Construction Specialties Co.

National Labor Relations Board - Board Decisions

Feb 19, 1953

102 N.L.R.B. 1542 (N.L.R.B. 1953)

1542 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CONSTRUCTION SPECIALTIES CODIPANY and DONALD BOURBEAU AND
GORDON L. BUNDICK
INTERNATIONAL ASSOCIATION OF HEAT AND FROST INSULATORS AND
ASBESTOS WORKERS, LOCAL No. 28, A. F. L. and DONALD BOURBEAU,
GORDON L . BUNDICK AND CEDRIC ANDERSON . Cases Nos. 30-CA-2'°23,
30-CA-234, 30-CB-22, 30-CB-23, and 30-CB-24. February 19,
1953
Decision and Order
On October 30, 1952, Trial Examiner Maurice M. Miller issued his
Intermediate Report in the above entitled proceedings, finding that
Respondents had engaged in and were engaging in certain unfair la-
bor practices in violation of the Act, 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. There-
after, Respondent Union filed exceptions to the Intermediate Report
and a supporting brief.
The Board I has reviewed the rulings of the Trial Examiner 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 these cases, and hereby
adopts the findings, conclusions, and recommendations of the Trial
Examiner, with the additions and modifications noted below.
1. Upon the basis of the entire record, we agree with the Trial
Examiner that the Employers and Union had in effect, at times here
material, a hiring arrangement whereby the Employers would employ
only persons cleared or referred by the Union. Thus, as fully set
forth in the Intermediate Report, prior to July 1949, the Master In-
sulators Association (herein called the Association)2 and the Union
operated under a written agreement requiring membership in the
Union as a condition of employment, except that where the Union
was unable to supply men the Employer could hire nonmembers who
would work under "permit" of the Union and until replaced by union
members. Thereafter, the Association refused to formally execute a
similar agreement because of its obvious illegality, and the parties
continued their relationship by executing successive letters of intent
in 1949, 1950, and 1951, to follow certain established wages, hours,
and working conditions. These letters of intent, embracing the above
matters, made no reference to any hiring arrangement or to any form
' Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its
powers in connection with these cases to a three -member panel [ Chairman Herzog and
Members Murdock and Peterson].
I The Respondent Company is a member of the Association which bargains and contracts
with the Union on behalf of all Association members.
102 NLRB No. 168.
CONSTRUCTION SPECIALTIES COMPANY 1543
of union security, except that the last two letters prescribed certain
working conditions for "card" members of the Union and "permit
men and/or emergency labor."
Notwithstanding the omission of a specific clause in the letters of
intent to this effect, the evidence fully set forth in the Intermediate
Report convincingly establishes that the Respondent Company and
Standard Asbestos, another member of the Association not a party
herein, and the Union in practice operated under a permit system
until the last part of 1951, and thereafter under a referral system, as
the exclusive method of hiring.3 That this referral system is here
.operative is clearly established by the fact that complainants Bour-
beau and Bundick were denied employment by Respondent Employer
because of their inability to get clearance from the Union, and that
Anderson was denied employment by Standard Asbestos for the same
reason.
We next turn to the question of whether the hiring arrangement
described above was discriminatorily applied by the Union. On this
question we agree with the Trial Examiner that it was so applied. As
set forth in the Intermediate Report, the substance of the testimony
by Respondent Company and Standard Asbestos was that all parties
to the hiring arrangement understood that the Union in supplying
-personnel would discriminate in favor of union members. Moreover,
it appears that the Union in fact refused to clear Bundick and Ander-
son for employment because of their nonmembership and the avail-
ability of members of the Union and other affiliated unions. That the
Union in refusing clearance for Bourbeau, who was also a nonmember,
assigned as a reason for such refusal the availability of "G. L's" and
expressed a willingness to put him on a rotating list of "G. I.'s" does
not negate our finding that the Union was pursuing a discriminatory
referral policy in giving preference to union members. The record
.does not show that this "G. I." list was composed of other than non-
union workers who would be referred by the Union only in the ab-
sence of available union members.
The Union in its brief concedes, in effect, that in this case it first
referred "its own members to jobs when they were available and when
not, [referred] other workers under a rotation system," yet contends
that there was no hiring agreement with the employers so as to hold
the Union responsible for any resultant discrimination. In view of
our findings above, we find no merit in this contention. Any doubt on
this issue is dispelled by the record showing that at a meeting between
the Union and Association in January, and again in March 1952, the
Under the permit system, men could be hired by the employer and later obtain a
working permit from the Union ; under the referral system , men could not be hired until
they first obtained a referral card from the Union.
1544 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
change from the permit to referral system was discussed; when the
Association objected to the use of the referral system, the Union re-
piled that "we [the Union] do the hiring, and we only," and that the
referral system was to be carried out; and the Association accepted
the Union's position.
We accordingly find, on the basis of the entire record, that the
Company here involved had an unlawful exclusive hiring arrangement
with the Union which was intended to and did give preferential em-
ployment to members of the Union; and that as a result of the appli-
cation of such arrangement, Bourbeau, Bundick, and Anderson were
denied employment by their respective Employers, thereby encourag-
ing membership in the Union. It is therefore found that the Respond-
ent Company (Construction Specialties Company) 4 discriminated
against Bourbeau and Bundick,5 in violation of Section 8 (a) (1) and
(3) of the Act. We also find, as did the Trial Examiner, that Re-
spondent Company contributed support to Respondent Union in
violation of Section 8 (a) (2) of the Act.
