Sacremento District Council of Carpenters

National Labor Relations Board - Board DecisionsMar 3, 1981

254 N.L.R.B. 1037 (N.L.R.B. 1981)

Sncmnento District Council A& C'IO Gary Denny, ProprI- a:orship, d/b/a Gary Denny 2 0-CB-5005 On October Georgi: PI-weeding. e;cceptions Charging refcrred lbard arid and lqc) belovf, AFL-CICI, rdcom- Deletc: 2(a) (b) ' On the r e a ~ r d ua coc~clusion discharges r,onmembership status. use 8(fJ agree- eff~rt , aftirmed. howevc r, B(fJ agreement as ht:re. necessarily vi~)late Sec. 8@)(2) Inasmuch thm: Law Responclent See. 8(b)(2) its gricv- ance ta~ compliance wilh Watinghouse EIurC Compnny, er 01.. 1 Cour~cil B(bX2) thr4,ugh t h ~ : 1977-1980 prehire dcting 2(a) and (b), Respon- actions liti- 1ted. NATIONAL WILL NOT permits WILL NO. SACRAMENTO DISTRICT COUNCIL OF CARPENTERS of Carpenters, and L. an Individual Construction. Case March 3, 1981 DECISION AND ORDER 15, 1980, Administrative Law Judge Christensen issued the attached Decision in this Thereafter, Respondent Union filed and a supporting brief, and the Party filed a brief wherein by oversight it is to as "Respondent." The has considered the record and the at- tached Decision in light of the exceptions and briefs has decided to affirm the rulings, find- ings, conclusions1 of the Administrative Law Judge and to adopt his recommended Order, as modified herein. ORDER Pursuant to Section of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge, as modi- fied and hereby orders that the Respondent, Sacramento Area District Council of Carpenters, its officers, agents, and representatives, shall take the action set forth in the said mended Order, as so modified: 1. paragraphs and and reletter the subsequent paragraphs accordingly. 2. Substitute the attached notice for that of the Administrative Law Judge. before there is no support for the Administrative Law Judge's that Respondent sought the based on the employees' However, the Administrative Law Judge's conclusion that Respondent's threats were directed at requiring the Employer to the hiring hall. after it had repudiated the ment to that is supported by the record and is hereby We note, that if the containing a hiring hall pro- vision. such had not been repudiated by the Employer. Respon- dent's attempt to secure compliance with the hiring hall provision would not of the Act. as matter was neither alleged nor fully litigated, we do not adopt the Administrative Law Judge's findings and Conclusions of that violated of the Act by using procedure secure the hiring hall provisions. Supply 232 NLRB 392. fn. (1977). Therefore, par. 3 c f the Administrative Law Judge's Conclusions of Law is amended to read 3. The violated Section of the Act by its October 1979 demand that Denny discharge his three employees and hire re- placements the hiring hall and by threatening to shut down the job if Denr y failed to comply with that demand or comply with the terms of agreement. We modify the Administrative Law Judge's recommended Order by pars. to conform with our conclusion that mt's with respect to the filing of a grievance were not fully 54 NLRB 132 APPENDIX NOTICE TO MEMBERS POSTED BY ORDER OF THE ABOR RELATIONS BOARD An Agency of the United States Government After a hearing in which we participated, the Na- tional Labor Relations Board decided we violated the National Labor Relations Act, as amended, by demanding the discharge of several nonunion em- ployees of Gary L. Denny, d/b/a Gary Denny Construction, and ordered us to post this notice ad- vising you: WE demand that Denny dis- charge and replace his employees with mem- bers of our affiliated local unions, except to the extent a lawful and enforceable contract between Denny and our organization such action. WE WILL NOT threaten to shut down any job performed by Denny for his refusal or fail- ure to comply with the demand set out above, except to the extent a lawful and enforceable contract between Denny and our organization permits such action. WE NOT in any like or related manner cause or attempt to cause Denny to discrimi- nate against his employees because of their not having been obtained through the Council's hiring hall, or to cause or attempt to cause Denny to comply with any contract terms, except to the extent a lawful and enforceable contract between Denny and our organization permits such action. WE WILL advise Denny, in writing, that the Council withdraws its demand for the dis- charge of his employees Jerry Bahn, Jim Salay, and Bill Spurlock, and that the Council has no objection to Denny's employment of Bahn, Salay, and Spurlock, or any other person on his jobs, except to the extent their hire or continued employment is affected by a lawful and enforceable contract between Denny and the Council. SACRAMENTO DISTRICT COUNCIL OF CARPENTERS, AFL-CIO DECISION GEORGE CHRISTENSEN,Administrative Law Judge: On August 14, 1980, I conducted a hearing at Sacramen- to, California, to try issues raised by a complaint issued on March 14, 1980, based on charges filed by Gary L. Denny, an individual proprietorship, d/b/a Gary Denny cctmplaint C:~rpenters, AFL-CIO,a 8(b)(2) N,itional employe& mc:mbers mide Dt:nny th~ee; thereby cross- exrunine filtd :Based en! JURISDlCTlON '.The ; ~ l l commerce Colncil 11. UNFAIR years busi- nmi thern ,which Denny builtling 8(f) single- Stetler,3 e x p r d car- pent~:r.