
"obligation"' under Section 55, paragraph 13 of the
Constitution, as a member of the United Brotherhood and
the Council . Bloomfield explained the charges in writing
by alleging:
Bro. Wilson has violated the obligation by hiring
non-union carpenters . He also signed a letter, written to
the carpenter employees , asking them to vote against
the New Mexico District Council of Carpenters in our
representation election held 6-5-67.
On August 9, 1967, Luther Sizemore, the Council's
executive secretary, wrote a letter to Wilson advising him
of Bloomfield's charges and advising him that the Trial
Committee would convene on August 26, 1967. He was
advised that his case would be heard whether he was
present or not.
On August 23, 1967, Wilson replied to Sizemore's
letter. He explained that he had never been offered a copy
of the Constitution . He explained among other things that
when working as a supervisor he thought his loyalty must
first be to his employer. He said that if the Union could
fine him for supporting his employer he could not keep his
job. He pointed out that it is illegal for the Council to
require anyone to hire only union men . He inquired how it
could violate the Constitution for him not to do something
illegal.
On August 26, 1967, the trial was held. Wilson did not
attend.' Bloomfield testified against Wilson in accord with
his charges . Wilson was found guilty of the charges and
was fined $250.
On August 30, 1967, Sizemore advised Wilson that the
Trial Committee had found him guilty as charged and
that a fine of $250 had been recommended.
As required by the Constitution to perfect an appeal to
the United Brotherhood , Wilson sent a check for $50 to
Sizemore "on account" until his appeal of the fine was
decided by the General Executive Board.'
On September 22, 1967, Wilson wrote to the General
Executive Board of the United Brotherhood , appealing the
imposition of the fine . He enclosed a copy of the charges
and Sizemore's letter of August 9, 1967. He enclosed a
copy of his letter in reply to the charges. He stated he did
not know the terms of the "obligation." He stated that he
had paid the $50 "on account" so he could process the
appeal. He sent a copy of his appeal to the Council for its
information.
On September 28, 1967, the United Brotherhood
advised the Council of the appeal and instructed it to file
an answer and supply specified information. After the
District Council apparently filed one answer, the Council
at the request of the United Brotherhood, filed another
answer on October 17, 1967. Sizemore stated that as a
union member Wilson's loyalty must be to the Union and
that to actively work against the Union in a
representation election was to refute any loyalty to the
Union . He added that it was Wilson's action against the
Union which was the basis for the charge , the findings and
' Bloom field testified in a confused and contradictory manner. I was
unfavorably impressed by his demeanor. Documentary evidence showed
much of his testimony to be untrue . I do not credit his testimony unless
corroborated by documentary evidence or otherwise credited testimony.
'Never defined by a Respondent witness.
'He was a member of another Local.
'On the record as a whole, I find this was not part payment of the fine.
the penalty imposed. He admitted that Wilson was refused
a chance to see the "obligation" of membership, but
stated Wilson should have known it.
On April 16, 1968,5 the General Executive Board of the
United Brotherhood decided Wilson's appeal and affirmed
the Council's action. By this decision the penalty became
final. The decision spelled out that Wilson was charged
with hiring nonunion carpenters and with working actively
against the Council, as superintendent, during the election
campaign. It concluded that the Trial Committee was
fully justified in finding Wilson guilty as charged.
CONCLUDING FINDINGS
C. The 8(bXJXB) Violation
As finalized by the decision on appeal the actions of the
Council and the United Brotherhood violated Section
8(bx1)(B) of the Act. The charges and imposition of the
fine restrained and coerced the Company in the selection
and retention of its representatives for the purposes of
collective bargaining and adjustment of grievances. I
specifically, in view of the written charges of Bloomfield
himself, do not credit his testimony that Wilson's signing
a letter to the carpenters before the election was not
actually a part of Bloomfield' s charge . Bloomfield testified
that there was nothing in the Constitution which
prohibited such action by Wilson. He said the undefined
"obligation" prohibited such action by Wilson. I do not
credit Bloomfield's testimony that Wilson was not fined
for such activity because of all the documentary evidence
to the contrary. It is abundantly clear that one of the
reasons Wilson was fined was that as a representative of
management he acted in the Company's behalf and
against the Union's interest. Neither do I credit
Bloomfield's testimony that the only reason the charges
were filed was because Wilson did not hire from a
nondiscriminatory hiring hall.
By preferring the charges and imposing a fine upon
Wilson, Respondents were attempting to force the
Company to change its selected representative for the
purposes of collective bargaining and the adjustment of
grievances from a representative of management's
viewpoint to a person subservient to the will of
Respondents. The Council itself explained it was fining or
bringing charges against Wilson because he placed the
Company 's interests above those of Respondents.
Sizemore in his letter to the General Executive Board of
the United Brotherhood stated that Superintendent
Wilson's loyalty "must be to the Union." It is clear that
Respondents preferred charges against and fined Wilson
as a means of disciplining him because he placed the
interests of the Company above those of Respondents.