As a party to the unlawful hiring arrangement, Respondent Union
is responsible for the resultant discrimination against the three com-
plainants, even though it did not specifically request that they not be
hired. Consequently, we find that the Respondent Union caused
Respondent Company to discriminate against Bourbeau and Bundick,
and Employer Standard Asbestos to discriminate against Anderson,
in violation of Section 8 (b) (1) (A) and 8 (b) (2) of the Act.6
Order
Upon the entire record in these cases, and pursuant to Section 10
(c) of the National Labor Relations Act, as amended, the National
Labor Relations Board hereby orders that:
1. The Respondent Company, Construction Specialties Company,
and its officers, agents, successors, and assigns, shall :
(a) Cease and desist from:
(1) Encouraging membership in the Respondent Union, the In-
ternational Association of Heat and Frost Insulators and Asbestos
'Employer Standard Asbestos was not named as a party respondent ; consequently no
order can issue against it for its discriminatory refusal to hire Anderson.
5 Respondent Company's failure to hire Bundick after being specifically apprised that he
was being denied clearance because of his lack of union membership , constitutes an inde-
pendent basis for finding discrimination as to him.
d George D. Auchter Company and Northeastern Florida Chapter of the Associated
General Contractors of America, 102 NLRB 881; Utah Construction Co., 95 ' NLRB 196;
Consolidated Western Steel Corporation, 94 NLRB 1590 Del E. Webb Const. Co. v.
N. L. R. B., 196 F. 2d 8'41 (CA 8), denying enf. 95 NLRB 715, cited by Respondent
Union in support of a contrary conclusion , is readily distinguishable . In that case, both
union and company witnesses testified positively that there was no agreement or under-
standing that the company hire only union men. Moreover , there the court observed, at
page 846: "If a nonunion man had applied and been refused, an entirely different sitnn-
tion would be presented."
CONSTRUCTION SPECIALTIES COMPANY 1545
Workers, Local No. 28, A. F. L., or any other labor organization of its
employees, by discharging, suspending, or laying off any of its em-
ployees, or by refusing employment to qualified applicants, because of
their nonmembership in, or their failure to obtain work referral or
clearance from their labor organizations, or by discriminating against
them in any other manner in regard to their hire or tenure of em-
ployment or any term or condition of their employment, except to
the extent permitted by Section 8 (a) (3) of the Act, as amended.
(2) Interfering with, restraining, or coercing its employees, in any
other manner, in the exercise of the rights guaranteed in Section 7 of
the Act, except to the extent that such rights may be affected by an
agreement requiring membership in a labor organization as a condi-
tion of employment, as authorized by Section 8 (a) (3) of the Act,
as amended.
(b) Take the following affirmative action which the Board finds
will effectuate the policies of the Act :
(1) Offer to Donald Bourbeau and Gordon L. Bundick full rein-
statement or employment in their former or substantially equivalent
positions, without prejudice to their seniority and other rights and
privileges, and jointly and severally with Respondent Union make
them whole for any loss of pay suffered as a result of the discrimina-
tion against them, in the manner set forth in the Remedy section of
the Intermediate Report.
(2) Upon request, make available to the National Labor Relations
Board, or its agents, for examination and copying, all payroll records,
social-security payment records, timecards, personnel records and
reports, and all other records necessary to an analysis of the amounts
of back pay due in accordance with this Order.
(3) Post at its office and places of business in the Denver, Colorado,
area copies of the notice attached to the Intermediate Report and
marked "Appendix A." 7 Copies of the notice, to be furnished by the
Regional Director of the Seventeenth Region as the agent of the
Board, should be posted by the Respondent Company immediately
upon their receipt, after being duly signed by an official representa-
tive of the Company. When posted, they should remain posted for
sixty (60) consecutive days thereafter in conspicuous places, includ-
ing all places where notices to employees are customarily posted.
Reasonable steps should be taken by the Respondent Company to
insure that these notices are not altered, defaced, or covered by any
other material.
'This notice shall be amended by substituting the words "A Decision and Order" for
the words "The Recommendations of a Trial Examiner" in the caption thereof. 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 "Pur-
suant to a Decree of the United States Court of Appeals, Enforcing an Order."
1546 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. The Respondent Union, International Association of Heat and
Frost Insulators and Asbestos Workers, Local No. 28, A. F. L., of
Denver, Colorado, and its officers, representatives, agents, successors,
and assigns, shall :
(a) Cease and desist from:
(1) Attempting to cause or causing the Respondent Company,.
Standard Asbestos, or any other employer member of the Master
Insulators' Association of Denver, Colorado, their officers, agents,
successors, or assigns, to discharge, suspend, lay off, or in any other
manner discriminate against employees or to refuse employment to,
qualified applicants, because of their nonmembership in, or their
failure to obtain a work referral or clearance from the Respondent,
Union, except as authorized by Section 8 (a) (3) of the Act.
(2) Restraining or coercing employees of the Respondent Company,
Standard Asbestos, or any other employer associated with the Master
Insulators' Association of Denver, Colorado, in their exercise of ther
rights guaranteed in Section 7 of the Act, except to the extent that
such rights may be affected by an agreement requiring membership,
in a labor organization as a condition of employment, as authorized
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 :
(1) Send written notice immediately to Donald Bourbeau, Gordon,
L. Bundick, Cedric Anderson, the Respondent Company, and Stan-
dard Asbestos, that it has withdrawn its objections to the employment
of these complainants by the Respondent Company and Standard
Asbestos, and requests the employers involved to offer each of the
complainants employment in positions substantially equivalent to,
those discriminatorily denied them, without prejudice to their senior-
ity or other rights and privileges.
