Consolidated Western Steel Corp., et al.

National Labor Relations Board - Board Decisions

May 26, 1954

108 N.L.R.B. 1041 (N.L.R.B. 1954)

CONSOLIDATED WESTERN STEEL CORPORATION, ET AL. 1041
be taken to have indicated their desire to constitute a separate
bargaining unit and the Regional Director conducting the
election is instructed to issue a certification of representatives
to the labor organization seeking and selected by the em-
ployees in each group for such unit, which the Board, in such
circumstances , finds to be appropriate for purposes of
collective bargaining. On the other hand, if a majority of the
employees in either voting group (2) or (3), or both, do not
vote for the labor organization which is seeking to represent
them in a separate unit, the employees in such group or groups
will be included in the maintenance unit and their votes
pooled with those of voting group (4),8 and the Regional Di-
rector conducting the election is instructed to issue a cer-
tification of representatives to the labor organization selected
by a majority of the employees in the pooled group, which the
Board, in such circumstances, finds to be a unit appropriate
for purposes of collective bargaining.'
[Text of Direction of Elections omitted from publication.]
If the votes are pooled, they are to be tallied in the following manner: The votes for the
Union seeking the separate unit shall be counted as valid votes, but neither for nor against
the union seeking to represent the more comprehensive unit; all other votes are to be
accorded their face value, whether for representation by the union seeking the comprehensive
group or for no union.
9 In view of the Board's decision to pool under circumstances described above, the ballots
of voting groups (2) and (3) with those of voting group (4), we shall accord the IAM a place
on the ballots for voting groups (2) and (3). The IAM may, however, if it so desires, have its
name withdrawn from the ballots in voting groups (2) and (3) upon notice to that effect
given to the Regional Director, in writing, within ten (10) days from the date of the Direction
of Elections herein.
CONSOLIDATED WESTERN STEEL CORPORATION, ET AL.'
and DISTRICT LODGE NO. 31 INTERNATIONAL ASSOCIA-
TION OF MACHINISTS, AFL, and INTERNATIONAL ASSO-
CIATION OF MACHINISTS, AFL. Cases Nos. 39-CB-19,
39-CB-20, 39-CB-24, 39-CB-26, 39-CB-30, 39-CA-202,
39-CA-205, 39-CA-206, 39-CA-207, and 39-CA-225. May
26, 1954
DECISION AND ORDER
On August 25, 1953, Trial Examiner C. W. Wittemore issued
his Intermediate Report in the above-entitled proceedings,
finding that the Respondents had engaged in and were engaging
lConsolidated Western Steel Corporation, The Luinmus Company, Stone & Webster Engineer-
ing Corporation, M. W. Kellogg Company, Graver Tank and Mfg. Co., Inc., Local Unions
Nos, 610, 753, and 2007, United Brotherhood of Joiners of America, AFL, District Council
of Carpenters for the Sabine Area, and United Brotherhood of carpenters and Joiners of
America, AFL. .
108 NLRB No. 136.
339676 0 - 55 - 67
1042 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. The Trial Examiner found that the Respondent, Graver
Tank and Mfg. Co., Inc., had not engaged in any unfair labor
practices and recommended the dismissal of the complaint
against that Respondent. Thereafter, the Respondent Companies,
the Respondent Unions, and the General Counsel filed exceptions
to the Intermediate Report, together with supporting briefs.
The Respondents' requests for oral agrument are hereby denied
as the record, including the exceptions anca briefs, adequately
presents the issues and positions of the parties.
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 Intermediate Report, the exceptions and briefs,
and the entire record in these cases, and hereby adopts the
findings, conclusions, and recommendations of the Trial Ex-
aminer with the following modifications and additions:
1. The Trial Examiner found that the contract of March 9,
1951, between the Respondent District Council and the Respond-
ent Members of the Sabine Area Construction Committee, which
makes reference to the constitution of the United Brotherhood
of Carpenters, constituted an illegal hiring agreement requir-
ing the hiring of millwrights only from the membership of the
Respondent Local Unions, and is therefore violative of Section
8 (a) (3) and (1) and Section 8 (b) (1) (A) and (2).2 Without de-
ciding whether this agreement required the illegal preferential
hiring of millwrights, we find, as did the Trial Examiner, that
the Respondent Employers, with the exception of the Graver
Tank and Mfg. Co., Inc., and the Respondent Unions followed an
unlawful area practice of requiring applicants for employment
as millwrights to obtain clearance from or membership in one
of the Respondent Unions as a condition of employment.
Accordingly, we find that by maintaining this unlawful hiring
practice the Respondent Employers, Lummus, Stone, & Web-
ster , Kellogg, and Consolidated Western and the Respondent
Unions violated Section 8 (a) (3) and (1) and Section 8 (b) (1)
(A) and (2), respectively.'
2. The Trial Examiner found that Section 102 of the Act does
not preserve the validity of the June 18, 1947, "closed-shop
2In so finding, the Trial Examiner relied upon certain provisions contained only in the Re-
spondent Unions' constitutions and bylaws. At the hearing, he had assured counsel that no
finding would be made against Respondent Companies on the basis of the Unions' bylaws.
The Respondent Companies have moved to reopen the hearing to produce additional evidence
with regard to their knowledge of the Unions' constitutions and bylaws, evidence rejected by
the Trial Examiner. As we find it unnecessary to determine-whether the March 1951 contract
was in itself illegal, further evidence as to this issue is immaterial. Accordingly, the motion
is denied.
9 N. L. R. B. v. Construction Specialities Company, et al., 208 F. 2d 170 (C. A. 10); Eichleay
Corporation v. N. L. R. B., 206 F. 2d 799 (C. A. 3); Philadelphia Iron Works, 103 NLRB 596.
CONSOLIDATED WESTERN STEEL CORPORATION, ET AL. 1043
agreement" between Respondents Stone & Webster and United
Brotherhood of Carpenters . We agree for the reasons stated
below.
This agreement provides merely for the recognition of the
Union and for a closed - shop arrangement ; it contains no sub-
stantive terms as to wages, hours , and other conditions of
employment. We are convinced that Congress did not intend to
accord the immunity of Section 102 to a contract such as this,
and certainly not in perpetuity . We find, therefore , that by con-
tinuing the provisions of the June 18, 1947, agreement , Respond-
ents Stone & Webster and United Brotherhood of Carpenters
violated Section 8 (a) (3) and ( 1) and Section 8 (b) (1) (A) and
(2) of the Act, respectively.4
3. The Trial Examiner found that Consolidated Western,
pursuant to its unlawful hiring arrangement with the Respondent
Unions, discriminatorily refused to reinstate five millwrights
who had joined the recognition strike of May 1, 1951, called
by the International Associational of Machinists, AFL. He found,
however, that they were not discriminatorily discharged during
the course of the strike although each millwright, while still
on strike , was handed a termination slip which stated that he
was "discharged for undue and unexcused absences." The
Trial Examiner found that the distribution of the termination
slips constituted no more than a "tactical maneuver " to induce
the strikers to return to their jobs.
Upon consideration of all the pertinent evidence , we cannot
agree with the Trial Examiner that the Company distributed
the termination slips to the striking millwrights merely to in-
duce them to return to work. At no time during the hearing or
in its brief did the Company take this position . On the contrary,
in its answer to the complaint the Company admitted that the
employees had been discharged after they had left their jobs
and refused to return . This position was a reaffirmance of an
earlier letter to the Board ' s Regional Office in which the Com-
pany stated that the strikers were discharged " in accordance
with our established policy" to discharge employees for undue
and unexcused absences . The record reveals that the mill-
wrights who were thus discharged were, in fact, replaced be-
fore the end of the strike . While it appears that during the
strike several supervisors requested the strikers to re-
turn to their jobs, we do not believe that this circumstance
altered the nature of the termination slips or their intended
effect.
On the basis of the foregoing , we are persuaded and find,
contrary to the Trial Examiner , that the five millwrights were
discharged because of their lawful concerted activity on behalf
of the IAM and pursuant to the Respondent Company's unlawful
arrangement with the Respondent Unions.
4Heating , Piping and Air Conditioning , et al., 102 NLRB 1646; Red Star Express Lines,
93 NLRB 127 , enfd. 196 F. 2d 78 (C A. 2).
1044 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Accordingly , we find that the Respondent , Consolidated
Western Steel Corporation , by discharging Millwrights Algood,
Blake, Elmore , and D . J. Pierce violated Section 8 ( a) (1) and
(3) of the Act . We further find that the Respondent Local Union
610, United Brotherhood of Carpenters and Joiners of America,
AFL, by maintaining its unlawful hiring arrangement with the
Respondent Company, caused such discriminatory discharges
and thereby violated Section 8 ( b) (1) (A) and (2).
4. Unlike the Trial Examiner we find that the Respondent
Lummus discriminatorily refused to employ Millwrights A. F.
Hulsey and D. E. Barlow.
Hulsey: During 1951 and prior thereto , Hulsey worked for
Lummus on various of its construction projects . On each occa-
sion he was hired through, or by referral from, a local Car-
penters Union . In May 1951 , he participated in the IAM recog-
nition strike , was fined by the Carpenters Union , and was not
thereafter referred to millwright jobs.
According to credited and uncontroverted testimony , Hulsey,
sometime in March 1952, at the Respondent ' s plant gate, re-
quested employment of the Respondent ' s superintendent , Lewis.
Superintendent Lewis asked Husley if he was an "instigator" of
the IAM strike and then stated " if I hired you it would cause
trouble amongst the other crafts." Hulsey thereupon left the
premises. About a month later Robert Toomey, the millwright
foreman on the job, visited Hulsey at his home and said that he
had tried to get Hulsey on the job, but that "they " would not
consider hiring him until he got " cleared up" with the Car-
penters . Toomey further told Hulsey that he had even gone to
Business Agent Dorman of the Carpenters Local Union 610
about him and that Dorman had said "there ' s a fine against
[him]. [He] will not be hired until [ he] had paid his fine."
The Trial Examiner predicates his dismissal of the allega-
tion concerning Lummus' discriminatory refusal to employ
Hulsey upon the ground that Hulsey ' s uncertainty as to the date
of his employment application makes it impossible to determine
whether the Respondent had a millwright job available at the
time of his application , thereby implying that if no job was
available when Hulsey applied for work the Company would not
have been deemed to have violated the Act when it refused to
grant employment . We disagree with this legal conclusion.
