NOTICE: This
opinion is subject to formal revision before publication in the bound volumes
of NLRB decisions. Readers are requested
to notify the Executive Secretary, National Labor Relations Board,
Local 687,
July 31, 2008
DECISION AND ORDER
By Chairman Schaumber and Member Liebman
On December 27, 2007, Administrative Law Judge Paul Bogas issued the attached decision. The Respondent filed exceptions and a supporting brief, and the General Counsel filed an answering brief. The General Counsel also filed a cross-exception and supporting brief, and the Respondent filed an answering brief.
The National Labor Relations Board1 has considered the decision and the record in light of the exceptions and briefs, and has decided to affirm the judge’s rulings, findings, and conclusions and to adopt the recommended Order.2
ORDER
The National Labor Relations Board adopts the recommended
Order of the administrative law judge and orders that the Respondent, Local
687, Michigan Regional Council of Carpenters,
Dated,
______________________________________
Peter C. Schaumber, Chairman
______________________________________
Wilma B. Liebman, Member
(seal) National
Labor Relations Board
Judith A. Champa, Esq., for the General Counsel.
Jeffrey D. Wilson, Esq. and Dennis M. Devaney, Esq. (Strobl &
Sharp, P.C.), of
DECISION
Statement of the Case
Paul Bogas,
Administrative Law Judge. This case was
tried in
On the entire record, including my observation of the demeanor of the witnesses, and after considering the briefs filed by the General Counsel and the Respondent, I make the following findings of fact and conclusions of law
Findings of Fact
i.
jurisdiction
Convention & Show Services, Inc., a corporation, is an
exposition contractor with a place of business in
The Respondent admits and I find that it is a labor organization within the meaning of Section 2(5) of the Act.
ii. alleged
unfair labor practices
A. Respondent’s Referral Procedures
The Respondent is a labor organization with an office and
place of business in
The written referral procedures create a few significant exceptions to the general procedure of offering referrals to qualified members in the order that their cards entered the out-of-work box. The complaint alleges that two of the exceptions are unlawful. The challenged exceptions modify the consecutive referral procedures based on a member’s participation in, or refusal to participate in, Respondent-sponsored picketing and other protected activity. Those exceptions state as follows:
Paragraph 4(c). Refusal to participate in organized activities such as picketing, hand billing, etc. will also qualify for removal [from the out-of-work box].
Paragraph 7. Except for referrals under agreements which establish that the Local Union is to be the exclusive source of employment, the out-of-work box shall be used to call individuals for picket duty and individuals who are serving as pickets shall be granted first preference on referrals to available employment in the order that they are in the out-of-work box.
The Respondent maintained and enforced paragraph 7
starting no later than February 9, 2006.
On about March 1, 2007, after the complaint in this case issued, the
Respondent ceased enforcement of paragraph 7.
The Respondent has not enforced the other challenged provision—paragraph
4(c)—for at least the past 5 years, and the record does not show that that paragraph
was ever enforced. However, the
Respondent has not removed either of the challenged provisions from the written
procedures. In the past, copies of the
written procedures were posted at the referral hall and those written
procedures are currently available in the
For over 5 years, Nick McCreary, an agent of the Respondent,2 has been the person with responsibility for operating the Respondent’s out-of-work referral system. McCreary, the only witness in this case, credibly testified about the operation of that system. He stated that, on average, there are about 500 individuals with cards in the out-of-work box,3 of whom about 100 are picketers. The cards of members who engage in Respondent-sponsored picketing are moved to the front of the out-of-work box. When an employer asks the Respondent to refer potential employees, McCreary begins by offering the referrals to qualified picketers with cards in the out-of-work box, without regard to whether there is a qualified nonpicketer who has been out-of-work longer and holds the next referral number.4 The Respondent only extends referral offers to the non-picketers if there are not enough qualified picketers to satisfy the employer’s request. In most cases, all of the persons referred by the Respondent are picketers. According to McCreary, approximately 80 to 85 percent of the time the Respondent finds enough persons to refer from among the qualified picketers and does not reach the nonpicketers with cards in the out-of-work box. Although paragraph 7 of the referral procedure states that picketing employees “shall be granted first preference on referrals to available employment in the order that they are in the out-of-work box,” McCreary testified that, in practice, the Respondent refers individuals who have been engaging in a great deal of picketing over picketers who would have priority based on their referral numbers, but who have not picketed as much. Once a picketer obtains work using the picketing preference, the preference is extinguished, and the next time the individual seeks a job referral, he or she must engage in picketing again in order to obtain a preference. During McCreary’s tenure operating the referral system he has never exhausted the cards in the out-of-work box, meaning that there have always been more members waiting for referrals than there have been available referrals.