(2) Jointly and severally with Respondent Company, make whole
Donald Bourbeau and Gordon L. Bundick for any loss of pay suffered
by reason of the discrimination against them, and make whole Cedric
Anderson for any loss of pay suffered by reason of the discrimination
against him, all in the manner set forth in the Remedy section of the
Intermediate Report.
(3) Post at its business offices and meeting halls in Denver, Colo-
rado, copies of the notice attached to the Intermediate Report and
marked "Appendix B." 8 Copies of the notice, to be furnished by the
Regional Director of the Seventeenth Region as the agent of the
Board, should be posted by the Respondent Union immediately upon
their receipt, after being duly signed by an official representative of
the Union. When posted, they should be maintained by it for a period
8 See footnote 7, supra.
CONSTRUCTION SPECIALTIES COMPANY 1547
of sixty (60) consecutive days thereafter. Reasonable steps should
be taken by the Union to insure that these notices are not altered,
defaced, or covered by any other material.
(4) Mail signed copies of the notice attached hereto marked "Ap-
pendix B" to the Regional Director of the Seventeenth Region, for
posting, the Respondent Company willing, at the office and places of
business of the Respondent Company, in the places where notices to em-
ployees are customarily posted. Copies of the notice, to be furnished
by the Regional Director of the Seventeenth Region as the agent of the
Board, should be returned forthwith to the Regional Director after
they have been signed by an official representative of the Union, for
such posting.
3. The Respondent Company, its officers, agents, successors, and
assigns, and International Association of Heat and Frost Insulators
and Asbestos Workers, Local No. 28, A. F. L., its officers, repre-
sentatives, and agents shall file with the Regional Director of the
Seventeenth Region as the agent of the Board, within ten (10) days
of the date of this Order, reports in writing setting forth the manner
and form in which they have complied with this Order.
Intermediate Report and Recommended Order
STATEMENT OF THE CASE
After an investigation of the charges and amended charges filed by certain
individuals, named in this Intermediate Report and designated collectively as
the Complainants (Donald Bourbeau, Gordon L. Bundick, and Cedric Anderson),
the General Counsel of the National Labor Relations Board, in the name of the
Board, caused the Regional Director of its Seventeenth Region, at Kansas City.
Missouri, to issue a consolidated complaint on September 5, 1952. Named in it
as the Respondent Employer was the Construction Specialties Company of
Denver, Colorado ; the International Association of Heat and Frost Insulators
and Asbestos Workers, Local No. 28, A. F. L., was designated in the consolidated
complaint as the Respondent Union, and it will be so designated, also, in this
report.
The consolidated complaint alleged, in substance, that the Respondent Em-
ployer did engage and has continued to engage in unfair labor practices affecting
commerce, within the meaning of Section 8 (a) (1), (2), and (3) and Section 2
(6) and (7) of the National Labor Relations Act, 49 Stat. 449, as amended and
reenacted by the Labor Management Relations Act of 1947, 61 Stat. 136, desig-
nated herein as the Act, and that the Respondent Union did engage and has
continued to engage in unfair labor practices affecting commerce, within the
meaning of Section 8 (b) (1) (A) and (2) and Section 2 (6) and (7) of the
Act. Copies of each charge, the amended charges, the Regional Director's order
that the cases be consolidated, the consolidated complaint, and a notice of hear-
ing were duly served upon the Respondent Employer, the Respondent Union, and
the Complainants previously named.
With respect to the unfair labor practices, the consolidated complaint-as
amended, in certain minor particulars, by the General Counsel-alleged in sub-
stance that: (1) The Respondent Company, the Standard Asbestos Manufactur-
1 548 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing and Insulating Company (designated elsewhere in this report as Standard
Asbestos), and a third business enterprise have functioned as an association-the
Master Insulators' Association of Denver, referred to in this ,eport as the Associa-
tion-in the negotiation of collective trade agreements with the Respondent
Union, and have bargained with the Union and negotiated such agreements at
various times on and after July 1, 1948; (2) the Association and the Respondent
Union, on or about July 1, 1948, executed an agreement which provided that the
Respondent Company and Standard Asbestos, as members of the Association,
would employ at commercial insulation work only the persons referred to them
by the Respondent Union, and that these companies would employ no persons
in commercial insulation work who had not been referred by the Respondent
Union, or who did not possess a work permit or referral issued by it; (3) the
Association and the Respondent Union entered into this agreement , and have
continued to give effect to it at all times material since its execution, to en-
courage membership in the Respondent Union ; and (4) the agreement , as applied
and enforced by the parties, made the Respondent Union the agent of the Re-
spondent Company and Standard Asbestos in the selection and employment of
workers on behalf of these companies, and that the Respondent Union was
authorized by them to act as their agent, and did in fact so function, in connection
with the selection and employment of workers for the Respondent Company and
Standard Asbestos to encourage membership in the Respondent Union.