The Board has consistently held that where an employer en-
gages in a discriminatory hiring practice and where such pra-
tice is communicated to applicants for employment , albeit when
no jobs for them are available , aninference and finding is war-
ranted that further application would be futile because from the
existence of the discriminatory practice it is clear that the
same discriminatory conditions would be attached whenever
the jobs become available.5
5 J. R. Cantrall Co., 96 NLRB 786; Daniel Hamm Drayage Co., Inc ., 84 NLRB 458, enfd.
185 F. 2d 1020 (C. A. 5); Akin Products Co., 99 NLRB 1270; The Lummus Co., 101 NLRB 1628;
Thomas Rigging Co., 102 NLRB 65.
CONSOLIDATED WESTERN STEEL CORPORATION. ET AL. 1045
Hulsey, at the time he made his job application, certainly
knew of the discriminatory policy being maintained by the
Respondent Lummus and the local Carpenters Union, since on
all prior occasions when he was hired by Lummus he was re-
quired to obtain clearance from one of the Carpenters' local
unions. Further, it may reasonably be presumed that Hulsey,
from what was told to him by both Lewis and Toomey, realized
that the illegal conditions of employment under the past practice
still existed, and that the Lummus Company was determined to
force them upon him at any future time when he might have
applied for work.
Barlow: Barlow's history of employment with Lummus is
substantially the same as that of Hulsey. He also joined the IAM
strike on May 1, 1951.
At about the time of the start of Lummus' project in the
area, in February or March 1952, Toomey, the millwright
foreman, called at Barlow's home and told him that although
there was a millwright job available, and he, Toomey, would
like to have Barlow work for him, the Carpenters' business
agent in the area refused to clear him for employment until he
has paid the fine levied against him for joining the IAM strike.
Toomey stated that before Barlow could be considered for
employment, he would have to pay his fine. Barlow said that he
would not pay it. When Barlow suggested that he apply at the
plant gate, Toomey said, "don't come out there because I can't
hire you." Barlow asked why not and Toomey replied "you
know as well as I do."
The record demonstrates that Toomey was a supervisor as
defined in the Act, and that on several occasions in the past,
when Barlow was in good standing with the Carpenters, he
initiated the hiring of Barlow by requiring him to obtain a
referral from a Carpenters' local for presentation to the
Respondent Company's personnel department.
The Trial Examiner dismissed the allegation with respect to
Barlow on the ground that Barlow did not make "actual appli-
cation for employment." We disagree . We believe that Barlow
made sufficient application for work of Millwright Foreman
Toomey and that the Respondent Company, through Toomey,
discriminatorily refused to employ him in accordance with the
Company's illegal hiring practice.
Accordingly we find that Respondent , The Lummus Company,
by discriminatorily refusing to hire Hulsey and Barlow, and
Respondent Local Union 610, United Brotherhood of Carpenters
and Joiners of America, AFL, by causing such discrimination,
violated Section 8 (a) (3) and (1) and Section 8 (b) (1) (A) and
(2) of the Act, respectively.
THE REMEDY
In view of the foregoing , we shall modify the remedial recom-
mendations of the Trial Examiner as follows:
1046 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We shall also order Respondents to cease and desist from
the practice of requiring membership in or clearance by the
Respondent Unions or any labor organizations as acondition of
employment.
We shall order Respondents Consolidated and Local Union
610 to jointly and severally make whole W. A. Elmore, C. B.
Allgood, D. J. Pierce, J. P. Black, and E. W. Blake, for any
loss of earnings suffered by them by reason of the discrimi-
nation against them bypaymenttothemofa sum of money equal
to that which they would have earned in the employ of the
Respondent Company from the date of their discriminatory dis -
charge, less the period of the strike ,6 to the date upon which
their employment normally would have terminated, absent the
discrimination , less their net earnings during the period, to be
computed in a manner consistent with the Board ' s policy set
forth in F. W. Woolworth Company, 90 NLRB 289.
We shall also order Respondent, The Lummus Company, and
Local Union 610, United Brotherhood of Carpenters and Joiners
of America, AFL, to jointly and severally make whole A. F.
Hulsey and D. E. Barlow for any loss of earnings suffered by
them by reason of the discrimination against them by payment
to them of a sum of money equal to that which they would have
earned in the employ of the Respondent Company from the date
of the discrimination in the case of Barlow , and, in the case of
Hulsey, from the date after the discrimination against him
when a millwright job became available, to the date upon which
their employment normally would have terminated absent the
discriminations , less their net earnings during the period, to
be computed in a manner consistent with the Board's policy set
forth in F. W. Woolworth Company, 90 NLRB 289. Because the
Trial Examiner dismissed the complaint as to Hulsey and
Barlow no back pay is awarded to them for the period between
the dates of the Intermediate Report and this Order . Further,
we shall provide that upon the Respondent Union's notification
to the Respondent Company that it has no objection to the re-
instatement of Hulsey and Barlow , the Union shall not be liable
for any back pay occuring after 5 days from giving such notice.
ORDER
Upon the entire record in these cases, and pursuant to
Section 10 (c) of the National Labor Relations Act, the National
Labor Relations Board hereby orders that:
I. The Respondents Consolidated Western Steel Corporation,
Stone & Webster Engineering Corporation , The Lummus Com-
pany, and M. W. Kellogg Company, their officers , agents,
successors , and assigns , shall:
6Contrary to the Trial Examiner's finding , Blake did not apply for reinstatement . However,
in view of the fact that all of the other striking millwrights herein concerned applied for and
were refused reinstatement at the end of the strike , and on the day after the picket lines were
removed, we find that an application by Blake would have constituted no more than a futile
gesture and therefore was not necessary for the commencement of back pay.
CONSOLIDATED WESTERN STEEL CORPORATION, ET AL. 1047
A. Cease and desist from:
(1) Encouraging membership in any affiliate of the United
Brotherhood of Carpenters and Joiners of America, AFL, or
discouraging membership in any affiliate of the International
Association of Machinists , AFL, or encouraging or discourag-
ing membership in any other labor organization of employees,
by conditioning the employment of properly qualified applicants
for employment upon membership in, or referral by, the said
United Brotherhood of Carpenters and Joiners of America, and
its affiliates , or by discriminating in any other manner in re-
gard to hire and tenure of employment of employees, or any
term or condition of their employment.
(Z) In any manner interfering with, restraining , or coercing
employees or applicants for employment, in the exercise of
their right to self-organization , to form labor organizations, to
join or assist the International Association of Machinists or any
other labor organization , and to engage in other concerted
activities for the purpose of collective bargaining or other
mutual aid or protection , or to refrain from any or all such
activities , except to the extent that such right may be affected
by an agreement , authorized by Section 8 (a) (3) of the Act,
requiring membership in a labor organization as acondition of
employment.
B. Take the following affirmative action which the Board
finds will effectuate the policies of the Act:
(1) Post at their offices and projects in Beaumont, Port
Arthur, and Orange , Texas, and any and all other offices and
projects located within the Sabine area, copies of the notices
attached hereto and marked "Appendix A" (for Lummus),
"Appendix B" (for Consolidated), "Appendix C" (for Stone and
Webster), and "Appendix D" (for Kellogg ).? Copies of such
notices , to be furnished by the Regional Director for the Six-
teenth Region , shall, after being duly signed by the respective
Respondents ' representatives , be posted by such Respondent
immediately upon receipt thereof , and be maintained by it for
sixty ( 60) consecutive days thereafter, in conspicuous places,
including all places where notices to its employees are cus-
tomarily posted. Reasonable steps shall be taken to insure that
said notices are not altered , defaced , or covered by any other
material.
II. The Respondent Stone & Webster and the Respondent
United Brotherhood of Carpenters and Joiners of America, AFL,
their officers , agents, successors , and assigns , shall cease and
desist from:
A. Continuing and giving effect to the illegal hiring provisions
of the June 18, 1947, "International Agreement."
7 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."
1048 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. 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, the United Brotherhood of Carpenters and
Joiners of America, AFL, or its affiliates, except to the extent
authorized by the provisions of Section 8 (a) (3) of the Act.
III. The Respondents United Brotherhood of Joiners of
America, AFL, District Council of Carpenters for the Sabine
area, Local Unions Nos. 610, 753 and 2007, their officers,
representatives, and agents , shall:
A. Cease and desist from:
(1) Causing or attempting to cause any employer to condition
employment of any properly qualified applicants for employment
upon membership in, or referral by, any affiliate of the United
Brotherhood, or to discriminate in any other manner in regard
to the hire and tenure of employment of employees in violation
of Section 8 (a) (3) of the Act.
(2) In any manner restraining or coercing employees of any
employer in the exercise of their rights guaranteed by 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 by Section 8 (a) (3)
of the Act.
B. Take the following affirmative action which the Board
finds will effectuate the policies of the Act:
Post at their offices in Beaumont, Port Arthur, and Orange,
Texas, or in any other of their offices within the Sabine area,
copies of the notices attached hereto and marked "Appendix
E," except as to Local 610, for which a special notice marked
"Appendix F"" is hereto attached. Copies of such notices, to
be furnished by the Regional Director for the Sixteenth Region,
shall, after being duly signed by representatives of the respec-
tive Respondents, be posted immediately upon receipt thereof,
and be maintained for sixty (60) consecutive days thereafter,
in conspicuous places, including all places where notices to
members are customarily posted . Reasonable steps shall be
taken to insure that said notices are not altered , defaced, or
covered by any other material.
IV. The Respondents Consolidated and Local 610, their of-
ficers , agents, representatives , successors , andassigns , shall,
in addition to the respective action above ordered, take the
following affirmative action whichthe Board finds will effectuate
the policies of the Act:
A. M :'ce whole W. A. Elmore, C. B. Allgood, D. J. Pierce,
J. P. Black, and E. W. Blake for any loss of pay they may
have suffered by reason of the discrimination against them
in the manner set forth in the section herein entitled "The
Remedy."
BSee footnote 6, supra.
CONSOLIDATED WESTERN STEEL CORPORATION, ET AL. 1049
B. Mail to the aforesaid individuals copies of the notices
attached hereto and marked "Appendix B" and "Appendix F."
