United Brotherhood of Carpenters, Loc. 621

National Labor Relations Board - Board DecisionsFeb 20, 1968

169 N.L.R.B. 1002 (N.L.R.B. 1968)

1002 DECISIONS OF NATIONAL LABOR RELATIONS BOARD United Brotherhood of Carpenters and Joiners of America , AFL-CIO, Local 621 and Consolidated Constructors and Builders, Inc.' Consolidated Constructors and Builders , Inc. and Fred L. Sprague , and Owen L. Clark. Cases 1-CB-1232, 1-CA-5714-1, and 1-CA-5714-2 February 20,1968 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND BROWN Upon charges duly filed in Case 1-CB-1232 on March 15, 1967, by Consolidated Constructors, the General Counsel for Region I issued a complaint dated July 10, 1967, against the United Brother- hood of Carpenters and Joiners of America, AFL-CIO, Local 621, herein called Local 621 or Respondent Union, alleging that Local 621 had en- gaged in and was engaging in unfair labor practices within the meaning of Section 8(b)(2) of the Na- tional Labor Relations Act, as amended. Copies of the charge, complaint, and notice of hearing were duly served upon the parties. On July 27, 1967, Local 621 filed an answer admitting certain allega- tions of the complaint, but denying the commission of any unfair labor practices. On September 6, 1967, Respondent Local 621, Consolidated Constructors as Charging Party, and the General Counsel moved the National Labor Relations Board to transfer this proceeding before it and to adopt the stipulation of facts of the parties made part of the motion. By their stipulation the parties acknowledged the filing of the charge, and the issuance of a complaint and notice of hearing, and agreed to waive a hearing, a Trial Examiner's Decision, filing of exceptions and briefs to the Trial Examiner and oral argument before the Board, but reserved the right to file briefs before the National Labor Relations Board. Respondent specifically stated that by signing this stipulation it did not admit a violation of the Act. The parties further stipulated that the findings of fact by the Board in Cases 1-CA-5714 (1 and 2)2 are true and correct and that this stipulation and the letter marked Ex- hibit "A," attached thereto, the entire record in Cases 1-CA-5714 (1 and 2), the findings of fact of the Board as reported in Volume 165 NLRB 656, together with the Charge, Complaint and Notice of Hearing, Answer, and Order Rescheduling Hear- ing shall constitute the entire record herein. On September 12, 1967, the Board approved the stipu- lation , order transferral of the proceeding to the Board , and granted permission to the parties to file briefs. Only Respondent Union filed a brief to the Board. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its powers in connection with this case to a three- member panel. The complaint alleged in substance that Respond- ent Union caused the Company to discharge Owen Clark and Fred Sprague because they joined or assisted Carpenters Local 1219, and thereafter compelled the Company to refuse to reinstate Clark and Sprague to their former or substantially equivalent positions , by threat of violence or a strike . In the record of proceedings in Cases 1-CA-5714 ( 1 and 2), which is made part of the record herein , the credited evidence shows, and the Board found, that in discharging Clark and Sprague for their refusal to join Local 621, the Company violated Section 8(a)(1) and (3) of the Act, since its said conduct encouraged membership in Local 621 and discouraged membership in Local 1219. The Board noted there that whether the Company had unlawfully discharged Clark and Sprague depended on whether the agreement of the parties was in- tended to apply to millwrights . The Board thereup- on concluded that it was not the mutual intent of the parties to include millwrights within its coverage , that Clark and Sprague were employed as millwrights , and their discharge therefore was in violation of the Act. In its brief to the Board , the Respondent Union states that the evidence in Cases 1-CA-5714 (1 and 2) would indicate that through its agents it did in fact violate Section 8 (b)(2) of the Act , a statement which we take to be an admission that Respondent Union caused and attempted to cause the Company to discriminate against Clark and Sprague in viola- tion of Section 8(a)(3) of the Act. But whether so in- tended or not, we find that the evidence in the case amply warrants a finding that Respondent Union, by insisting on the discharge of Clark and Sprague for the alleged failure to join Respondent Union's organization pursuant to the terms of its contract with Consolidated Constructors , did in fact cause the Company to discriminate against Clark and Sprague in violation of Section 8(a)(3) of the Act and thereby violated Section 8(b)(2) and (1)(A) of the Act. The Respondent Union argues that the Board is without authority to issue a backpay order in this case , apparently because a backpay order in these circumstances would be analogous to contribution ' The name of the Company appears as amended on motion of Re- spondent Union. 2 165 NLRB 656, which was issued on June 20, 1967, in which the Board found that Consolidated Constructors is engaged in commerce, and Local 621 is a labor organization within the meaning of the Act, and that Consolidated Constructors had engaged in certain unfair labor practices in violation of Section 8(a)(3) of the Act, and ordered that it cease and de- sist therefrom and take certain affirmative action designed to effectuate the policies of the National Labor Relations Act, as amended. 