Contracting employers have the right to refuse employment to persons referred by the Respondent. However, approximately 90 percent of the time the employers hire the referred individuals and retain them for the full term of the project. Even when a contracting employer refuses employment to a referred individual, that employer is required to pay the rejected individual for 2 hours work.
B. The Complaint
The complaint alleges that, since about February 9, 2006, the Respondent has violated Section 8(b)(1)(A) of the Act in the operation of its nonexclusive hiring hall by maintaining written employment referral procedures that grant priority to its members who engage in Respondent-sponsored picketing, and withhold referrals from its members who refuse to engage in such picketing, for the purpose of encouraging members to engage in protected activities on behalf of the Respondent and to discourage members from exercising their Section 7 right to refrain from engaging in such activities.
iii. analysis
and discussion
The Board has held that a union violates Section
8(b)(1)(A) of the Act in the operation of a nonexclusive hiring hall when it
discriminatorily denies referrals to members because those members have engaged
in activities protected by Section 7 of the Act.
The record establishes that the Respondent ratified and maintained written procedures stating that individuals who refuse to engage “in organized activities such as picketing, hand billing, etc.,” qualify for removal from consideration for job referrals and that individuals who do participate in Respondent-sponsored picketing will be granted first preference for receiving job referrals. For a number of years, the Respondent gave effect to the preference for picketers, and only ceased to do so after the Board issued the complaint in this case. The challenged job referral procedures explicitly discriminate against members who exercise their Section 7 rights to refrain from Respondent-sponsored picketing, and therefore those procedures violate Section 8(b)(1)(A).
The Respondent offers a number of arguments for why this
discrimination based on participation in picketing activity should not be
considered a violation of the Act.
First, it argues that the cases holding that discrimination in referrals
from nonexclusive hiring halls violate the Act are inapplicable here because
those cases involve discrimination against a particular dissident union member,
whereas this case involves the grant of a preference to a group of
individuals. According to the Respondent,
the first of those situations is of a “completely different character” from the
second. The Respondent contends that
absent discrimination targeting a particular individual, the manner of referral
by unions has not been regulated by the Board in the context of nonexclusive
hiring halls. Respondent Br. at 6–7. The Respondent has not shown that this distinction
is recognized by the Board or the Courts and, in my view, the distinction is
not a meaningful one. By referring
picketers who would not have received the referrals except for the preference,
the Respondent is denying referrals to qualified non-picketers who have been
waiting longer and thus possess lower referral numbers. To put it another way, when the Respondent is
parceling out a limited number of job referrals to a larger number of members,
it cannot reward some for engaging in picketing activity without punishing
others for exercising their Section 7 rights to refrain from such
activity. Indeed, the evidence showed
that the Respondent’s preference for picketers has meant that the first 80 to
85 percent of referrals go to qualified picketers without any of the nonpicketing
members even being considered. This is
true despite the fact that the picketers comprise only about 20 percent of the
members awaiting referral. Obviously a
referral procedure that has the effect of reserving the first 80 to 85 percent
of job referrals for picketers will tend to coerce members’ decisions about
whether to engage in picketing. The
procedure is discriminatory and falls outside a union’s prerogatives in the
operation of a nonexclusive hiring hall regardless of whether one casts the
Respondent’s subjective motivation as rewarding picketers or as punishing
non-picketers. See Service Employees Local 1107 (
I reject the Respondent’s suggestion that discrimination