The complaint went on to allege that : (5) Donald Bourbeau, on or about March
10, 1952, requested a permit or work referral from the Respondent Union ; that
the Union by its agent, Kenneth Behr, refused to issue such a permit or work
referral ; and that the Respondent Company by its agent, Frederick A. Burns,
refused to employ the said Bourbeau because he did not possess a permit or work
referral from the Respondent Union, pursuant to the agreements previously
mentioned, and to encourage membership in that labor organization; (6) Gordon
L. Bundick, on or about April 19, 1952, made a similar request of the Respondent
Union ; that he was refused a permit or work referral by that organization ; and
that the Respondent Company rejected his application for employment and
refused to employ him because he did not possess any permit or work referral
from the Respondent Union, pursuant to the agreements, and for the reasons
previously noted ; (7) Cedric Anderson, on or about May 6, 1952, requested a
permit or work referral from the Respondent Union ; that the Union refused
to issue such a permit or work referral at his request ; and that Standard Asbeston
by its agent, Ben C. Naylor, rejected his application for employment and refused
to employ him because he did not possess any permit or work referral from the
Respondent Union, pursuant to the agreements, and for the reasons previously
noted ; (8) the Respondent Company, by its conduct as described, interfered
with, restrained, and coerced employees in the exercise of rights guaranteed
In section 7 of the statute, contributed support to the Respondent Union, and
discriminated in regard to the hire, tenure, or employment terms of the Com-
plainants, to encourage membership in the Respondent Union, and did thereby
engage and continues to engage in unfair labor practices within the meaning of
Section 8 (a) (1), (2), and (3) of the Act, as amended; (9) the Respondent
Union, by its conduct as described, restrained and coerced employees in the
exercise of rights guaranteed in Section 7 of the Act, and attempted to cause
and did cause the Respondent Company and Standard Asbestos to discriminate
against the Complainants in regard to their hire and tenure of employment or the
terms and conditions of their employment, to encourage their union membership,
-and thereby did engage and continues to engage in unfair labor practices within
the meaning of Section 8 (b) (1) (A) and (2) of the Act, as amended.
CONSTRUCTION SPECIALTIES COMPANY 1549`
The Respondent Company's answer, duly filed, admits the relevant jurisdic-
tional allegations of the complaint , and its membership in the Master Insulators'
Association, denies the status of the Respondent Union as a labor organization
within the meaning of the Act, as amended, admits that an agreement between
the Association and the Respondent Union became effective on or about July 1,
1948, and that agreements have been in force since that date, but denies that
these agreements provided for the closed shop or the preferential employment
of persons referred by the Respondent Union, and denies the other allegations of
the complaint connected with the application or enforcement of the agreements
in question. The Respondent Company admits its refusal to employ the Com-
plainants, Bourbeau and Bundick, because they did not possess work referrals
from the Respondent Union, but denies the commission of any unfair labor-
practices.
The answer of the Respondent Union, also duly filed, denies the jurisdictional
allegations of the complaint , admits its status as a labor organization within the-
meaning of the Act, admits the execution of an agreement with the Master In-
sulators' Association on or about July 1, 1948, but denies that it contained closed
shop or preferential employment provisions , and denies the existence of sub-
sequent agreements. The Respondent Union admits that the Complainants, at
various times, requested work referrals from it and that such work referrals were
refused, but contends that it is under no duty or obligation to issue such work
referrals and denies that any refusal on the part of the Respondent Company or-
Standard Asbestos to employ the Complainants was based upon any agreement
to which the Respondent Union was a party. The Union denies the commission
of any unfair labor practices.
Pursuant to the notice, a hearing was held at Denver, Colorado, on September
22 and 23, 1952 , before me as a Trial Examiner , duly designated by the Chief-
Trial Examiner. The General Counsel, the Respondent Company, and the
Respondent Union were represented by counsel. All of the parties were afforded'
a full opportunity to participate , to be heard , to examine and cross -examine
witnesses, and to introduce evidence pertinent to the issues. At the close of the
General Counsel 's case, a motion to dismiss, presented by the Respondent
Union, was denied. Similar motions were presented by the Respondent Com-
pany and the Union at the close of the case ; a decision upon these motions was
reserved and will be embodied in this report . All of the parties participated in,
oral argument at the close of the case, and waived their right to file briefs.
FINDINGS OF FACT
Upon the entire record in the case, and upon my observation of the witnesses,
I make the following findings of fact :
1. THE BOARD ' S JURISDICTION
A. The Respondent Company
The Respondent Company, a Colorado corporation, is engaged in the interstate
subcontracting of insulation material on building construction and the distribu-
tion of building materials . It maintains its home office in Denver and is-
qualified to do business in four other States. The Respondent Company holds-
the exclusive franchise for the distribution, in the State of Colorado, of insula-
tion materials manufactured by the United States Gypsum Company of Chicago,
Illinois, the Simpson Logging Company of Washington, and the Owens-Corning-
Fibreglas Company of Toledo, Ohio.
1550 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In the conduct of its business, the Respondent Company-during its fiscal year
from April 1, 1951, to April 1, 1952-purchased from the 3 suppliers previously
named, under its franchise agreements, insulation materials valued in excess
of $500,000, all of which were shipped to Respondent Company from points
outside the State of Colorado. The total business of the Company during this
period exceeded $1,100,000, of which approximately $600,000 represented the
value of insulation materials which it sold and distributed. During the fiscal
year noted, the Respondent Company performed insulation services under con-
tracts and subcontracts valued in excess of $500,000; more than $200,000 of the
total sum received represented the value of insulation services performed for
customers outside the State of Colorado. In the year 1952 to date, the Company
has completed a contract for the performance of insulation service on the Atomic
Energy Commission's installation at Los Alamos, New Mexico, valued in excess
of $110,000, contracts for the performance of insulation service on the Air Force
Finance Center at Denver, Colorado, negotiated by the General Services Ad-
ministration of the United States Government, valued in excess of $300,000, and
contracts for the performance of insulation service on the Rapid City Air Force
Base in South Dakota for the United States Army Air Force valued in excess
of $15,000. The Respondent Company, I find, is engaged in commerce, and busi-
ness activities which affect commerce, as defined in the Act, to an extent which
warrants the exercise of the Board's jurisdiction.