V. The Respondents Lummus and Local 610, their officers,
agents, representatives , successors , and assigns , shall, in
addition to the respective action above ordered, take the
following affirmative action which the Board finds will effect-
uate the policies of the Act:
A. Make whole A. F. Hulsey and D. E. Barlow for any loss
of pay they may have suffered by reason of the discrimination
against them, in the manner set forth in the section herein
entitled "The Remedy."
B. Mail to the aforesaid individuals copies of the notices
attached hereto and mar-ed "Appendix A" and "Appendix F."
VI. The above Respondents shall each notify the Regional
Director of the Sixteenth Region, in writing , within ten ( 10) days
from the date of this Order what steps they have taken to
comply therewith.
IT IS FURTHER ORDERED that (1) the complaint againstthe
Respondent Graver be, and it hereby is , dismissed in its
entirety and that that part of the complaint against Respondent
Local 753 as to the allegation of causing Graver to discriminate
be, and it hereby is, dismissed ; ( Z) that the complaint against
the Respondent Consolidated and Respondent Unions as to the
alleged discrimination against the individuals named in footnote
2 of the Intermediate Report with the exception of W. A. Elmore,
C. B. Allgood, D. J. Pierce, J. P. Black, and E. W. Blake, be,
and they hereby are, dismissed ; ( 3) that the complaints against
the Respondent Kellogg and Respondent Local 610 as to allega-
tions of discrimination against Barlow and Barlow be, and
they hereby are, dismissed ; ( 4) that those portions of the com-
plaints against the Respondent members of the Sabine area
Construction Committee and the Respondent District Council
of Carpenters and its affiliated Local Unions , which alleged
the illegality of the March 9, 1951, agreement be, and they
hereby are , dismissed.
Member Beeson took no part in the consideration of the
above Decision and Order.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor
Relations Board and in order to effecutate the policies of the
National Labor Relations Act, as amended , we hereby notify
our employees and applicants for employment that:
WE WILL NOT discourage membership in International
Association of Machinists , District Lodge No. 31 , AFL, or
any of its affiliated locals, or in any other labor organiza-
1 050 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion, or encourage membership in United Brotherhood of
Carpenters and Joiners of America, AFL, Local Unions
Nos. 610 , 753, 2007, or in any other labor organization of
our employees or applicants for employment , by condi-
tioning the employment of properly qualified applicants
for employment upon membership in, or referral by, the
said United Brotherhood of Carpenters and Joiners of
America, AFL, or any of its locals, or by discriminating
in any manner in regard to the hire and tenure of employ-
ment of our employees, or any term or condition of em-
ployment, except insofar as such activity may be affected
by an agreement , authorized in Section 8 (a) (3) of the Act,
requiring membership in a labor organization as a condi-
tion of employment.
WE WILL make whole A. F. Hulsey and D . E. Barlow
for any loss of pay suffered as a result of our discrimina-
tion against them.
WE WILL NOT in any manner interfere with, restrain,
or coerce our employees or applicants for employment in
the exercise of their right to self-organization , to form
labor organizations, to join or assist International Asso-
ciation of Machinists, District Lodge No . 31, AFL, or any
of its affiliated locals, or any other labor organizations,
to bargain collectively through representatives of their
own choosing , and to engage in other concerted activities
for the purpose of collective bargaining or other mutual
aid or protection , or to refrain from any or all such
activities , except to the extent that such right may be
affected by an agreement, authorized in Section 8 (a) (3) of
the Act, requiring membership in a labor organization as
a condition of employment.
All of our employees are free to become, remain, or to
refrain from becoming or remaining , members in good standing
in International Association of Machinists , AFL, or any of its
affiliated locals, or United Brotherhood of Carpenters and
Joiners of America , AFL, or any of its affiliated locals, 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 Act.
THE LUMMUS 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.
CONSOLIDATED WESTERN STEEL CORPORATION, ET AL.
APPENDIX B
NOTICE TO ALL EMPLOYEES
1051
Pursuant to a Decision and Order of the National Labor
Relations Board, and in order to e f f e c t u a t e the policies of
the National Labor Relations Act, as amended, we
hereby notify our employees and applicants for employment
that:
WE WILL NOT discourage membership in International
Association of Machinists, District Lodge No. 31, AFL,
or any of its affiliated locals, or in any other labor organi-
zation, or encourage membership in United Brotherhood of
Carpenters and Joiners of America, AFL, Local Unions
Nos. 610, 753, 2007, or in any other labor organization of
our employees or applicants for employment, by condition-
ing the employment of properly qualified applicants for
employment upon membership in, or referral by, the
said United Brotherhood of Carpenters and Joiners of
America, AFL, or any of its locals, or by discriminating
in any manner in regard to the hire or tenure of employ-
ment of our employees , or any term or condition of em-
ployment, except insofar as such activity ma be affected
by an agreement, authorized in Section 8 (a) (3) of the
Act, requiring membership in a labor organization as a
condition of employment.
WE WILL NOT in any manner interfere with, restrain,
or coerce our employees or applicants for employment in
the exercise of their right to self - organization , to form
labor organizations , to join or assist International Asso-
ciation of Machinists, District Lodge No. 31, AFL, or any
of its affiliated locals, or any other labor organization, to
bargain collectively through representatives of their own
choosing, and to engage in other concerted activities for
the purpose of collective bargaining or other mutual aid
or protection , or to refrain from any or all such activities,
except to the extent that such right may be affected by an
agreement, authorized in Section 8 (a) (3) of the Act, re-
quiring membership in a labor organization as a condition
of employment.
WE WILL make whole W. A. Elmore, C. B. Allgood,
D. J. Pierce, J. P. Black, and E. W. Blake for any loss of
pay suffered as a result of our discrimination against them.
All our employees are free to become , remain , or to refrain
from becoming or remaining , members in good standing in
International Association of Machinists, AFL, or any of its
affiliated locals, or United Brotherhood of Carpenters and
Joiners of America, AFL, or any of its affiliated locals, or any
other labor organization, except to the extent that this right may
1052 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
be affected by an agreement in conformity with Section 8 (a) (3)
of the Act.
CONSOLIDATED WESTERN STEEL CORPORATION,
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 C
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, as amended ., we hereby notify our
employees and applicants for employment that:
WE WILL cease continuing or giving effect to our June
1947 agreement with United Brotherhood of Carpenters
and Joiners of America , AFL, or any extension or supple-
ment thereof, as to matters relating to the hire or tenure
of employment or any employees or applicants for em-
ployment.
WE WILL NOT enter into , renew, or enforce any agree-
ment with the aforesaid labor organization which requires
employees or applicants to be members of, to join, or
maintain in good standing their membership in, said labor
organizations, unless such agreement is authorized as
provided in the National Labor Relations Act, as amended.
WE WILL NOT discourage membership in International
Association of Machinists , District Lodge No . 31, AFL, or
any of its affiliated locals, or in any other labor organiza-
tion, or encourage membership in United Brotherhood of
Carpenters and Joiners of America, AFL, Local Unions
Nos. 610 , 753, 2007, or in any other labor organization of
our employees or applicants for employment , by condition-
ing the employment of properly qualified applicants for
employment upon membership in, or referral by, the said
United Brotherhood of Carpenters and Joiners of America,
AFL, or any of its locals , or by discriminating in any
manner in regard to the hire and tenure of employment of
our employees , or any term or condition of employment,
except insofar as such activity maybe affected by an agree-
ment, authorized in Section 8 (a) (3) of the Act, requiring
membership in a labor organization as a condition of em-
ployment.
CONSOLIDATED WESTERN STEEL CORPORATION, ET AL. ] 053
WE WILL NOT in any manner interfere with, restrain,
or coerce our employees or applicants for employment in
the exercise of their right to self-organization, to form
labor organizations , to join or assist International Asso-
ciation of Machinists, District Lodge No. 31, AFL, or any
of its affiliated locals, or any other labor organization, to
bargain collectively through representatives of their own
choosing , and to engage in other concerted activities for
the purpose of collective bargaining or other mutual aid
or protection , or to refrain from any or all such activities,
except to the extent that such right may be affected by an
agreement , authorized in Section 8 (a) (3) of the Act, re-
quiring membership in a labor organization as a condition
of employment.
All of our employees are free to become, remain, or to re-
frain from becoming or remaining, members in good standing
in International Association of Machinists, AFL, or any of its
affiliated locals, or United Brotherhood of Carpenters and
Joiners of America, AFL, or any of its affiliated locals, or any
other labor organization, except to the extent that this right
may be affected by an agreement in c nformity with Section 8
(a) (3) of the Act.
STONE & WEBSTER ENGINEERING CORP.,
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 D
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, as amended, we hereby notify
our employees and applicants for employment that:
WE WILL NOT discourage membership in International
Association of Machinists, District Lodge No. 31, AFL, or
any of its affiliated locals, or in any other labor organiza-
tion, or encourage membership in United Brotherhood of
Carpenters and Joiners of America, AFL, Local Unions
Nos. 610, 753, 2007, or in any other labor organization of
our employees or applicants for employment, by condition-
ing the employment of properly qualified applicants for
1054 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employment upon membership in, or referral by, the said
United Brotherhood of Carpenters and Joiners of America,
AFL, or any of its locals, or by discriminating in any
manner in regard to the hire and tenure of employment,
except insofar as such activity maybe affected by an agree-
ment, authorized in Section 8 (a) (3) of the Act, requiring
membership in a labor organization as a condition of em-
ployment.
WE WILL NOT in any manner interfere with, restrain,
or coerce our employees or applicants for employment in
the exercise of their right to self-organization, to form
labor organizations; to join or assist International Asso-
ciation of Machinists, District Lodge No. 31, AFL, or any
of its affiliated locals, or any other labor organization, to
bargain collectively through representatives of their own
choosing, and to engage in other concerted activities for
the purpose of collective bargaining or other mutual aid or
protection, or to refrain from any or all such activities,
except to the extent that such right may be affected by an
agreement, authorized in Section 8 (a) (3) of the Act, re-
quiring membership in a labor organization as a condition
of employment.
All of our employees are free to become, remain, or to re-
frain from becoming or remaining, members in good standing in
International Association of Machinists, AFL, or any of its
affiliated locals, or United Brotherhood of Carpenters and
Joiners of America, AFL, or any of its affiliated locals, 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 Act.
M. W. KELLOG COMPANY,
Employer.
Dated ................ By....
.
..............f.. .. . ..... . ..................
