New Mexico District Council of Carpenters of America

National Labor Relations Board - Board Decisions

Jun 30, 1969

177 N.L.R.B. 500 (N.L.R.B. 1969)

500 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
New Mexico District Council of Carpenters and
Jointers of America (A. S. Horner, Inc.) and
Marvin Freese, Case 28-CB-486
June 30, 1969
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
BROWN AND ZAGORIA
Upon a charge' duly filed by Marvin Freese
(herein called Freese), an individual , against New
Mexico District Council of Carpenters and Joiners
of America (herein called Respondent), the General
Counsel of the National Labor Relations Board, on
February 25, 1969, issued and served upon the
parties a complaint alleging violations of the
National Labor Relations Act, as amended. In
substance, the complaint alleges that the
Respondent , by imposing a fine against Freese, a
supervisor employed by A. S. Horner, Inc., has
restrained and coerced and is restraining and
coercing A. S. Horner , Inc., an employer, in the
selection of its representatives for the purposes of
collective bargaining and the adjudication of
grievances in violation of Section 8(b)(1)(B) of the
Act. The Respondent 's answer denies the
commission of unfair labor practices.
Thereafter, the parties entered into a stipulation
with respect to the facts and, on April 22, 1969,
filed a motion to transfer this proceeding to the
Board . Thus, the parties expressly waived all
intermediate proceedings before a Trial Examiner
and oral argument before the Board, reserving only
the right to file briefs . By Order dated April 28,
1969, the Board granted the parties ' motion to
transfer this proceeding to the Board and set a date
for the filing of briefs . Thereafter , briefs were filed
by the Respondent and the General Counsel.
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 considered the stipulated record,
including the formal Board exhibits , the Statement
of Facts with the exhibits attached thereto, and the
aforementioned briefs of the Respondent and the
General Counsel , and makes the following findings
and conclusions:
times has maintained its principal office and place
of business in 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 has derived revenue in
excess of $350,000, of which more than $50,000 was
derived from a contract with the State of New
Mexico for the construction of a portion of
Interstate Highway 40 which is a part of the
National Interstate Highway program; revenue in
excess of $50,000 was derived from a contract with
the Albuquerque, New Mexico Metropolitan Flood
Control Authority, a subdivision of the state of
New Mexico, which State annually purchases and
receives goods and materials directly from outside
the State of a value in excess of $50,000. During the
same period, the Company purchased, transferred,
and had delivered to its operations in the State of
New Mexico goods and materials valued in excess
of $50,000 which were transported and received
from other enterprises located in the State of New
Mexico, which other enterprises had received these
goods and materials directly from sources outside
the State of New Mexico. The parties stipulated,
and we find, that at all times material the Company
has been an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act. We
further find that the Company meets the Board's
standards for assertion of jurisdiction over
employers in the construction industry.
IL THE LABOR ORGANIZATION
It is conceded , and we find , that the Respondent
is, and has been at all material times, a labor
organization within the meaning of Section 2(5) of
the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Issue
The broad question presented is: whether the
Respondent violated Section 8(b)(1)(B) of the Act
by fining Freese, a supervisor of the Company, for
failing to obtain the required clearance and referral
under the Respondent's constitution and bylaws, for
working for an employer who does not contribute to
the Respondent's health and welfare fund, and for
failing to cease work when requestgd to do so by an
authorized agent of the Respondent.
Facts
1. THE COMPANY' S BUSINESS
A. S. Horner , Inc. (herein called the Company or
Horner), A New Mexico corporation, at all material
'The original charge herein was filed on January 3, 1%9, and was served
upon the Respondent on about the same day.
B. The Facts
At all times material herein, Freese occupied the
position of superintendent for the Company at the
latter's Albuquerque, New Mexico, Flood Control
Authority job-project at Miles Road, S.E. (herein
called the Miles Road job). In that capacity Freese
was, and is, a supervisor within the meaning of
Section 2(11) of the Act, having the authority, in the
177 NLRB No. 76
NEW MEXICO DISTRICT COUNCIL OF CARPENTERS
interest of the Company, to hire, transfer, suspend,
lay off, recall, promote, discharge , assign , reward,
or discipline other employees, or responsibly to
direct them, or to adjust their grievances, or
effectively to recommend such action , by the use of
independent judgment. Specifically, he has at all
relevant times been authorized in behalf of the
Company to adjust employee grievances.