~ only conducted Stetl1:r -- H1:reafter * H l ~ a f t e r a Stt:tler * St,?tler rho01 echooling carpen let. afiliate. 1, time.s con- 1980), vk-o-vk i.e., Keenan Spurlock, afiliate. 1978; perma- ' Salay, 1038 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Construction1 on January 24 and March 14, 1980. The alleged the Sacramento District Council of violated Section of the Labor Relations Act, as amended (hereafter called the Act), by attempting to cause Denny to dis- charge three of his because they were not of one of its affiliates. The Council denied it such an attempt, denied it made such an attempt because of the nonmembership of the three, and denied it committed any violation of the Act. The issues are whether the Council attempted to cause to discharge the if so,whether it did so be- cause they were nonmembers; and, if so, whether it violated the Act. 'The parties appeared by counsel and were afforded full opportunity to adduce evidence, examine and witnesses, argue, and file briefs. A brief was by the General Counsel. upon my review of the entire record, observa- tion of the witnesses, perusal of the brief and research, I er the following: I. AND LABOR ORGANIZATION complaint alleged, the answer admitted, and I find at material times Denny was an employer engaged in in a business affecting commerce and the was a labor organization within the meaning of Section 2 of the Act. THE ALLEGED LABOR PRACTICE A. Facts For a number of Denny has engaged in the of building and selling residential homes and remod- eling homes in northern California. He has conducted small-scale operations, normally building a single home, selling it, building another, selling it, etc., doing a sub- stantial amount of the work himself, and hiring employ- ees as needed to complete each job then terminating as their services were no longer required on the job for they were hired. On the basis of the foregoing, I find at all material times was an employer engaged primarily in the and construction industry within the meaning of Sect ion of the Act. In October 1976 Denny, assisted by two employees who possessed carpentry skills, was building a family residence. One of the employees, Dale an interest in enrolling in an apprenticeship program which would qualify him as a journeyman Denny made inquiries and was informed that the formal apprenticeship program available was one under the auspices of the Council. He and visited the Council's offices on October 22, 1976, called Denny. called the Council. was is nephew. began working for Denny immediately after completing high and had not received any to qualify as a journeyman and were informed by its business representative, Warren Stevens, that Denny would have to execute a contract with the Council wherein he agreed, inter olio, to pay certain sums into an apprenticeship fund which support- ed the apprenticeship program, and Stetler would have to join a Council Stevens presented Denny with a document wherein he agreed to be bound by the terms of a master contract between four employer associations and the Carpenters' Councils and local unions within 46 northern California counties, covering carpenters repre- sented by those Councils and locals employed by mem- bers of the four associations for a term extending from June 1974 through June 1977, and any renewals thereof. Following Denny's execution of the document, Stetler joined Carpenters' Local 1381, a Council affiliate, and thereafter maintained membership in Local 138 and continued to work for Denny from time to Stetler enrolled in the apprenticeship program conducted under the auspices of the Council and attended classes through April 1979. For the period October 1976 through April 1979 Denny madd payments on Stetler's behalf into various funds, as required under the terms of the master tracte (and a subsequent extension and modification thereof for a period extending from June 1977 through June and paid Stetler the contract wage scale. At no time during the entire period of October 1976 through April 1979, however, did Denny pay the appro- priate wage scale, make payments into the various funds, or enforce the union-security provisions of the contracts Martin