Carpenters Local 687 (Convention & Show Services), 1016 (2008)
Local 687, Michigan Regional Council of Carpenters (Convention & Show Services, Inc.) and Michael Johnston. Case 7CB15293
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 judges rulings, findings, and conclusions and to adopt the recommended Order.2
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, Detroit, Michigan, its officers, agents, and representatives shall take the action set forth in the Order.
Judith A. Champa, Esq., for the General Counsel.
Jeffrey D. Wilson, Esq. and Dennis M. Devaney, Esq. (Strobl & Sharp, P.C.), of Bloomfield Hills, Michigan, and Nicholas R. Nahat, Esq. (Novara Tesija & McGuire, P.L.L.C.), of Southfield, Michigan, for the Respondent.
Statement of the Case
Paul Bogas, Administrative Law Judge. This case was tried in Detroit, Michigan, on October 22, 2007. Michael Johnston, an individual, filed the original charge on August 9, 2006, and an amended charge on September 28, 2006. The Regional Director of Region 7 of the National Labor Relations Board (the Board) issued the complaint and notice of hearing on February 9, 2007. The complaint alleges that Local 687, Michigan Regional Council of Carpenters (the Respondent) violated Section 8(b)(1)(A) of the National Labor Relations Act (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 activity. The Respondent filed a timely answer in which it denied having committed any of the violations alleged in the complaint.
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
Convention & Show Services, Inc., a corporation, is an exposition contractor with a place of business in Detroit, Michigan. It annually derives gross revenues in excess of $500,000 and purchases and receives at its Michigan facility, goods and supplies valued in excess of $50,000 directly from points outside the State of Michigan. The Respondent admits, and I find, that Convention & Show Services is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act.
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
Respondents Referral Procedures
The Respondent is a labor organization with an office and place of business in Detroit, Michigan. It operates a hiring hall from which it refers out-of-work members to contracting employers, including Convention & Show Services, Inc. The contracts between the Respondent and those employers provide that the Respondent is a nonexclusive source of referralsmeaning that the Respondents members may seek jobs with, and potentially be hired by, any employer without being referred by the Respondent. The Respondent, and its membership, acted in 1996, and again in April 2007, to ratify and maintain written procedures that govern these referrals. Under those procedures, an out-of-work member who wants to be referred by the Respondent registers by completing and submitting a card. The Respondent numbers those cards consecutively, in the order they are received, and places them in the out-of-work box. When an employer asks the Respondent to refer an individual or individuals, the Respondent will generally begin by offering the referral to the qualified individual with the lowest number in the out-of-work box, and then will proceed to the qualified individual with the next lowest number, and so on, until the number of workers requested by the employer has been reached. Members who work a specified number of hours after submitting a card are no longer considered to be out-of-work and their cards are removed from the box. If such individuals want to be referred in the future, they must reregister and obtain a new out-of-work number.
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 members 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 provisionparagraph 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 Detroit office of the Michigan Regional Council of Carpenters (MRCC), the Respondents governing body.1 There are 10 other locals operating under the auspices of the MRCC, and all of those locals have ratified the referral procedures.
For over 5 years, Nick McCreary, an agent of the Respondent,2 has been the person with responsibility for operating the Respondents 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 employers 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 employeesshall be granted first preference on referrals to available employment in the order that they are in the out-of-work...
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