Argo Steel Construction Co.

National Labor Relations Board - Board Decisions

Jan 27, 1959

122 N.L.R.B. 1077 (N.L.R.B. 1959)

ARGO STEEL CONSTRUCTION COMPANY 1077
it as the collective-bargaining representative of the employees in the
appropriate unit.
[The Board certified American Bakery & Confectionery . Workers
International Union, AFL-CIO, as the designated collective-bar-
gaining representative of the employees in the unit heretofore
found appropriate by the Board in its Decision and Direction of
Election.]
Argo Steel Construction Company and Joseph S. Koretz , Attor-
ney for Herman Worley and Local 25 , International Associa-
tion of Bridge , Structural and Ornamental Iron Workers,
AFL-CIO, and Steel & Metal Erectors Association of Michi -
gan, Parties to the Contract
Local 25, International Association of Bridge , Structural and
Ornamental Iron Workers , AFL-CIO and Joseph S . Koretz,
Attorney for Herman Worley and Argo Steel Construction
Company and Steel & Metal Erectors Association of Michigan,
Parties to the Contract. Cases Nos. 7-CA-1581 and 7-CB-350.
January 27, 1959
DECISION AND ORDER
On May 19, 1958, Trial Examiner Bruce Hunt issued his Inter-
mediate Report in the above-entitled proceeding, finding that the
Respondents had engaged in certain unfair labor practices and had
not engaged in others and recommending that they cease and desist
from the unfair labor practices found and take certain affirmative
action, as set forth in the copy of the Intermediate Report attached
hereto. Thereafter the Respondents and the General Counsel filed
exceptions to the Intermediate Report together with supporting
briefs.
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed except as indicated hereinafter.
The Board has considered the Intermediate Report, the exceptions,
the briefs, and the entire record in the case, and finds merit in the
General Counsel's exceptions. Accordingly, the Board adopts the
findings, conclusions, and recommendations of the Trial Examiner
only to the extent that they are consistent with the findings and
conclusions below.
1. The Trial Examiner found that the Respondent Company is
not a party to the collective-bargaining agreement signed by Steel
122 NLRB No. 129.
1078 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
& Metal Erectors Association of Michigan, herein called the Asso-
ciation, and the Respondent Union. We do not agree.
The Association is an employer group which has about 37 mem-
bers. According to a stipulation of the parties, it "exists for the
purpose of serving its members in negotiating and handling labor
relations contracts." From 1947 to 1955, Argo Steel Construction
Company, a partnership, was a member of the Association. In the
former year the partnership signed a power of attorney vesting in
the Association the authority "to negotiate and sign collective bar-
gaining agreements with the building trades unions . . . whose
members the undersigned may have occasion to employ, and further
to handle all matters pertaining to labor relations. . . ." The power of
attorney had no termination date. In 1955 the three partners of Argo
incorporated their business, but retained the same firm name, con-
tinued the same business, and remained the sole owners. The part-
nership never withdrew from the Association after the incorporation
of the business, and the newly formed corporation never formally
applied for membership in the Association. Apparently the Asso-
ciation was unaware of the change in Argo's form of doing business.
From the Association's standpoint there appears to have been un-
broken continuity of membership for the partnership-corporation.
Thus, on March 21, 1956, Argo paid the Association delinquent dues
for 1955, covering a period before as well as after Argo was incor-
porated. Also on January 17, 1957, Argo paid membership dues for
the calendar year 1957.
The 1956 contract negotiations were conducted on behalf of the
Association by a three-man negotiating committee. No employee or
officer of Argo was a member of the committee. However, McDowell,
a director of Argo and one of its incorporators, was present at an
Association meeting held on May 9, 1956, to discuss progress of the
negotiations, and at a second meeting on May 21 at which those
present unanimously voted to ratify the changes to be incorporated
in the new agreement.' The contract itself recites that it is between
the Association and the Respondent Union. It was signed by offi-
cials of the Association and not by the individual members.
The Trial Examiner concluded that the Respondent Company
was not a party to the 1956 contract because (a) the 1947 power of
attorney executed by the partnership was not binding on the suc-
cessor corporation, and (b) membership in the Association alone,
assuming arguendo that the Respondent Company was a member of
the Association in 1956, is not sufficient to evince an intent to be
bound by the Association's contract "since the execution of contracts
is not the only purpose for which the Association exists...."
'The Trial Examiner states that the meeting held on May 9, 1956 , was not restricted
to members of the Association . However , the Association ' s secretary - treasurer testified
that, according to the minutes of the meeting , the only persons present were members of
the Association.
ARGO STEEL CONSTRUCTION COMPANY 1079
The general rule is that a corporation succeeding a partnership is
liable on the contracts or obligations of the partnership when it
either expressly assumes such obligations or the same can be in-
ferred from the surrounding facts and circumstances 2 The infer-
ence is warranted, we believe, that Argo corporation intended to
assume the obligations and to succeed to the position of the partner-
ship in the Association.' Thus, the corporation continued as a
de facto member of the Association after the date of incorporation,
paid undifferentiated dues not only for itself but also for its
predecessor, participated in meetings called to discuss contract pro-
posals and to ratify the new contract terms, and in its relationship
to employees admittedly followed the practices and procedures con-
tained in the Association contract. Moreover, membership in the
Association itself, even de facto membership, justifies a fiinding that
Argo corporation intended to be bound by the group contract since
the parties stipulated that the Association "exists for the purpose
of serving its members in negotiating and handling labor relations
contracts." There is no evidence that, as inferred by the Trial
Examiner, it exists for any other purpose. Accordingly, we find,
contrary to the Trial Examiner, that the Respondent Company was
a party to the 1956 collective-bargaining contract signed by the
Association and the Respondent Union.4
2. The Trial Examiner found that the 1956 collective-bargaining
contract was not unlawful. We disagree.
Article 2 of the contract provides that: (d) an employee who is
a, member of the Union shall maintain his membership; (e) an
employee who is not a member or a new employee shall join the
Union within 30 days of the effective date of the contract or of his
employment, whichever is later; (f) a nonmember of the Union may
be hired but he shall make application for membership in accord-
ance with (e) above. Article 3 of the contract states that "only
members in good standing or those who have signified their intention
(as set forth in article 2(e) hereof,) of becoming members of
Local 25 ... shall be employed. In the exercise of this last provi-
sion, parties hereto agree to conform to all provisions of the National
Labor Relations Act, as amended."
Article 2, sec. (a) also provides "... that the General Working
Rules of the International Association of Bridge, Structural and
Ornamental Iron Workers, adopted by the 29th Convention of the
International at St. Louis, Missouri, October 21-27, inclusive, 1952,
are accepted and are made a part of the AGREEMENT except as
2Fletcher, Cyclopedia of Corporations (perm. ed.), sec. 4012.
3N.L.R.B. v. E. F. Shuck Construction Co., 243 F. 2d 519 (C.A. 9).
4 In view of the above, the Board finds that it will effectuate the policies of the Act to
assert jurisdiction not only on the basis set. forth by the Trial Examiner, but also on that
of the business done by the Association of which the Respondent Company is a member.
1080 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
changed in; or in conflict with this document." 5 The working rules
so incorporated, in the contract contain the following significant
provisions :
SEC. 13. Where two (2) or more members of this union are
employed, one shall be selected by the employer to act as fore-
man ... and the foreman is the only representative of the em-
ployer who shall issue instructions to the workmen. There
shall be no restriction on the part of the union as to the
employment of foremen ... except that all foremen ... shall be
members in good standing of the International Association or
have made application to become members.
SEC. 26. On all jobs in the jurisdiction of the local union not
less than fifty per cent of the members of the local union must
be at all times employed unless the required number of qualified
members are not available. This permits employers to employ
fifty per cent of the members from other local unions of our
International Association on each job.
SEC. 29. In the event the union is unable to supply the re-
quired number of needed men the employer may employ such
men as are available. These men shall be issued a working
permit by the Business Representative as provided in Section
covering permits, provided that such permit men who possess
necessary qualifications shall become members of the union. . . .s
The Trial Examiner found that the working rules "are designed
to effectuate the employment of members only." However, he
concluded that the contract was not on that account invalid because
(a) article 2(e) envisions the employment of nonmembers who are
to be given 30 days to join the union, (b) article 2(a) provides that
the working rules are made a part of the agreement "except as
changed in, or in conflict with this document."; and (c) there is no
evidence that an employer-party to the contract has failed to follow
its terms. We agree with the Trial Examiner that the working
rules were intended to enforce closed-shop conditions of employment.