in referrals at a nonexclusive hiring hall is only unlawful when it targets a
specific individual, not a group of individuals. The Respondent provides no authority to
support this proposition, and I am not surprised. A union’s discrimination based on members’
exercise of their Section 7 rights is not made any more palatable by the fact
that it punishes a large number of members, rather than a select few. Moreover, the condemnation of such
discrimination in the distribution of job opportunities has not been limited to
instances when the Section 7 activity involved a member’s intraunion dissidence
or political activity, but rather has extended to circumstances in which the
refusal to refer is based on legitimate union interests. See, e.g., Newspaper & Mail Deliverers (City & Suburban Delivery), 332 NLRB 870, 870 fn. 1 and 876 (assuming
referral system is nonexclusive, union violates Section 8(b)(1)(A) by refusing
to recommend members for employment because those members refrained from
participation in a strike).6
The Respondent argues that one of the two referral provisions
at issue—paragraph 4(c)—can be interpreted to apply to activities not covered
by Section 7 and, in any case, has not been enforced. As set forth above, paragraph 4(c) states
that an individual qualifies for removal from the out-of-work referral system
if he or she “refus[es] to participate in organized activities such as
picketing, hand billing, etc.” The
Respondent contends that this provision can apply to Respondent-organized
activities, such as charitable events, which do not implicate Section 7
rights. Even assuming that the provision
can be interpreted to reach some unprotected activity, that would not change
the fact that it explicitly reaches other activity, such as refusal to
participate in picketing, which is undoubtedly protected by Section 7. Such coercion is unlawful regardless of
whether the provision also has lawful applications. The Respondent’s defense that it did not
enforce paragraph 4(c), is also not viable.
The mere existence of a rule that improperly discriminates on the basis
of a member’s protected activity has a chilling effect on the exercise of
Section 7 rights, and violates Section 8(b)(1)(A) regardless of whether the
provision has ever been enforced. Awrey Bakeries, 335 NLRB 138, 139–140
(2001), enfd.
In its brief, the Respondent also contends that the challenged referral policies were implemented by the MRCC, and applied by MRCC business representative McCreary, not by the Respondent (identified in the complaint as “Local 687, MRCC”). Accordingly, it argues, no violation by the Respondent has been established. I conclude that this defense is precluded by the answer to the complaint, in which the Respondent admitted that it “maintained” the challenged referral procedures in “the operation of its nonexclusive hiring hall,” and that McCreary was its agent within the meaning of Section 2(13) of the Act. The Respondent never moved to amend its answer in either of those two respects. Moreover, the evidence showed that, in fact, the Respondent acted to accept and maintain the unlawful referral rules on two occasions, most recently in April 2007. Thus, whatever the involvement of the MRCC as a discrete entity, the Respondent itself adopted and maintained the unlawful referral procedures that its agent, McCreary, enforced at its hiring hall.
Conclusions of Law
1. The Employer is engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act.
2. The Respondent is a labor organization within the meaning of Section 2(5) of the Act.
3. Since February 9, 2006, the Respondent violated Section 8(b)(1)(A) of the Act in the operation of its nonexclusive hiring hall by maintaining written referral procedures that discriminate against members who refrain from engaging in Respondent-sponsored picketing and other protected activities.
Remedy
Much of the briefing in this case concerns the question of
whether make-whole relief—and in particular backpay—is an appropriate
remedy. The complaint seeks the conventional
make-whole remedy, but the Respondent contends that such a remedy is not
available. First, the Respondent argues
that backpay may not be awarded because the General Counsel only alleges a
violation of Section 8(b)(1)(A), not Section 8(b)(2). This argument is contrary to controlling
Board precedent, which holds that backpay is an appropriate remedy for violations
of Section 8(b)(1)(A).