George, who was working for Denny at the time he executed the document proffered by Stevens. George continued to work for Denny intermittently thereafter through July 1979 and other employees were hired for various jobs by Denny between October 1976 and October 1979; Pierce, Martin Prado, Steven Gonzales, James Zieroff, Jerry Bahn, Jim Salay, and Bill all of whom performed carpentry work on the job. None of these men were procured from the Council's hiring hall. None joined a Council Denny never paid them the contract wage scale nor made payments into the various funds enumerated in the contract on their behalf and never required they join and maintain membership in a Council affiliate as a condition of employment. On the basis of the foregoing, I find the Council did not achieve majority representative status among Denny's carpenter employees at any time between Octo- ber 1976 and October 1979. In October 1979, Denny employed three carpenters7 in the construction of a duplex at Woodland, California. None of the three were members of a Council affiliate. Two representatives of the Council8 came to the site and Stetler worked for Denny in October and early November 1976; Sep- tember through December 1977; May through December March and April 1979. During the latter month Stetler secured regular, nent employment and quit Denny's employ. Apprenticeship, health and welfare, pension, vacation, and holiday. Bahn, and Spurlock. The parties stipulated the two, identified only as "Randy" and "Babe," were agents of the Council acting on its behalf during the ensu- ing conversations with Denny. I non~mion. only hi!; Counc:il's 2nd reixesentatives jobsite. Bahn, Salay, union-securii:y thereaE:er arbitriltor tiie ~ h i c h ;md sexlk terms. ocal i.e., nonmembership ex- mion) ~embership i l eaning 8(9 autho- ces sges, lployees :reby, 8(a) @) b Howeve\-. cbmployer The th s "Randy" ~estified. renden unenforceable.iO 8(9 term workera 1977-80 union-securi- first 8(a)(3) 8@)(2) ' O N. h l Na 103. Inhrnorional Auociation Bridre. Stnrctuml Ornamrntal Imnnvrkm [Higdon ~&tmct~Gg Company. Inc.], U.S. (1978), affg. Ca, Inc.. Cenrml Labor- 301. ( h u l Iacona Structuml Enginerr. 1nc.J. Lke Cee Cowring, Inc. itr Suneuor Dogin-Akmb Coverins Inc.. 1 Run- man and Rurrmann Co~)WWion, ' ' Opemting L m l 478, & D. filiofed with O e g l i o & G c n c ~ n i Ca . 1nc.J. 1177 (1967); Teamsten Na 676 afllbted the Bmrherhd Teamsters Chouffmrs Wornhowemen Helprs (Tellepsen Perru-Chemicol 948 & Consrnrcrion Tmdrs (Rhodes Compny), (1968): Cen-Vi-Ro R p CorpomIion. United Bmfherhmd Corpenrcrs L m l (N. C. Monm Ca) . I81 N.LR.B. Interna- rional Amiotion S~frvcruml Ornomenral Reinfmcd Imn Riggen & Mochinery Mown: h l 377. Bettencourt], F.2d 1175 189 4a bternationol Bmtherhd Iron Blacksmith% Forgen et a!. Co.), In- Adar ion , Na (Hampden Met01 Loboren' Inlernarionol AFL-C/O, Loeal Inc.] N.LR.B.. F.2d 1337 1039 SACRAMENTO DISTRICT COUNCIL OF CARPENTERS asked if it was a union job. Denny replied it was not, he was The two left, but reappeared a few days later. One of them asserted they "had" Denny because he had signed a contract with the Council. Denny re- plied he signed a contract with the Council in 1976 to get apprentice started in school and was never a union contractor. One of the Council representatives stated he would have to go union now or the Council would shut down the job. Denny asked what they wanted him to do. One of the Council representatives re- plied Denny would have to hire all his carpenters out of the hiring hall. Denny asked what about the three men he had on the job. The Council representative shrugged stated Denny would have to remove them from the ,ob and secure replacements from the hiring hall. Denny refused to do that and ordered the two Council to leave the He did not lay off and Spurlock, nor seek any carpen- ter referrals from the Council's hiring Denny sibsequently was cited by Stevens to appear at the Council's offices to answer a Council grievance com- plaining he had violated the master contract by failing to secure carpenters from the Council's hiring hall, pay contract scales and benefits, and enforce the contract's provisions. Denny did not respond. Not long he received a copy of a letter addressed to an referring the grievance to arbitration. Denny respanded with a letter addressed to the arbitra- tor stating document Denny signed was a prehire agreement was not enforceable in view of the Council's failure ever to achieve majority representative status among the unit of Denny's employees specified in the contract it was unlawful under the Act for the Council to compliance with its B. Analysis and Conclusions Findings have been entered above that the Council, by its agents, threatened to shut down the job unless Denny