Associated General Contractors of America, Inc.

National Labor Relations Board - Board Decisions

Jan 28, 1954

107 N.L.R.B. 965 (N.L.R.B. 1954)

SOUTH TEXAS CHAPTER, ASSOCIATED GENERAL CONTRACTORS
APPENDIX A
NOTICE TO ALL EMPLOYEES
965
Pursuant to the recommendations of a Trial Examiner 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 in any manner intereferewith , restrain , or coerce our employees in the
exercise of their right to self -organization , to form labor organizations , to join or
assist United Hatters, Cap and Millinery Workers International Union, A.F.L., or any
other organization , to bargain collectively through representatives of their own choosing,
and to . engage in concerted activities for the purpose of collective bargaining or other
mutual aid or protection , and to refrain from any or all of such activities except to the
extent that such right 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.
All our employees are free to become or remain members of this union , or any other
labor organization.
WE WILL bargain collectively upon request with the above-named union as the exclusive
representative of all employees in the bargaining unit described herein with respect to
rates of pay, hours of employment, or other conditions of employment and, if an under-
standing is reached , embody such understanding in a signed agreement . The bargaining
unit is:
All production and maintenance employees at the Company's Mascoutah, Illinois,
plant excluding office clerical employees , professional employees , and supervisors
as defined in the Act.
HARRIS -LANGENBERG HAT 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.
SOUTH TEXAS CHAPTER, ASSOCIATED GENERAL CON-
TRACTORS OF AMERICA, INC. and LODGE 1276, INTER-
NATIONAL ASSOCIATION OF MACHINISTS, AFL
LOCAL UNION NO. 1423, UNITED BROTHERHOOD OF CAR-
PENTERS AND JOINERS OF AMERICA, AFL and INTER-
NATIONAL ASSOCIATION OF MACHINISTS, AFL
LOCAL 1423, UNITED BROTHERHOOD OF CARPENTERS &
JOINERS OF AMERICA, AFL and INTERNATIONAL ASSO-
CIATION OF MACHINISTS, AFL. Cases Nos. 39-CA-266,
39-CB-31, and 39-CB-29. January 28, 1954
DECISION AND ORDER
On May 29, 1953, Trial Examiner C. W. Whittemore issued
his Intermediate Report in the above- entitled proceedings,
finding that the Respondents had engaged in and were engaging
107 NLRB No. 190.
966 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in certain unfair labor practices, and recommending that they
cease and desist therefrom and take certain affirmative action,
as set forth in the copy of the Intermediate Report attached
hereto. Thereafter, the Respondent Association, the Respondent
Union, and the General Counsel filed exceptions to the Inter-
mediate Report, and the Respondent Association and the General
Counsel filed supporting briefs.
The Board has reviewed the rulings made by the Trial Exam-
iner at the hearing and finds that no prejudicial error was com-
mitted. The rulings are hereby affirmed. The Board has con-
sidered the Intermediate Report, the exceptions and briefs, and
the entire record in these cases, and hereby adopts the findings,
conclusions, and recommendations of the Trial Examiner.
Our agreement with the Trial Examiner's finding that an
unlawful hiring agreement existed between South Texas Chap-
ter, Associated General Contractors of America, Inc., and
Local Union No. 1423, United Brotherhood of Carpenters and
Joiners of America, AFL, is based upon the following: (a) The
joint application by the Respondents for wage adjustments
indicating that the bylaws and working rules of the Respondent
Union were accepted by the South Texas Chapter; (b) the by-
laws of the South Texas Chapter, which provide that there shall
be established a labor committee to be in "charge df problems
affecting the relations of employers and employees in construc-
tion . . . " (art. IV, sec. 6),, that trade agreements must be
approved by the board of directors of South Texas Chapter, and
that associate members may "obtain special permission to deal
with their employees, with the recommendation of the Board
and ratification by a majority of the Active members present at
any regular meeting" (art. IV, sec. 13); (c) the handbook
furnished its members by South Texas Chapter entitled
"Working Rules and Wage Rates . . . approved by the Labor
Committee of the South Texas Chapter AGC," which contains
space for the rules of, or agreements with, various craft
unions. This manual provides that in case of misunderstanding
of working rules, members are "urged to contact the AGC
Managing Director, who will refer the matter to the Labor
Committee . . . If either party willfully misinterprets any
section of these rules an unwarranted dispute and costly work
stoppage may result. Members are urged to adhere to the
spirit and intent of these rules making no deviations, exce ptions
or verbal understandings." (Emphasis supplied.) This manual
also contains a copy of a collective-bargaining agreement
between South Texas Chapter and a local of International Union
of Hoisting and Portable Engineers that contains a preferential
hiring arrangement; (d) the testimony of the owner of Acme
Plumbing Company to the effect that he followed the hiring
practices in the area, which practices included hiring only
members of the Carpenters for millwright work; and (e) the
testimony of the Respondent Union's business agent to the effect
that he negotiated with South Texas Chapter that the first man
on the job should be the foreman, coupled with the Carpenters'
SOUTH TEXAS CHAPTER, ASSOCIATED GENERAL CONTRACTORS 967
bylaws, which obligated foremen, under penalty of debarment
from foremen's jobs and fines, to hire only members of the
Carpenters.
These factors amply rebut the testimony of a number of the
Respondent South Texas Chapter's officials and members to
the effect that this Respondent had approved the Carpenters'
bylaws only insofar as they affected monetary costs of the job.
The testimony that member-employers were not bound by
agreements negotiated by the South Texas Chapter, but that
such agreements were only advisory, we deem irrelevant to
the question of whether or not such an illegal agreement existed
between the two Respondents.