This was obviously coercion against the Company because
it would tend to require the Company to retain as
representatives for collective bargaining and adjustment of
grievances only individuals who were subservient to
Respondents. That the Company and Respondents had no
labor agreement does not detract from this finding.
Wilson could and did adjust grievances . Respondents were
forbidden by the Act to dictate to the Company whom it
should select to adjust employee grievances . Respondents'
actions "were designed to change the [Company's]
representatives from persons representing the viewpoint of
management to persons responsive or subservient to
Respondents ' will. In enacting Section 8 (b)(1)(B) Congress
'Within the 10(b) period . All other action was outside the 10(b) period.
NEW MEXICO DISTRICT COUNCIL OF CARPENTERS
sought to prevent the very evil involved herein - union
interference with an employer ' s control over its own
representatives . [Citation] That Respondent [s] may have
sought the substitution of attitudes rather than persons,
and may have exerted [their] pressure upon the
[Company] by indirect rather than direct means , cannot
alter the ultimate fact that pressure was exerted here for
the purpose of interfering with the [Company ' s] control
over its representatives . Realistically , the [Company]
would have to replace its [superintendents ] or face de
facto nonrepresentation by them ." San Francisco- Oakland
Mailers ' Union No. 18, 172 NLRB No. 252.
Respondents have urged that its internal disciplinary
actions against its members are not within the purview of
Section 8 (b)(1)(B). It claims that the "employee" may
disagree with many of the decisions made by the Union,
but he is bound by them . Citing Allis-Chalmers Mfg. Co.,
388 U .S. 175. The Board in the San Francisco - Oakland
Mailers' case , supra, disposed of Respondents'
contentions . The Board , after reviewing the Supreme
Court' s decision , held that the proviso to Section
8(b)(1)(A) "is limited to Section 8(b)(1)(A) of the Act
only and is not a part of Section 8(bxl)(B) . . . . the
purpose and effect of Respondents ' conduct literally and
directly controvened the statutory policy of allowing the
[Company] an unimpeded choice of representatives for
collective bargaining and the settlement of grievances. In
our opinion it fell outside the legitimate internal interests
of the Union ...."
By fining Wilson , Respondents did so because he chose
to act as a management representative, which he was.
D. The Violations of Section 8(bK2) and 8(b%1)(A) of
the Act
As had been set forth above , the United Brotherhood
finalized the fine against Wilson also because Wilson had
hired nonunion employees . I have already dismissed as
untruthful Bloomfield ' s testimony that in fact he was fined
for failing to use the Council ' s so-called nondiscriminatory
hiring hall . The documentary evidence establishes that
Wilson was fined for hiring nonunion employees.
Bloomfield admitted that the charge would be improper if
it had alleged that Wilson failed to use a
nondiscriminatory hiring hall.
Respondents ' imposition of this fine upon
Superintendent Wilson for hiring nonunion employees was
an obvious attempt to cause him , as the Company's
representative , to violate the Act and discriminate against
nonunion applicants for employment . It is manifest that
by preferring the charges against and fining Wilson,
Respondents attempted to cause the Company to
discriminate against employees in violation of Section
8(a)(3) of the Act and Respondents violated Section
8(b)(2) and 8 (b)(1)(A) of the Act.
E. The Allegations of the Complaint are not Barred
by Section 10(b) of the Act.
The Charges against Wilson , the hearing before the
Trial Committee and the assessment of the fine by the
Council all occurred more than 6 months before the filing
of the original charge herein . However the General
Executive Board did not decide the appeal and sustain the
Council ' s actions until April 16, 1968, a date well within
the 6 months period prior to the filing of the original
charge.
799
Section 57 , paragraph A, of the Constitution
specifically provides that "The penalty imposed by a
Local Union or District Council shall not be effective
while an appeal to the General Executive Board is pending
. " Until April 16, 1968 , Wilson ' s appeal was pending
and the imposition of the fine was not effective . It became
effective only on April 16, 1968.
Section 57 , paragraph B, of the Constitution provides
that when a fine is imposed by a Council and an appeal is
taken , said fine shall be held by the body assessing same
"until said appeal is finally and completely decided."
Although Respondents ' efforts to restrain and coerce
the Company in its choice of representatives and to cause
and attempt to cause the Company to discriminate against
nonunion employees began before the 10(b) period they
became efficacious within the 10(b) period when the
General Executive Board sustained the Council and
dismissed Wilson ' s appeal . Chauffeurs, Teamsters and
Helpers "General" Local No. 200, (State Sand and
Gravel Company), 155 NLRB 273,274. Respondents'
violations were not finalized until April 16, 1968 , when the
United Brotherhood handed down its decision.
I find that Wilson's payment of $50 was in the nature
of an appeal bond rather than a partial payment of his
fine . Respondents ' Constitution , Section 57 , paragraph C
provides in part that "No appeal can be entertained by
the General Executive Board where any sum of money in
excess of fifty dollars ($50) is involved unless the appellant
has first paid to the Local Union or District Council fifty
dollars ($50) on account , to be held until the appeal is
decided by the General Executive Board ....." Prior to
April 16, 1968 , Wilson ' s fine was uncollectible and
unenforceable . Wilson ' s payment of the $50 was merely a
part of the appeal procedure . It was not until the appeal
was decided that the Council obtained any apparent
control of the $50.