B. Standard Asbestos
Standard Asbestos, a Missouri corporation, is an interstate insulation and
building material distributor and subcontractor, with its home office in Kansas
City, Missouri ; it is qualified to engage in the installation of insulation and
insulation equipment under the laws of 18 States. The company has permanent
branch offices in Louisiana, Oklahoma, and Texas-and, of course, 1 in Denver,
Colorado, as well.
A substantial amount (more than $150,000 worth) of the insulation and build-
ing materials utilized and installed by Standard Asbestos on the jobs it performs
as a subcontractor are purchased by the firm from sources outside Missouri.
The value of the firm's insulation subcontracting services in Colorado during the
past fiscal year exceeded $100,000. During its last fiscal year the contracts of
Standard Asbestos for the sale and installation of insulation material outside
the State of Missouri were valued at more than $2,000,000; of that amount 14
percent represents the value of services performed by Standard Asbestos in vari-
ous States on United States Government projects or for agencies of the Govern-
ment-the Atomic Energy Commission, the Department of the Army, the Depart-
ment of the Navy, or the Veterans' Administration. The firm, I find, is engaged
in commerce, and business activities which affect commerce, in sufficient degree
to warrant the appropriate exercise of this Board's jurisdiction.
C. The Association
The Master Insulators' Association of Denver is an association of insulation
contractors which numbers among its members the Respondent Company, Stand-
ard Asbestos, and the Dines Supply Company of Denver. At various times on
and after July 1, 1948, these companies have negotiated collective trade agree-
ments, as an association, with the Respondent Union herein.
II. THE RESPONDENT UNION
The International Association of Heat and Frost Insulators and Asbestos
Workers, Local No. 28, A. F. L., is a labor organization within the meaning of
CONSTRUCTION SPECIALTIES COMPANY 1551
Section 2 (5) of the Act, as amended , which admits employees of the Respondent,
Company and Standard Asbestos to membership.
III. THE UNFAIR LABOR PRACTICES
A. The agreements between the Association and the Respondent Union
On July 1, 1948, the Association and the Respondent Union executed a trade
agreement, to be "rigidly observed" until its expiration on July 1, 1949. Certain
articles of the agreement are particularly relevant. They read as follows :
Article XI
The party of the first part agrees to employ the membership of Local No. 28
in the application of pipe and boiler coverings, insulation of hot surfaces,
ducts, flues, etc., also the covering of cold piping and circular tanks con-
nected with the same. This to include alterations and repairing of work
similar to the above and the use of all materials for the purpose mentioned.
Article VI
The individuals, firms, or corporations comprising the membership of the
Master Insulators' Association agree to execute their work as described in
Article XI as direct Employers of Local No. 28 membership, and not to sublet
any of the same, or the labor thereof .. .
*
Article V
There shall be a Trade Board consisting of Two members of the Master
Insulators' Association and Two members of Local No. 28 and said Trade
Board shall have the right to investigate all labor operations of the parties
to this Agreement within its prescribed limits so far as any of the provisions
of this Agreement are involved, in connection with which any question may,
arise, and for this purpose shall have the right to summon, question and
examine any party of this Agreement, or their representatives or agents .. .
q
11
Article VII
In cases where the Joint Trade Board determines an "emergency" exists
for which Local No. 28 fails to supply Mechanics or Improvers, the party of
the first part may secure the "emergency" number agreed upon. "Emergency"
Mechanics and Improvers shall be paid the rate of wages as hereinafter
specified in this agreement and shall work under "permit" of Local No. 28
until replaced by members of said Union.
* * * * * 11
Article XVIII
Any portion of this Agreement found to be in violation of existing federal
or state law shall become inoperative and the balance of the Agreement as
such continue in full force and effect until date of expiration.
At various times between May and July of 1949 representatives of the Associa-
tion and Respondent Union met to discuss the renewal or replacement of this
agreement. The present record shows, without substantial dispute or qualifica-
tion, that the Association representatives refused to renew the agreement, or to
execute one substantially identical in form, on the ground that its union-security
1552 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
provisions contravened the law. On July 14, 1949, the Association representa-
tives dispatched a "letter of intent" to the Respondent Union, marked for the
attention of Mr. Jack Tuttle, its business agent, which declared that :
We hereby set forth the agreement as formulated at the final conference
between the Agreement Committee of the Asbestos Workers Local No. 28,
and the Master Insulators' Association of Denver and Laramie, Wyoming,
held on July 11th, 1949.
The conditions under the agreement between the Asbestos Workers and
the Master Insulators' Association of Denver, as indicated below, shall con-
stitute the entire working agreements (sic) between the two groups, and
shall become effective as of July 1st, 1949, and shall remain in effect until
June 30th, 1950, inclusive.
The letter went on to state agreed wage rates, overtime provisions, holiday
pay provisions, and the board, room, and travel expense allowances payable
on out-of-town jobs.
Although the Association's letter bears no indication of the Respondent Union's
acceptance, it seems to be clear, and I find, that the parties maintained their
collective-bargaining relationship throughout the 1949-1950 contract year pur-
suant to its terms. On July 1, 1950, the agreement of the parties was again
expressed in the form of a letter to the Union. It began as follows :
In view of no written agreement having been tendered us that is accepta-
ble and permissible under existing Federal laws, and in an endeavor to
continue our past cooperative relationship, we suggest that you accept this,
our letter of intent, as here detailed, until such time as the legality of your
new agreement form has been clearly established.