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:
1. The Respondent South Texas Chapter, Associated General
Contractors of America, Inc., Corpus Christi, Texas, its offi-
cers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Entering into, renewing, or enforcing the provisions of
any agreement or understanding with the Respondent Union or
any other labor organization, which accords preferential or
exclusive hiring rights to members of the Respondent Union,
or any other labor organization.
(b) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
employees in Section 7 of the Act, except to the extent that such
right 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) Post in conspicuous places, including all places where
notices to members are customarily posted, copies of the
notice attached hereto as Appendix A.' Copies of said notice,
to be furnished by the Regional Director for the Sixteenth
Region, shall, after being signed by a duly authorized repre-
sentative, be posted and maintained by said Respondent for a
period of sixty (60) consecutive days. Reasonable steps shall
be taken by the Respondent to insure that said notices are not
altered, defaced, or covered by other materials.
(b) Notify the Regional Director for the Sixteenth Region in
writing, within ten (10) days from the date of this Order, what
steps it has taken to comply herewith.
II. The Respondent Local Union No. 1423, United Brother-
'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."
968 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
hood of Carpenters and Joiners of America, AFL, its officers,
representatives, and agents, shall:
1. Cease and desist from:
(a) Entering into, renewing, or enforcing the clauses of any
agreement or understanding with South Texas Chapter, Asso-
ciated General Contractors of America, Inc., or with any other
employer, which accords preferential or exclusive hiring rights
to members of the Respondent Union.
(b) Causing or attempting to cause Acme Plumbing Company,
or any other employer, to discriminate against employees
(including applicants for employment) in violation of Section 8
(a) (3) of the Act.
(c) In any other manner restraining or coercing employees
in the exercise of the rights guaranteed employees in Section 7
of the Act.
2. Take the following affirmative action which the Board
finds will effectuate the policies of the Act:
(a) Make whole H. D. Rhyne, V. C. Reneau, J. D. Elmore,
W. A. Elmore, G. W. Black, and J. P. Black for any loss of pay
which they may have suffered because of the discrimination
against them , in the manner described in the section of the
Intermediate Report entitled "The Remedy."
(b) Post in conspicuous places, including all places where
notices to members are customarily posted, copies of the
notice attached hereto as Appendix B.' Copies of said
notice, to be furnished by the Regional Director for the
Sixteenth Region, shall, after being signed by a duly authorized
representative, be posted and maintained by said Respondent
for a period of sixty (60) consecutive days. Reasonable steps
shall be taken by the Respondent to insure that said notices are'
not altered, defaced, or covered by other materials.
(c) Notify the Regional Director for the Sixteenth Region in
writing within ten (10) days from the date of this Order, what
steps it has taken to comply herewith.
Member Murdock, dissenting:
I dissent on evidentiary grounds from my colleagues ' finding
that the Respondents, the Association and the Union, had in
effect an unlawful hiring agreement. I dissent also from my
colleagues' conclusion that the Respondent Union violated
Section 8 (b) (2) with respect to six individuals, because I believe
Section 10 (b) precludes such a finding.
The majority bases its finding that an unlawful hiring agree-
ment existed on five separate factors , and asserts that these
factors "amply rebut" testimony to the effect that no such
agreement existed. A careful analysis of the factors relied upon
by the majority, however, convinces me that they do not
"amply rebut" the evidence adduced by the Respondents, but
serve instead to bolster the Respondents' denials that any such
agreement existed.
2See footnote 1.
SOUTH TEXAS CHAPTER , ASSOCIATED GENERAL CONTRACTORS 969
The Respondents ' witnesses testified unequivocally that no
unlawful hiring agreement existed between the Association and
the Union , and that the Association had approved the bylaws of
the Union only insofar as they related to wages , hours, and
working conditions that affected the cost of the job. Several
employer members of the Association testified that they oper-
ated an "open shop." Finally , the Respondent Union's business
agent testified that he negotiated with the Association only
concerning wages, hours , and working conditions , as they might
affect the cost of a job , and that the first man on the job should
be the foreman.
In the face of this substantial accumulation of evidence
denying the existence of a hiring agreement between the
Respondents , not one witness was produced by the General
Counsel who testified that an agreement did exist . Rather, the
majority relies upon an application for a wage adjustment signed
by both Respondents , which indicates an acceptance by the
Association of the Union ' s bylaws and working rules. This
application states on its face that there is "no written agree-
ment" between the Respondents . Furthermore , the Respondents
contended , and produced witnesses who so testified , that the
application referred only to bylaws and working rules as they
affect job costs. Any other construction of this application, in
the light of the supporting testimony , would be patently unrea-
sonable, else the majority would be required also to find, as
they impliedly do, that the Respondent Association set and
controlled the dates union meetings were to be held, the number
of meetings union members were required to attend , the manner
in which union officers were to be elected , and numerous other
internal union affairs.
My colleagues rely also upon the existence of an agreement
between the Association and another labor organization that is
contained in the Association ' s handbook. I fail to see how proof
of an agreement with another union in any manner constitutes
proof that an agreement existed between the Association and the
Respondent Union.
The testimony of an associate member of the Association
that he followed hiring practices in the area , another factor the
majority utilizes to rebut the evidence presented by the
Respondents ' witnesses , scarcely proves an unlawful agree-
ment--at most , it might show an unlawful practice.3
Finally, the majority relies upon testimony of the Respondent
Union's business agent to the effect that he negotiated with the
Association that the first man on the job should be the foreman.
But this very witness testified that this matter and wages,
hours, and working conditions as they might affect the cost of a
job, were the only subjects of negotiation between the Respond-
ents.
