The Cement League, (2016)

Docket Number:03-CA-126938

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, Washington, D.C. 20570, of any typographical or other formal errors so that corrections can be included in the bound volumes.

The Cement League and Northeast Regional Council of Carpenters and New York City and Vicinity District Council of Carpenters, Party in Interest. Case 03–CA–126938

February 12, 2016



On May 21, 2015, Administrative Law Judge Raymond P. Green issued the attached decision. The Party in Interest, New York City and Vicinity District Council of Carpenters (“the NYC Council”), filed exceptions and a supporting brief, and the Respondent joined and adopted both filings.1 The General Counsel and the Charging Party, Northeast Regional Council of Carpenters, filed answering briefs. The NYC Council filed a reply brief that the Respondent also adopted. The General Counsel additionally filed a cross-exception.2

The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel.

The Board 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 as modified and set forth in full below.3

The only allegation before us is that the Respondent, an association of employers in the construction industry, violated Section 8(a)(1) of the Act by maintaining and giving effect to hiring provisions in its 2011–2015 collective-bargaining agreement with the NYC Council, a labor organization, that encouraged union membership.4

These so-called “full mobility” provisions allowed employers in the Respondent association to hire anyone they wished without having to hire individuals referred from the out-of-work list maintained by the NYC Council,

1 The NYC Council and the Respondent have requested oral argument. The request is denied as the record, exceptions, and briefs adequately present the issues and the positions of the parties.

2 Glen G. McGorty, the court-appointed independent monitor under the RICO consent decree (described below), filed an amicus brief, and the General Counsel filed a response.

3 The General Counsel cross-excepts to the judge’s inadvertent omission of a “Conclusions of Law” section from his decision. We grant the unopposed exception and provide the section below. We shall modify the judge’s recommended Order to conform to the violation found and the Board’s standard remedial language, and in accordance with our decision in Excel Container, Inc., 325 NLRB 17 (1997). We shall substitute a new notice to conform to the Order as modified.

4 The full text of the provisions is set forth in the judge’s decision.

provided the hires were members of the NYC Council.5

Any nonmember hire had to be matched with an individual referred from the out-of-work list. The judge found that there was no evidence that the NYC Council discriminated based on union membership with regard to the out-of-work list or that the list was otherwise unlawful. The judge found the violation because the employers’ highly valued contractual right to bypass the out-ofwork list hinged on their hiring union members and thus impermissibly encouraged union membership.

Neither the Respondent nor the NYC Council excepts to the judge’s finding that the full-mobility hiring provisions contravene the National Labor Relations Act. They ask us, however, not to invalidate the provisions—even though they undisputedly violate the Act—because doing so, they claim, would be “in direct conflict and inconsistent with the objective and terms of the Consent Decree and related orders.” The consent decree to which they refer, approved on March 4, 1994, settled a civil action under the Racketeer Influenced and Corrupt Organizations Act (RICO) brought by the U.S. Department of Justice against the NYC Council and some of its officers. As for the “related orders,” the Respondent and the NYC Council particularly point to United States v. District Council of New York City & Vicinity of Carpenters, 90 Civ. 5722 (RMB) (S.D.N.Y. Oct. 23, 2013), in which the district court “approved” the 2011–2015 collectivebargaining agreement.

The NYC Council has been monitored by the United States District Court for the Southern District of New York (the district court) ever since it entered into the 1994 consent decree. Pursuant to the decree, the NYC Council applied to the district court for approval of the 2011–2015 agreement. In its October 23, 2013 Order, the district court granted approval, relying on its earlier approval of an essentially identical collective-bargaining agreement between the NYC Council and another employer association, the Association of Wall-Ceiling & Carpentry Industries of New York (“the WCC”). In its May 8, 2013 Decision and Order approving the WCC agreement, the court stated:

Integral to the CBA is full mobility and a computerized compliance program designed to protect against abuse and corruption in the workplace. As to full mobility, the ability of the contractors to select the carpenters they employ appears to have been freely bargained for with the Union, resulting in, among other things, a higher wage component. As to the anti corruption [sic]

5 The sole exception to this arrangement was that even if the hires were NYC Council members, the shop steward had to be hired from the out-of-work list.

363 NLRB No. 117



compliance provisions, these seem genuinely calculated to prevent fraud and abuse in the workplace. . . . [These include] (1) Shop Stewards electronically reporting personnel and hours, (2)carpenters [sic] being able to check through the electronic reporting system any and all jobs on which they were employed to insure the accuracy of the number of reported carpenters and hours, (3) the hiring of additional on-site inspectors employed by the Inspector General of the District Council for visiting job sites on a 24 hours a day and 7 days per week basis and concentrating on one and twoperson jobs where the CBA will not require a Shop Steward, and (4) CBA sanction and arbitration provisions by which contractors found to have willfully and with bad intent violated staffing, wage, and benefit requirements would be subject to loss of the right to full mobility and instead would be required to use the [outof-work list] for at least fifty percent (50%) of their staffing requirements while otherwise being bound by all of the other provisions of the CBA. . . . Most importantly, the CBA is a bargained over agreement and was approved by the Executive Committee of the District Council and by the Delegate Body of the District Council, lawfully designated representatives with the authority to approve collective bargaining agreements.

United States v. District Council of New York City & Vicinity of Carpenters, 90 Civ. 5722 (RMB) (S.D.N.Y. May 8, 2013) (citations omitted).

Having reviewed the district court’s October 23, 2013 Order and its May 8, 2013 Decision and Order, we conclude that finding and remedying the unfair labor practice at issue here does not undermine the court’s important anticorruption objectives or its orders in support of those objectives.

Initially, we emphasize the limited nature of our finding. The hiring provisions at issue violate the Act because they condition “full mobility”—that is, the right of Cement League employers to hire without reference to the out-of-work list—on hiring NYC Council members. We order only that the Respondent cease maintaining and giving effect to those provisions and notify employees and employers in the association that those provisions are invalid. Our Order does not invalidate any other part of the 2011–2015 agreement.

Our finding does not countermand the district court’s orders. In approving the 2011–2015 agreement and its full-mobility hiring provisions, the district court assessed whether the agreement was consistent with the 1994 consent decree. The district court particularly emphasized that the agreement was freely bargained for and democratically approved within the NYC Council. The dis-

trict court did not cite any provision of the NLRA or analyze the agreement’s full-mobility provisions under the NLRA. Because it was not relevant to its analysis, the district court did not discuss the significance, under the Act, of the provisions conditioning the employers’ fullmobility rights on their hiring of union members—the critical fact in an NLRA analysis.

We also find no indication in the district court’s orders that the full-mobility hiring provisions had an anticorruption purpose. The district court did not mention anticorruption together with full mobility except when noting that employers “found to have willfully and with bad intent violated staffing, wage, and benefit requirements would be subject to loss of the right to full mobility and instead would be required to use the [out-of-work list] for at least fifty percent (50%) of their staffing requirements.” In other words, full mobility is a privilege that could be taken away as a sanction—a benefit to persuade compliance and not itself an anticorruption mechanism.6

We therefore reject the arguments of the Respondent, the NYC Council, and the independent monitor that the fullmobility hiring provisions serve the court’s anticorruption goals. But even assuming that the provisions at issue may serve those goals to some extent, the district court decided only to permit the provisions in the agreement put before it; other hiring provisions have been approved by the district court in the past and surely could be again.7

In sum, there is no dispute that the 2011–2015 collective-bargaining...

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