169 NLRB No. 142 UNITED BROTHERHOOD OF CARPENTERS, LOC. 621 1003 between tort-feasors, a practice, it asserts, that finds no sanction under common law and one which should not be sanctioned by the Board. We find no merit in this connection. The Act gives the Board broad discretion to remedy unfair labor practices, and here the Respondent Union concedes that its own conduct in the matter has been in violation of the Act. The fact that Consolidated Constructors may incidentally benefit as the result of a backpay order imposed on Respondent Union is hardly ground for relieving Respondent Union of the con- sequences of its own unfair labor practices. Nor do we consider that Respondent Union's alternative contentions that the Board, as a matter of equity, should not issue a backpay order in a case where, as here, the Charging Party comes to the Board with "unclean hands," has any merit. The Board has held that "unclean hands" estops neither a com- pany from filing a charge against one who violates the Act, nor the Board from vindicating and pro- tecting the public rights inherent in the Act, which have been infringed.3 In view of the relatively serious nature of the violations of the Act committed by Respondent Union and to make certain that it will not engage in similar conduct in the future, we find that it will best effectuate the policies of the Act to impose backpay liability on the Respondent Union, as well as on Consolidated Constructors which we have already imposed in the earlier case. However, we believe that equity requires that both Respondents be made jointly and severally liable for the discrimination against Sprague and Clark. In order to accomplish this, we shall provide for joint and several liability and toward that end we, on our own motion, reopen the record of proceedings in Cases 1-CA-5714 (1 and 2), vacate the remedial order, and Appendix therein, and consolidate those cases with the instant case for all purposes. THE REMEDY Having found that Respondents have engaged in certain unfair labor practices, we shall order that they cease and desist therefrom and take certain af- firmative action designed to effectuate the policies of the Act. Having found that Respondent Union violated Section 8(b)(2) and (1)(A) of the Act by causing Respondent Company to discriminate against Clark and Sprague in violation of Section 8(a)(3), we shall order Respondent Union to notify Respondent Company, in writing, and furnish a copy to Clark and Sprague, that it has withdrawn its objections to the employment of Clark and Sprague by Respond- ent Company. Since it has been found that Respondent Com- pany and Respondent Union are both responsible for the discrimination suffered by Clark and Sprague on September 22, 1966, we shall order that they jointly and severally make them whole for any loss of pay suffered by reason of the discrimination against them. Since this record and our findings in the earlier cases show that the Madawaska project was completed on January 24, 1967, and that Clark's and Sprague's employment therefore would have ended on that date for nondiscriminatory reasons, reinstatement will not be ordered. Said loss of pay will be based upon earnings which Clark and Sprague would normally have earned from Sep- tember 22, 1966, the date of the discrimination against them, to January 24, 1967, the date upon which their employment would have otherwise ter- minated, less net earnings of each during such period. Backpay and interest thereon shall be com- puted in the manner prescribed by the Board in F. W. Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716. ADDITIONAL CONCLUSIONS OF LAW 1. By causing the Respondent Company to dis- criminate against Clark and Sprague in violation of Section 8 (a)(3) of the Act, Respondent Union has engaged in unfair labor practices within the meaning of Section 8(b)(2) and (1)(A) of the Act. 2. 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: A. Consolidated Constructors and Builders, Inc., Portland, Maine, its officers, agents, succes- sors, and assigns, shall: 1. Cease and desist from: (a) Encouraging membership in Local 621, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, by discharging Owen Clark and Fred Sprague, or any other millwright, or dis- criminating against them in any other manner because they are not or are unwilling to become members of Local 621. (b) In any like or related manner interfering with, restraining, or coercing employees in the exer- cise of their rights guaranteed by Section 7 of the Act, except to the extent that such rights may be af- fected by an agreement requiring membership in a labor organization as a condition of employment, as authorized by Section 8(a)(3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. 3 See Milk Drivers & Dairy Employees, Local 546, etc, 133 NLRB 1314, 1322, enfd 314 F.2d 761 1004 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act: (a) Jointly and severally with Respondent Union make Owen Clark and Fred Sprague whole for any loss of pay they may have suffered by reason of the discrimination against them , in the manner and in accordance with the methods referred to in the sec- tion above in this Decision entitled "The Remedy." (b) Preserve and, upon request , make available to the Board or its agents , for examination and copying, all payroll records, social security pay- ment records , timecards , personnel records and re- ports , and all other records necessary to analyze the amount of backpay due under the terms of this Order. (c) Post at its place of business in Portland, Maine , copies of the attached notice marked "Appendix ." a Copies of said notice, on forms pro- vided by the Regional Director for Region 1, after being duly signed by the Respondent's representa- tive , shall be posted by the Respondent immediate- ly upon receipt thereof , and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to em- ployees are customarily posted . Reasonable steps shall be taken by the Respondent Company to in- sure that said notices are not altered , defaced, or covered by any other material. (d) Post at the same places and under the same conditions as set forth in (c) above , and as soon as they are forwarded by the Regional Director, co- pies of the Respondent Union's notice herein marked "Appendix B." (e) Notify the Regional Director for Region 1, in writing , within 10 days from the date of this Order, what steps have been taken to comply herewith. (f) Furnish to the Regional Director signed co- pies of the aforesaid notices for posting by the Respondent Union at its business offices, meeting halls, and places where notices to its members are customarily posted . Copies of said