The letter went on to refer to the "card men" of the Union's membership,
and the "permit men and/or emergency labor" employed by the Association
members ; with respect to these employees, within the jurisdictional area de-
fined in the 1949 letter, it defined the regular workweek and overtime, established
basic hourly rates of pay, overtime and holiday rates, and board and transporta-
tion allowances for work done outside of the jurisdictional area defined in the
1949 letter of intent, already noted. The 1950 letter concluded as follows :
This letter of intent and its provisions to be effective starting July 1, 1950,
and to be rigidly observed by all parties thereto, until the expiration date
of June 30, 1951, unless superseded by a jointly "signed agreement", which
shall be then construed as entirely acceptable under the then existing rules
and laws.
As evidence of the firm intent of Local Union #28 and its membership to,
the continuance of our past cooperative relations under the provisions of this
letter of intent, our association asks that the President and Secretary of
Local #28 each date and sign the attached copy of this letter for our records
and that such signed copy shall act in place of a standard type agreement
until the time at which we shall obtain legal clearance of such standard
forms submitted to us for our signatures, which then will supersede this
letter of intent.
The letter, thus phrased, was signed by 2 representatives of the Association
and 2 representatives of the respondent labor organization.
On October 2, 1951, a similar letter of intent was dispatched to the Respondent
Union. Its opening paragraph was identical with that utilized in the 1950 letter,
previously quoted ; and its concluding paragraphs were also identical with those
in the 1950 letter of intent, except for the dates involved, the 1951 agreement
CONSTRUCTION SPECIALTIES COMPANY 1553
being effective from July 1, 1951, to June 30 of the next year. This letter, too,
was signed and witnessed by representatives of the Association and the respond-
ent labor organization.
On March 26, 1952, the Respondent Union, by its business representative,
Kenneth H. Behr, dispatched a letter to the Association which read, in part, as
follows :
Gentlemen, in accordance with our working agreement, under Article XVI
of our Master Insulators Agreement Local #28 of Asbestos Workers on
this Date of March 26, 1952, wish to officially make a request in a change
of same (sic).
The letter went on to indicate the subjects which the Respondent Union desired
to discuss. and expressed the hope that an agreement would be negotiated before
July 1, 1952. No evidence with respect to any such agreement, however, has
been produced in connection with the present case.
B. Employment practices
For an undetermined period prior to December 1951, commercial insulation
workers were employed, I find-at least by Standard Asbestos and the Respond-
ent Company-on the basis of their membership in the Respondent Union, or,
if they were not union members, on the basis of permits issued by it.
The district manager of Standard Asbestos, Ben C. Naylor, testified credibly,
without contradiction, that he had secured employees for commercial insulation
work from the Respondent Union exclusively ever since his assignment to the
Denver area-except on two occasions when the Respondent Union was unable
to furnish "enough man-power" and union representatives approved the tem-
porary importation of men from other cities. And the available evidence cer-
tainly suggests that the employment of nonunion workers in the field of com-
mercial insulation, before December 1951-at least insofar as Standard Asbestos
and the Respondent Company were concerned-was predicated upon the grant of
a permit by the Union's business agent . I so find. Naylor testified credibly,
and I find, that nonunion men selected by him for employment-if no other men
were available-would be sent to the Respondent Union's business agent for
their permits ; according to his testimony, however, they would be allowed to
work without a permit if they did not already have one until such time as they
were free to get it.
In December of 1951 the Respondent Union adopted a "work referral" system,
under which all commercial insulation workers, whether "card members" of
the Respondent Union or not, who secured employment through the Union's
office received a work referral slip ; and the presentation of such a slip to the
job foreman at each job, by each of the workers referred, was insisted upon by
the Respondent Union as a necessary condition precedent to the employment of
such workers in any capacity.
On January 7, 1952, I find, this work referral system was expressly accepted
by the employers in the commercial insulation field, under an agreement between
representatives of the Respondent Union and the Master Insulators' Association.
The minutes of a meeting held on that date by the parties-minutes which have
not been challenged as inaccurate-describe their agreement as follows:
The referral slip method of handling dismissal and transfer of men from
one job to another was discussed and explained by representatives of Local
#28. The representatives of Master Insulators' Association agreed to
use these slips.
1554 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The operation of the referral system during the months of March, April, and
May in 1952, has been described, credibly, by District Manager Naylor as follows:
I would call the business agent and request a certain number of men.
And he would supply them as he could get them. If he couldn't get the
card men be would give me permit men . . . They come with referral slips
handed to the foreman on the job from the business agent of Local #28
In the last few months we can't put a man to work, the foreman can't
let him work unless he has a referral or has to contact the business agent.
Before that, they could work maybe a day or two before they had to show
up with their referral.
And the record shows that in March of 1952, at a formal meeting between
representatites of the Respondent Union and the Association, Naylor, as an
Association representative, objected to the referral system specifically on the
ground that it delayed the work of the Association members because men might
sometimes be unable to get a referral for 2 days. He described this system as
"a hardship on the shops" and the men because they would be unable to work,
although their work was needed. According to Naylor, Jack Tuttle, then a
member of the Respondent's union committee, stated flatly that the system,
which called for work referrals for each job, was in effect and would have to be
maintained. The spokesmen for the Association did not press their objections.
Within the 6-month period immediately prior to the date on which the first
charge in the instant case was filed, the Respondent Company employed no
insulation workers without a clearance or referral from the Respondent Union,
as previously noted.