However, we do not agree with him that these unlawful rules were
5 Article 5 also provides : "The Association, on behalf of its members, agrees to employ
members of Local Union No. 25 in conformity with the General Working Rules of the
International Association of Bridge, Structural and Ornamental Iron Workers, adopted
by the twenty-ninth convention of the International Association of Bridge, Structural
and Ornamental Iron Workers in convention assembled at St. Louis, Missouri, October 21,
1952, or as said Rules may be amended herein."
The constitution and working rules of the International Association were revised at a
convention held in October 1956, after the present contract was signed. The revision
provides (art. VIII-A, sec. 34) that the existing rules shall continue in effect for the
contract term "where agreements have been entered into between local unions and
employers and are now in operation , whose working rules differ from these working
rules. . . . 11
E Section 27 of the Rules deals with the issuance of work permits to members of one
local in some other local ; Section 28 with permits to nonmembers of any local of the
International. The fee for nonmembers is $2 per day ; that for members in good
standing is $2 for a 15 -day period.
ARGO STEEL CONSTRUCTION COMPANY 1081
neutralized by provisions in the contract itself. It is now well
established that a general savings clause does not make valid an
otherwise invalid union-security provision.' Such a clause is in-
effective "because it does not state which provisions are suspended,
and does not tell an unlearned employee which provisions are to be
stricken where interstate commerce is involved." 8 Accordingly, the
clause "except as changed in, or in conflict with this document"
attached to the sentence incorporating the international's unlawful
work rules in the contract did not make innocuous the illegal work
rules. Moreover, there is evidence, contrary to the finding of the
Trial Examiner, that parties to the contract in fact operated under
closed-shop conditions. Thus, as the Trial Examiner found, the
Respondent Company refused to employ Herman Worley because
he could not obtain a referral from the Respondent Union. One
foreman for the Respondent Company, a member of the Respondent
Union, testified that he only hires members of the Respondent
Union, or men holding permits from that organization. Another
foreman, also a member of the Respondent Union, although evasive
on the witness stand admitted furnishing an affidavit to a field
examiner of the Board in which he stated that anybody wanting to
work for him would either have to be a member of or a permit man
from the Respondent Union.9 Worley himself gave uncontradicted
testimony as to the hiring practice as he personally observed it.
According to Worley, an out-of-town man had to have a permit from
the Union and a referral to a particular job before he could go to
work. The permit man presented his referral slip to the timekeeper
on the job to which he was sent, and his permit to the union steward.
The latter kept a record of the permit and required renewal at ap-
propriate intervals. "You can't work without a dobie [permit]
paid up," We find, therefore, contrary to the Trial Examiner, that
the incorporation of the work rules of the Respondent Union's
International in the 1956 collective-bargaining agreement created
unlawful conditions of employment.
The General Counsel contends that article 2(f)10 of the contract
when considered together with article 3 11 are unlawful. The Trial
7N.L.R.E. v. E: F. Shuck Construction Co., 243 F. 2d 519, 521 (C.A. 9) ; N .L.R.B. v.
Gaynor News Company, Inc., 197 F. 2d 719, 723-724 (C.A. 2) ; Red Star Express Lines of
Auburn, Inc. V. N.L.R.B., 196 F. 2d 78, 81 (C.A. 2).
N.L.R.B. v. E. F. Shuck Construction Co., supra.
s Under all the circumstances, we find that the statements of Foreman Marion C. Wiley
contained in his affidavit are sufficiently probative to be considered in determining the
hiring practice of the Respondent Company. See County Electric Co., Inc., 116 NLRB
1080, 1083. Even ignoring this affidavit, the evidence is sufficient to establish the
existence of an illegal hiring practice.
10 ". A non-member may be hired but he shall make application for membership in
the Union in accordance with Sec. (e). The Employer may call the Union for men
when required . The Employer recognizes the Union as a valuable source of experienced
men and should call the Union when men are required."
""The regulations hereinafter set forth and the General International Working Rules
hereto attached , as amended by this Agreement , . . . shall apply to steel and metal
1082 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Examiner rejected the construction placed on these sections of the
contract by the General Counsel. We disagree with this holding
of the Trial Examiner.
By their terms, articles 2(f) and 3 in part require that new em-
ployees who are nonunion members must signify their intention of
joining the union within 30 days of their employment. There is
nothing in the Act which sanctions such a provision. The Act
legalizes, as a maximum, union-security provisions which require
employees to join unions on or after the thirtieth day following
the beginning of their employment. The instant provisions enlarge
upon the maximum sanctioned by the Act. Under them, persons
who may be unwilling to signify an advance intent to join the union
cannot be employed. The Act requires no such signification of
advance intent; it gives employees 30 days of employment before
they can be compelled to make a choice. Accordingly, we find these
clauses to be illegal as exceeding the permissive bounds of the
statute. Moreover, when these clauses are considered in the light
of the closed-shop conditions established by the working rules and
the hiring practices, the conclusion is inescapable, and we find,
that they were intended to create a pretense of legality while in fact
adhering to and enforcing the existing closed-shop conditions of
employment.
The General Counsel further attacks article 8 of the contract as
discriminating in favor of employees hired through the Respondent
Union. The Trial Examiner found that the article was not un-
lawful. Article 8 provides that there shall be four shipping points :
Detroit, Lansing, Flint, and Saginaw; that an employee shipped
from, or who has a residence in, any of these points shall furnish
his own transportation to and from all jobs within a 10-mile radius
of his shipping point; that an employee on a job beyond the 10-mile
radius "and who has been sent by the employer, or referred by the
Union at the request of the employer, shall receive an amount to
compensate him for transportation and all other expenses" in ac-
cordance with a fixed schedule; and that "Employees hired at the
job site without referral slip from the Union, or written shipping
order from the Employer, or his duly authorized representative,
shall not be entitled to any compensation for traveling, or other
expense, regardless of their place of employment." [Emphasis
supplied.] We do not pass upon the question of whether article 8,
on its face, is an unlawful provision. In view of the closed-shop
work rules and the other illegal contract provisions, it appears, and
construction work . on which shall be employed only members in good standing or
those who have signified their intention (as set forth in article 2(e) hereof ), of becoming
members of Local No. 25 of the International Association of Bridge , Structural and
Ornamental Iron Workers . In the exercise of this last provision , parties hereto agree to
conform to all provisions of the National Labor Relations Act, as amended."
ARGO STEEL CONSTRUCTION COMPANY 1083
we find, that article 8 was intended to, and did, bring home to em-
ployees the monetary value of securing referrals through the Union.
It thus reinforced closed-shop conditions. Accordingly, we find that
article 8, in its context, is unlawful.
By the aforesaid contract provisions and the hiring practice
pursuant thereto, the Board finds that Respondent Company has
violated Section 8(a) (3) and (1) and the Respondent Union has
violated Section 8(b) (2) and (1) (A) of the Act.
3. The complaint alleged that because of the collective-bargaining
agreement, customs, and practices, employees paid "dues and initia-
tion fees or permit fees or `dobie' in order to obtain and maintain
membership in Respondent [Union] or procure its issuance of permits
and/or clearances." The Trial Examiner found that this allegation
did not justify an unfair labor practice finding because the contract
is valid. However, we have held above that the contract did contain
unlawful union-security clauses. Accordingly, we further find that
by requiring employees to pay dues, initiation fees, permit fees, or
"dobie" in order to obtain and retain membership in the Respondent
Union or to obtain permits and job referrals, the Respondent Em-
ployer violated Section 8(a) (3) and (1) and the Respondent Union
Section 8(b) (1) (A) and (2) of the Act.12
4. The Trial Examiner found, and we agree, that the refusal to
employ Herman Worley was a violation of Section 8(a) (3) and (1)
on the part of the Respondent Company and of 8(b) (2) and (1) (A)
on the part of the Respondent Union.
THE REMEDY
In order to remedy the unfair labor practices found we shall
order the Respondents to cease and desist therefrom and to take
certain affirmative action designed to effectuate the policies of the Act.
The Respondents have challenged the Trial Examiner's recom-
mendation for remedying the unfair labor practice committed
against Worley. We find some merit in this exception. Worley,
like most building workers, had no regular employment but was
referred by the Respondent Union from one job to another, each
job lasting a few days or a few months. There is no evidence as
to how long the Argo job would have lasted. However, on Septem-
ber 18, 1956, about 6 weeks after Argo's discriminatory refusal to
hire him, Union Agent Brittingham wrote to Worley saying that
the misunderstanding had "been cleared up" and inviting him to
register for another job. A week later Worley reported to the Union
and was referred to a job which he quit after about 2 months.