Respondents' violations are not barred by Section 10(b)
of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondents , set forth in section, III,
above, occurring in connection with the operations of the
Company , described in section I, above, have a close,
intimate , and substantial , relation to trade , traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
Having found that Respondents have engaged in unfair
labor practices, I shall recommend that they jointly and
severally cease and desist therefrom and take certain
affirmative action designed to effectuate the policies of the
Act.
Upon the basis of the foregoing findings of fact and
upon the entire record in the case , I make the following:
CONCLUSIONS OF LAW
1. The Company is an employer engaged in commerce
within the meaning of the Act.
2. Respondents are labor organizations within the
meaning of the Act.
800 DECISIONS OF NATIONAL
3. By preferring charges and assessing a fine against
Wilson, a management representative of the Company
because of conduct engaged in as a supervisor,
Respondents restrained and coerced the Company in the
selection and retention of its representatives for collective
bargaining and adjusting of grievances, and engaged in
and are engaging in unfair labor practices within the
meaning of Section 8(bXI)(B) of the Act.
4. By preferring charges and assessing a fine against
Wilson, a management representative of the Company, for
hiring nonunion employees, Respondents caused or
attempted to cause the Company to discriminate against
employees within the meaning of Section 8(aX3) of the
Act and have engaged in and are engaging in unfair labor
practices within the meaning of Section 8(b)(2) and
8(bxl)(A) of the Act.
5. The allegations of the complaint are not barred by
Section 10(b) of the Act.
6. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of the
Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
conclusions of law, I recommend the Respondents, jointly
and severally, their officers, agents, and representatives,
shall:
1. Cease and desist from restraining and coercing the
Company in the selection and retention of its
representatives for collective bargaining and adjustment of
grievances and from causing or attempting to cause the
Company to discriminate against employees within the
meaning of Section 8(a)(3) of the Act.
2. Take the following affirmative action which I find
will effectuate the policies of the Act:
(a) Repay to Wilson the $50 which he posted as an
appeal bond.
(b) Rescind the fine imposed upon Wilson and excise its
imposition from Respondents' records and all reference
thereto and expunge from their records all reference to the
proceedings in which Wilson was fined.
(c) Advise Wilson in writing of the action taken by
them as required in (b) above.
(d) Post at their business offices and meeting halls
copies of the attached notice marked "Appendix."' Copies
of the notice on forms to be provided by the Regional
Director for Region 28, shall be duly signed and posted by
Respondents immediately upon receipt, and shall be
maintained, in conspicuous places, including all places
where notices to members are customarily posted for 60
consecutive days. Reasonable steps shall be taken to
insure that the notices are not altered, defaced, or covered
by any other material.
(e) Mail or deliver to said Regional Director signed
copies of said notices for posting by the Company, if
willing.
(f) Notify said Regional Director, in writing, within 20
days from the receipt of this Decision, what steps have
been taken to comply herewith.'
LABOR RELATIONS BOARD
'In the event that this Recommended Order is adopted by the Board, the
words "a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner" in the notice. In the further
event that the Board 's Order is enforced by a decree of a United States
Court of Appeals, the words "a Decree of the United States Court of
Appeals, Enforcing an Order" shall be substituted for the words "a
Decision and Order."
'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 28, in writing , within 10 days from the date of this Order, what
steps it has taken to comply herewith."
APPENDIX
Pursuant to the Recommended Order of a Trial
Examiner 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:
WE WILL NOT restrain and coerce A. S. Horner, Inc.,
the Company, in the selection and retention of its
representatives, including Galen R. Wilson, for
purposes of collective bargaining and adjustment of
grievances.
WE WILL NOT cause or attempt to cause the
Company to refuse to hire nonunion employees in
violation of Section 8(aX3) of the National Labor
Relations Act.
WE WILL repay Wilson the $50 he posted with the
New Mexico District Council as an appeal bond in
processing his appeal from the fine unlawfully imposed
upon him.
WE WILL rescind the $250 fine imposed upon Wilson
and excise or blot out all reference to its imposition
from our records and expunge from our records all
reference in our files to the proceedings in which
Wilson was fined.
WE WILL advise Wilson in writing of the action
taken by us as required herein.
Dated By
Dated By
NEW MEXICO DISTRICT
COUNCIL OF CARPENTERS
AND JOINERS OF AMERICA
(Labor Organization)
(Representative ) (Title)
UNITED BROTHERHOOD
OF CARPENTERS AND
JOINERS OF AMERICA
(Labor Organization)
(Representative) (Title)
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.
If members have any question concerning this notice or
compliance with its provisions, they may communicate
directly with the Board's Regional Office, 500 Gold
Avenue, Room 7011, P.O. Box 2146, Albuquerque, New
Mexico 87103, Telephone 843-2555, Ext. 2556.