(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 E
NOTICE TO ALL OFFICERS, REPRESENTATIVES, AGENTS
AND MEMBERS OF UNITED BROTHERHOOD OF CARPEN-
TERS AND JOINERS OF AMERICA, AFL, DISTRICT COUNCIL
OF CARPENTERS FOR THE SABINE AREA, and LOCALS
NOS. 753 and 2007
Pursuant to a Decision and Order of the National Labor
Relations Board, and in order to effectuate the policies of the
CONSOLIDATED WESTERN STEEL CORPORATION, ET AL. 1055
National Labor Relations Act, as amended , we hereby notify
you that:
WE WILL cease performing or giving effect to our June
1947 agreement with Stone & Webster Engineering Corp.,
or any extension or supplement thereof, as to matters
relating to the hire or tenure of employment of any em-
ployees, or applicants for employment.
WE WILL NOT enter into , renew, or enforce any agree-
ment with the above -named employer or employers' asso-
ciation which requires membership in our organization as
a condition of employment , unless such agreement is au-
thorized as provided in the National Labor Relations Act,
as amended.
WE WILL NOT cause or attempt to cause any employer
to refuse to hire, to discharge , or otherwise discriminate
against employees or applicants for employment in regard
to their hire or tenure of employment or any term or con-
dition of employment in violation of Section 8 (a) (3) of the
Act.
WE WILL NOT in any manner restrain or coerce em-
ployees of any employer in the exercise of the rights
guaranteed by Section 7 of the Act, except to the extent
that such right may be affected by an agreement re-
quiring membership in a labor organization as a condition
of employment as authorized in Section 8 (a) (3) of the
Act.
UNITED BROTHERHOOD OF CARPENTERS AND
JOINERS OF AMERICA, AFL,
Labor Organization.
Dated ................ By....................................................
(Representative ) (Title)
LOCAL UNION NO. 753, UNITED BROTHERHOOD OF
CARPENTERS AND JOINERS OF AMERICA, AFL,
Labor Organization.
Dated ................ By....................................................
(Representative ) (Title)
LOCAL UNION NO. 2007, UNITED BROTHERHOOD OF
CARPENTERS AND JOINERS OF AMERICA, AFL,
Labor Organization.
Dated ................ By....................................................
(Representative ) (Title)
1 056 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
DISTRICT COUNCIL OF CARPENTERS for the SABINE
AREA, UNITED BROTHERHOOD OF CARPENTERS AND
JOINERS OF AMERICA, AFL,
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.
APPENDIX F
NOTICE TO ALL OFFICERS, REPRESENTATIVES, AGENTS
AND MEMBERS OF LOCAL UNION NO. 610, UNITED
BROTHERHOOD OF CARPENTERS AND JOINERS OF
AMERICA, AFL
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, as amended, we hereby notify
you that:
WE WILL cease performing or giving effect to our June
1947 agreement with Stone & Webster Engineering Corp.,
or any extension or supplement thereof, as to matters
relating to the hire or tenure of employment of any em-
ployees, or applicants for employment, of any member of
that employers' association.
WE WILL NOT enter into, renew, or enforce any agree-
ment with the above-named employer or employers' asso-
ciation which requires membership in our organization as
a condition of employment, unless and until such agreement
has been authorized as provided in the National Labor
Relations Act, as amended.
WE WILL NOT cause or attempt to cause any employer
to refuse to hire, to discharge, or otherwise discriminate
against employees or applicants for employment in regard
to their hire or tenure of employment or any term or con-
dition of employment in violation of Section (a) (3) of the
Act.
WE WILL NOT in any manner restrain or coerce em-
ployees of any employer in the exercise of the rights
guaranteed by 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 em-
ployment as authorized in Section 8 (a) (3) of the Act.
WE WILL notify The Lummus Company, in writing, and
furnish copies of such notification to A. F. Hulsey and
D. E. Barlow that we have no objectionto their employment
by said company.
CONSOLIDATED WESTERN STEEL CORPORATION, ET AL. 1057
WE WILL make whole A. F. Hulsey and D. E. Barlow
for discrimination caused against them.
WE WILL notify Consolidated Western Steel Corporation,
in writing, and furnish copies of such notification to W. A.
Elmore, C. B. Allgood, D. J. Pierce, J. P. Black, and
E. W. Blake, that we have no objection to their employment
by said company.
WE WILL make whole W. A. Elmore, C. B. Allgood,
D. J. Pierce, J. P. Black, and E. W. Blake for any loss of
pay suffered because of the discrimination against them.
LOCAL UNION NO. 610, UNITED BROTHERHOOD OF
CARPENTERS AND JOINERS OF AMERICA, AFL,
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
STATEMENT OF THE CASE
Charges having been duly filed and served, an order consolidating the above-entitled cases,
complaints, and notice of hearing thereon having been issued and served by the General
Counsel of the National Labor Relations Board, by the Regional Director for the Sixteenth
Region (Fort Worth, Texas), and answers having been filed by the above-named Respondent
Companies and labor organizations, a hearing involving allegations of unfair labor practices
in violation of Section 8 (a) (1) and (3), Section 8 (b) (1) (A) and (2), and Section 2 (6) and (7)
of the National Labor Relations Act, as amended(61 Stat. 136), herein called the Act, was held
in Beaumont, Texas, before the undersigned Trial Examiner from March 16 to April 2, 1953,
and, by order of the Trial Examiner, before the Vice Consul of the United States of America
at Buenos Aires, Argentina, on June 8,1953.Upon receipt of the record made at Buenos Aires
the Trial Examiner ordered the hearing closed on July 10, 1953.
Copies of the complaints, charges, and notice of hearing were served upon the parties. Be-
fore and during thehear mgcertamofthecomplaints were amended, as were certain answers. I
In substance the complaints, as amended, allege and the respective answers, as amended,
deny as follows:
In Cases CB-19 and 20: That Respondent Local 610, through its officers and the Respondent
District Council on March 9, 1951, entered into an illegal hiring agreement, as to the employ-
ment of millwrights, with the Sabine Area Construction Committee, herein called SACC,
causing members of that employers' organization (including the Respondents Consolidated
and Kellogg) and in violation ofSection8(a) (3) of the Act to hire only members of Carpenters'
unions affiliated with the Respondent District Council, and specifically caused the Respondent
Kellog to discriminate against D. E. Barlow and G. L. Pardoe on July 3, 1951, because they
were not members in good standing of Local 610.
In Case CB-26: That the Respondent District Council (and its member Locals 610, 753, and
2007) on March 9, 1951, entered into an illegal hiring agreement as to millwrights with SACC
requiring the hiring only of members of its affiliated locals, thereby causing the Respondents
Lummus, Consolidated, Kellogg, and Stone & Webster to discriminate in violation of Section
8 (a) (3).
'All of the above-entitled cases originally were consolidated with Peterson Construction
Company, Inc., 106 NLRB 850, and South Texas Chapter, et al., 107 NLRB 965.
339676 0 - 55 - 68
1058 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In Case CB-24: That the Respondent Local 753, on March 9, 1951 entered into the above-
mentioned illegal hiring agreement with SACC, and on May 31, 1951, caused the Respondent
Graver to discriminate against one R. B. McMahon.
In Case CB-30: That the Respondent United Brotherhood, since July 1951, has maintained
and enforced an illegal "international" agreement with the Respondent Stone & Webster, by
which the latter has agreed to hire only members of the Respondent United Brotherhood, such
agreement not complying with Section 8 (a) (3) of the Act.
In Case CA-202: That the Respondent Consolidated, a member of SACC, on March 9, 1951,
entered into the above-described illegal hiring agreement ; on or about May 3, 1951, dis-
criminatorily discharged or refused to reemploy 16 namedemployees2 becausethey joined or
assisted the charging Union or refused to assist member locals of the Respondent District
Council; and since April 1951, has engaged in the discriminatory practice of hiring, for mill-
wright positions, only members of the Respondent United Brotherhood, and refusing to employ
members of the charging Union.
In Case CA-205: That the Respondent Lummus, a member of SACC, on March 9, 1951,
entered into the above-described illegal hiring agreement ; since November 1950, has engaged
in the discriminatory practice of hiring only members of the Respondent United Brotherhood
and its affiliates; and after December 1, 1951, sepcifically refused to hire D. E. Barlow and
A. F. Hulsey, in violation of the Act.
In Case CA-206: That the Respondent Stone & Webster since 1947 had had an illegal "inter-
national" agreement with the Respondent United Brotherhood; on March 9, 1951, entered into
the above-described illegal hiring agreement with the Respondent District Council; and since
November 1950, has engaged in the practice of employing as millwrights, only members of the
Respondent United Brotherhood and its affiliates, and has failed to hire members of the
charging Union.
In Case CA-225: That the Respondent Graver on July 16,1951, refused to employ applicants
R. B. McMahon and F. J. and D. J. Pierce as millwrights because they joined or assisted the
charging Union and failed to assist the Carpenters' unions , and by its agents since May 1951,
has interrogated employees as to their union affiliations and has threatened them with
economic reprisals if they joined the charging Union.
In Case CA-207: That the Respondent Kellogg, a member of SACC, on March 9, 1951,
entered into the above-mentioned illegal hiring agreement with the Respondent District
Council; since April 1951, has engaged in the discriminatory practice of hiring only members
of the Respondent United Brotherhood and its affiliates and refusing to hire members of the
charging Union; by its agents has interrogated employees concerning their union affiliations
and threatened them with reprisals for signing authorization cards for the charging Union;
and on or about May 16, 1951, discriminatorily refused to reinstate D. E. Barlow and G. L.
Pardoe because they assisted the charging Union.
At the hearing in Beaumont all parties were represented and were afforded full opportunity
to be heard, to examine and cross-examine witnesses, to introduce relevant evidence, to
argue orally, and to file briefs. All parties were afforded opportunity to forward interroga-
tories and cross-interrogatories in Buenos Aires. Sincethehearing briefs have been received
from the Respondents Kellogg, Graver, and Lummus, and motions to dismiss from the Re-
spondents Consolidated and Lummus. Said motions, and other motions of the same and other
Respondents, made at the close of the hearing and upon which ruling was reserved, will be
disposed of by the findings, conclusions, and recommendations below.
Upon the entire record in the case, and from his observation of the witnesses, the Trial
Examiner makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT COMPANIES
A. Consolidated Western Steel Corporation
The Respondent Consolidated is a subsidiary of the United States Steel Corporation, a multi-
state enterprise, and has its principal office and place of business in Maywood, California. It
2C. B. Allgood, J. P. Black, H. B Brown, W. A. Dyson, Gus Gaugh, Butcher Lane, D J.