Shortly thereafter he moved out of the jurisdiction of the Respond-
12 Millwrights' Local 2 2 32, United Brotherhood of Carpenters and Joiners of .America,
AFL-CIO, etc. (Farnsworth & Chambers, Inc.), 122 NLRB 300.
1084 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
rent Union. He has since been working elsewhere. Under these cir-
cumstances, We held that the terminal date for computing the Re-
spondents' liability for back pay to Worley is the day on or after
September 25, 1956, when Worley went to work for his new employer
on referral from the Respondent Union.13 We also hold that the
Respondent Company need not offer to reinstate Worley since he has
voluntarily left the jurisdiction of the Respondent Union and ap-
parently no longer desires to work in the Detroit area.
The General Counsel has requested application of the Bro tvn-Olds 14
remedy to expunge the effect of the illegal closed-shop conditions of
employment. It is now more than 10 years since Congress enacted
a statute outlawing certain union-security provisions, particularly the
closed shop. Notwithstanding the statutory prohibition, the Re-
spondents as late as 1956 entered into a contract which incorporates
working rules of the union which have the plain effect of retaining
unlawful closed shop conditions of employment. This is not the
result of a mere technical oversight to the making of an otherwise
lawful -union security contract.l5 Rather it seems to reflect a policy
of deliberately ignoring and flouting the statutory prohibition. By
enforcing closed-shop conditions of employment, the Respondents
have inevitably coerced employees to pay the dues, fees, and assess-
ments necessary to achieve and retain membership in the Respondent
Union or to receive a permit entitling them to work within the
Union's jurisdiction. At this late date it will not effectuate the
policies of the Act merely to require the Respondents to cease and
desist from their unfair labor practices. In order adequately to
remedy the unfair labor practices found, and to encourage compli-
ance with the Act in the future, the Respondents should be required
to reimburse employees of the Respondent Company for any dues,
fees, assessments, or other moneys that were unlawfully exacted from
them as a condition of obtaining or retaining employment with the
Company. Accordingly, we shall order the Respondents jointly and
severally to refund to all employees of the Respondent Company the
initiation fees, permit fees, assessments, dues, and other moneys paid
by them as the price of their employment.ls The liability of the
Respondents for reimbursement shall include the period beginning
6 months prior to the filing and service of the amended charges
herein and shall extend to all such moneys thereafter collected, ex-
13 For the reasons set forth by the Trial Examiner, we reject the contention of the
Respondents that the terminal date for computing back pay should be August 2, when
Worley obtained a letter from Acorn Iron Works saying he was not indebted to it.
14 United Association of Journeymen & Apprentices of Plumbing & Pipe Fitting Industry
-(J. S. Brown-E. F. Olds Plumbing & Heating Corporation), 115 NLRB 594, 597--602.
15 Philadelphia Woodwork Company, 121 NLRB 1642.
1e N.L.R.B. v. Broderick Wood Products Company, 261 F. 2d 548 (C.A. 10) ; Los A ngeles-
Seattle Motor Express, Incorporated, 121 NLRB 1629.
ARGO STEEL CONSTRUCTION COMPANY 1085
empting the period between the date of the Intermediate Report and
the date of this Order, as the Trial Examiner found that the 1956
contract was not invalid either in language or in application.17
ADDITIONAL CONCLUSION OF LAW
By maintaining and enforcing an agreement, understanding or
practice whereby membership in or clearance from the Respondent
Union is required as a condition of employment, and by granting
travel allowances to employees referred through the Respondent
Union Which are not granted to employees obtained from other
sources, and by requiring employees or applicants for employment
to pay dues, initiation fees, assessments, permit fees, or other moneys
to the Respondent Union in order to obtain and retain employment,
the Respondent Company has violated Section 8(a) (I) and (3) and
the Respondent Union Section 8(b) (1) (A) and (2) of the Act.
ORDER
Upon the entire record in this case, and pursuant to Section 10(c)
of the National. Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that:
A. Argo Steel Construction Company, Detroit, Michigan, its offi-
cers, agents, successors and assigns, shall:
(1) Cease and desist from :
(a) Maintaining, performing or enforcing any agreement, under-
standing, or practice With. Local. 25, International Association of,
Bridge, Structural and Ornamental Iron Workers, AFL-CIO, or.:
any other labor organization, which requires membership in or re-
ferral from the aforesaid labor organization as a condition of em
ployment, or which requires the payment of travel allowances to
employees hired through Local 25 which are not required to be paid
IT Subsequent to the issuance of the Intermediate Report, the Respondent Union filed a
motion with the Board requesting that the record be reopened to enable it to prove that
on April 25-29, 1958, its International amended its constitution to delete the "General
Working Rules" effective immediately, and that on May 7, 1958, the International sent a
circular letter to all locals, including Respondent Local 25, instructing them to disregard
and not to operate under the old rules and to amend existing contracts immediately to
reflect the changed constitution. The Respondent Union asserts that these steps have
been taken to conform with the suggestion of the General Counsel to the AFL-CIO
Building Trades Council that if closed-shop provisions were removed from union constitu-
tions ahd contracts he would recommend to the Board that the Brown-Olds remedy not
be applied to existing cases. The General Counsel opposes granting the motion. It is
hereby denied. The remedy to be applied for the correction.of unfair labor. practices lies
within the exclusive discretion of the Board. We believe that where an employer and a
union have flagrantly ignored the closed-shop prohibitions of the Act, the Brown-Olds
remedy is required. However, if since the issuance of the Intermediate Report, the
Respondents have voluntarily deleted unlawful union-security provisions from their con-
tract and have terminated their unlawful hiring practices their liability for reimbursing
employees for dues, initiation fees, permit fees, assessments, and other moneys will termi-
nate with the cessation of the unlawful practices. This is a matter to be taken up in
the compliance state of the proceeding.
1086 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to employees hired through other sources, except as authorized in the
proviso to Section 8(a) (3) of the Act.
(b) Encouraging membership in Local 25, International Associa-
tion of Bridge, Structural and Ornamental Iron Workers, AFL-
CIO, or in any other labor organization of its employees, by dis-
criminating in regard to hire or tenure of employment or any term
or condition of employment, except to the extent permitted by the
proviso to Section 8 (a) (3) of the Act.
(c) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the rights guaranteed in Section 7
of the Act, except to the extent that such rights may be affected by
an agreement requiring membership in a labor organization as a
condition of employment as authorized in Section 8(a) (3) of the Act.
(2) Take the following affirmative action, which the Board finds
will effectuate the policies of the Act :
(a) Jointly and severally with Respondent Union, reimburse all
employees for moneys illegally exacted from them in the manner
and to the extent set forth in the section of this Decision and Order
entitled "The Remedy."
(b) Jointly and severally with Respondent Union make whole
Herman Worley for any loss he may have suffered as the result of
the discrimination against him in the manner set forth in the section
of the Intermediate Report entitled "The Remedy" as modified in
this Decision and Order.
(c) Preserve and make available to the Board or its agents upon
request, for examination and copying, all payroll records, social-
security payment records, timecards, personnel records and reports,
and all other records necessary to compute the amount of back pay
due Herman Worley and the moneys illegally exacted from him and
other employees.
(d) Post at its offices and at all of its building projects within the
territorial jurisdiction of the Respondent Union copies of the notice
attached hereto marked "Appendix A."'8 Copies of said notice, to
be furnished by the Regional Director for the Seventh Region, shall,
after being duly signed by Respondent Company's representative, be
posted by Respondent Company immediately upon receipt thereof,
and be maintained by it for a period of 60 consecutive days there-
after in conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall be taken
by Respondent Company to insure that said notices are not altered,
defaced, or covered by any other material.
18 In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant .to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order."
ARGO STEEL CONSTRUCTION COMPANY 1087
(e) Post at the same places and under the same conditions as set
forth in (4) above, and as soon as they are forwarded by the Re-
gional Director, copies of the Respondent Union's notice herein,
marked "Appendix B."
(f) Notify the Regional Director for the Seventh Region in
writing, within ten (10) days from the date of this Order, as to the
steps it has taken to comply herewith.
B. The Respondent Union, Local 25, International Association of
Bridge, Structural and Ornamental Iron Workers, AFL-CIO, its
officers, representatives and agents, shall:
1. Cease and desist from :
(a) Maintaining, performing or enforcing any agreement, under-
standing or practice with Argo Steel Construction Company or any
other employer over whom the Board would assert jurisdiction which
requires membership in or referral from the Respondent Union as
a condition of employment or which requires the payment of travel
allowances to employees referred by the Respondent Union which
are not required to be paid to employees referred through other
sources, except as authorized by the proviso to Section 8(a) (3) of
the Act.