I am satisfied that on this entire record the uncontradicted
testimony of the many witnesses for the Respondents that no
3 In this connection, I note that various employers testified that they ran an "open shop."
97 0 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
unlawful hiring agreement existed has not been rebutted. The
surrounding circumstances , far from permitting the inferences
drawn by my colleagues , to me tend to support the position of
the Respondents , and to prove that no unlawful agreement
existed.
As to the particular 8 (b) (2) charges against the Respondent
Union, I believe that Section 10 (b) precludes the Board from
a consideration of their merits. Although I consider myself
bound, despite my expressed disagreement therein, by the
Board's earlier decision that no employer respondent is
necessary to justify an 8 (b ) ( 2) charge of causing discrimina-
tion in violation of Section 8 (a) (3),4 Icannot go to the extreme
of finding that a union has caused an employer to violate Section
8 (a) (3) when that union has not even been apprised within 6
months of the alleged violation of the name of the employer
involved . In this case , the original charge of 8 (b) (2) against
the Respondent Union names Singleton & Heldenfels as the
employer the union caused to discriminate against various
named employees, Not until May 19, 1952, more than 6 months
after the alleged violations, was Acme Plumbing Co., whom the
complaint alleges as the perpetrator of the discriminations,
named in any charge.5 I would find, accordingly, that Section
10 (b) bars this aspect of the 8 (b) (2) complaint against the
Respondent Union, and I would dismiss the complaint in its
entirety.
4National Union of Marine Cooks and Stewards , C 1. 0., 92 NLRB 877.
6 N. L. R. B. v. McCarron Co., 206 F. 2d 543 (C. A. 3), setting aside 100 NLRB 1537.
APPENDIX A
NOTICE TO ALL MEMBERS OF SOUTH TEXAS CHAPTER
ASSOCIATED GENERAL CONTRACTORS OF AMERICA, INC.
Pursuant to a Decision and Order of the National Labor Re-
lations Board , and in order to effectuate the policies of the
National Labor Relations Act, as amended , we hereby notify
you that:
WE WILL NOT enter into , renew, or enforce the
clauses of any agreement or understanding with Local
Union No. 1423 , United Brotherhood of Carpenters and
Joiners of America, AFL, or any other labor organiza-
tion, which accords preferential or exclusive hiring
rights to members of that union, or any other union.
WE WILL NOT in any like or related manner restrain
SOUTH TEXAS CHAPTER, ASSOCIATED GENERAL CONTRACTORS 97 1
or coerce our employees in the exercise of the rights
guaranteed them in Section 7 of the Act.
SOUTH TEXAS CHAPTER, ASSOCIATED
GENERAL CONTRACTORS OF AMERICA,
INC.,
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 OFFICERS, REPRESENTATIVES, AGENTS
AND MEMBERS OF LOCAL UNION NO. 1423, UNITED
BROTHERHOOD OF CARPENTERS and JOINERS OF
AMERICA, AFL
Pursuant to a Decision and Order of the National Labor Rela-
tions Board, and in order to effectuate the policies of the National
Labor Relations Act, as amended, we hereby notify you that:
WE WILL NOT enter into, renew, or enforce the clauses
of any agreement or understanding with South Texas
Chapter, Associated General Contractors of America, Inc.,
or with any other employer, which accords preferential or
exclusive hiring rights to our members.
WE WILL NOT cause or attempt to cause Acme Plumbing
Company or any other employer to refuse to hire, to dis-
charge, or otherwise discriminate against employees
(including applicants for employment) in violation of
Section 8 (a) (3) of the Act.
WE WILL NOT in any other manner restrain or coerce
employees in the exercise of the rights guaranteed by
Section 7 of the Act.
WE WILL make H. D. Rhyne, V. C. Reneau, J. D.
Elmore, W. A. Elmore, G. W. Black, and J. P. Black
whole for any loss of pay suffered because of the dis-
crimination against them.
LOCAL UNION NO. 1423, UNITED
BROTHERHOOD OF CARPENTERS
and JOINERS OF AMERICA, AFL,
Union.
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.
972 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Intermediate Report
STATEMENT OF THE CASE
Charges having been duly filed and served; complaints, an order consolidating cases,1 and
a notice of hearing thereon having been duly issued and served by the General Counsel of the
National Labor Relations Board, and answers having been filed by the above-named Respond-
ents, a hearing involving allegations of unfair labor practices in violation of Section 8 (a) (1)
and (3) and 8 (b) (1) (A) and (2) of the National Labor Relations Act, as amended, 61 Stat. 136,
herein called the Act, was held in Corpus Christi, Texas, before the undersigned Trial Exam-
iner on December 17, 18, and 19, 1952, and January 6, 7, 8, and 9, 1953.
As amended during the hearing, the complaints againstthe Respondent Local 1423 allege, in
substance, that this labor organization, since August 1951, has had an agreement with the
Respondent South Texas Chapter requirir-gthatallmillwrights employed by the latter Respond-
ent's affiliates must be members of the Respondent Local 1423, and has caused and attempted
to cause all contractors affiliated with the Respondent South Texas Chapter to discriminate
against members of the IAM and in favor of the Respondent Local 1423; (2) that since October
1951 the Respondent Local 1423 has caused the Acme Plumbing Company, a member of the
Respondent South Texas Chapter, to discriminate against 53 named applicants for employment
because they were not members in good standing of Local 1423;2 and (3) by the foregoing acts
has caused and attempted to cause the Respondent South Texas Chapter and its affiliated con-
tractors, including Acme Plumbing Company, to discriminate against employees in violation of
Section 8 (a) (3) of the Act. The complaint against the Respondent South Texas Chapter alleges,
in substance, that its aforesaid alleged agreement with the Respondent Local 1423 does not
comply with the provisions of Section 8 (a) (3) of the Act, discriminates in regard to the hire
and tenure of employment of employees of its associated contractors, and interferes with,
restrains, and coerces employees in the exercise of rights guaranteed by the Act. Answers of
the Respondents, as amended, deny the aforesaid allegations.