discharged his three employees performing carpentry work and secured their replacements from the Council's hiring hall. It is clear the council representatives sought the discharges because the three were not members of a union affiliated with the Council, because of heir in a local union affiliate. Since the 1974-77 master contract (and its 1977-80 contains a union-security provision requiring any mployee hired to perform carpentry work to acquire in Council affiliate 8 days after hire, it is ear those contracts were prehire agreements within the of Section of the Act. That section employer-union execution of contracts covering the rates of pay, hours, and working conditions of of employers in the building and construction lustry prior to the hire of any employees covered without running afoul of Section and of Act. in 1978 the Supreme Court affirmed a nciple, adopted and followed by the Board both prior subsequent to 1978, that such contracts are voidable the signatory prior to the signatory union's findings in paragraph are baud upon Denny's undisputed nony, which I credit. Neither nor "Babe" achievement of majority representative status within the unit covered by the contract on each job undertaken by the employer, and employer repudiation of the contract prior to such achievement it Findings have been entered above that Denny, at all pertinent times, was an employer engaged in the building and construction industry within the meaning of Section of the Act; that he became party to a prehire con- tract with the Council in 1976 for a expiring in June 1977 and automatically renewed for a term extend- ing through June 1980; and that the Council did not achieve majority representative status within the unit covered by the contracts at any time between the date Denny became party thereto (October 1976) and Octo- ber 1979. Denny, therefore, in 1979 was subject to a contract with the Council voidable at his option and unenforcea- ble if repudiated by him. I find by Denny's statements to the two Council representatives that he was a nonunion contractor; that he only signed a document agreeing to comply with the 197677 master agreement and the 1977-80 extension thereof (and complied with the terms of the two agreements vis-a-vis Stetler) only to secure Stetler's enrollment in the apprenticeship program; that he neither intended to nor did comply with the terms of such agreements, because he was nonunion; and that he would not comply with the Council representatives' demand he replace his nonunion with members of its affiliates, all constituted repudiations of the prehire agreement and rendered it unenforceable. In the absence of an enforceable agreement between an employer and a union containing a valid ty provision, hiring hall provision, etc., within the mean- ing of the proviso of Section of the Act, a union violates Section of the Act by attempting to cause, or causing, an employer to discriminate (dis- charge) his employees because of their nonmembership in the union. L R.B. v. Union of and AFL-CIO 434 335 216 NLRB 45 (1975); G. M. Masonry 245 NLRB 267 (1979): Construction and e n Na AFL-CIO E 245 NLRB 346 (1979): Flmr and Alter Ego and/or Flmr 232 NLRB 42 (1977): Construction Company Joint Employers, 191 NLRB 701 (1971). Inrernational Union of Engineers ABC the AFL-CIO Construcrion 162 NLRB L m l with Inter- national of & of America Company). 172 NLRB (1968); Lake Charles Building Council. AFL-CIO Con- struction 173 NLRB 1391 180 NLRB 344 (1969); of 1818 Construction NLRB 48 (1970): v. of Bridge, and Workers Union AFL-CIO [Rich- ard J. 454 (9th Cir. 1972). enfg. NLRB 68 (1971): Local Lodge Na of Boilermakers Shipbuilders and Helpers AFL-CIO. (Riley Stoker Construction 197 NLRB 738 (1972); Sheer Metal Workers ternotional Local Union 127 Sheet Com- pany). 201 NLRB 349 (1973); Union of North America. No. 83 [Fry. v. 497 Continued I i040 sltut Gmncil 8@)(2) wi~.hin construc- ti011 8(f) Ac;:. 2. orga- nizr,tion 3, 8@)(2) Oktober nommion replirce failed preh The practizes ordertd aftir- mativt: Act. ,:he csf lO(c) * liespondent, officers, 1 . -- 1'174), enfg. 205 Locd Inrernational of Opemtir~g Engineen Inc.). (1977); Catpenten Dktrier Floridn. i,!s Lacal (Bratchard aC$igm Inc.), (1978): Morbn Pic~um Sludio Internarional Th~ t r i ca l .;rage Employen Pielure Opemlon United Stas?s Prcducriotu], F.2d 197 (241 Laboren Internafionol L a a l 7, (ilalph I. Harkell. Inc.). filed Sec. aud Rdations recommended as In Sec. 102.4,l hecome f ndings, and shall pennits 80-1054," arbitratfon Bahn, Spur- Bahn, Spurlock offices "Appendi~ . "~~ forms 4 (f) la the "Posted Lsbor Punu- ant Stato Apprls the DECISIONS OF NATIONAL LABOR RELATIONS BOARD In this case findings have been entered that the Coun- cil attempted to cause Denny to