(b) Causing or attempting to cause the Respondent Company or
any other employer over whom the Board would assert jurisdiction
to discriminate against employees or applicants for employment in
violation of Section 8(a) (3) of the Act.
(c) In any other manner restraining or coercing employees or
applicants for employment in the exercise of the rights guaranteed
in Section 7 of the Act, except to the extent that such rights may be
affected by an agreement requiring membership in a labor organiza-
tion as a condition of employment as authorized in Section 8(a) (3)
of the Act.
2. Take the following affirmative action, which the Board finds
will effectuate the policies of the Act :
(a) Jointly and severally with Respondent Company reimburse
all employees of Respondent Company for moneys illegally exacted
from them in the manner and to the extent set forth in the section
of this Decision and Order entitled "The Remedy."
(b) Jointly and severally with Respondent Company make whole
Herman Worley for any loss he may have suffered as the result of
the discrimination against him in the manner set forth in the section
of the Intermediate Report entitled "The Remedy" as modified in
this Decision and Order.
(c) Preserve and make available to the Board or its agents upon
request, for examination and copying, all membership, dues, permit,
and other records necessary to compute the moneys illegally exacted
from employees of Respondent Company.
1088 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(d) Post at its offices, in conspicuous places, including all places
.where notices to members are customarily posted, copies of the notice
.attached hereto as "Appendix B." 19 Copies of said notice, to be
furnished by the Regional Director for the Seventh Region, shall,
after being duly signed by Respondent Union's representative, be
posted immediately upon receipt thereof and be maintained by Re-
spondent Union for 60 consecutive days thereafter. Reasonable steps
shall be taken by Respondent Union to insure that said notices are
not altered, defaced, or covered by any other material.
(e) Mail to the Regional Director signed copies of Appendix B,
for posting by Respondent Employer as provided above herein.
Copies of said notice, to be furnished by the said Regional Director,
shall, after being signed by Respondent Union's representative, be
forthwith returned to the Regional. Director for such posting.
(f)' Notify the Regional. Director for the Seventh Region in writ-
ing, within 10 days from the date of this Order, what steps it has
taken to. comply herewith.
MEMBER BEAN, concurring in part and dissenting in part:
I agree with the majority except in their finding that articles 3
.and 8 of the collective-bargaining contract are unlawful. It seems
to me that these articles are severable from the unlawful work rules
and standing alone are not unlawful.20
Article 3 says that "only members in good standing or those who
.have signified their intention (as set forth in article 2(e) .hereof) of
becoming members of Local No. 25 ... shall be employed." (Empha-
sis supplied.) Article 2(e), as the General Counsel concedes, con-
tains an entirely lawful provision. requiring nonunion employees to
join the Union after 30 days 21 The General Counsel argues, how-
ever, that article 3 when considered together with article 2(f) 22 in
fact requires nonunion employees to apply for membership immedi-
ately upon employment. I agree with the Trial Examiner that this
1U See footnote 18. -
2U The contract contains a severability clause (article 5) which reads : "Should any
provisions of this Agreement at any time during its life be determined to be in conflict
with Federal or State Laws or Regulations, the parties hereto thereupon agree to re-
negotiate such provisions, to effectuate compliance with such determination ; provided
however, that the remaining provisions of this Agreement shall remain in full force and
effect, it being the mutual intent of the parties to negotiate an Agreement which complies
in every respect with all applicable laws or regulations ." See N . L.R.B. v. Rockaway News
Supply Company, Inc., 345 U.S. 71, 78-79.
n-"Any employee who, on the effective date of this Agreement, is not a member of the
Union, and any. Non-Union member employee thereafter hired, shall, as a condition of
continued employment, starting thirty (30) days after the effective date of this Agreement,
or thirty (30) days following the beginning of his employment, whichever is the later,
acquire and maintain membership in the Union as uniformly required of all members."
22 "The Employer shall, upon request, notify the Union. in writing, as to the date of
original employment. A non-member may be hired but he shall make application for
membership in the Union in accordance with Sec. (e). The Employer may call the
Union for men when required. The_ Employer recognizes the Union as a valuable source
of experienced men and should call 'the Union when men are required."
ARGO STEEL CONSTRUCTION COMPANY 1089
construction is not required. Article 3, as does article 2(f), specifi-
cally incorporates article 2(e). All three articles must therefore be
,read together. So read they emphasize legality. The phrase "signify
their intention ... of becoming members of Local No. 25" contained
in article 3 is immediately followed by the parenthetical phrase "as
set forth in Article 2(e)," the lawful union-security clause. In other
words, article 3 should be read as follows :
". . . only members in good standing or those who have signified
their intention . . . of becoming members of Local No. 25 [thirty
,(30) days after the effective date of this Agreement, or thirty (30)
days following the beginning of, his employment, whichever is the
later] ... shall be employed." Article 3 appears to me to be lawful
unless the requirement that employees signify on hiring whether
they intend to become members of the Union after 30 days is equiva-
lent to requiring them concurrently to make application for mem-
bership.23 An employee can signify by application, but he can also
signify his intention of probable future action by any form Words .21
Only the former appears to be unlawful. It seems to me reasonable
and sound business sense to permit an employer to ask a new or
prospective employee if he has any objection to joining the Union
30 days after his employment, as required by contract. Employers
frequently incur substantial expense in training newly hired em-
ployees. They should not be required to hire employees knowing
definitely that, or even being uncertain whether, they will have to
discharge them after 30 days because of opposition to joining a
union.
I also' believe that article 8 of the contract is susceptible to a
lawful construction. This article states that "an employee" employed
beyond a 10-mile radius of a shipping point "and who has been sent
by the employer, or referred by the Union at the request of the
employer" shall receive certain travel allowances; but that "Em-
ployees hired at the job site without referral slip from the Union,
or written shipping order from the Employer" shall not receive such
allowances. - I agree with the Trial Examiner that this article dis-
criminates not between union and nonunionmen, but between those
hired at job sites, whether or not union men, and those hired at the
shipping points. It is quite customary in industry, as it is in Gov-
ernment, to pay travel allowances to men who are hired at one loca-
tion and asked to report for work at another location a considerable
23 The proviso clause to Section 8(a) (3) reads: "That. nothing in this Act, . . . shall
preclude an employer from making an agreement with a labor organization . . . to re-
quire as a condition of employment membership therein on or after the thirtieth day
following the beginning of such employment. . . .
a To signify means according to Webster's New International Dictionary (2d ed.)
To show by a sign ; to communicate by any conventional token, as words, gestures,
signals , or the like ; to make known; announce. . . .
505395-59--vol. 122-70
1090 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
distance away, and not to pay such allowances to men who volun-
tarily appear for jobs at a distance from their homes. Such a clause
tend to encourage the hiring of men in the local area. The benefits
of the travel allowances in the clause in question are not restricted
to men hired through the Union. They are payable to all "em-
ployees," including those sent to the job site by the employer, not
restricted as to source, as well as those referred by the Union at the
employer's request.
For the foregoing reasons I dissent from so much of the majority
decision as finds that articles 3 and 8 of the collective-bargaining
agreement between the Association and the Respondent Union are
unlawful.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that:
WE WILL NOT maintain, perform, or enforce any agreement,
understanding or practice with Local 25, International Associa-
tion of Bridge, Structural and Ornamental Iron Workers, AFL-
CIO, or any other labor organization, which requires member-
ship in or referral from any labor organization as a condition
of employment, or which requires the payment of travel allow-
ances to employees referred through Local 25 which are not
required to be paid to employees hired through other sources,
except as authorized in the proviso to Section 8(a)(3) of the
Act.
WE WILL NOT encourage membership in Local 25, International
Association of Bridge, Structural and Ornamental Iron Workers,
AFL-CIO, or in any other labor organization of our employees,
by discriminating in regard to hire or tenure of employment or
any term or condition of employment, except to the' extent per-
mitted by the proviso to Section 8(a) (3) of the Act.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of the rights guaranteed
them in Section 7 of the Act, except to the extent that such
rights may be affected by an agreement requiring membership
in a labor organization as a condition of employment as author-
ized in Section 8(a) (3) of the Act.