As of November 23, 1968,' and for approximately
12 years prior thereto, Freese was a member in
good standing of the United Brotherhood of
Carpenters and Joiners of America, AFL-CIO; and
for approximately 2 years prior to that date was a
member in good standing of its affiliate, Local
Union No. 1351, in Leadville, Colorado. Although
Freese had not worked with his tools for about 5 to
6 years prior to the events herein , he continued to
maintain his union membership as indicated above.
The Respondent is not the collective-bargaining
representative of the Company's employees and no
contractual relationships or obligations exist
between the Company and the Respondent or any of
its related local unions . In fact, a majority of the
Company's employees voted against being
represented by the Respondent in Board-conducted
elections held on June 5, 1967, and July 26, 1968,
the results of which were certified on June 13, 1967,
and September 6, 1968, respectively.
On October 2, 1968, Respondent' s business
representative, Edward L. Urioste, came to the
Miles Road jobsite and asked Freese where he was
from and where he maintained his union book.
Freese replied that he was from Colorado and
maintained his book at Leadville, Colorado, Local
Union No. 1351. Urioste thereupon advised Freese
to cease his employment with the Company and to
report to the office of Local Union No. 1319, a
constituent local of the Respondent , and to "sign
up" on that local union 's out-of-work list. Urioste
also stated that he would be at the Local's office
until 1 p.m. that day to accept Freese's registration
on the out-of-work list. Freese told Urioste that he
would not terminate his employment with the
Company and that he did not intend to comply with
the latter's request to leave the Miles road jobsite.'
Thereafter, on October 8, Urioste preferred
charges against Freese alleging violations of Section
46, paragraphs A, B, and C of the Constitution and
Laws4 of the United Brotherhood of Carpenters and
Joiners of America, the Respondent' s parent
organization , and Article I, paragraphs D and K of
Respondent's Bylaws and Working Rules.' In sum,
these violations consisted of working without a
referral card for an employer not making payments
'Unless otherwise indicated , all dates are in 1968.
Similar demands to cease working for the Company were made by
Urioste that day to carpenter foreman Paul Geer and two rank-and-file
employees These three complied with Urioste's demand and they have not
yet returned to the Company's employ . No charges were filed , and the
complaint does not allege unfair labor practices with respect to these three
employees.
501
into the Respondent's health and welfare fund. By
letter of October 29, the Respondent advised Freese
of the foregoing charges against him and notified
him that a hearing of Respondent's Trial Committee
would be held on November 23. Freese attended the
hearing at which he protested that he was in a
supervisory position. Nevertheless, the Trial
Committee unanimously found Freese guilty of the
violations charged and assessed fines against him
totalling $350. By letter dated December 17, the
Respondent informed Freese of the Trial
Committee's action, and further advised that, on
December 14, the Respondent's delegates voted to
ratify the Trial Committee's action. Freese did not
pay the fines and did not comply with the Union's
provisions which he was found guilty of violating.
As a result of the Respondent's action, Local Union
1351 in Leadville, Colorado, has refused to accept
periodic dues tendered by Freese unless and until he
pays the fines assessed against him by the
Respondent.
Discussion
Based on the facts stipulated by the parties and
summarized above, we find, in agreement with
contention of the General Counsel, that the
Respondent restrained and coerced the Company in
the selection and retention of its representative for
the purposes of collective bargaining and the
adjustment of grievances in violation of Section
8(b)(1)(B) of the Act." The Respondent preferred
charges, imposed fines, and attempted to collect
such fines, against Freese because he refused, in his
capacity as project superintendent, to obtain the
required clearance card and work permit and
because he refused to accede to Respondent's
demands that he cease working for an employer not
making contributions to Respondent's health and
'In pertinent part , these provisions require that a member who desires to
transfer from the jurisdiction of his Local Union or District Council to
work in another jurisdiction must obtain a "clearance card" from his
Local Union which he must, in turn , present to the Local Union or
District Council in whose jurisdiction he seeks to work . Before going to
work in such other jurisdiction, a member must secure a working permit
from the Local Union or District Council in the jurisdiction where work is
secured.
'Article I of Respondent 's Bylaws and Working Rules, in pertinent part,
states;
D All members shall obtain a referral from the appropriate referral
hall before going to work on any job . No workman may issue a referral
to any Employer who is not paying the proper wage scale for the type of
work he is doing . Neither shall he be issued a referral if it is an
Employer who is not contributing to the Fringe Benefits negotiated by
the District Council whenever possible to legally require the Employer to
do so . Members violating this regulation shall be subject to charges and
trial This section may be waived for organizational purposes ....
