Carpenters Local 43 (McDowell Building & Foundation), (2009)

Docket Number:34-CB-03047
 
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United Brotherhood of Carpenters, Local 43 and New England Regional Council of Carpenters (McDowell Building & Foundation, Inc.) and Kevin Lebovitz. Case 34–CB–3047

December 31, 2009

DECISION AND ORDER

By Chairman Liebman and Member Schaumber

On July 7, 2009, Administrative Law Judge Wallace H. Nations issued the attached decision. The Respondents, the New England Regional Council of Carpenters and the United Brotherhood of Carpenters, Local 43, jointly filed exceptions, a supporting brief, and a reply brief. The General Counsel filed an answering brief.

The National Labor Relations Board[1] has considered the decision and the record in light of the exceptions and briefs, and has decided to affirm the judge’s rulings, findings,[2] and conclusions only to the extent consistent with this Decision and Order.[3]

The Respondents are parties to a collective-bargaining agreement with the Employer, which includes a provision known as the “mobility clause.” The mobility clause provides that an employer “shall have the right to employ any carpenter who is a member in good standing of any local affiliate of the New England Regional Council of Carpenters” if the carpenter “has worked a minimum of three (3) weeks for the employer in the previous five (5) months.” It is undisputed that Respondent-Local 43 enforces the mobility clause against any individual who is not a member of Local 43. As relevant here, in December 2007, Respondent-Local 43 invoked the mobility clause to request that the Employer terminate employee Kevin Lebovitz, a member of Council Local 24, Local 43’s sister local in Connecticut, and also directly asked Lebovitz to leave the Employer’s jobsite. The Employer did not terminate Lebovitz. However, Lebovitz left his employment with the Employer after a Respondent-Local 43 official told him to do so.

The judge found that the Respondents’ maintenance of the mobility clause violated Section 8(b)(1)(A) of the Act. We agree with the judge’s finding, although our decision is based on a narrower ground. Simply put, on its face, the mobility clause encourages membership in a Council local by restricting an employer to hiring only those carpenters who are members in good standing of a Council local. Thus, the Respondents’ maintenance of the provision restrains and coerces employees in the exercise of their Section 7 rights. Accordingly, we find that by maintaining an agreement containing such a provision, the Respondents have violated Section 8(b)(1)(A) of the Act. See Bricklayers Local 1 (Denton’s Tuckpointing), 308 NLRB 350, 356 (1992); and Carpenters Local 2396 (Tri-State Ohbayashi), supra, 287 NLRB at 764. Moreover, insofar as Respondent-Local 43 invoked the unlawful mobility clause to request that the Employer terminate employee Kevin Lebovitz and to cause him to leave his employment with the Employer, Respondent violated Section 8(b)(2) and 8(b)(1)(A), respectively.[4]

ORDER

The National Labor Relations Board orders that the A. The Respondent, New England Regional Council of Carpenters, Boston, Massachusetts, its officers, agents, and representatives, shall

  1. Cease and desist from

    (

    1. Maintaining in its collective-bargaining agreements a union-security clause requiring employees to comply with the Respondent’s constitution and bylaws as a condition of employment.

    (b) Maintaining in its collective-bargaining agreements a “mobility clause” restricting employers to hiring carpenters who are members in good standing of any local affiliate of the New England Regional Council of Carpenters.

    (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 deemed necessary to effectuate the policies of the Act.

    (

    1. Notify all employers bound by the Respondent’s 2006-2010 collective-bargaining agreement with Connecticut Construction Industries Association, Inc. and the AGC/CCIA Building Contractors, Labor Division of Connecticut, Inc. (the 2006-2010 Connecticut Contract), by mailing each employer a signed copy of the attached notice marked “Appendix A” that:

    (i) Article V, Section 1 in the 2006–2010 Connecticut Contract, requiring members to comply with the Respondent’s constitution and bylaws as a condition of employment, will be given no further force or effect; and

    (ii) Article VI, Section 3 in the 2006-2010 Connecticut Contract, the “mobility clause,” restricting employers to hiring carpenters who are members in good standing of any local affiliate of the New England Regional Council of Carpenters, will be given no further force or effect.

    (b) Within 14 days after service by the Region, post at its union offices located in Boston, Massachusetts, copies of the attached notice marked “Appendix A.”[5] Copies of the notice, on forms provided by the Regional Director for Region 34, after being signed by the Respondent’s authorized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to members are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material.

    (c) Sign and return to the Regional Director for Region 34 sufficient copies of “Appendix A” for posting at the premises and projects of McDowell Building & Foundation, Inc., if it is willing.

    (d) 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.

    1. The Respondent, United Brotherhood of Carpenters, Local 43, Hartford, Connecticut, its officers, agents, and representatives, shall

  3. Cease and desist from

    (

    1. Maintaining in its collective-bargaining agreements a union-security clause requiring employees to comply with the Respondent’s constitution and bylaws as a condition of employment.

    (b) Maintaining in its collective-bargaining agreements a “mobility clause” restricting employers to hiring carpenters who are members in good standing of any local affiliate of the New England Regional Council of Carpenters.

    (c) Invoking the unlawful mobility clause to cause or attempt to cause McDowell Building & Foundation, Inc., or any other employer, to discharge employees, including Kevin Lebovitz.

    (d) Invoking the unlawful mobility clause to cause employees, including Kevin Lebovitz, to leave their employment with McDowell Building & Foundation, Inc., or any other employer.

    (e) In any like or related manner restraining or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act.

  4. Take the following affirmative action deemed necessary to effectuate the policies of the Act.

    (

    1. Notify all employers bound by the Respondent’s 2006-2010 collective-bargaining agreement with Connecticut Construction Industries Association, Inc. and the AGC/CCIA Building Contractors, Labor Division of Connecticut, Inc. (the 2006–2010 Connecticut Contract), by mailing each employer a signed copy of the attached notice marked “Appendix B” that:

    (i) Article V, Section 1 in the 2006-2010 Connecticut Contract, requiring members to comply with the Respondent’s constitution and bylaws as a condition of employment, will be given no further force or effect; and

    (ii) Article VI, Section 3 in the 2006-2010 Connecticut Contract, the “mobility clause,” restricting employers to hiring carpenters who are members in good standing of any local affiliate of the New England Regional Council of Carpenters, will be given no further force or effect.

    (b) Make Kevin Lebovitz whole for any loss of earnings or other benefits that he may have suffered as a result of the Respondent’s action with regard to his employment with McDowell Building & Foundation, Inc., with interest, in the manner set forth in the remedy section of the judge’s decision.

    (c) Immediately notify McDowell Building & Foundation, Inc., in writing, that there is no objection to the employment of Kevin Lebovitz.

    (d) Within 14 days after service by the Region, post at its union offices and hiring hall located in Hartford, Connecticut or any other such hiring halls or union offices located in other Connecticut locations, copies of the attached notice marked “Appendix B.”[6] Copies of the notice, on forms provided by the Regional Director for Region 34, after being signed by the Respondent’s authorized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to members are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material.

    (e) Sign and return to the Regional Director for Region 34 sufficient copies of “Appendix B” for posting at the premises and projects of McDowell Building & Foundation, Inc., if it is willing.

    (f) 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, Washington, D.C. December 31, 2009

    Wilma B. Liebman, Chairman

    Peter C. Schaumber, Member

    (seal) National Labor Relations Board

    APPENDIX A

    Notice To Members

    Posted by Order of the

    National Labor Relations Board

    An Agency of the United States Government

    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...

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