WE WILL reimburse all our employees for the initiation fees,
dues, permit fees, assessments, and other moneys they were un-
lawfully required to pay to Local 25, International Association
ARGO STEEL CONSTRUCTION COMPANY 1091
of Bridge, Structural and Ornamental Iron Workers, AFL-CIO,
as a result of the illegal hiring provisions in our contract with
the aforementioned labor organization.
AVE WILL make whole Herman Worley for any loss of pay
suffered as a result of the discrimination against him.
All our employees are free to become or remain, or to refrain from
becoming or remaining, members in good standing of Local 25,
International Association of Bridge, Structural and Ornamental
Iron Workers, AFL-CIO, or any other labor organization, except
to the extent that this right may be affected by an agreement in
conformity with Section 8(a) (3) of the National Labor Relations
Act.
ARGO STEEL CONSTRUCTION COMPANY,
Employer.
Dated---------------- By-------------------------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
APPENDIX B
NOTICE TO ALL MEMBERS OF LOCAL 25, INTERNATIONAL ASSOCIATION
OF BRIDGE, STRUCTURAL AND ORNAMENTAL IRON WORKERS, AFL-
CIO, AND TO ALL EMPLOYEES OF, AND APPLICANTS FOR EMPLOY-
MENT WITH, ARGO STEEL CONSTRUCTION COMPANY
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify you that:
WE WILL NOT maintain, perform, or enforce any agreement,
understanding, or practice with Argo Steel Construction Com-
pany or any other employer over whom the Board will assert
jurisdiction, which requires membership in or referral from any
labor organization as a condition of employment, or which re-
quires the payment of travel allowances to employees referred
to jobs through our labor organization which are not also re-
quired to be paid to employees hired through other sources,
except as authorized in the proviso to Section 8(a) (3) of the Act.
WE WILL NOT cause or attempt to cause Argo Steel Construc-
tion Company or any other employer over whom the Board will
assert jurisdiction to discriminate against employees or appli-
cants for employment in violation of Section 8(a) (3) of the Act.
WE WILL NOT in any other manner restrain or coerce em-
ployees or applicants for employment in the exercise of the
1092 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
rights guaranteed in Section 7 of the Act, except to the extent
that such rights may be affected by an agreement requiring
membership in a labor organization as a condition of employ-
ment as authorized in Section 8(a) (3) of the Act.
WE WILL reimburse all. employees of Argo Steel Construction
Company for the initiation fees, dues, permit fees, assessments,
and other moneys they were unlawfully required to pay our
union as the result of the illegal hiring provisions in our con-
tract with the aforementioned company.
W WILL make whole Herman Worley for any loss of pay
suffered as a result of the discrimination against him. .
LOCAL 25, INTERNATIONAL ASSOCIATION
OF BRIDGE, STRUCTURAL AND ORNA-
MENTAL IRON WORKERS, AFL-CIO,
Labor Organization.,
Dated ------------ - By-------------------------------- ------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof,.
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Charges having been duly'filed, complaints having been served by the General
Counsel along with an order consolidating the cases and notice of hearing, thereon,
and answers having been filed by Argo Steel Construction Company and Local 25,
International Association of Bridge, Structural and Ornamental Iron Workers,
AFL-CIO, herein respectively called Argo and Local 25, and jointly called the
Respondents, and by Steel & Metal Erectors Association of Michigan, herein called
the Association, a hearing involving allegations of unfair labor practices in violation
of the National Labor Relations Act, 61 Stat. 136, herein called the Act, was held
upon due notice at Detroit, Michigan, on various dates between November 18 and
December 19, 1957, inclusive, before the duly. designated Trial Examiner. The
allegations of the complaints, as amended at the hearing, denied by the answers
as amended, in substance are that (a) on June 27, 1956, the Association, acting on
behalf of Argo and others of its members, executed a collective labor agreement
pursuant to which Argo and other members of the Association agreed to employ
exclusively members of Local 25 or persons referred by that labor organization
and to prefer members of Local 25 by inter alia assigning 50 percent of the work
to them and by paying traveling expenses to employees referred by Local 25 which
are denied to employees not so referred; (b) since July 19, 1956, Argo has required
that its employees be referred for employment by Local 25, which has caused and
attempted to cause Argo and other members of the Association to require such
referrals as a condition of employment and has required employees. to pay invalid
fees in order to obtain such referrals; and (c) on August 1, 1956, Argo refused
to employ Herman Worley, and Local 25 caused Argo to so refuse, for the reason
that Worley had not received referral to Argo by Local 25; and (d) by said con-
duct, Argo violated Section 8(a)(1) and (3) of the Act and Local 25 violated
Section 8(b)(1)(A) and (2) 'thereof. All parties were represented by counsel or
pro se, were afforded full opportunity to be heard, to examine and cross-examine
witnesses, to introduce evidence pertinent to the issues, to argue orally upon the
record and to file briefs and proposed findings and conclusions. Briefs were re-
ceived from the General Counsel,. Argo, Local 25, and the Association. The
Respondents' and the Association's motions to dismiss are disposed of in accordance
with the determinations below. ;
ARGO STEEL CONSTRUCTION COMPANY 1093
Upon the entire record in the case and from my observation of the witnesses,
I make the following:
FINDINGS OF FACT
1. THE ASSOCIATION; THE RESPONDENT ARGO
Steel & Metal Erectors Association of Michigan is a nonprofit corporation of
about 37 members which negotiates collective labor agreements and seeks to settle
amicably disputes arising therefrom. At all times material, one of its members
has been The R. C. Mahon Company, herein called Mahon, a Michigan corpora-
tion which has it principal office and place of business at Warren, Michigan, and
which is engaged in fabrication and erection of steel and metal products. During
the year 1956, Mahon purchased materials valued in excess of $500,000 which were
shipped to it directly from points outside Michigan, and during the same year it
shipped directly to points outside Michigan products exceeding $500,000 in value.'
For jurisdictional purposes here, the Association concedes that the business of
Mahon is appropriately considered, Insulation Contractors of Southern California,
Inc., etc., 110 NLRB 638. I find that the Association is engaged in commerce
within the meaning of the Act.
Argo Steel Construction Company, a Michigan corporation, has its principal
office and place of business in Detroit where it is engaged in the erection of
structural steel for commercial and industrial construction within that State. Argo
was incorporated during the summer of 1955 and its sole stockowners have been
Joseph J. Shannon, Edward L. McDowell, and John J. Lahey who, prior to the
incorporation, were copartners operating the business under the same name as the
corporation. The partnership is herein referred to as such; the corporation is herein
called Argo.
There is an issue whether Argo is a party to the Association's 1956 contract with
Local 25. I find below that Argo is not a party thereto, and the question whether
Argo is subject to the Board's jurisdiction will be decided upon the basis of Argo's
own business activities. The General Counsel, seeking to have jurisdiction asserted
over Argo under the doctrine of Whippany Motor Co., Inc., 115 NLRB 52, estab-
lished that during 1957 Argo performed local services valued at about $109,000
for Cunningham-Limp Company, general contractors with their main office in
Detroit and sales offices in cities outside Michigan. During the first 5 months of
1957, Cunningham-Limp's business outside Michigan exceeded $200,000. Although
Argo's business in 1956, the year of certain unfair labor practices, appears not to
meet the Board's jurisdictional standards, it is sufficient that during the 12-month
period immediately preceding the hearing Argo's services exceeded $100,000 to a
company (Cunningham-Limp) which meets those standards. Aroostook Federa-
tion of Farmers, Inc., 114 NLRB 538. I find, contrary to the contention of the
Respondents, that Argo is engaged in commerce within the meaning of the Act.
II. THE RESPONDENT UNION
Local 25, International Association of Bridge, Structural and Ornamental Iron
Workers, AFL-CIO, is a labor organization admitting to membership employees
of Argo and of the Association's members.
III. THE UNFAIR LABOR PRACTICES
A. Preliminary statement
The basic issues involve (1) the validity of the 1956 contract between the Asso-
ciation of Local 25; (2) various provisions of the constitution and working rules of
Local 25's parent body, herein called the International; (3) certain fees which
Local 25 requires of its members and other persons referred by it to employment;
and (4) the inability of Herman Worley to secure employment with Argo.
B. Contractual history
During 1947, Argo's predecessor, the partnership, was a member of the Associa-
tion and, along with other members, executed individual powers of attorney author-
izing the Association inter alia to negotiate and sign agreements with labor organi-
zations "whose members the [partnership] may have occasion to employ. . .
The power of attorney contained no expiration date.