The Respondent also contends that an award of make-whole
relief would be improper because the General Counsel “did not present any
evidence that members were passed over for a referral,” and a make-whole remedy
would be “purely speculative.” R. Br. at
9. This contention is contrary to the
facts. McCreary’s testimony made clear
that the unlawful preference for picketers meant that he passed over qualified
members who had been registered in the out-of-work system longer, and had lower
referral numbers, in order to grant priority to qualified picketers. The evidence showed that, given the unlawful
preference for picketers, the Respondent awarded the first 80 to 85 percent of
job referrals to picketers without even considering a single nonpicketer. This was true despite the fact that the picketers
were a minority—only 20 percent—of the members awaiting referrals. Thus the
nexus between the unlawful preference and the denial of job referrals to non-picketers
is anything but speculative. It is true
that the record does not identify specific nonpicketers to whom the referrals
were discriminatorily denied. However,
the Board has held that in cases involving a union’s unlawful failure to refer
members it is appropriate to defer to compliance the question of who is in the
class of victims.
The Respondent also argues that an order for make-whole relief would be unduly speculative because contracting employers were not required to hire the persons who the Respondent referred. This argument is specious. The contracting employers were required to pay each referred member for a minimum of 2 hours work, regardless of whether the employer chose to hire that individual or not. Thus nonpicketers who were discriminatorily denied referrals lost, at a minimum, the 2-hours pay that would have been guaranteed to them had they been referred by the Respondent. Moreover, since the contracting employers hired 90 percent of those referred by the Respondent, the losses suffered by persons who were discriminatorily denied referrals was generally much greater than the 2-hour minimum. Given the evidence presented in this case, I conclude that the Respondent’s contention that the loss of earnings resulting from the discrimination was unduly speculative is without merit.
The Respondent relies on the decision of the United States
Supreme Court in
The General Counsel urges that the Board’s “current
practice of awarding only simple interest on backpay and other monetary awards
be replaced with the practice of compounding interest.” General Counsel Brief at 24. The Board has considered, and rejected, this
argument for a change in its practice.
See
Having found that the Respondent violated the Act as
alleged in the complaint, I find that it must be ordered to cease and desist
and to take certain affirmative action designed to effectuate the policies of
the Act. Having found that paragraphs
4(c) and 7 of the Respondent’s written out-of-work referral procedures
unlawfully discriminate against members on the basis of their Section 7
activity, those paragraphs must be rescinded and stricken from the Respondent’s
written referral procedures. The
Respondent must also refrain from maintaining or enforcing those provisions or
in any other way considering a member’s participation in picketing activity
sponsored by the Respondent when distributing job referrals to members. The Respondent, having discriminatorily
denied job referrals to members, must
make all discriminatees whole for any resulting loss of earnings and other
benefits, computed on a quarterly basis, less any net interim earnings, as
prescribed in
On these findings of fact and conclusions of law and on the entire record, I issue the following recommended Order.8
ORDER
The Respondent, Local 687, Michigan Regional Council of
Carpenters,
1. Cease and desist from
(a) Maintaining, enforcing, and/or giving effect to written job referral procedures that grant priority or preference to members who engage in picketing that is sponsored or sanctioned by the Respondent, and which withhold referrals from members who refuse to engage in picketing and other protected activity.
(b) Giving any consideration to members’ participation in, or failure to participate in, Respondent-sponsored or sanctioned picketing when offering job referrals to members.
(c) In any like or related manner restraining or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act.
(a) Rescind, and strike from its written job referral procedures, the provisions that grant priority job referrals to members who engage in picketing sponsored or sanctioned by the Respondent, and which withhold referrals from members who refuse to engage in picketing and other protected activity.
(b) Make whole members for any loss of earnings and benefits they may have suffered, as a result of the Respondent’s discrimination against them since February 9, 2006, in the manner set forth in the remedy section of this decision.
(c) Preserve and, within 14 days of a request, or such additional time as the Regional Director may allow for good cause shown, provide at a reasonable place designated by the Board or its agents, all hiring hall records, all documentation regarding the Respondent’s referral of members for employment, all documentation regarding compensation and employment obtained by members, all documents reporting or recording the participation of members in Respondent-sponsored picketing, all referral cards, and any other documents, including an electronic copy of such records if stored in electronic form, necessary to identify those who suffered loss of employment because of the violations found herein and/or to analyze the amount of backpay due under the terms of this Order.