K. Every member shall cease work when ordered to do so by an
authorized official of the District Council or Local Union . Members
violating this regulation are subject to charges and a trial.
'San Francisco-Oakland Mailers' Union No. 18, International
Typographical Union, 172 NLRB No. 252 ; Toledo Locals Nos. 15-P and
272 of the Lithographers and Photoengravers International Union,
AFL-CIO ( The Toledo Blade Company, Inc), 175 NLRB No. 173; New
Mexico District Council of Carpenters and Joiners of America (A. S
Horner, Inc), 176 NLRB No 105
502 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
welfare fund. The Company, it is noted, was not
obligated to secure personnel through the
Respondent's hiring hall or to contribute to its
health and welfare fund. Moreover, it is obvious
from a reading of the Respondent's bylaws and
working rules, supra, that Freese could not have
obtained a clearance or working permit to work for
the Company even if he had applied for one except
under a waiver by the Respondent for organizational
purposes, i.e., to assist the Respondent in organizing
the Company's carpenter employees, in which event
his loyalty would have been diverted from the
Company to the Respondent. Thus, it appears that
the Respondent was using its internal working rules
to boycott an employer who did not have a contract
with the Respondent by making it a violation,
subject to fine, for its members to work for such an
employer.' It is clear , therefore, that compliance by
Freese with the Respondent's demands would have
had the effect of depriving the Company of the
services of its selected representative for the
purposes of collective bargaining or the adjustment
of grievances. As we stated in the San
Francisco-Oakland Mailers' case, supra, "In
enacting Section 8(b)(1)(B) Congress sought to
prevent the very evil involved herein - union
interference with an employer's control over its own
representatives."
The Respondent, relying on N. L. R. B. v.
Allis-Chalmers Manufacturing Co., 388 U.S. 175,
contends that its conduct in disciplining Freese for
violations of its internal union rules and regulations
was within its legitimate internal interests as a labor
organization, as permitted by the proviso to Section
8(b)(1)(A) of the Act. We find no merit in this
contention. The Supreme Court's rationale in
Allis-Chalmers does not permit a labor
organization to interfere with an employer's right,
under Section 8(b)(1)(B), to select its representatives
for the purposes of collective bargaining or the
adjustment of grievances. Thus, in San
Francisco-Oakland Mailers', we distinguished the
Allis-Chalmers case and held that the proviso to
Section 8(b)(1) (A) is limited to that section only
and is not a part of Section 8(b)(1) (B).
We also find no merit in the Respondent's
contention that, because here the individual was
disciplined for his conduct as a union member and
'That this was, in fact , the case appears from our decision in A. S
Horner, Inc., 176 NLRB No 105 . In addition , the transcript of Freese's
hearing before the Respondent' s Trial Committee , which was incorporated
into the stipulation of facts as an exhibit , reports the following discussion:
Bro. Blacksher (member of the Committee ]: Did you have a carpenter
foreman
Bro. Freese: Yes.
Chairman - Union or non -union?
Freese : Union members on job were pulled off by Business Agent,
Eddie Urioste.
Bro. Blacksher : Why were the men pulled oft?
Eddie : They were working for a company that was not contributing to
Health and Welfare . We had an election , and we had men working
trying to organize . We lost the election , and it was my duty to pull those
men off
not for his conduct while directly engaged in
representing the Company's interests in resolving a
particular dispute between the union and the
employer, this case is distinguishable, on its facts,
from the San Francisco-Oakland Mailers' case. This
distinction, in our opinion, is without substance,
since Freese possessed the actual authority to adjust
grievances involving employees under his
supervision. It is also clear, moreover, that the basic
dispute underlying the disciplinary action against
Freese was not entirely an intraunion matter but
stemmed from the fact that the Company did not
have a collective-bargaining agreement with the
Respondent and was not making payments into the
Respondent's health and welfare fund. Thus, as in
San Francisco-Oakland Mailers' and in The Toledo
Blade Company cases, supra, the underlying dispute
was between the Respondent and the Company and
not between the Respondent and one of its
members.