1 The facts respecting Mahon appear also at 118 NLRB 1537.
1094 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
From 1947 until the incorporation of Argo in 1955, the partnership was a mem-
ber of the Association ? The corporation did not formally apply for membership,
but on March 21, 1956, it paid to the Association delinquent membership dues
for 1955 and current dues for 19563
On May 9, 1956 , the Association held a meeting . At that time negotiations were
in progress for a new contract between it and Local 25, and the purpose of the
meeting was to acquaint interested persons with the status of negotiations. The
meeting was not restricted to members of the Association . Edward McDowell,
who was then a director and one of the incorporators of Argo, was present.
On May 21 the Association held another meeting which McDowell attended.
The persons present approved , without dissent , a letter from the Association to
Local 25 reciting the changes to be made in the expiring contract between those
two organizations , which was to be revised and renewed . The changes had been
negotiated by committees of the two organizations . No official or employee of
Argo was present on the Association 's committee and there was no discussion
during the negotiations concerning the identities of the employers to be bound by
the new contract . On June 27 , the new contract was executed . It was signed by
the Association and, as related below, some of its members later signed copies.
Local 25's practice has been to mail to each employer with which it desires to
have contractual relations , whether a member or nonmember of the Association,
a copy of each contract negotiated with the Association , with blank spaces for the
name of the employer , and to execute the copies with the employers who agree
thereto. Argo did not sign a copy of the 1956 contract . Nor were copies ex-
ecuted by various employers . In fact, some members of the Association declined
to sign . This situation was partly responsible for a decision in 1957 by counsel
for the Association that mere memberhip in the Association did not confer upon
it authority to represent the member in collective bargaining and that the 1947
powers of attorney were defective. He prepared a new form of power of attorney.
On July 16, 1957, copies were mailed to various employers , including Argo, which
did not sign its copy. Argo did pay its membership dues for 1957, however.
C. Conclusions concerning the 1956 contract
The initial question is whether Argo was a party to the 1956 contract between
the Association and Local 25 . The test for inclusion of an employer in a multi-
employer bargaining unit is whether he intended unequivocally to be found in
collective bargaining by group , rather than by individual action. Santa Clara
County Pharmaceutical Association , et al., 114 NLRB 256. The test is no less
when the question is whether Argo was a party to the multiemployer contract.
I assume arguendo that Argo was a member of the Association in 1956.4 I do not
believe, however , that bare membership warrants a finding that Argo was a party
to the Association 's contracts . The 1947 power of attorney , executed by the part-
nership, was binding at most upon the partnership during its life and not upon the
corporation thereafter . Since the execution of contracts is not the only purpose
for which the Association exists, and since there is no evidence that by virtue of
its constitution and bylaws a member agrees to be bound by its contracts , I cannot
conclude that membership alone establishes an unequivocal intent to become a
party to such contracts . Nor is such intent demonstrated by McDowell 's presence
at an Association meeting when the 1956 contract was approved without dissent.
The next question relates to the alleged invalidity of the 1956 contract. There
is no issue concerning the majority status of Local 25 , that the contract requires
employers ( 1) to hire exclusively members of Local 25 or persons referred for
employment by that labor organization and (2) to prefer members of Local 25 by
paying traveling expenses and in the assignment of work . In determining these
2 At the time of the hearing the partnership was still in existence for the purpose of
liquidating.
3 On May 27, 1957 , John W . Babcock, Argo 's attorney , secretary , and one of Its directors,
wrote to a field examiner of the Board, saying that Argo was a member of the Association.
On June 26 Babcock again wrote to the examiner , saying that Argo was a party to the
Association 's contract with Local 25. At the hearing, however, Babcock said that the
statements in his letters had been mere reiterations of information given to him by
Argo's office manager, the accuracy of which he had not investigated , and that the state-
ments were inaccurate. I do not rely upon those letters in making the findings 'herein.
,'As noted, although the partnership was a member of the Association until mid-1955,
the year of Argo's Incorporation , Argo did not formally apply for membership . Never-
theless, in 1956 Argo paid dues to the Association for 2 years , 1955-56, and it was carried
on the Association 's books as a member.
ARGO STEEL CONSTRUCTION COMPANY 1095
issues, we are concerned only with the language of the contract and with certain
rules of the International. There is no evidence that any employer-party to the con-
tract applied or construed it in an invalid manner. There is, of course, the dis-
crimination by Argo against Worley, discussed below, but it has been found that
Argo was not a party to the contract.
The contract provides:
ARTICLE 2
SUPPLEMENTAL REGULATIONS
(a) It is agreed that the General Working Rules of the International Asso-
ciation of Bridge, Structural and Ornamental Iron Workers, adopted by the
29th Convention of the International at St. Louis, Missouri, October 21-27,
inclusive, 1952, are accepted and are made a part of this AGREEMENT
except as changed in, or in conflict with this document. [Emphasis added.]
(d) Any employee who is a member of the Union in good standing on the
effective date of this Agreement shall, as a condition of employment, maintain
membership in the Union as uniformly required of all members.
(e) Any employee who, on the effective date of this Agreement, is not a
member of the Union, and any Non-Union member employee thereafter hired,
shall, as a condition of continued employment, starting thirty (30) days after
the effective date of this Agreement, or thirty (30) days following the be-
ginning of his employment, whichever is the later, acquire and maintain mem-
bership in the Union as uniformly required of all members.
(f) The Employer shall, upon request, notify the Union, in writing, as to the
date of original employment. A nonmember may be hired but he shall make
application for membership in the Union in accordance with Sec. (e). The
Employer may call the Union for men when required. The Employer rec-
ognizes the Union as a valuable source of experienced men and should call
the Union when men are required.
ARTICLE 3
TERRITORIAL JURISDICTION
The regulations hereinafter set forth and the General International Working
Rules hereto attached, as amended by this Agreement, . shall apply to
steel and metal erection work in . . . [certain listed counties in Michigan]
on which shall be employed only members in good standing or those who
have signified their intention (as set forth in Article 2(e) hereof,) of becoming
members of Local 25 of the International. . . . In the exercise of this last
provision, parties hereto agree to conform to all provisions of the National
Labor Relations Act, as amended.
In his brief, the General Counsel asserts that article 2(e) appears to be valid
but that article 2(f), when read in the light of article 3, necessitates the finding
that a nonunion employee is required to apply for membership immediately upon
employment rather than by the end of a 30-day period permitted by the Act. He
asserts too that such finding is particularly dictated when one considers that (1) the
constitution of the International requires that an applicant for membership pay
an installment of his initiation fee, and (2) in the construction industry here in-
volved jobs frequently end within 30 days. I disagree with the General Counsel's
assertions. The contract need not be construed as he construes it. It is no less
reasonable to give to the document a valid construction and, in the absence of
evidence that employer-parties have construed it as the General Counsel has, I
find that he has not sustained his contentions.
The contract provides further:
ARTICLE 8
SHIPPING MEMBERS
(a) The Association and the Union have agreed to establish four shipping
points, viz: Detroit, Lansing, Flint and Saginaw.
An employee who is shipped from any one of these designated shipping
points, or who has established residence in any one of these shipping points,
shall furnish his own transportation to and from any and all jobs within a
radius of ten (10) miles of the city hall of his shipping point, or residence, .. .
An employee from any one of the four established points of shipping, who
is employed on a job outside of a ten (10) mile radius of the city hall of
1096 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
his shipping point, and who has been sent by the employer, or referred by
the Union at the request of the employer, shall receive an amount to com-
pensate him for transportation and all other expenses in accordance with the
following schedule. . . .
[There are set forth per diem allowances of .50¢ to $2.60 where the job sites
are within a radius of more than 10 miles but no more than 271/2 miles of
a city hall, and of $3 where the job site is more than 271/2 miles therefrom.]
(b) Employees hired at the job site without referral slip from the Union,
or written shipping order from the Employer, or his duly authorized repre-
sentative, shall not be entitled to any compensation for traveling, or other
expense, regardless of their place of residence.
According to the General Counsel, the provision for per diem travel expenses
is invalid because it discriminates in favor of employees referred by Local 25. I
do not so read it. The provision makes an employer responsible for travel costs
of employees who travel at its direction after hire directly or through Local 25.
