N.L.R.B. v. Local 90, Operative Plasterers and Cement Masons' Intern. Ass'n of U.S. and Canada, AFL-CIO, AFL-CI

• Decision Date: 25 September 1979
• Docket Number: R,No. 78-2071,AFL-CI,78-2071
• Parties: 102 L.R.R.M. (BNA) 2482, 87 Lab.Cas. P 11,577 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. LOCAL 90, OPERATIVE PLASTERERS AND CEMENT MASONS' INTERNATIONAL ASSOCIATION OF the UNITED STATES AND CANADA,espondent.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 189

606 F.2d 189

102 L.R.R.M. (BNA) 2482, 87 Lab.Cas. P 11,577

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. LOCAL 90, OPERATIVE PLASTERERS AND CEMENT MASONS'

INTERNATIONAL ASSOCIATION OF the UNITED STATES AND

CANADA, AFL-CIO, Respondent.

No. 78-2071.

United States Court of Appeals, Seventh Circuit.

Argued May 30, 1979.

Decided Sept. 25, 1979.

Frederick Havard, NLRB, Washington, D. C., for petitioner.

Barry J. Levine, St. Louis, Mo., for respondent.

Before PELL, Circuit Judge, GEWIN, Senior Circuit Judge, ^* and WOOD, Circuit Judge.

PELL, Circuit Judge.

In this case the NLRB petitions for enforcement of its order against the respondent union, Local 90, Operative Plasterers and Cement Masons' International Association. The Board found that the union violated Section 8(b)(1)(A) of the National Labor Relations Act by taking coercive action against an employee for filing charges against the union with the NLRB. The union raises two issues in response to the Board's application: first, whether evidence obtained by the complainant in violation of Illinois law was admissible at the hearing, and, second, whether the Board's findings are supported by substantial evidence.

Between August 1974 and July 1977 the Southern Illinois Builders Association and the respondent union were parties to a collective bargaining agreement requiring the association to recruit employees through referrals by the respondent. To participate in the referral system, an employee was to call Dean Turner, the union business representative in charge of the system, at a union telephone kept in Turner's home. The employee would request placement on the "idle list," which Turner maintained in the chronological order of the calls. Early each morning Turner filled job vacancies by calling employees in order of appearance on the list. If the employee accepted the job, his name would be removed form the list. After completing the job, an employee had to call Turner again to be put back on the list. If Turner called an employee about a job and the telephone call was not answered or the employee refused, the employee's name would be removed from the list until Turner received a new request from that employee. During the slow winter season employees referred to work received repeat referrals during the same week and were removed from the list at the end of the week.

The events at issue in this action occurred when an employee, Steve Bovinett, experienced a marked decrease in job referrals under the system in 1976. Bovinett filed an unfair labor practice charge against the union in July of that year, alleging that Turner engaged in discriminatory conduct. The NLRB Regional Director found the charge lacking in merit, and at the end of August 1976, the General Counsel denied Bovinett's appeal from that decision.

On October 19, Bovinett called Turner to inquire about work. Bovinett recorded this phone call, and Turner conceded the accuracy of the transcript admitted in evidence. During the conversation, Turner told Bovinett he would put Bovinett's name on the referral list, reminding Bovinett that failure to answer the phone resulted in removal from the referral list.

On October 20, Turner called Bovinett with a job referral, and Bovinett also recorded this conversation. Turner told Bovinett:

I don't know what you are going to do. I got some more charges from you yesterday from the legal counsel. The people in this Local just aren't going to work with you, Steve. You know. So, you're going to have to make it on your own. And, you know, . . . I don't really care. But, I know one thing, you better not mess up any work. You better take your card and travel it into some other local. Cause, you know a guy don't just charge . . . make a bunch of charges and cost the local a lot of money and the people in the local keep on working with you. So, I don't know what you are going to do. It's up to you. And like I said, and . . . You better do the work and better do it right. I got a dozen of letters here now from contractors who don't want you on the job. So, you know, you are on your own.

Furthermore, Bovinett testified that on the same day at the job site, turner

came out and told me that I was costing the union money by filing these charges and that he had had ten letters from contractors now that didn't want me on the job and none of the men wanted to work with me and he told me that I had better get a travelling card and travel into some other local while I was still a member in good standing, which he did repeat about two times.

Later the same day, after finishing work, Bovinett called Turner and spoke to his wife. This conversation was recorded. Bovinett asked to have his name placed on the idle list. Mrs. Turner said she would do so. Despite Mrs. Turner's assurances, Turner testified that Bovinett's name was not on the list from October 20 to November 16. Furthermore, according to Bovinett, when he asked Turner on November 10 where his name was on the idle list, Turner told him that he had a few names ahead of his. On November 15, Bovinett wrote a letter to Turner requesting copies of the idle list. Turner wrote back on November 17 denying the request.

Bovinett was not referred to a job until November 16, although the list had turned over several times after October 20. When Turner called Bovinett on the 16th of November, another call recorded by Bovinett, he told Bovinett that he knew that Bovinett had been trying to find out the job referral rate of other union members. Turner also told Bovinett that he had "better be able to do the work." Turner, however, would not tell Bovinett what the work was and Bovinett refused the referral for "personal safety" reasons. Later that day, Bovinett made a call, again recorded, to find out whether he was on the list. Mrs. Turner answered the phone, and Bovinett asked her to put his name on the list if it was not there. She agreed to do so.

Bovinett's name did not actually go on the list again, however, until June 7, 1977. Bovinett did receive a referral on December 21, 1976, but other employees on the list received at least one referral before Bovinett. Bovinett received only one other referral, on June 6, 1977, before his name was placed on the list again on June 7.

The Board found that the union violated Section 8(b)(1)(A) of the Act. The Board found that because of Bovinett's protected activities, the union threatened him with reprisals in the form of loss of future referrals, refused to place his name on the referral list, refused to refer him to jobs, and refused to furnish copies of the list, to which Bovinett was entitled. The Board's order requires the union to cease and desist from " . . . restraining or coercing referral applicants in the...