At the hearing all parties were represented , including Acme Plumbing Company, 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 pro-
posed findings of fact and conclusions of law. No briefs have been received.
Disposition of the several motions todismiss thecomplaints, upon which ruling was reserved
at the close of the hearing , is made by the following rulings , findings, conclusions, and recom-
mendations. 3
Upon the entire record in the case, and from his observation of the witnesses , the Trial
Examiner makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT SOUTH TEXAS CHAPTER, AGC
South Texas Chapter, Associated General Contractors of America, Inc., is an organization
in the building industry comprised of 30 general contractors as active members, and about
iConsolidated with the above-cited three cases were Cases Nos. 39-CB-19,20,24, 26, and 30
and 39-CA-202, 205, 206, 225, 244, and 207. Case No. 39-CA- 244 (Peterson Construction
Company, Inc.) was severed upon motion of General Counsel at Houston, Texas. IR-65 was
issued May 7, 1953. On December 17, 1952, at Corpus Christi, upon motion by General
Counsel, further severance from the original consolidation was made of all cases except the
above-cited three.
2 During the hearing General Counsel made it clear that he made "no contention against
Acme" seeking remedy from that Company.
3The Trial Examiner now grants the motion made by counsel for the Lummus Company to
dismiss the complaints in Cases Nos. 39-CA-266 and39-CB-31 in all respects relating to that
Company. Although the Board in effect found, in The Lummus Company, 101 NLRB 1628, that
this employer followed "the policies and practices" of the South Texas Chapter, AGC, the
evidence in the instant case shows that it is not, and has not been, either a member or an
associate member of the South Texas Chapter. Although General Counsel asked that the Trial
Examiner take official notice of the above-cited Board decision, no new evidence concerning
unfair labor practices on the part of Lummus was offered. Since Lummus is not a member of
the Respondent South Texas Chapter, its operations are irrelevant to the jurisdictional issue
herein (See Carpenter R, Skaer, Inc., et al ., 90 NLRB 417.)
SOUTH TEXAS CHAPTER, ASSOCIATED GENERAL CONTRACTORS 973
165 subcontractors, material dealers, and others as associate members. The Chapter is a
branch and part of the Associated General Contractors of America, Inc., and its territorial
jurisdiction covers the city of Corpus Christi, Nueces, and other nearby counties of Texas.
Through a labor committee, composed of its members, the Chapter negotiates on behalf of its
employer-members with labor organizations, including the Respondent Local 1423, for
collective -bargaining agreements concerning wages , hours of employment , and "working
rules that affect the cost of the job" (according to the testimony of the Chapter's managing
director). Such negotiations and agreements cover millwrights -- the classification of em-
ployees with which these proceedings are concerned. The record reveals that during the
material period a number of the Chapter members or associate members were general or
subcontractors on construction jobs for multistate enterprises, defense projects, and com-
mercial and industrial enterprises, involvingcosts of manymillions of dollars. Included among
them is an 80-million-dollar project for the Reynolds Metals Company, for which member
Beck-Henderson had the general contract,4 and for which associate member Acme Plumbing
Company performed services and furnished materials, as a subcontractor, valued at more than
$50,000 a year. Member Lawless & Alford had the contract for repairs, on a bid of $26,545, at
the Kingsville Naval Air Station. Member Bigler and Bigler had the contract, on bid of $ 47,300,
for construction at the Naval Air Station, in Corpus Christi. Member Arthur Brothers, Inc.,
had the contract for construction of portions of the $3,400,000 addition to the Bishop, Texas,
plant of the Celanese Corporation of America. Other members, also in 1951, performed con-
struction jobs at the Naval Auxiliary Air Station, and for the United States Navy, the United
States Army, and the Columbia-Southern Chemical Corporation totaling in bid-value nearly
$1,500,000. A substantial number of construction jobs were performed by members of the
Chapter for firms engaged in interstate commerce, within the meaning of the Act. As found
from similar facts by the Board in Carpenter & Skaer, Inc., cited heretofore, it is here found
that the Chapter and its members must be regarded as a single enterprise. That the totality
of the operations, in volume and character, of all members of the Association has a substantial
effect on interstate commerce Is apparent.5
Accordingly, the Trial Examiner concludes and finds that, for the purposes of these pro-
ceedings, the Respondent South Texas Chapter, AGC, is an employer within the meaning of
Section 2 (2) of the Act,6 is engaged in commerce within the meaning of the Act, and that
it would effectuate the policies of the Act or the Board to assert jurisdiction in these cases
to resolve the substantive issues raised by the complaints.
II. THE LABOR ORGANIZATIONS INVOLVED
Local 1423, United Brotherhood of Carpenters & Joiners of America, AFL; Lodge 1276,
International Association of Machinists, AFL; and International Association of Machinists.
AFL, are labor organizations within the meaning of Section 2 (5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The issues
These cases all stem from the perennial intramural dispute in the American Federation of
Labor as to whether locals of the United Brotherhood of Carpenters & Joiners of America or
of the International Association of Machinists shall have "jurisdiction" over millwright (or
"outside machinist") work in the building industry. In principle, they are like many which
have been brought recently, by way of adversary litigation, before the Board and the courts,
thus causing substantial governmental expense in investigation , hearing , and decision on
points affecting public policy as set out in the Act.