C. Discrimination against the complainants
1. Donald Bourbeau
Donald W. Bourbeau was first employed as a commercial insulation worker
by the Respondent Company in October of 1951. His testimony, which has not
been contradicted, establishes that F. A. Burns, the vice president and treasurer
of the Respondent Company, spoke to a union representative, in his presence,
before he started work, and requested a verbal "OK" for him on the ground that
the Union's regular business agent was not in town to provide a permit. Accord-
ing to Bourbeau, the union representative addressed by Burns said that it would
be all right.
Bourbeau's last employment as a commercial insulation worker began in
February 1952. He was employed at the St. Luke's Hospital job in Denver,
under a foreman by the name of Lundy. Bourbeau testified, credibly, that he
did not have a work referral when he started. Lundy, according to his testimony,
said that he ought not to be permitted at work that day because he did not have
a referral slip; the foreman told the complainant not to stop work however, I
find, and to get a referral from Business Agent Behr, of the Respondent Union,
that night. The record establishes that Bourbeau visited Behr at his home that
evening, that Behr said Lundy had been wrong in permitting him to work without
a referral, that he (Behr) said he would "let it go" this time, and that he pro-
vided Bourbeau with a referral slip. The complainant was employed at the
job until approximately March 10, 1952.
On or about the latter date Bourbeau was told by Burns that he would be
transferred to a construction job at Golden, Colorado ; be was told to get a
referral slip. Business Agent Behr proved to be unavailable at home, and
Bourbeau went out to a construction job at Boulder, Colorado, to see him the
CONSTRUCTION SPECIALTIES COMPANY 1555
next day. He requested a referral; Behr refused to give him one. According
to Bourbeau :
He said he had a list of G. L's downtown at the American Legion and he
was going to rotate them. He said I will put your name on the bottom and
when your name works up I'll put you to work and then when the job is
finished you go back to the bottom again.
Bourbeau called upon Burns at the offices of the Respondent Company on the
same day. He reported that Behr had refused to give him a referral slip. The
complainant's testimony with respect to the comments of Burns reads as follows :
He said there was nothing he could do about it, he had plenty of work to
do but he couldn't because I didn't have a permit to go to work.
Since his termination at the St. Luke's Hospital job, Bourbeau has done no
work in the field of commercial insulation, although the Respondent Company
has had work available for which he could have been used.
2. Gordon L. Bundick
Gordon L . Bundick's first employment with the Respondent Company as an
"asbestos worker" dates from February 1951 . The record establishes that he
applied for work to a Mr . Powers of the Respondent Company. He was advised
that jobs were available , and that he ought to see the Union 's business agent,
then John Wathen, for a permit , after which the Respondent Company would
be able to put him to work. Bundick's undenied and credible testimony estab-
lishes that he secured a permit from Wathen , went to work, and surrendered
the permit to the job foreman , Kenneth Behr-later the Respondent Union's
business agent , as noted elsewhere in this report.
In April of 1951 Bundick applied for union membership . He spoke to Wathen
about his intentions , secured the necessary papers, filled them out, and sub-
mitted them to Wathen with a 10 -dollar fee . At a later date however , not de-
tailed in the record , he was informed by Business Agent Lloyd Frost, of the
Respondent Union , that he had not been accepted.
Bundick 's last work in the field of commercial insulation was on a job at
Laramie , Wyoming, for the Respondent Company. After receiving a permit
from Frost, he had been sent to the job on November 15, 1951 . On April 18,
1952, when the job was finished , Bundick returned to Denver . He got in touch
with Burns immediately at his home, and requested additional commercial
Insulation work. Burns advised him that he had a job in Pueblo ; Bundick
stated, however, that he would prefer to work in Denver-to which Burns re-
plied that he had a number of jobs, and would send the complainant to the
National Jewish Hospital construction project, at which he would be able to
report for work on Monday morning ( April 21 , 1952 ) after getting a work re-
ferral from the Respondent Union 's business agent.
On the afternoon of April 18, 1952, Bundick visited Business Agent Behr of
the Respondent Union at his home, and requested a "permit" to work for the
Respondent Company at the National Jewish Hospital job. According to Bun-
dick, he was refused a "permit" with the following explanation :
He said that he had a number of travelers in [members of a different
local of the same international union] that were taking up all the job
vacancies and he didn 't have any more left for me or any other craft [sic]
who was not a member of the International Asbestos Workers Union.
Bundick telephoned Burns within the half hour, and reported that he would not
be able to report for work on Monday at the National Jewish Hospital job.
1556 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
When questioned as to the reason , he replied that he did not have a permit.
Burns asked why Behr had refused to give him one, and Bundick repeated his
talk with the Respondent Union 's business agent . Burns, I find , replied that he
had been completely unaware of the "travelers " since he had been trying to
secure men and had been unable to do so . He said that he was amazed at Bun-
dick 's inability to secure a "permit" and indicated that he would speak to Behr.
Bundick suggested that the call be made on Monday morning.
On the morning of Monday, April 21, 1952, Bundick called at the Respondent
Company's office. Burns telephoned Behr at once and asked why Bundick had
been denied a work permit . Behr was advised that the Respondent Company
had work for the complainant and would send him to the National Jewish
Hospital job. At the conclusion of his conversation with Behr, however, Burns
advised the complainant that the Respondent Union's business agent would not
give him a "permit," and that the Respondent Company would be unable to send
him out on the job without one . He advised Bundick to go home and await
developments, saying that he would be glad to put him to work but that it was
"impossible" to do it in the absence of a "work permit" because the other "mem-
bers" on the job would go on strike if the complainant started work without a
"permit"; Burns, according to Bundick's credible testimony, stated that the
Respondent Company could not afford a strike.