No per diem travel allowance is granted to a man who is referred by Local 25
which is not granted also to a nonunion man who is hired by the employer at one
of the four shipping points. The discrimination is between men in those categories,
on the one hand, and employees who apply for and secure employment at job sites
more than 10 miles from a shipping point. The provision thus encourages ap-
plications for employment at one of the shipping points or at job sites within
10 miles and discourages applicants whom the Association and Local 25 call
"floating labor." According to the Association, an employer who sends a union
or nonunion man from Detroit to Indiana, for instance, should be required to pay
him a per diem allowance, whereas a prospective employee who presents himself
at a job site and secures employment should not receive the allowance. Whatever
the merit of the Association's contention, the fact is that the provision does not
per se constitute an inducement to prospective employees to seek referral through
Local 25 instead of seeking employment at an employer's office, and there is no
evidence that the provision has been construed or applied so as to encourage mem-
bership in Local 25. I find, therefore, that this contention by the General Counsel
has not been sustained.
As recited above, article 2(a) provides that the 1952 working rules of the Inter-
national are made a part of the contract except as those rules are changed in, or
in conflict with, the contract. According to the General Counsel, certain of those
rules create invalid. conditions of employment. The pertinent rules need not be
set forth herein. It suffices to say that they are designed to effectuate the employ-
ment of members only. We have seen, however, that article 2(e) of the contract
envisions the employment of nonmembers and provides for a 30-day period after
employment in which a nonmember may secure membership, and that article 2(a)
provides that the working rules are not made a part of the contract in any in-
stance where the rules are in conflict therewith. The General Counsel concedes
that article 2(e) is not invalid per se, and there is no evidence that an employer-
party to the contract has failed to follow its terms. Under these circumstances,
I find that the contract is not per se invalid and has not been applied invalidly,
and this finding makes it unnecessary to consider the contentions of the Association
and Local 25 that (1) the General Counsel's interpretation of certain working rules
is erroneous and (2) certain of those rules were modified in October 1956.
The next issue involves the allegation that all employees covered by the allegedly
invalid contract were required to pay to Local 25
dues and initiation fees or permit fees or "dobie" in order to obtain and
maintain membership in [Local 25] or procure its issuance of permits and,/or
clearances [for employment)]
The testimony in support of this allegation was given by Worley, whose inability
to obtain employment with Argo is discussed below. According to Worley, there
are various monetary requirements of persons who obtain employment through
Local 25. One is a "dobie," a fee of $2 covering 15 days, which must be paid
by members of local unions other than Local 25 who obtain employment through
that local. There is also a building trades fee of $1 quarterly and a working
assessment of $2 monthly, the latter having been instituted in the latter part of
1956. The rate of dues for members of Local 25 is not disclosed in the record,
but Worley paid to that local $6 monthly which was forwarded to Local 636 in
North Carolina, of which Worley is a member.
.In considering these monetary requirements, it should be borne in mind that
there is no evidence that any union member objected to paying any sum or that
anyone was denied referral or employment for failing to pay. With respect to
ARGO-STEEL CONSTRUCTION COMPANY 1097
"dobies," we have seen that the contract incorporates to a limited extent by ref-
. erence the worn...g rules of the International. Those rules provide for the issu-
ance of a working permit by a local union to (1) a member, not in good standing,
of a different local at a cost of $2 daily until the member pays an amount sufficient
to place him in good standing, and (2) an applicant for membership at a cost of
$2 daily which, according to the General Counsel, is applied toward payment of
the applicant's initiation fee. The rules provide also, by reference to the Inter-
national's constitution, for issuance of a working permit by one local to a member
in good standing of another local, and the constitution fixes certain fees. I con-
clude that the record will not support a finding that the contract, by incorporating
the working rules to a limited extent by reference, which in turn incorporate
portions of the constitution by reference, is violative of the Act. This is so because
there is no evidence that any employer-party to the contract required any employee,
whether or not a member of the International, to join Local 25 or to obtain a
working permit from it earlier than the 30-day period provided in article 2(e) of
the contract, or that any employee was discharged at Local 25's request for any
reason. Labor organizations, the Board has said, "may `enforce their internal
policies upon their membership as they see fit.' . . . it is only if the labor or-
ganization causes or attempts to cause an employer to discriminate, by discharge
or otherwise, against an employee ousted from the union for some reason other
than the failure to tender periodic dues and initiation fees that the Board has the
authority to step in and protect the employee in his job rights." Nassau and
Suffolk Contractors' Association, Inc., et al., 118 NLRB 174.
We turn to the monthly dues, the monthly working assessment and the quarterly
building trades fee. The allegation respecting those monetary requirements springs
from the alleged closed-shop nature of the contract and not from provisions of the
working rules. It has been held, however, that the contract is valid, and we have
seen too that the General Counsel acknowledges that "Article 2(e) [of the contract]
appears to be a valid 30-day clause, such as is permitted under the Act." That
being so, and in view of the absence of evidence showing an inconsistent practice,
there can be no question concerning the validity of a requirement that union mem-
bers pay their "periodic dues," as that term is used in Section 8(b)(2) and in a
proviso to Section 8(a)(3) of the Act. The assessment and fee, on the other hand,
are not equivalent to periodic dues. Although they are payable periodically and
are uniformly required of all members (N.L.R.B. v. Bakery & Confectionery
Workers' International Union of America, 245 F. 2d 211 (C.A. 3), the Board has
held that such assessments and fees are outside the scope of the term "periodic
dues." Anaconda Copper Mining Company, 110 NLRB 1925. As also noted
above, however, there is no evidence that anyone was denied membership or re-
ferral for failing to pay the fee or assessment; indeed, insofar as appears, all mem-
bers paid the fee and assessment voluntarily. Under those circumstances, the
assessment and fee have not breached any provision of the Act and are protected
by the proviso to Section 8(b)(1)(A) which permits a labor organization to pre-
scribe its own rules for the retention of membership. Minneapolis Star and
Tribune Company, 109 NLRB 727.
In summary, I conclude that the evidence will not support a finding that the
1956 contract between the Association and Local 25 is invalid in language or in
application.
D. Events concerning Worley
The complaints allege that Argo refused to employ Worley because Local 25 did
not approve him for employment with Argo. As we shall see, Local 25 refused to
give Worley a referral to work for Argo.
Worley has been a member of the International since 1944, having joined
Local 636 in North Carolina. In 1953 Worley went to Detroit. He promptly
applied to Local 25 for referral to employment, received it and, according to his
testimony, was referred to "lots of" job thereafter. As recited above, Worley
testified that he was required to pay dues and fees to Local 25, but it does not
appear that he objected.
During the forepart of 1956, for a period of 2 or more months, according to
Worley, work was not available because of a strike. It became available in July,
and apparently Worley received a referral to Acorn Iron Works, herein called
Acorn, but in the latter part of that month Worley was ill and did not wish to
work. In early August, he sought work with Argo. In discussing the events re-
lating to Argo, it is observed that witnesses for the General Counsel, namely,
Worley and two of Argo's foremen, gave conflicting testimony. According to
Worley, on or about August 1 he applied to Argo for employment, found that
there was ' an opening, explained to Foremen Harley Whitlock and Marion Wiley
1098 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that he needed a referral slip fom Local 25, asked them to obtain it for him, and
rode with Whitlock to Local 25's hall. Whitlock's testimony differs in that, ac-
cording to his version, he went to the hall alone to hire employees, and there met
Worley who was seeking employment.6 In any event, Worley's referral slip was
addressed to his last employer, Acorn, and at the union hall Harry Brittingham,
Local 25's president and assistant business agent, refused to substitute Argo's name
for Acorn's, asserting that Worley had not repaid an advance of $40 received from
the latter. Whitlock left, and Worley went to Acorn where, according to his
testimony, a secretary telephoned someone at Local 25 and said that Worley was
not indebted to Acorn.
On the following morning Worley again was unsuccessful in his efforts to have
his referral slip changed from Acorn to Argo. According to Worley, he went by
Argo's place of business, found that there was a job opening, asked Wiley to
accompany him to the union hall to obtain a referral, and Wiley agreed. Wiley's
testimony differs in that, according to his version, he went to the union hall to hire
several men and there he met Worley. In any event, at the hall Brittingham
again refused to substitute Argo's name for Acorn's on the referral slip and he
suggested that Worley obtain from Acorn a letter reciting that Worley was not
indebted to it. Worley said that he would obtain such a letter and "when I do,
IT keep it." Worley then went to Acorn and obtained a letter dated August 2,
addressed "To Whom It May Concern," to the effect that as of the date Worley
was not indebted to Acorn. Worley did not inform a representative of Local 25
or Argo that he had obtained the letter, however. Instead, Worley complained
to the International that he had been denied a referral for the unfounded reason
that he was indebted to Acorn. An exchange of telegrams was followed by an
exchange of letters, and Worley was advised by letter of August 24 that an Inter-
national representative would "see that this situation is adjusted." On September 18,
Brittingham wrote to Worley that the matter had "been cleared up" and that work
was available for Worley if he desired it. About a week later Worley went to
the union hall and received a referral to Garavaglia Construction Company, where
he worked until November 27. In early December, Worley visited the union hall
and talked with Ted Pasell, Local 25's business agent. Worley testified without
contradiction, and I find, that Pasell offered to make Worley a member of
Local 25 if Worley would withdraw the charge against it, but Worley answered
that he was not interested in transferring his membership. Instead, Worley moved
from Detroit to Cleveland where he obtained work through Local 17 of the
International.