4From the testimony of the Chapter's managing director and documents in evidence, it
appears that the Reynolds general contract was awarded to Henry C. Beck Company, of
Dallas, and H. R. Henderson of Marshall, Texas, as a joint venture, and that a temporary
corporation was formed which became a member of the Chapter early in August 1951.
5 At the time of the hearing another general contractor now a member of the Respondent,
C. F. Braun, was engaged in constructing a $45,000,000 plant at Gregory, Texas, to be known
as the Reynolds Alumina plant.
6 The relevant portion of this section reads: "The term 'employer' includes any person
acting as an agent of an employer, directly or indirectly . . . .
337593 0 - 55 - 63
974 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In short, the major issues here presented are: (1) Whether or not an illegal agreement
exists between the South Texas Chapter, acting on behalf of contractors in the area under its
jurisdiction, and Local 1423 of the Carpenters, requiring that all millwrights hired by them
shall be members of Local 1423, and (2) whether or not, pursuant to such illegal agreement,
actual and illegal discrimination in hiring practices has been and is now being caused by both
the South Texas Chapter and Local 1423.
B. The agreement
Despite the denial of the Respondents, by pleadings and by testimony of witness members of
the South Texas Chapter, that any hiring agreementexists or has existed at any time material
to these proceedings , the convincing proof in the record is to the contrary.
That an agreement was negotiated and reached between the two parties in the summer of
1951 is particularly evidenced by their joint application for wage adjustments to the Construc-
tion Industry Stabilization Commission, dated October 25,1951. The application states, in part;
Negotiations for this wage adjustment were begun on August 25, 1951, with the South
Texas Chapter of the Associated General Contractors, who are our recognized bargaining
agent, and was approved and concurred in by our Local Union on September 24, 1951, to
be effective on January 1, 1952.
We wish to further state that all negotiations for wages and working conditions between
our Local Union and the South Texas Chapter of the Associated General Contractors
have been on a verbal basis, with letters of confirmation being exchanged on all con-
clusions arrived at and that our By-laws and Working Rules have been accepted by our
Bargaining Agent and any changes which would affect the contractor are always negotiated
and approved by them before insertion in our rules, therefore, no written agreement
exists between us. (Emphasis supplied.)
That the foregoing and similar "verbal" agreements are binding upon the employer-members
of the South Texas Chapter is made clear by the testimony of the latter's managing director,
who said that a member is "asked to either pay the prevailing rate or resign his member-
ship," and by reference to the Chapter's "Constitution and By-Laws and Rules of Ethical
Practice "
The "By-laws and Working Rules" of Local 1423, referred to above, impose a restrictive
hiring policy as to millwright work.7 In accordance with the Board's finding from the same
evidence in The Lumtnus Company, previously cited, it is here found that "restrictions are
imposed by those By-Laws provisions which: (1) forbid members of the Carpenters to work
with nonmembers, without special union permission; and (2) require 'millwright' foremen
(who customarily possess the power to hire and fire in the construction industry in this area)
to be members of the Carpenters and to hire only members of the Carpenters for any work
within the jurisdiction of the Carpenters (including 'machinery setter' work)."
The agreement between the Respondents to employ or refer to millwright jobs only members
of Local 1423, or applicants who clear through it, is in contravention of the provisions of
Section 8 (a) (3) of the Act. The Trial Examiner concludes and finds that the allegations of
the three complaints, and of each of them, that such agreement exists and does not comply
with the provisions of Section 8 (a) (3) of the Act, are sustained by a preponderance of the
evidence.
C. Discriminatory practices in general under the agreement
That the discriminatory features of the agreement above described have remained in force
and effect, by continuing practice, is shown by: (1) Undisputed evidence that qualified appli-
cants, not members of the Respondent Local 1423 but members of the charging IAM, during
7Sec. 1 of the "By-laws and Working Rules Governing Millwrights" defines the work per-
formance under this classification of employee; sec. 2 of article VIII (Duties of Members)
states in part: "No member will be permitted to work on a job with non-members .
Sec. 4 of the same article reads: "All members must have a quarterly working card paid up
in the current month before going to work." Sec. 5 of the same article reads, in part:
"Members must have their card or book in their possession at all times and must present it
to the Steward and sign the Steward's report BEFORE going to work."
SOUTH TEXAS CHAPTER, ASSOCIATED GENERAL CONTRACTORS 975
the material period not only made futile efforts to negotiate with the Respondent South Texas
Chapter for recognition in the area,8 but also made unsuccessful attempts to obtain placement
on millwright jobs in the area; (2) the testimony of Bell, managing director of the South
Texas Chapter, who said that since August 1951 he has never been advised of any deviation
in practice from provisions of that agreement; and(3) the testimonyof Echols, business agent
of Local 1423, who said that he knew of no millwright hired on any construction job in the
jurisdictional area since October 1951 who was nota member of the Carpenters. The testimony
of the two officials also makes it apparent that whether the oral agreement is ever policed by
positive investigation by the parties or not, its enforcement is self-perpetuating. The em-
ployers' representative said that in general all construction concerns in the area employ at
least one man, a carpenter general foreman, theyear around. Echols admitted, and the Local's
bylaws provide, that union stewards on the job must report to the Local the name of any non-
member hired as a millwright by any general foreman. Echols also said that the millwright
general foreman on the Reynolds construction job, referred to in section I, above, was a
member of the Local and would have violated the Local's bylaws had he hired as a millwright
any applicant not a member of the Local. No such violation was ever reported to him.