Pierce, W. F. Rily, John Avery, Sr., E. W. Blake, Roland Chanette, W. A. Elmore, L. E.
Johnson, S. A. McGee, 0. E. Rials, and C. M. Woodson.
CONSOLIDATED WESTERN STEEL CORPORATION, ET AL. 1059
operates a steel fabricatibn plant and pipe mill at Orange, Texas. During the period from June
1950 to September 1951, as general contractor, it engaged in the erection, for the U. S. Steel
Products Company, of a plant for the manufacture of oil drums on a site in the city of Port
Arthur, Texas. During the period from October 1950 through July 1952 it engaged in the
erection of a sulphur plant for Texas Gulf Sulphur Company on a site in the city of Beaumont,
Texas. This Respondent purchases, for use, steel plate, welding rods, and other equipment
and supplies valued at more than $ 1,000,000, of which more than 90 percent is shipped in
interstate commerce. During the aforementioned periods it sold products valued at more than
$ 1,000,000, of which more than 33 percent was shipped in interstate commerce. It has rendered
to the United States Steel Corporation and to the Texas Gulf Sulphur Company in and around
Orange, Texas, services and supplies valued at more than $1,000,000.
The Respondent is engaged in commerce within the meaning of the Act.
B. The Lummus Company
The Respondent Lummus is a Delaware corporation, having its principal office and place of
business in New York, New York, with branches in Chicago, Illinois, and Houston, Texas. It is
engaged in the engineering , construction, and fabrication and erection of plants and installa-
tions for multistate petroleum and chemical industries. During the year before the hearing
the Respondent purchased steel plates and piping and nonferrous materials valued at more
than $1,000,000, of which more than 90 percent was shipped in interstate commerce. During
the same period its services and materials in the construction of refineries and chemical
plants for multistate firms were valued at more than $1,000,000.
The Respondent is engaged in commerce within the meaning of the Act.
C. Stone & Webster Engineering Corp.
The Respondent Stone & Webster is a Massachusetts corporation, with an office and place
of business in Beaumont, Texas, where it is engaged in the construction and expansion of
powerhouse facilities for the Gulf States Utilities Company, a multimillion dollar public
utility serving users in Louisiana and Texas. Two projects are involved in this case. Each
project involves expenditures of more than $ 6,500,000, of which about 50 percent is for the
purchase of materials and supplies from outside the State of Texas.
This Respondent is engaged in commerce within the meaning of the Act.
D. M. W. Kellogg Company
The Respondent Kellogg is a Delaware corporation, having its principal office and place of
business at Jersey City, New Jersey. During the period materialherem, and until January 1,
1952, it was engaged in the construction ofa catalytic cracker unit at the Gulf Oil Corporation
Refinery at Port Arthur, Texas. In this construction, during a 12-month period, it purchased
steel products, electrical products, lumber, and other building materials valued at more than
$1,000,000, of which more than 75 percent was shipped in interstate commerce. During the
same period, it furnished services and goods to the Gulf Oil Corporation, a multistate corpo-
ration, valued at more than $1,000,000.
This Respondent is engaged in commerce within the meaning of the Act.
E. Graver Tank & Mfg. Co., Inc.
This Respondent is a Delaware corporation, having its principal office and place of business
in East Chicago, Illinois, with plants in Pennsylvania, Texas, New York, and Oklahoma. Graver
Construction Company is a division of Graver Tank & Mfg. Co., Inc. It has been constructing
for the Tennessee Gas and Transmission Company nearJasper, Texas, a compressor station,
and on this project the Respondent has furnished services and materials of a value of more
than $175,000. Said Tennessee Gas and Transmission Company is a multistate company
shipping and sending gas and materials in interstate commerce of a value of more than
$ 1,000,000.
This Respondent is engaged in commerce within the meaning of the Act.
1 060 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
II. THE LABOR ORGANIZATIONS INVOLVED
Locals Nos. 610, 753 and 2007, United Brotherhood of Carpenters and Joiners of America,
AFL; District Council of Carpenters for the Sabine Area; United Brotherhood of Carpenters
and Joiners of America, AFL; District Lodge No. 31, International Association of Machinists,
AFL; and International Association of Machinists, AFL, are labor organizations admitting to
membership employees of the Respondent Companies named herein.
III. THE UNFAIR LABOR PRACTICES
A. The major issues
Although in a different geographical area, events at issue in these consolidated cases depict
a situation similar to that described in South Texas Chapter, et al., 107 NLRB 965, and the
comment there made is equally applicable here:
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.
This case involves what is called the "Sabine area," which is defined by A. E. Wuenham,
executive secretary of the Jefferson County Chapter of the Associated General Contractors of
America, as including Jefferson and Orange counties in Texas, and the immediately adjacent
territory. Communities covered include Beaumont, Port Arthur, Orange, Nederland, Port
Neches, and Jasper.
In 1946, a group of employers in the construction industry formed, for the purpose of
collective bargaining with building trades unions, the Sabine Area Construction Committee.
Respondents Consolidated, Stone & Webster, and Lummus were members during the period
here material. Wuenham, above-identified, participated in the formation of SACC in his
capacity as an official of the Associated General Contractors. SACC, according to Wuenham,
is an "informal arrangement" among employers, having no paid memberships or constitution
and bylaws.
The three Respondent Locals--Nos. 610, 753, and 2007--have jurisdiction in the same
Sabine area. Local 610 has its headquarters at Port Arthur, Local 753 at Beaumont, and Local
2007 at Orange. In December 1950, these three labor organizations formed the Carpenters
District Council for the Sabine Area and Vicinity, affiliated with the A.F.L. 3A constitution
and bylaws were drawn up and adopted. Thereafter, in March 1951, the Respondent District
Council entered into a collective-bargaining agreement with SACC. The agreement, approved
by the Respondent United Brotherhood and in effect at least until 1953, is placed in issue by
General Counsel's allegations that it illegally requires the hiring only of members of the
Respondent locals to perform millwright work. Directly involved as to this 1951 agreement,
by General Counsel's complaints, are the Respondents Stone & Webster, Consolidated,
Lummus, and Kellogg.
As to the Respondents Stone& Webster and United Brotherhood, General Counsel also claims
that since 1947 there has existed between them an illegal "international" agreement. These
Respondents claim that this contract, entered into before the Act was amended, is protected
by the saving clause.
Not only in observance of the alleged illegal contracts, above-mentioned,-but also as an
"area" practice General Counsel claims that the several Respondent Employers have dis-
criminated, in the hiring of millwrights, in favor of members of Carpenters locals and against
members of the charging Union.
3 The title is taken from the organization's constitution and bylaws, in evidence. It is
reasonable to believe that this is the same organization named in the complaint and herein
called the Respondent District Council.
CONSOLIDATED WESTERN STEEL CORPORATION, ET AL. 1061
In addition to the contracts , and the area practice , issues of specific discrimination against
certain individuals are raised by the pleadings.
B. The agreement of March 9, 1951
This agreement, as heretofore noted, was entered into and was in force during the period
material, between the Respondent Locals and District Council and SACC. Of direct bearing
upon General Counsel's claim of illegality are the following provisions of this contract: (1)
Section 7 (A) Working Rules for Millwrights of article V, and (2) article VIII Duration.
Pertinent portions of section 7 (A) read as follows:
(A) Stewards
The contractor recognizes the Union's right to designate stewards for all jobs.
The contractor will recognize and permit the normal functions of a steward.
To determine more precisely what "normal functions ofa steward " the employer members
of SACC thus agreed to "recognize and permit ," it is necessary to turn to the constitution
and bylaws of the Respondent District Council. Relevant provisions of section 6--Duties of
Steward--state that:
(I) Each crew shall elect a steward.
(C) ... It shall be the duty of the Steward to notify the Business agent or the Executive
Board of any trouble on his job and to act according to instructions received. He
shall examine all members' cards on the job at least once a month to see that mem-
bers keep their current dues paid up, and carry out any other instructions that are
issued by the Local Union.
(K) Stewards shall not permit any member who has not his current working card, issued
by the Local, by the second meeting night of the first month of the quarter to go to
work.
Article V of the bylaws provides that "before any person can become a member or secure a
permit to work, he first must pass the examining board consisting of three Brothers in good
standing." (Emphasis supplied.)
Article VIII of the agreement in question reads, in part, as follows:
It is understood that this Agreement may be submitted to the Carpenters' National Office
for approval. In theevent any part conflicts with the Constitution and By-laws of the United
Brotherhood of Carpenters and Joiners of America, that part shall be subject to renego-
tiation.
From the undisputed testimony of A. G. Dorman, business agent of Local 610 and during
the material period financial secretary and treasurer of the Respondent District Council, it is
found that the above-described agreement between SACC and the District Council was approved
by the Respondent United Brotherhood and that therefore it must be considered to be in con-
formity with its constitution and bylaws. The "Trade Autonomy" section of the latter document
provides that the Respondent United Brotherhood shall have jurisdiction over "millwrights,"
and the "erecting and dismantling of machinery."Section"U" of "Qualifications for Member-
ship" provides:
Members who contract work or become foremen, must comply with Union rules and hire
none but members of the United Brotherhood. (Emphasis supplied.)
Of further bearing upon the nature of the March 9 agreement is the following excerpt from
the constitution and bylaws of the Respondent District Council, party to that contract:
... members of the Brotherhood will not use, erect or install any materials that are not
handled by members of the United Brotherhood of Carpenters .... a
4Section 3, article IV.
1062 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Trial Examiner finds that the agreement of March 9, 1951, obligated members of the
SACC to pursue a hiring policy which conditioned employment (for work here involved) upon
membership in, or referral by, the Respondent Locals of the Respondent United Brotherhood.
Likewise, the evidence sustains General Counsel's claim that this agreement "did not and does
not comply with the provisions of Section 8 (a) (3) of the Act."
As to which of the various Employer Respondents have been bound by this illegal agreement,
there is no factual dispute that the Respondents Lummus, Stone & Webster, and Consolidated
were, during the material period, members of SACC. It is reasonably inferred and found that
they were parties to the contract, although the agreement in evidence is signed for employers,
only by an official of the Respondent Stone & Webster and by Wuehnam, previously identified
as an officer of the Associated General Contractors.