notice, to be furnished by the Regional Director , shall, after being signed by the Respondents , as indicated, be forthwith returned to the Regional Director for disposition by him. B. United Brotherhood of Carpenters and Joiners of America , AFL-CIO, Local 621, its of- ficers, agents, and representatives , shall: 1. Cease and desist from: (a) Causing or attempting to cause Consolidated Constructors and Builders , Inc., its officers , agents, successors , and assigns , to discriminate against em- ployees because they are not members of Respond- ent Union, in violation of Section 8(a)(3) of the Act, as modified by the Labor -Management Re- porting and Disclosure Act of 1959. (b) In any like or related manner restraining or coercing employees of Respondent Company in the exercise of their rights guaranteed by Section 7 of the Act , except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized by Section 8(a)(3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act: (a) Jointly and severally with Respondent Com- pany , make Owen Clark and Fred Sprague whole for any loss of pay they may have suffered by reason of the discrimination against them, in the manner and in accordance with the methods referred to in the section above in this Decision en- titled "The Remedy." (b) Notify Consolidated Constructors and Buil- ders, Inc., in writing , that it withdraws all objection to the employment of Owen Clark and Fred Sprague, with copies to Clark and Sprague in- dividually. (c) Post at Respondent Union 's business offices and meeting halls, copies of the attached notice marked "Appendix B."5 Copies of said notice, to be furnished by the Regional Director for Region 1, after being duly signed by an authorized representa- tive of Respondent Union, shall be posted im- mediately upon receipt thereof , and be maintained by it for 60 consecutive days thereafter , in con- spicuous places, including all places where notices to its members are customarily posted. Reasonable steps shall be taken by Respondent Union to insure that said notices are not altered , defaced, or covered by any other material. (d) Post at the same places and under the same conditions as set forth in (c) above , as soon as they are forwarded by the Regional Director, copies of Respondent Company's notice marked "Appendix A." (e) Furnish to the Regional Director signed co- pies of the aforesaid notices for posting by the Respondent Company at its offices in places where notices to employees are customarily posted. Co- pies of said notice, to be furnished by the Regional Director, shall after being signed by the Respond- ent, as indicated, be forewith returned to the Re- gional Director for disposition by him. (f) Notify the Regional Director for Region 1, in writing , within 10 days from the date of this 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 , there shall be substituted for the words "a Decision and Order" the words "a Decree of the United States Court of Appeals En- forcing and Order." 5 Supra, fn. 4. UNITED BROTHERHOOD OF CARPENTERS, LOC. 621 1005 APPENDIX A NOTICE TO ALL EMPLOYEES 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 our employees that: WE WILL NOT encourage membership in Local 621, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, by discharging Owen Clark or Fred Sprague, or any other millwright, or discriminate against them in regard to their hire, tenure of employ- ment, or any term or condition of employment because they are not, or are unwilling to become, members of said Union. WE WILL NOT interfere with, restrain, or coerce our employees in the exercise of their rights guaranteed by Section 7 of the Act, ex- cept to the extent that such rights may be af- fected by an agreement requiring membership in a labor organization as a condition of em- ployment, as authorized by Section 8(a)(3) of the Act, as modified by the Labor-Manage- ment Reporting and Disclosure Act of 1959. WE WILL jointly and severally with Local 621, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, make Owen Clark and Fred Sprague whole for any loss of pay they may have suffered by reason of the discrimination against them. CONSOLIDATED CONSTRUCTORS AND BUILDERS, INC. (Employer) Dated By (Representative) (Title) This notice must remain posted for 60 consecu- tive days from the date of posting and must not be altered, defaced, or covered by any other material. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, Cambridge and New Sudbury Streets, Boston, Massachusetts 02203, Telephone 223-3300. APPENDIX B NOTICE TO ALL MEMBERS OF LOCAL 621 , UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, AFL-CIO 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 our members that: WE WILL NOT cause or attempt to cause Consolidated Constructors and Builders, Inc., to discriminate against Owen Clark and Fred Sprague or any other employees of said Com- pany, in violation of Section 8(a)(3) of the Act. WE WILL NOT in any like or related manner restrain or coerce employees of Consolidated Constructors and Builders, Inc., in the exercise of their rights guaranteed in Section 7 of the Act, except to the extent that such rights may be affected by an agreement requiring member- ship in a labor organization as a condition of employment, as authorized by Section 8(a)(3) of the Act, as modified by the Labor-Manage- ment Reporting and Disclosure Act of 1959. WE WILL notify Consolidated Constructors and Builders, Inc., in writing, and furnish co- pies of such notification to Owen Clark and Fred Sprague that we have no objection to their employment by said Company. WE WILL jointly and severally with Con- solidated Constructors and Builders, Inc., make whole Owen Clark and Fred Sprague for any los of pay they may have suffered because of the discrimination against them. UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, AFL-CIO, LOCAL 621 (Labor Organization) Dated By (Representative) (Title) This notice must remain posted for 60 consecu- tive 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, Cambridge and New Sudbury Streets, Boston, Massachusetts 02203, Telephone 223-3300.