The preponderance of credible evidence sustains the allegations of the complaint against the
Respondent South Texas Chapter to the effect that by its agreement with the Respondent Local
1423 it has discriminated and is discriminating in regard to the hire and tenure of employment
of employees of its member contractors. Likewise the evidence sustains the allegations of the
complaints against Local 1423 to the effect that it has caused and is causing, by said agree-
ment, the Respondent South Texas Chapter and its affiliated contractors to discriminate
against members of the IAM and in favor of members of Local 1423 with respect to hire and
tenure of employment.
D. Specific discrimination
As amended during the hearing, the complaint in 39-CB-31 alleges that the Respondent
Local 1423 caused Acme Plumbing company, a member of the Respondent South Texas
Chapter, to refuse, discriminatorily, to hire certain applicants for millwright work because
they were members of the IAM and not of Local 1423. The amended complaint lists the
names of 53 individuals who, general Counsel claims, were thus discriminatorily refused
hire by Acme.
The single construction job involved is that of the Reynolds Aluminum plant near Gregory,
Texas, referred to in section I, above. As noted heretofore, the general contract for this
construction job was held by a temporary corporation, called variously in the record as Beck-
Henderson and Beck and Henderson, which was a member of the Respondent South Texas
Chapter at least during the period of construction.
Acme is and has been an associate member of South Texas Chapter. Since 1949, it has been
under the sole ownership of David B. Bernstein. Early in August 1951, by subcontract to the
William H. Singleton Company, Acme performed certain services for Reynolds. Acme handled
payroll accounts and assisted in the hiring of employees for Singleton. This hiring assistance,
Bernstein said, was because Singleton was a relatively new company in the "area," while
Acme had "good labor relations with various crafts." All employees were on Acme's payroll,
but payroll checks were signed both by Acme and Singleton. In September 1952, Singleton left
the job and Acme took over completely.
Offices of both Singleton and Acme were on the Reynolds job site in 1951. The record con-
tains much confused testimony as to the identity of the officials, either of Singleton or Acme,
who handled the applications for employment for the erection of machinery, or millwright
work, in 1951, the period with which these proceedings are particularly concerned. It appears,
however, from the testimony of F. E. Abbott, chief accountant for Acme since September 1952
(and from June to September 1952, chief accountant for Singleton), that until Acme took over
completely in September 1952, such applications were kept among the records of Singleton.
In any event, it is clear from the testimony of Bernstein that Acme has been, since August
8Managing Director Bell of the South Texas Chapter said that he told IAM representatives
that he had nothing to "negotiate with them on," because "they did not have any employees
working for any of our members." On the other hand, Bell admitted that he never inquired
from the representative of Local 1423, when negotiating, what employees he represented, and
said that such negotiations were for all members of the Carpenters' union whether they were
working for any employer or not.
976 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1951, jointly if not wholly responsible for the hiring policy as to millwrights on the Reynolds
job, and as such has been the accountable employer.
While Bernstein stated , and there is no proof to the contrary , that although he is an associate
member of the South Texas Chapter, the employers ' organization has never negotiated any
specific agreement with labor unions for him , he admitted that he followed the "practices
in this area" as to hiring policies , and that this was the reason he had had no labor trouble.
Both his testimony and that of Echols, business agent of Local 1423, establish that Acme never
hired other than a member of Local 1423 on the Reynolds job for the work of millwrights--
erection or installation of outside machinery --although the payroll records show that between
August 1951 and March 1952 approximately 125 millwrights were hired.
Also as the records show, LeslieG . Bradshawwas the first to be hired , as general foreman.
Bradshaw was a member of Local1423 and, as Echols testified , would have violated the Union's
bylaws had he hired any millwright other than a member of the Local. Bradshaw, according to
Echols , hired the millwrights for the Reynolds job.
The record contains direct and undisputed testimony that six members of the IAM applied
for millwright work on the Reynolds job in the fall of 1951 , and were not hired, although fully
:apable of performing the work: H, D. Rhyne, V. C. Reneau, J. D. Elmore, W. A. Elmore,
G W Black, and J. P. Black
In mid-August Rhyne , G. W. Black , and an official representative of the IAM visited the
job site and saw Rigging Superintendent Dessin, of Acme, who was Bradshaw 's superior.
They told Dessin they were there for the purpose of getting machinists on the job to erect
and install machinery. Both Black and Rhyne specifically asked for employment on such
millwright work, in which they had had long experience. Dessin told them he probably would
have both machinists and millwrights on the job, and expected to see both applicants at work
there later. Both Rhyne and G. W. Black mailed in applications later--applications which
clearly were received and retained, since they were produced at the hearing by Acme. Rhyne's
application was received , according to a date stamp upon it, on September 10; that of Black,
while appearing in Acme 's files , is undated and bears no date-of-receipt stamp. Black's
testimony is undisputed that he presented this application at the personnel office on the job on
or about October 23, 1951.9 Payroll records show that between October 1 and 24, 1951,
inclusive , 16 applicants who were members of Local 1423 were hired.
Records produced by Acme during the hearing reveal receipt of written applications for
millwright work as follows : of J. P. Black on September 20, 1951, and of W. A. Elmore and
J. D. Elmore on September 21, 1951. Both Elmores testified, and were uncontradicted, that
they and J. P. Black applied thereafter several times , in person , at the job site , but were
unsuccessful in obtaining work, although the payroll records establish that they applied at
times when millwrights actually were being hired . On one occasion , when they were able to
see Superintendent Dessin, they were told to seethe steward of Local 1423. About October 12,
they went to see Echols , who, as a witness , admitted in effect that he declined to "refer"
them to the job. 10 Echols also admitted that it would have been a violation of the Local's by-
laws for his members to work with members of the IAM , and that he told the three applicants
that "there were people in town who represented the Machinists." None of the three was ever
hired by Acme for the Reynolds job as a millwright.