E. Conclusions concerning Worley
Argo and Local 25 assert that Worley was not refused employment by Argo
because Worley did not ask Argo's foremen for employment but asked instead
merely that they assist him in getting a referral to Argo. The Respondents assert
too that Local 25's refusal to refer Worley to Argo was not conduct which could
encourage membership in Local 25. As Argo expresses it, the record discloses
"the history of a man completely content with his Union membership, consistently
accepting without protest its customary and normal procedure." In Local 25's
words, its refusal to refer to a different employer a man who was thought to be
indebted to his last employer, was based upon "a positive, responsible, enlightened
attitude toward labor-management relations which is completely in keeping with
the declared policy of the Taft-Hartley Act." In addition, Local 25 asserts that
the procedure which it followed with respect to Worley's supposed 6 indebtedness
s Whitlock did not identify the man who was seeking employment, but the record
establishes the identity as Worley.
'Local 25 was unable to produce a letter which it asserts that it had received from
Acorn telling of the indebtedness although, on July 19, Acorn had written to Local 25
Inquiring, without elaborating, whether Worley had worked in the area since May 1956.
On the other hand, Worley possessed the letter of August 2 from Acorn to the effect
that he was not indebted to that employer. I conclude that Worley was not indebted to
Acorn in early August 1956. It does not follow, 'however, that Local 25 fabricated the
contention that Acorn had said that Worley was indebted to it. A likely explanation is
that Brittingham, who testified on the subject, mistakenly believed that Worley had not
repaid an advance from Acorn, and the record will not support a finding that Brittingham
had any other basis for his refusal to give Worley a referral to Argo. An explanation,
offered by the General Counsel, which rests on more tenuous grounds, is Worley's testi-
.mony that in July 1956 he had a fight in a bar with one Roy Spann , a member of
Local 25, and that during the following week he heard Spann say to another member
that Spann would "see that he [Worley] has a rough time" obtaining referrals from
ARGO STEEL CONSTRUCTION COMPANY 1099
to Acorn "was the same procedure as would be followed with reference to any
member in the same situation" and that Worley's failure to show to Brittingham
or to a representative of Argo the letter of August 2 from Acorn was "clearly the
proximate cause of Worley not being employed at Argo." I do not believe that
this defense is meritorious. The events make it abundantly clear that Worley
sought employment with Argo and that the foremen refused to employ him because
Local 25 would not change his referral slip from Acorn to Argo. Did the refusal
encourage membership in Local 25 in a statutory sense? Worley was a member
in good standing of the International and he had paid all dues and fees required
by Local 25 for referral. The question is not answered by assuming, in accord
with Local 25's contention, that its policy of requiring a member to repay wage
advances of an employer before receiving referral to another employer is salutary
and conducive to good labor-management relations. That policy is an "obligation
or supposed obligation of membership." Radio Officers' Union, etc. v. N.L.R.B.,
347 U.S. 17, 52, 74 S. Ct. 323, 342. The discrimination against Worley was calcu-
lated to encourage him and other members to abide by that policy. Radio Officers'
Union, supra. I conclude that Argo violated Section 8(a)(3) and (1) of the Act
and that Local 25 violated Section 8(b)(2) and (1)(A) thereof.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondents set forth in section III, above, to the extent
found to have been invalid, occurring in connection with the operations of Argo
described in section I, above, have a close, intimate, and substantial relation to
trade, traffic, and commerce among the several States and tend to lead to labor
disputes burdening and obstructing commerce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondents have engaged in certain unfair labor prac-
tices, I shall recommend that they cease and desist therefrom and that they take
certain affirmative action designed to effectuate the policies of the Act. It has been
found that on August 1, 1956, Worley was denied employment by Argo because
of Local 25's refusal to give him a referral slip. I shall recommend that Argo
offer Worley immediate employment in a substantially equivalent position with-
out prejudice to seniority or other rights or privileges and that the Respondents,
jointly and severally, make whole Worley for any loss of pay he may have suf-
fered by reason of the discrimination against him by payment to him of a sum
of money equal to that which he normally would have earned by employment with
Argo from August 1, 1956, to the date of the offer of employment, less his net
earnings (Crossett Lumber Co., 8 NLRB 440, 497-8) during said period, the pay-
ment to be computed upon a quarterly basis in the manner established by the
Board in F. W. Woolworth Co., 90 NLRB 289.7
I shall recommend further that Local 25 notify Argo in writing , and serve a
copy upon Worley, that it has no objection to Worley's employment as recom-
mended herein. Local 25 shall not be liable for any back pay accruing after
5 days from the date such notice is given. Absent such notice, Local 25 shall
remain jointly and severally liable with Argo for all the back pay that may accrue.
I shall recommend further that Argo preserve and make available to the Board
Local 25. According to the General Counsel, Spann was a close friend of Brittingham,
from which the General Counsel would have the Board and the Trial Examiner infer,
without supporting evidence, that Spann persuaded Brittingham or another representative
of Local 25 to refuse to give referrals to Worley.
7 Local 25 asserts that, in computing the back pay due to Worley, there should be
excluded the period from August 2, 1956, when Worley obtained the letter from Acorn
Iron Works that he was not indebted to it, to about September 25 when Worley called at
the union hall in response to Brittingham's letter of September 18 to him that work for
him was available through Local 25. We have seen that Worley deliberately withheld
from Argo and Local 25 knowledge of the fact that he had obtained the letter, which
would have cleared up the misunderstanding. Argo's reason for refusing to hire Worley
was his inability to obtain a referral, however, and not a belief by Argo that he had
ceased working for another employer before repaying an advance on wages. I find that
Local 25's contention is not meritorious. Since Local 25 had no right to insist that
Worley obtain such a letter, and since Argo could not validly insist that Worley be
referred for employment by Local 25, I believe that there was no obligation upon Worley
to show the letter to either Respondent in preference to the course he followed, namely,
complaining to the International.
1100 DECISIdNS OF. NATIONAL LABOR RELATIONS' BOARD
or its agents , upon request, for examination and copying , all payroll records,
social security payment records , timecards, personnel records and reports, and all.
other records necessary to analyze the amount of back pay due under the terms of
these recommendations.
Upon the basis of the above findings of fact , and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. The operations of Argo constitute trade , traffic, and commerce among the
several States within the meaning of Section 2 (6) and (7) of the Act.
2. Local 25 is a labor organization within the meaning of Section 2(5) of the Act.
3. By discriminating in regard to the hire and tenure of employment of Herman
Worley, thereby encouraging membership in Local 25 , Argo has engaged in and
is engaging in unfair labor practices within the meaning of Section 8(a)(3) and (1)
of the Act.
4. By causing Argo to discriminate against Worley in violation of Section 8(a)
(3) of the Act, Local 25 has engaged in unfair labor practices within the meaning
of Section 8(b)(2) and (1)(A) thereof.
5. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
6. In all other respects the allegations of the complaints have not been sustained.
[Recommendations omitted from publication.]
Forrest Ingram and Ray Fechtel , a Partnership , d/b/a Golden
Rod Broilers, a Division of Alabama Poultry Enterprises and
Reba F. Sandlin
Forrest Ingram and Ray Fechtel , a Partnership , d/b/a Golden
Rod Broilers , a Division of Alabama Poultry Enterprises and
J. D. Jones
Forrest Ingram and Ray Fechtel , a Partnership , d/b/a Golden
Rod Broilers, a Division of Alabama Poultry Enterprises and
Emma Hamrick. Cases Nos. 10-CA-3315, 10-CA-3316, and
10-CA-33f24. January 27, 1959
DECISION AND ORDER
On October 21, 1958, Trial Examiner Thomas A. Ricci issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the copy of the
Intermediate Report attached hereto. Thereafter, the Respondent
filed exceptions to the Intermediate Report and a supporting brief.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Chairman Leedom and Members Rodgers and
Jenkins].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed . The Board has considered the
122 NLRB No. 135.