As to the remaining 2 Employer Respondents, General Counsel does not allege that the
Respondent Graver was a member of SACC or was a party to the March 9 agreement. He
does, however, claim that the Respondent Kellogg was a party to that contract. The Trial
Examiner is of the opinion, and finds, that the evidence is insufficient to sustain this contention
of General Counsel to Kellogg. The testimony of 3 individuals .5 called by General Counsel,
who took part in the negotiations of this agreement is in accord that Kellogg was not a member
of SACC.
In summary, upon the preponderance of credible evidence, the Trial Examiner concludes
and finds that the Respondents District Council, 610, 753. and 2007, and the Respondents
Stone & Webster, Lummus, and Consolidated, on March 9, 1951, entered into an agreement
requiring that all millwrights employed must be members of a union affiliated with the
Respondent District Council, and that said agreement does not comply with the provisions of
Section 8 (a) (3) of the Act.
C. The agreement of June 1947
This agreement concerns only the Respondents United Brotherhood and Stone & Webster. It
is dated June 18,1947, shortly before the passage of amendments to the Act prohibiting closed-
shop agreements. These two respondents admit its existence but claim that it has not been
renewed or renegotiated and so remains valid because of the saving clause of the Act, Section
102. The text of this document, entitled "International Agreement," is brief and is here quoted
in full:
Memorandum of Agreement between the firm of STONE & WEBSTER ENGINEERING
CORPORATION and, the UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF
AMERICA
We, the firm of STONE & WEBSTER ENGINEERING CORPORATION AGREE to recog-
nize the jurisdiction claims of the United Brotherhood of Carpenters and Joiners of
America, to work the hours, pay the wages and abide by the rules and regulations estab-
lished or agreed upon by the United Brotherhood of Carpenters and Joiners of America
of the locality in which any work of our company is being done, and employ members of
the United Brotherhood of Carpenters and Joiners only.
No change to be made in the hours and wages in any locality, and no conditions imposed
other than are enforced on all Local firms.
In consideration of the foregoing, the United Brotherhood of Carpenters and Joiners of
America agree that no stoppage of work or any strike of its members, either collectively
or individually, shall be entered into pending any dispute being investigated and all
peaceable means taken to bring about a settlement.
Section 102 of the Act reads:
No provision of this title shall be deemed to make an unfair labor practice any act which
was performed prior to the date of the enactment of this Act which did not constitute an
unfair labor practice prior thereto, and the provisions of section 8 (a) (3) and section 8
(b) (2) of the National Labor Relations Act as amended by this title shall not make an
unfair labor practice the performance of any obligation under a collective-bargaining
5 Wuenham, Jernigan, and Dorman.
CONSOLIDATED WESTERN STEEL CORPORATION, ET AL. 1063
agreement entered into prior to the date of the enactment of this Act, or (in the case of
an agreement for a period of not more than one year) entered into on or after such date
of enactment, but prior to the effective date of this title, if the performance of such obli-
gation would not have constituted an unfair labor practice under section 8 (3) of the
National Labor Relations Act prior to the effective date of this title, unless such agree-
ment was renewed or extended subsequent thereto. (Emphasis supplied.)
The Trial Examiner finds no merit in the contention that Section 102 gives validity, in per-
petuity, to the closed-shop agreement quoted above, merely because the two parties have not
altered the wording of this particular document.
It is plain, upon its face, that it includes, by reference and projection, agreements which
might thereafter (and after the effective date of the amendments), be entered into between
locals of the Respondent United Brotherhood, such as the agreement of March 9, 1951,
between the Respondent District Council and the same Respondent Employer, described in
the section immediately above.6
The Trial Examiner concludes and find that, as the respective complaints allege, there
has existed between the Respondents United Brotherhood and Stone & Webster an agreement
to employ members of the Respondent United Brotherhood only, and that this-agreement
does not comply with the provisions of Section 8 (a) (3) of the Act.
D. The discriminatory hiring practices
General Counsel specifically alleges that the Respondents Lummus, Kellogg, Stone &
Webster, and Consolidated, have engaged in and are engaging in the disc r uninatory hiring
practice of employing, for millwright work, only members of Carpenters' locals. He does
not plead that the Respondent Graver is engaged in such practice.
General Counsel also alleges, specifically, that the Respondent District Council and its
three member locals, since May 1951, have caused and attempted to cause the Respondents
Lummus, Kellogg, Stone & Webster, and Consolidated to engage in a hiring practice dis-
criminating in favor of members of the Carpenters' locals and against members of the
charging Union.
The testimony of three officials of the Respondent Locals establishes beyond doubt that
they endeavored to force the four Employer Respondents to follow the discriminatory hiring
policy. Thus Business Agent Nelson, of Local 753, admitted as a witness that it was his
job to see that his members in good standing got millwright jobs in the area. Business
Agent Clem of Local 2007, and president of the District Council until mid-1952, candidly
answered, "That's true," when asked ". . . in your capacity as business agent of 2007 and
as president of the District Council, you have endeavored, have you not, to use whatever
means available to you to prevent the Machinists Union from representing any employees
in the building and construction industry." Business Agent Dorman, of Local 610, stated
that it was his duty to see that the laws of the United Brotherhood were complied with,
and that he did everything he could to carry out such duty. As noted above, one provision
of the United Brotherhood's laws requires employment only of Carpenters' members for
millwright work.
In general, the testimony of the same three union officials makes it plain that their efforts,
to restrict millwright jobs for their members only, were highly successful. Dorman readily
admitted, as a witness, that he did not know of a single millwright, not a member of some
Carpenter local, doing millwright work in the entire area of his jurisdiction. Although Clem
said that in some instances a millwright might hold a card in both a Carpenters' local and
in the charging Union, he knew of no instance in 1950 and 1951 when a millwright on the job
was not a member of a Carpenters' local. The admissions of these high union officials
cannot be accorded only the weight of casual observers. They were in a position to acquire
information periodically, and did, from reports of their stewards on each job in the area.
Viewing the interrelated questions from the point of view of the employers concerned, the
preponderance of credible evidence, both oral and documentary, establishes that each of
the four employers, during the material period, followed the practice of hiring only members
6The agreement of March 9, 1951, constituted, in effect, a "renewal or extension" of the
agreement of June 18, 1947. And the record shows chat there were intervening agreements
between the Sabine area locals and the Respondent Stciie & Webster.
1064 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the Carpenters' locals for millwright work. Thus R. P. Jernigan, senior employment
supervisor for Stone & Webster, said that he: (1) Consulted the business agent of Local
753 before hiring a millwright foreman (who, by the Union's bylaws, was required to hire
only Carpenters' members for millwright work); (2) followed the practice when millwrights
were needed, of calling Local 753 for them; and (3) never called the International Associa-
tion of Machinists to send men to perform millwright work. As to Kellogg, its resident
manager Paul Weberling replied, when asked the normal procedure for hiring millwrights:
"We called the Carpenters Union Hall and told them we need whatever number of millwrights
we needed the next day.... " And he likewise admitted that he did not call the Machinists'
hall for millwrights, and instructed no subordinate to do so. No official for Lummus or
Consolidated, in a capacity similar to that of Jernigan or Weberlmg, was called as a witness.
The testimony of R. B. McMahon, however, who served as a millwright foreman at various
times both for Lummus and Consolidated, is to the general effect that both employers also
followed the practice of hiring through the Carpenters' halls. It is so found.7
As to the documentary evidence, a stipulation among the parties concerned entered into at
the hearing is to the effect that of some 97 millwrights hired by Stone & Webster in this
area from August 1947 to March 1953, the names of all but 11 also appear on the records
of the Respondents Locals as having been members during their employment. A similar
document and stipulation reveals that of 37 millwrights employed by Kellogg on the Gulf
Refinery job, here involved, all but 2 were members of Carpenters' locals. Union records
establish that all 28 millwrights hired by Lummus on the jobs relevant were members of
the Carpenters. Similar evidence show that all 7 millwrights on the Texas Gulf Sulphur
job of Consolidated were Carpenters, as were all 21 millwrights employed by the same Re-
spondent on its Port Arthur project for the U. S. Steel Products Company.
The Trial Examiner is not persuaded that the apparent exceptions --where names of mill-
wrights employed were not found on records of the three Carpenter locals--establish beyond
doubt that the individuals were in fact not members of some Carpenter's local at the time of
hiring. Such persons may well have held cards in some other Carpenters' local, a probability
inferred from the testimony of several witnesses, including the business agents. The uncon-
troverted testimony of the business agents involved--to theeffect that periodic reports of their
stewards failed to reveal any non-Carpenter working as a millwright in the area, the testimony
of Weberling, for Kellogg, that his concern called the Carpenters' local and not the machinists'
local for millwrights, and the admitted closed-shop arrangement of Stone & Webster, all lead
to the reasonable conclusion that, when hired, all millwrights of the four Respondent Companies
were members of some Carpenters' local. Supporting this finding is the testimony of many
former employees who said that their employment with the various employers had been
obtained by referral from the locals.
Nor is the above conclusion as to the practice of Kellogg disturbed by the urging of its
counsel, in his brief, that this company permitted certain millwrights, who became in bad
standing with the Carpenters' local as a result of a strike in May 1951--described in the
next section--to return to work. When originally hired, these individuals were members of
the Carpenters in good standing.
Both documentary and oral evidence is uncontroverted that during the period relevant
herein the charging Union, and its members,wereknown by the various Respondent Employers
to be seeking jobs as millwrights in this area.
Thus the testimony of both company and union officials, and documents in evidence, all
lead to the inescapable conclusion, and the Trial Examiner so finds, that a discriminatory
7 Additional support to this finding as to Lummus and Consolidated is found in their joint
petition to the Jefferson County District Court, in May 1951, wherein they stated: "That
jurisdiction over the millwright work which defendants (the charging Union in this case)
claim to be within the jurisdiction of the Machinists Union was allocated and assigned to
the Carpenters' Union by the Building and Construction Trades Department of the American
Federation of Labor and by the Beaumont and Port Arthur Building and Trades Councils
many years ago; that such workhas historically been performed by members of the Carpenters'
Union in this area. That by reason of such fact, these defendants should not, by means of an
unauthorized strike and picket line, be permitted to coerce and compel these plaintiffs to
violate their valid contracts with the Carpenters Union covering employees performing work
over which such Union has jurisdiction, and which for many years has been performed by
members of the Carpenters' Union."