As to Reneau , his testimony is undisputed that on September 18, 1951, he applied for mill-
wright work , in person , to Dessin on the job site, and that on this occasion he filled out an
application blank and gave it to him. Dessin told him, in effect, that he might expect to be
called . A week later Reneau saw Dessin , who then told him that hiring was temporarily held
up because of bad weather but he could expect to be called soon . Two days later Reneau again
called on Dessin . On this occasion Dessin asked him if he was there to represent the IAM
that morning . (Reneau in the past had been a business agent for the IAM .) Reneau replied
that he was not and asked why. Dessin then told him that ';they" were meeting with the
Building Trades (Council) that morning. While Reneau waited , representatives of several
building trades crafts met at the office , and after the meeting Dessin remarked to him, in
effect, that he didn't think it was much of a union where the machinists were not represented.
He told Reneau, however, that he still intended to hire him, and would have the "boy" in his
9Black also testified that he had mailed in a previous application on September 6. The
evidence is insufficient , however, to find that it was actually received by Acme or Singleton.
ioEchols answered a direct question as to referring them to the job by saying: "I had no
calls from anyone and had no place to put anyone."
SOUTH TEXAS CHAPTER. ASSOCIATED GENERAL CONTRACTORS 977
office stop by his home and tell him when to come in . Although, as noted above, many mill-
wrights were thereafter hired, Reneau was never employed as a millwright. u
In summary as to the six individuals named in this subsection , the Trial Examiner concludes
and finds that they, and each of them , made appropriate applications for millwright work to the
employer Acme, that their applications remained in continuing effect, that they were qualified
and ready for work, but that they were refused employment in this capacity because they were
not members in good standing of Local 1423.
By adjustment of dates of application to dates other millwrights were actually hired, it is
found that the dates of specific discrimination were as follows : Rhyne, October 1; Reneau,
October 2 ; J. P. Black and the two Elmores on October 4; and G. W. Black on October 24, all
in 1951.
As noted heretofore , the amended complaint in 39 -CB-31 lists names of 47 other individuals,
who, General Counsel claims , were likewise denied employment discriminatorily by Acme.
None of these 47 appeared at the hearing as witnesses to testify as to making any application,
either oral or written .P Among the approximately 140 applications produced from its files by
Acme, and placed in evidence by General Counsel, the Trial Examiner finds the same, or
approximately the same, names as those appearing in the amended complaint . The Trial Exam-
iner considers such evidence as lacking sufficient weight of identification to find actual applica-
tion by these specific individuals . The motion made at the close of the hearing by counsel for
Local 1423 to dismiss as to individuals named in the amended complaint is therefore and now
granted except as to H. D. Rhyne, V. C. Reneau, J. D. Elmore, W. A. Elmore, G. W. Black,
and J. P. Black. The granting of this motion in no way affects the conclusion, set out elsewhere,
as to the effective pressure of the Responder Local 1423 in causing Acme to hire only its
members.
E. Conclusions in summary
It has been found above that an illegal , restrictive -hiring agreement has existed and now
exists between the Respondents South Texas Chapter and Local 1423.
With respect to Local 1423, the maintenance of the agreement , or understanding , even if
oral, is clearly violative of the Act. As the United States Court of Appeals for the Ninth Circuit
has said : "an agreement that only those employees who belong to a certain union , or who are
referred by that union , which is in force and effect-and which is of sufficient potency to cause a
company to refuse to hire outside that agreement for fear the union will be 'on its neck.' most
certainly comes within the terms of 8 (b) (2) and 8 (b) (1) (A).",13
Here , it is reasonably inferred from the testimony of the head of Acme Plumbing Company,
the agreement was so potent as to affect , by establishing an area practice , the hiring policies
of an associate member of the South Texas Chapter which, he said, did not negotiate for him.
In conclusion , the Trial Examiner concludes and finds that the preponderance of credible
evidence sustains the following allegations of the complaints that : (1) By maintenance of the
above-described illegal agreement with Local 1423 the Respondent South Texas Chapter has
discriminated and is discriminating in regard to the hire of applicants for millwright work by
its associated contractors , and thereby has interfered with, restrained , and coerced employees
in the exercise of rights guaranteed by the Act ; (2) by maintenance of the said illegal agreement
with South Texas Chapter the Respondent Local 1423 has caused it and its affiliated contractors
to follow a discriminatory hiring policy against thelAM and in favor of Local 1423, and thereby
has restrained and coerced employees in the exercise of rights guaranteed by Section 7 of the
Act; and (3) the Respondent Local 1423 , in October 1951, and thereafter , caused Acme Plumbing
iiHe was , however, employed for a few days on the job as an "inside " machinist . Although
on cross-examination Reneau erroneously stated that on this job he worked for another sub-
contractor , and received no pay from Acme Plumbing-- a statement established as inaccurate
by a paycheck received in evidence , the Trial Examiner does not consider his entire testi-
mony to be thereby discredited. His testimony on the material facts found above was undis-
puted.
12Except as to one : W.H. Rosamond. He was a witness, testified about another matter which
the Trial Examiner consider irrelevant to the issues , and upon motion his testimony was
stricken . He was not questioned as to any application for work on the Reynolds' job, either
oral or written.
19N. L. R. B. v. Local 743, United Brotherhood of Carpenters , etc., 202 F. 2d 516.
978 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Company to refuse in violation of Section 8 (a) (3) of the Act to hire the six employees named
in the section immediately above , because they were members of the IAM and not members in
good standing of Local 1423.