Accordingly, we conclude that the Respondent's
actions against Freese constituted unlawful restraint
and coercion against the Company in violation of
Section 8(b)(1)(B) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent 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 the Respondent has engaged in
unfair labor practices , we shall order that it 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 , we make the
following:
CONCLUSIONS OF LAW
1. Respondent is, and has been at all times
material, a labor organization within the meaning of
Section 2(5) and Section 8(b) of the Act.
2. The Company is an employer within the
meaning of Sections 2(2) and 8(b)(1)(B) of the Act.
3. The Company is engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
4. Marvin Freese, the Charging Party, is, and has
been at all material times, a supervisor, within the
meaning of Section 2(11) of the Act, of the
Company, selected by the Company for the
purposes, among others, of collective bargaining and
NEW MEXICO DISTRICT COUNCIL OF CARPENTERS
the adjustment of grievances within the meaning of
Section 8(b)(1)(B) of the Act.
5. By preferring charges against Freese , citing him
to trial , imposing fines against him, and attempting
to collect such fines from him, the Respondent
restrained and coerced the Company in the selection
and retention of its representatives for the purposes
of collective bargaining or the adjustment of
grievances , and thereby has engaged in, and is
engaging in, unfair labor practices within the
meaning of Section 8(b)(1)(B) of the Act.
6. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
New Mexico District Council of Carpenters and
Joiners of America, its officers , agents, and
representatives, shall:
1. Cease and desist from:
(a) Restraining and coercing the Company, or any
other employer, in the selection and retention of its
representatives for collective bargaining and
adjustment of grievances.
(b) Preferring charges against , fining , or similarly
disciplining Marvin Freese or any other supervisor
of A.S. Horner, Inc., or any other employer, as a
member of the Respondent, as to matters
concerning their employment , while such member is
the selected representative of A. S. Horner , Inc., or
any other employer, for the purposes of collective
bargaining or the adjustment of grievances.
2. Take the following affirmative action which we
find will effectuate the policies of the Act:
(a) Rescind the fines imposed against Freese and
expunge from its records all reference and other
evidence in its files of the proceedings in which
Freese was fined by the Respondent.
(b) Advise Freese in writing that it has taken the
aforesaid action in compliance with paragraph 2(a),
above, and that it will cease and desist from the
action forbidden in paragraph 1 of this Order.
(c) Advise Local Union No. 1351, United
Brotherhood of Carpenters and Joiners of America,
Leadville, Colorado, wherein Freese maintains his
membership , of the aforesaid action.
(d) Post at its business office, meeting hall, and
all other places where notices to members are
customarily posted, a copy of the attached notice
marked "Appendix."' Copies of said notice, to be
provided by the Regional Director for Region 28,
shall, after being duly signed by a representative of
the Respondent , be posted by the Respondent
immediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter, in
503
conspicuous places, including all places where
notices to members are customarily posted.
Reasonable steps shall be taken by the Respondent
to insure that the notices are not altered, defaced, or
covered by any other material.
(e) Furnish the Regional Director for Region 28
signed copies of said notice for posting by A. S.
Horner, Inc., if willing.
(f) Notify the Regional Director for Region 28, in
writing, within 10 days from the date of the receipt
of this Decision and Order, what steps have been
taken to comply herewith.
'In the event that this 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."
APPENDIX
NOTICE TO ALL MEMBERS OF NEW ' MEXICO DISTRICT
COUNCIL OF CARPENTERS AND JOINERS OF AMERICA
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:
WE WILL NOT restrain and coerce A. S. Horner, Inc.,
or any other employer, in the selection and retention of
its representatives , including Marvin Freese, for
purposes of collective bargaining and adjustment of
grievances.
WE WILL NOT prefer charges against, fine or similary
discipline Marvin Freese or any other supervisor of A.
S. Horner, Inc., or any other employer , as a member of
this labor organization , as to matters concerning their
employment while such member is the selected
representative of the Company, or any other employer,
as its representative for the purposes of collective
bar aining or the adjustment of grievances.
WE WILL rescind the fines imposed against Freese
and expunge from our records all reference and
other evidence in our files of the proceedings in which
Freese was fined by us.
WE WILL advise Marvin Freese and Local Union
1351, United Brotherhood of Carpenters and Joiners of
America, Leadville, Colorado, in writing, that we have
taken the aforesaid action.
Dated By
NEW MEXICO DISTRICT
COUNCIL 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 , 7011 Federal
Building & U.S. Courthouse , 500 Gold Ave., SW,, P.O.
Box 2146, Albuquerque , New Mexico 87101, Telephone
505-843-2508.