CONSOLIDATED WESTERN STEEL CORPORATION, ET AL. 1065
hiring policy as to millwrights has existed and is existing in the Sabine area, that the Re-
spondents Lummus, Consolidated, Stone & Webster, and Kellogg have engaged in and are
engaging in the practice of carrying out this policy, and that the Respondents District Council,
Local 610, Local 753, and Local 2007 have caused and attempted to cause the said Respondent
Employers to engage in a hiring practice discriminating in favor of their members and
against members of the charging Union.
E. Discrimination and claimed discrimination
in specific instances
1. The Respondent Consolidated
As to this Respondent, General Counsel contends, in substance, that on or about May 1,
1951, it discriminatorily discharged 16 employees listed in footnote 2 above, discriminatorily
refused to reinstate them on or about May 11, 1951, and that such discrimination was be-
cause they refused to assist the Respondent District Council and its members and because
they did assist the charging Union.
The surrounding circumstances are in little dispute. In short, it appears that many mill-
wrights in the area decided to strike in order to obtain recognition from construction em-
ployers for the charging Union, on millwright lobs. Many of them, while still holding member-
ship in some carpenters' local, signed authorization cards for the I.A.M. Picket lines were
established at various construction projects in the area, including the Consolidated project
at Port Arthur. Counsel for the Respondent Consolidated conceded at the hearing that on
May 4, 1951, while the picket line was still on, an official of the Company handed termination
slips to each of the 16 employees named in footnote 2, above, stating that he was "dis-
charged for undue and unexcused absences," and that each discharge was effective as of
the afternoon of May 3, 1951. The picket line remained until about May 10, and there is no
evidence that between May 4 and May 10 any of the 16 individuals offered to return to his
work. Picket lines were removed on the latter date following the issuance of an injunction
by a local district court. On the morning of May 11, Foreman McMahon, who had not crossed
the picket line the previous days, together with employees W. A. Elmore, C. B. Allgood, D.
J. Pierce, J. P. Black, and E. W. Blake, appeared at the project and told Assistant Super-
intendent Jess Harrington they were ready to go to work. Harrington told them that he had
orders from higher up not to let them go back to work. Neither McMahon, the foreman, nor
the 5 employees were permitted to return to work on the job.
As to the question of the discriminatory discharges on May 3, the Trial Examiner is of
the opinion that the evidence is insufficient to sustain the allegation of the complaint. Of
the 16 listed only5--Algood, Black, Elmore, Blake, and D. J. Pierce, appeared as witnesses.
Many of the others appear on the Respondent's records in evidence as pipefitters, laborers,
and classifications other than millwrights. Some do not appear on such records at all-- or
if so the Trial Examiner has been unable to locate them. As to the 5 above-named individuals,
it is clear that they were millwrights, that they participated in the strike, and that on May
11 they offered unconditionally to return to work. Under the circumstances revealed by the
record, including the Respondent's seeking the court's injunction to halt the strike, the Trial
Examiner concludes that the handing of termination slips to these 5 men, among the others,
was by way of being a tactical maneuver. In any event, it appears to the Trial Examiner,
that the critical act is that of the refusal to reinstate the 5 who sought reinstatement. As to
this point, the evidence is clear and undisputed. They were denied reinstatement on May 11.
Not only the preponderance of credible evidence, including the Respondent's agreement with
the Respondent District Council through SACC, but also the tacit admissions contained in its
motion to dismiss, filed after the hearing (to the effect that it was within its legal right to
refuse reinstatement to employees striking to gain recognition while under contract with
the Carpenters) lead to the conclusion, and the Trial Examiner finds, that the 5 individuals
were refused reinstatement because they had engaged in concerted activities to assist the
charging Union.
The agreement upon which the Respondent would rely has been found to be illegal, since it
is not in conformity with the provisions of Section 8 (a) (3 of the Act.
In summary, the Trial Examiner concludes and finds that the preponderance of credible
evidence sustains the allegations of the complaint against the Respondent Consolidated with
respect to discriminatory refusal to reinstate, on May 11, 1951, employees Allgood, Black,
1066 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Blake, Elmore, and D. J. Pierce, but fails to sustain such allegations as to the others listed
in footnote 2, above.
Although the complaint against the Respondent Local 610 alone (CB-19, 20) does not
specifically allege that it caused the Respondent Consolidated to discriminate against specific
individuals in violation of Section 8 (a) (3), the complaint against the Respondent District
Council and its members including Local 610, in Case CB-26, alleges that it caused the Re-
spondent Consolidated, among others, to discriminate generally in hiring only Carpenters and
refusing to employ members of the I.A.M. Since Local 610 was a party to the agreement with
Consolidated, the Trial Examiner considers that discrimination occurring pursuant to that
agreement may be held jointly against both parties. It is therefore found that the Respondent
Local 610 caused the Respondent Consolidated illegally to discriminate against Allgood, Black,
Blake, Elmore, and D. J. Pierce.
2. The Respondent Kellogg
Unless the Trial Examiner has inadvertently erred in perceiving, among the shifting and
changing positions taken by General Counsel during the hearing, what his ultimate claims are
as to alleged discrimination against individuals, it appears that he contends that two persons--
D. E. Barlow and G. L. Pardoe--were discriminatorily refused employment by Kellogg on or
about May 16, 1951, following their participation in the strike described in the section above,
and that Pardoe was again refused employment in July 1951.8
It is undisputed that in April 1951, while working as millwrights for Kellogg, both Barlow
and Pardoe, although still members of the Carpenters', signed cards authorizing the charging
Union to represent them, and participated in a strike seeking recognition for the Machinists
in early May. Shortly before the strike, however, these two employees, together with four
other millwrights were laid off because of lackof work,--a layoff which General Counsel con-
cedes was nondiscriminatory.
There is no evidence that either Pardoe or Barlow personally made application for work on
the Kellogg project in May, following the withdrawal of the picket line on May 10. Pardoe, in-
deed, testified that he never made application for work there following the layoff in April.
It appears that General Counsel rests his case upon a letter sent to the Respondent Kellogg
on May 16, 1951, by the business representative of the charging Union, stating that the 6 em-
ployees, laid off in April, were available for work, and expected to be recalled before any
new millwrights were hired, and that GeneralCounselwould have it considered that this letter
constitutes an application for employment covering Pardoe and Barlow, although they are not
specifically named. Even if this claim has validity, the Company's records show no millwright
jobs available, from the layoff in April, until early July. And in July the Respondent did re-
call at least 2 of those laid off in April (Hux and Green), both of whom had participated in the
May strike, had been fined by the local, and were "in bad standing."
The preponderance of credible evidence does not sustain the allegations of discriminatory
refusal to reemploy either Barlow or Pardoe. Itwill therefore be recommended that the com-
plaint against the Respondent Kellogg be dismissed as to these individuals, and that the com-
plaint in Cases Nos. CB-19, 20, against the Respondent Local 610, be dismissed with respect
to its allegations that it caused the Respondent Kellogg to discriminate against any specific
individuals.
3. The Respondent Lummus
General Counsel claimed, during the hearing, that the Respondent Lummus, since December
1951, has discriminatorily refused to employ D. E. Barlow and A. F. Hulsey.
It appears that the alleged discrimination has referenceto Lummus' Gulf Oil project which,
so far as millwright work is concerned, began early in February and ended during the fall of
1952, according to records in evidence.
Both Barlow and Hulsey had worked for this Respondent before 1952, on various projects,
as millwrights. It is undisputed that on each occasion of such hiring they had obtained, before
employment, referrals from a local of the Carpenters. In May 1951, both participated in the
SDuring the hearing the Trial Examiner dismissed the complaint as to any discrimination
against Barlow in July.
CONSOLIDATED WESTERN STEEL CORPORATION, ET AL. 1067
Machinists' strike, were fined by the Carpenters', and were not thereafter referred to mill-
wright jobs.
According to Hulsey's undisputed and credited testimony, sometime in March 1952, he
talked with Superintendent Lewis at the Gulf gate "about going to work over there." In answer
to Hulsey's question, Lewis said he Was hiring at the gate, and then asked Hulsey if he wasn't
the "instigator" of the strike. Hulsey denied it. Lewis then said, "If I hired you, it would
cause trouble amongst the other crafts." Hulsey thereupon left the premises About a month
later Robert Toomey, who was foreman on the millwright job at Gulf, visited Hulsey at his
home and said that he had tried to get him and Barlow on the job, but that "they" would not
consider hiring them until they got "cleared up" with the Carpenters. Toomey further told
Hulsey that he had even gone to Business Agent Dorman about them, but that Dorman had
said, "There Is a fine against them. They will not be hired until they have paid their fine."
At about the time of the start of the project, apparently, Toomey also called at the home
of Barlow and, in effect, told him that while he would like to have him work on the Gulf job,
Dorman had refused to permit hun to work until he had paid his fine. When Barlow suggested
that he come to the gate, when he was ready to hire, Toomey replied, "Don't come out there
because I can't hire you." Also, according to Barlo is testimony, Toomey later told him
that he was not doing the hiring, but that Lewis was.
Later in his testimony, Barlow admitted that he never made any actual application for a
millwright job on this project. At this point the Trial Examiner stated, on the record, that
unless other evidence was forthcoming to establish genuine application, he would entertain a
motion to dismiss the allegation of actual refusal to employ Barlow. General Counsel then
stated that since it would have been a "fruitless gesture," no application was necessary.
Upon review of the record, the Trial Examiner remains of the opinion that the evidence is
insufficient to establish actual refusal to employ, upon application, and at a time when an
opening existed, in the case of Barlow. Although the facts as to Hulsey are somewhat different
since he did appear at the Gulf gate- -his uncertainty as to the date makes it impossible to
determine from the company records whether or not a job for him was actually available at
the time. There is no doubt, and the Trial Examiner finds, that the statements of both Lewis
and Toomey were coercive and revealed an intent on the part of the Respondent Lummus
not to hire them, unless they regained their good standing in the Carpenters' locals. And it
might well be inferred that had either applicant appeared at the gate when a job was available
he might have been refused. Such refusal, however, was not inevitable--as noted heretofore
Kellogg actually reemployed two millwrights while they were still in bad standing with the
Carpenters.
While the issue as to Barlow and Hulsey is not free of doubt, the Trial Examiner finds the
evidence insufficient to sustain General Counsel's claim that they were discriminatorily re-
fused employment after December 1951, by the Respondent Lummus.