(d) Within 14
days after service by the Region, post at its union office and hiring hall in
(e) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a responsible official on a form provided by the Region attesting to the steps that the Respondent has taken to comply.
Dated,
APPENDIX
Notice To
Members
Posted
by Order of the
National
Labor Relations Board
An Agency of the
The National Labor Relations
Board has found that we violated Federal labor law and has ordered us to post
and obey this notice.
federal law gives you
the right to
Form, join, or assist a
union
Choose representatives to
bargain on your behalf with your employer
Act together with other
employees for your benefit and protection
Choose not to engage in any
of these protected activities.
We will not maintain, enforce, or give effect to job referral procedures that give priority or preference to members who engage in picketing that we sponsor or sanction, and which withhold referrals from members who refuse to engage in picketing and other protected activity.
We will not give any consideration to whether you have participated in, or refrained from participation in, picketing that we sponsored or sanctioned when offering job referrals to members.
We will not in any like or related manner restrain or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act.
We will rescind, and strike from our written job referral procedures, provisions that grant priority job referrals to members who engage in picketing that we sponsor or sanction, and which withhold referrals from members who refuse to engage in picketing and other protected activity.
We will make you whole for any loss of earnings and benefits that you may have suffered as a result of our discrimination since February 9, 2006, with interest.
Local 687,
1 Effective midnight December 28, 2007, Members Liebman, Schaumber, Kirsanow, and Walsh delegated to Members Liebman, Schaumber, and Kirsanow, as a three-member group, all of the Board’s powers in anticipation of the expiration of the terms of Members Kirsanow and Walsh on December 31, 2007. Pursuant to this delegation, Chairman Schaumber and Member Liebman constitute a quorum of the three-member group. As a quorum, they have the authority to issue decisions and orders in unfair labor practice and representation cases. See Sec. 3 (b) of the Act.
2 The General Counsel urges that the Board’s “current practice of awarding only simple interest on backpay and other monetary awards be replaced with the practice of compounding interest.” Having duly considered the matter, we are not prepared at this time to deviate from our current practice of assessing simple interest. Tech Valley Printing, Inc., 352 NLRB No. 81 fn. 5 (2008), citing Rogers Corp., 344 NLRB 504 (2005).
1 Other, unchallenged, portions of the referral rules provide that the Respondent may offer referrals without regard to numerical order when placing a union steward or when an employer makes a written request for a particular individual. There was also testimony that some employers supply the Respondent with “do not hire lists,” and that the Respondent will not refer an individual to an employer who has placed that individual on such a list, regardless of whether that individual is the next qualified member in the out-of-work box.
2 In the answer to the complaint, the Respondent admitted that McCreary was its agent within the meaning of Section 2(13) of the Act.
3 McCreary testified that the number varies over time. At the time of trial, the number of cards in the out-of-work box had swelled to about 700, but at other times the number of cards has dropped to as low as 200.
4 McCreary makes these offers by phone. Approximately 70 percent of the time that he calls someone to offer a referral, that individual is not present and does not return the call in time to obtain the referral. This failed-contact rate is the same for picketers and nonpicketers.
5 The Respondent cites
6 As the General Counsel recognizes, in the context of “conduct that the union can regulate internally in furtherance of legitimate union interests” discrimination may be permissible if it does not “affect[ ] members’ employment opportunities based on Section 7 considerations.” GC Br. at 14. The Respondent’s discrimination in the distribution of employment referrals, however, affects members’ employment opportunities.
7 The Respondent suggests
that the General Counsel is improperly attempting an “end run around” the
established proof requirements by alleging a violation of Sec. 8(b)(1)(A),
rather than Sec. 8(b)(2). R. Br. at
9. However, the Board has stated that
Sec. 8(b)(1)(A)—not Sec. 8(b)(2)—is the appropriate provision for consideration
of allegations of union discrimination in the operation of a hiring hall where,
as here, the hiring hall is nonexclusive.
8 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all purposes.
9 If this
Order is enforced by a judgment of a