discharge his three non- union employees in order to replace them with members of local unions affiliated with the Council by threats to down the job they were working on and later at- tempted to enforce the provisions of a contract which was unenforceable under existing law. On the basis of the foregoing, I find and conclude the thereby violated Section of the Act. I . At all pertinent times Denny was an employer en- gaged in commerce, in a business affecting commerce, the meaning of Section 2 of the Act, and an em- ployer engaged primarily in the building and industry, within the meaning of Section of the At all pertinent times the Council was a labor within the meaning of Section 2 of the Act. The Council violated Section of the Act by its 1979 demand that Denny discharge his three employees and hire members of its affiliates to them, threatening to shut down the job if Denny to comply with that demand, and actions seeking to farce Denny to comply with the terms of the 1977-80 re agreement. 4. aforesaid unfair labor practice affects commerce within the meaning of the Act. Having found the Council engaged in unfair labor in violation of the Act, I shall recommend it be to cease and desist therefrom and take the action set out below to effectuate the purposes of the On basis of the foregoing findings of fact, conclu- sions law and the entire record, and pursuant to Sec- tion of the Act, I recommend the issuance of the following: ORDER The Sacramento District Council of Car- penters, AFL-CIO, its agents, and representa- tives, shall: and desist from: (6th Cir. NLRB 399 (1973); IT, Union AFL-CIO (Combustion Engineering, 231 NLRB 1287 Council of Miami, and Vi- cinity and Union 1554 238 NLRB 1683 Mechanics Local 52, Alliance of and Moving Machine of ond Canada AFL-CIO [Michael Levee 593 Cir. 1979); Union, Union No. A F L C I O 245 NLRB 316 (1979). In the event no exceptions are as provided by 102.46 of the Rules Regulations of the National Labor Board, the findings, conclusions, and Order herein shall, provided of the Rules and Regulations, be adopted by the Board and its conclusions, and Order, all objections thereto be deemed waived for all purposes. (a) Demanding that Gary L. Denny, d/b/a Gary Denny Construction, discharge and replace his employ- ees with employees secured from the Council's hiring hall, except to the extent a lawful and enforceable con- tract between Denny and the Council permits such action. (b) Threatening to shut down any job being performed by Denny for failure to comply with the demand set out above, except to the extent a lawful and enforceable con- tract between Denny and the Council such action. (c) In any like or related manner attempting to cause or causing Denny to discriminate against his employees because of their nonmembership in a Council affiliate or attempting to cause or causing Denny to comply with any contract terms, except to the extent a lawful and en- forceable contract between Denny and the Council per- mits such action. 2. Take the following affirmative actions designed to effectuate the purposes of the Act: (a) Advise, in writing, the arbitrator to whom the Council referred for arbitration its grievance entitled, "Gary Denny Construction Case No. that the Council withdraws its request for of that grievance, with prejudice, and send a copy of that letter to Denny. (b) Advise Denny, in writing, the Council is with- drawing the above-captioned grievance, with prejudice. (c) Advise Denny, in writing, the Council withdraws its demand for the discharge of Salay, and lock and that the Council has no objection to Denny's employment of Salay, or or any other person on his jobs, except to the extent their hire or con- tinued employment is affected by a lawful and enforce- able contract between Denny and the Council. (d) Post at its and meeting halls copies of the attached notice marked Copies of said notice, on provided by the Regional Director for Region 20, after being duly signed by Respondent's rep- resentative, shall be posted by it immediately upon re- ceipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to Respondent are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or cov- ered by any other material. (e) Furnish signed copies of the notice to the Regional Director for Region 20, for posting by Denny, if willing, at all locations where Denny customarily posts notices to his employees. Notify the Regional Director for Region 20, in writing, within 20 days from the date of this Order, what steps the Council has taken to comply with this Order. In event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading by Order of the National Relations Board" shall read "Posted to a Judgment of the United Court of Enforcing an Order of National Labor Relations Board."