IV. THE EFFECTS OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondents set forth in section III, above, occurring in connection with
the operations of the Respondent South Texas Chapter, described in section I, above, have a
close, intonate, 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
It has been found that the Respondents, and each of them, have engaged in certain unfair
labor practices. It will be recommended that they cease and desist therefrom, and take certain
affirmative action to effectuate the policies of the Act.
Having found that the 1951 contract between the Respondents contains illegal provisions, the
Trial Examiner will recommend that they cease and desist from giving effect to said illegal
provisions, and from entering into, renewing, or enforcing any agreement which requires
employees or applicants for employment to be members of, to join, or to maintain in good
standing their membership in Local 1423, or of any local of United Brotherhood of Carpenters
& Joiners of America, AFL, unless such an agreement has been authorized as provided by the
National Labor Relations Act, as amended.
It has been found that the Respondent Local 1423 has caused the Acme Plumbing Company to
discriminatorily refuse hire to six named individuals. Since it appears that the specific job for
which application was made by them in 1951 has now been completed, it will not be recom-
mended that Local 1423 take action with respect to Acme looking toward their employment on
that job. It will be recommended, however, that the Respondent Local 1423 make whole the
aforenamed six individuals for any loss of pay suffered by reason of the discrimination against
them, by payment to each of them of a sum of money equal to that which he would normally have
earned from the date of the discrimination to the date his job would normally have terminated,
less his net earnings during said period. Back pay shall be computed in a manner consistent
with the policy established by the Board in F. W. Woolworth Company, 90 NLRB 289.
The unfair labor practices found to have been engaged in by the Respondents are of such
character and scope that, in order to insure employees and prospective employees of con-
tractors affiliated with South Texas Chapter of full rights guaranteed by the Act, it will be
recommended that the Respondents, and each of them, cease and desist from in any manner
interfering with, restraining, or coercing their employees or prospective employees in their
right to self-organization.
On the basis of the foregoing findings of fact and upon the entire record in the case, the
Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. Local 1423, United Brotherhood of Carpenters & Joiners of America, AFL; Lodge 1276,
International Association of Machinists, AFL; and International Association of Machinists,
AFL, are labor organizations within the meaning of Section 2 (5) of the Act.
2. By enforcing the agreement of 1951 the Respondent South Texas Chapter has engaged in
and is engaging in unfair labor practices within the meaning of Section 8 (a) (3) of the Act.
3. By discriminating, on behalf of its affiliated contractors, in regard to the hire of appli-
cants for millwright work, thereby encouraging membership in the Respondent Local 1423,
and discouraging membership in the IAM, the Respondent South Texas Chapter has engaged in
and is engaging in unfair labor practices within the meaning of Section 8 (a) (3) of the Act.
4. By interfering with, restraining, and coercing employees in the exercise of rights
guaranteed in Section 7 of the Act the Respondent South Texas Chapter has engaged in and is
engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act.
5. By causing the Respondent South Texas Chapter and employer Acme Plumbing Company
to discriminate against applicants for employment in violation of Section 8 (a) (3) of the Act,
the Respondent Local 142,1 has engaged in and is engaging in unfair labor practices within the
meaning of Section 8 (b) (2) of the Act.
COOPER'S INC., (of Georgia) 979
6. By restraining and coercing employees in the exercise of the rights guaranteed in Section
7 of the Act, the Respondent Local 1423 has engaged in and is engaging in unfair labor prac-
tices within the meaning of Section 8 (b) (1) (A) of the Act.
7. The aforesaid unfair labor practices are unfair labor practices affecting commerce
within the meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication.]
COOPER'S INC., (of Georgia) and UNITED TEXTILE WORKERS
OF AMERICA, AFL, Petitioner. Case No. 10-CA-1621.
January 28, 1954
DECISION AND ORDER
On August 21, 1953, Trial Examiner Bertram G. Edie issued
his Intermediate Report in the above-entitled proceeding, find-
ing that the Respondent had engaged in and was engaging in cer-
tain 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.
The Board has reviewed the rulings of the Trial Examiner
made at the hearing and finds no prejudicial error was com-
mitted. The rulings are hereby affirmed.' The Board has
considered the Intermediate Report, the exceptions and briefs,
and the entire record in the case, and hereby adopts the
findings, conclusions, and recommendations of the Trial
Examiner except as hereinafter discussed.2
We agree with the Trial Examiner that the Respondent's
acts and conversations constituted violations of Section 8 (a)
(1) of the Act. In so finding, we also agree with the Trial
Examiner that Waters was a supervisor within the meaning
of the Act and that the Respondent is responsible for her
behavior. However, for reasons set forth in Livingston Shirt, 3
recently issued, we do not find that the Respondent violated
Section 8 (a) (1) of the Act in failing to l.ermit the Union to
reply to any speeches management expected to make on company
time and premises.
We also reject the Trial Examiner's conclusion that the
Respondent refused to bargain with the Union in violation of
the Act. Unlike the Trial Examiner, we find the record evidence
insufficient to support the necessary subsidiary finding that
1 Without passing on the validity of the Trial Examiner's basis for finding that the United
Textile Workers of America, AFL, is a labor organization, we take judicial notice of that fact,
inasmuch as we have found in innumerable prior decisions that this Union is such a labor
organization within the meaning of the Act.
2 The Respondent's request for oral argument is hereby denied, because the record, excep-
tions, and briefs, in our opinion, adequately present the issues and positions of the parties.
$Livingston Shirt Corporation, et al., 107 NLRB 400.
107 NLRB No. 206.