4. The Respondent Graver
It is General Counsel's claim that this Respondent discriminatorily refused to employ R. B.
McMahon, F. J. Pierce, and D. J. Pierce in July 1951, and that the Respondent Local 753, in
May 1951, caused Graver to discriminate against McMahon. Although the interrelated pleadings
do not precisely coincide, for the purposes here the Trial Examiner will consider that
General Counsel contends that Local 753 caused Graver to discriminate, and that Graver did
did discriminate, illegally, against all three individuals in July 1951.
The relevant facts are as follows: McMahon had been foreman of the millwright crew on the
Consolidated project until the strike in early May 1951. He joined the millwrights who struck
there, was heavily fined by the Carpenters', and together with the individuals named in section
III, E, 1, above, was refused reinstatement by Consolidated on May 11, when the picket lines
were withdrawn. McMahon thereafter visited the Graver project in jasper. No work for
millwrights was available at that time, but McMahon was told by Assistant Superintendent
Markham that he was waiting for the delivery of certain machinery, and that if he was available
when it arrived he would consider him for the job as foreman. Sometime in April, according
to the testimony of Markham, which the Trial Examiner believes, the superintendent on the
job had communicated with the divisional superintendent of Graver in an effort to have one
O'Neal, regularly employed by Graver as its millwright foreman on installation jobs, avail-
able for taking charge of the erection of the machinery at Jasper when it arrived. At the time
1068 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Markham told McMahon he might be able to use him, it was not known definitely whether or
not O'Neal would be available , since he was then in charge of another job.
During the last part of May, Markham had need of a millwright to perform a small job, and
sent for McMahon . The latter worked on May 30 and 31. Markham then assured him, in effect,
that he still had him in mind for the installation job when the machinery arrived. In June,
McMahon and the two Pierces went to Jasper to see if work was available . Markham told them
he had no idea when the equipment , so long delayed , would arrive. On the same occasion
Markham told McMahon that one Pillsbury , business agent of the Building and Construction
Trades Council of Beaumont , had informed him that McMahon should be kept off the job.
(By this time McMahon had been fined by his local of the Carpenters ' and was in bad
standing.)9
The machinery did not arrive until early August . By that time Graver 's regular installation
foreman, O 'Neal , became available and reported at the project . As foreman , he hired his own
millwrights as helpers on the job , and did not employ McMahon or the two Pierces.
General Counsel 's contention in substance is that McMahon and the two Pierces should have
been sent for when the machinery arrived , that the failure to do so constituted discrimination
in hiring , and that the discrimination was induced by Local 753, acting through Pillsbury.
While the case is not free of doubt , the Trial Examiner is of the opinion that the evidence
is insufficient to support General Counsel 's claim of actual discrimination. Credible evidence
will not permit a finding that Markham actually promised to hire McMahon . Uncertainty reason-
ably existed in Markham 's mind not only as to when the machinery would arrive but also as
to whether or not the Company's regular foreman would be available . Although Markham
readily conceded McMahon's ability and his willingness to hire him to take charge of the in-
stallation , it was not unreasonable that O'Neal , the Company 's regular foreman , should
have been assigned the task when he became available . To find that illegal discrimination
occurred it would be necessary to conclude that O'Neal had been informed by Markham of
Pillsbury 's warning about hiring McMahon . There is a lack of evidence to support either this
inference or the inference that Markham told O'Neal that he had been considering employing
McMahon. Indeed it would be unreasonable to infer the latter , since it is plain that if McMahon
had been employed by Markham, it would have been as foreman.
Nor is the evidence sufficient to support a finding that Local 753 caused , or attempted to
cause, the Respondent Graver to violate Section 8 (a) (3) as to these three individuals , on this
project . Whatever Markham, to McMahon , may have quoted Pillsbury as having said, as a
witness he said he could not recall just what the Trades Council representative had told
him.
Nor is there evidence , in the Graver case , establishing a discriminatory hiring practice as
to millwrights -- indeed, the complaint does not so allege. Graver was not a member of SACC,
nor a party to any of the contracts involved in the other cases,
It will be recommended that the complaint , in its entirety , be dismissed as to the Respondent
Graver, and that the relevant part of the complaint against the Respondent 753 also be
dismissed.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondents set forth m section III, above , occurring in connection with
the operations of the Respondent Employers 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.
9 The Trial Examiner does not credit the testimony of McMahon and the Pierces that
Markham, on this occasion, told them that he would put them to work at once if they cleared
with the Respondent Union. On the other hand , the Trial Examiner does not believe Markham's
denial that he told the applicants that Pillsbury had warned him not to employ McMahon. There
were no jobs available at the Jasper job in June , as the Company 's records show, and there
were no reasonable grounds for Markham's stating that he would then hire them if they
cleared with the Union. But Markham admitted that Pillsbury had visited him and it is
reasonable to believe that he passed the information along to McMahon and the Pierces when
they came to Jasper.
CONSOLIDATED WESTERN STEEL CORPORATION, ET AL. 1069
V. THE REMEDY
It has been found that each of the Respondents , except Graver , has engaged in certain unfair
labor practices . It will be recommended that such Respondents cease and desist therefrom,
and take certain affirmative action to effectuate the policies of the Act.
Having found that both the "International" agreement between the Respondents United
Brotherhood and Stone & Webster, and the March 1951 agreement between the Respondents
District Council, its member locals, and the Respondent Members of SACC, contain illegal
hiring provisions , the Trial Examiner will recommend that the parties 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 610, 753, 2007, or of any
local of the 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 610 caused the Respondent Consolidated to
discriminate, and that the latter Respondent did discriminate, against 5 individuals in re-
fusing them reemployment following the strike of May 1951. It appears that the particular
project upon which they were working has been completed, and it will not be recommended
that either Respondent take affirmative action looking toward employment on that job. It will
be recommended, however, that the 2 Respondents jointly make whole the 5 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 normally would 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 several Respondents are
of such character and scope that , in order to insure employees and prospective employees of
contractors in the Sabine area of rights guaranteed by the Act it will be recommended that
the Respondents, except Graver , cease and desist from in any manner interfering with, re-
straining , and coercing employees or prospective employees intheir 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. Locals Nos. 610, 753, and 2007, United Brotherhood of Carpenter and Joiners of America,
AFL; District Council of Carpenters for the Sabine Area; United Brotherhood of Carpenters
and Joiners of America, AFL; District Lodge No. 31, 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 maintaining and enforcing the agreement ofMarch 9, 1951, the Respondents Lummus,
Stone & Webster, and Consolidated have engaged in and are engaging in unfair labor practices
within the meaning of Section 8 (a) (3) of the Act.
3. By maintaining and enforcing the agreement of June 1947, the Respondent Stone &
Webster has engaged in and is engaging in unfair labor practices within the meaning of Section
8 (a) (3) of the Act.
4. By discriminating in regard to the hire of applicants for millwright work , thereby
encouraging membership in the Respondent United Brotherhood and its affiliated locals herein
named and discouraging membership in the International Association of Machinists and its
affiliated locals, the Respondents Lummus, Stone & Webster, Consolidated, and Kellogg have
engaged in and are engaging in unfair labor practices within the meaning of Section 8 (a) (3)
of the Act.
5. By maintaining and enforcing the aforesaid agreements of June 1947 and March 9, 1951,
and by causing the Respondents Lunimus, Stone & Webster, Consolidated, and Kellogg to
discriminate in the hiring of applicants for millwright work in violation of Section 8 (a) (3)
of the Act, the Respondent United Brotherhood and its affiliated locals herein named have
engaged in and are engaging in unfair labor practices within the meaning of Section 8 (b) (2)
of the Act.
6. By interfering with, restraining, and coercing eiployees in the exercise of the rights
guaranteed in Section 7 of the Act, the Respondents Lummus, Stone & Webster, Consolidated,
1070 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and Kellogg have engaged in and are engaging in unfair labor practices within the meaning
of Section 8 (a) (1) of the Act.
7. BY restraining and coercing employees in the exercise of the rights guaranteed in
Section 7 of the Act, the Respondents United Brotherhood , District Council, Local 610, 753,
and 2007 have engaged in and are engaging in unfair labor practices within the meaning of
Section 8 (b) (1) (A) of the Act.
8.. The aforesaid unfair labor practices are unfair labor practices affecting commerce
within the meaning of Section 2 (6) and (7) of the Act.
9. The Respondent Graver has not engaged in unfair labor practices within the meaning
of the Act.
[ Recommendations omitted from publication. J
LOCAL 595, INTERNATIONAL ASSOCIATION OF BRIDGE,
STRUCTURAL, AND ORNAMENTAL IRON WORKERS, AFL,
AND W. B. SANDERS , ITS AGENT and BECHTEL CORPORA-
TION. Case No. 14 - CB-211. May 26, 1954
DECISION AND ORDER
On February 10, 1954 , Trial Examiner C. W. Whittemore
issued his Intermediate Report in the above -entitled proceeding,
finding that the Respondents had engaged in and-were engaging
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 Respondents filed exceptions to the
Intermediate Report and a supporting brief.
The Board has reviewed the rulings made by the Trial
Examiner at the hearing and finds that no prejudicial error
was committed . The rulings are hereby affirmed. The Board
has considered the Intermediate Report, the exceptions and
brief, and the entire record in the case, and hereby adopts the
findings , conclusions , and recommendations of the Trial
Examiner, with the modifications and exceptions noted below.
1. We agree with the Trial Examiner's finding that the re-
fusal of the Respondent Sanders, business agent of the Union,
to refer the 6 ironworker applicants specifically requested by
Bechtel Corporation and the action and threats of the Respondent
Union ' s agent , Joyner, which were designed to force the
Company to employ the other ironworkers sent by Sanders
rather than the 6 it desired , constituted an attempt by the
Respondents to cause Bechtel Corporation to discriminate
in hiring in violation of Section 8 (b) (1) (A) and (2 ) of the Act.'
However, we do not adopt the Trial Examiner's rationale to
the extent that he implies that the mere refusal of a union
to refer men to an employer when requested to do so, standing
alone and absent evidence of a discriminatory practice or con-
'See Medford Building and Construction Trades Council of the American Federation of
Labor; et al. (Kogap Lumber Industries), 96 NLRB 165.
108 NLRB No. 149.