Bundick has not worked for the Respondent Company, or done any commercial
insulation work, since the termination of his job in Laramie, previously noted,
although the Respondent Company has had work available, at which he could
have been employed.
3. Cedric Anderson
Cedric Anderson's first job as an "asbestos worker" for Standard Asbestos
began on April 1, 1951, approximately. Anderson's testimony establishes that
he went to Business Agent Wathen of the Respondent Union , requested a work
permit, received it, and submitted it to Foreman Paul Darnell of Standard
Asbestos at the job site.
Anderson continued to perform commercial insulation work for Standard
Asbestos on various jobs up to January 30, 1952, approximately. Thereafter, on
or about April 27, 1952, he spoke to Ben Naylor of the company about another
job. He was told that Standard Asbestos would be able to put him to work when
the International Harvester construction project started . Anderson was ad-
vised to get a "permit" and was told that he would be able to work when the job
began , approximately on the first of May.
On some date between April 27, 1952, and the 3rd of May, presumably on
Wednesday, April 30, 1952, Anderson went to see Business Agent Behr and re-
quested a "permit"; Behr replied that he thought it could be arranged.
The complainant thereafter told Naylor of his conversation with Behr; Naylor
according to Anderson's credited testimony, said that he would ask Behr if
Anderson could go to work. (The complainant was unable to testify, however,
as to whether Naylor had actually done so. ) Within a few days Anderson tele-
phoned Behr himself to ask if he could get a "permit" for work . Behr did not
give Anderson a permit, and did not say that he would do so. According to
Anderson :
He told me that he had put the boiler makers and iron workers to work
first, that they were out on strike.
Anderson thereupon called at the office of Standard Asbestos to see Naylor.
When he arrived, Naylor was on the telephone. According to Anderson, he was
asking if he could have some G. I.'s "come hack " to work since he wanted men
CONSTRUCTION SPECIALTIES COMPANY 1557
for the International Harvester construction job. At the conclusion of the tele-
phone conversation, Naylor informed the complainant that he had been talking
to the Respondent Union's business agent. Anderson's testimony with respect
to Naylor's remarks on this occasion reads as follows :
He said that he couldn't help me out any . . . Mr. Naylor said that he
couldn't do any good at getting me a permit to go back to work . . . [He
said] that he'd like to have me back to work for him.
Anderson's testimony, in this connection, has been confirmed-in substance-
by Naylor, who testified that Behr had bottomed his refusal to give Anderson
a work referral on the fact that he was giving referrals currently to boiler-
makers and the "card men" of other A. F. L. crafts.
Despite Naylor's protestations, Anderson did no work on the International
Harvester project, and has not been employed at commercial insulation work
since the date of the conversation quoted.
Conclusions
The facts of the present case , in the main , are not in dispute. It has been
established, beyond peradventure of doubt, that the Respondent Union at various
times, through its business agent, Kenneth Behr, refused to give Donald W.
Bourbeau, Gordon L. Bundick, and Cedric Anderson referral slips for presenta-
tion in connection with prospective employment, under the Union's "work re-
ferral" system. With respect to Bourbeau and Bundick, the evidence clearly
establishes a refusal on the part of the Respondent Company to assign them
to available work because of the failure or refusal of the Respondent Union's
business agent to provide them with the referral slips in question. And the
available evidence with respect to Anderson and Standard Asbestos warrants
a similar conclusion.
In the light of the entire record, I find it unnecessary to determine whether
the discriminatory treatment accorded to the Complainants by the Respondent
Company and the Union in this case was based upon the 1948-1949 closed shop
or preferential employment contract renewed for successive annual periods sub-
sequent to its original term, an illegal oral agreement or understanding, with
respect to the maintenance of closed shop conditions without a written con-
tract, or the specific agreement of the parties on January 7, 1952, with respect
to the establishment of the "work referral" system. The General Counsel has
contended vigorously, on the basis of the record, that the letters of intent which
were executed after the expiration of the 1948-1949 agreement served to renew
that agreement annually thereafter, except as modified in each of the letters.
And the Respondent Union has argued, with equal vigor, that the 1948-1949 con-
tract was never renewed, expressly or by tacit agreement, after it expired, and
that the agreements which succeeded it involved no arrangements with respect
to union security or the preferential employment of union members and permit
men. These conflicts, with respect to the legal effect of the letters of intent,
do not-in my opinion-raise any issue of moment. I find it sufficient to say,
as the Board has done in numerous cases, that the Respondent Company's
acceptance of the Respondent Union's determination as to the identity of those
who should be permitted to work for it involved an unfair labor practice under
the statute, when no lawful contractual obligation for such acquiescence existed.
American Pipe and Steel Corp., 93 NLRB 54; International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of America, Over-the-Road
and City Transfer Drivers, Helpers, Dockmen and Warehousemen, Local Union
250983-vol. 102-53-99
1558 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
No. 41 A. F. L., 94 NLRB 1494 ; Engineers Limited Pipeline Company, 95 NLRB
176. It is so concluded and found.
The General Counsel 's representative has requested me to find, specifically,
that the Respondent Company, by agreement , made the Union its "agent" for
the purpose of selecting the men it would hire, and that it is liable, therefore,
under the statute for the discrimination practiced by the Union in connection
with its "work referral " system. I find it unnecessary to base my conclusions
in the case upon such an "agency" theory. If the commitments of the parties
had involved nothing more than the designation of the Union as an "employ-
ment agency" for the Association members, and if the discrimination forbidden
in Section 8 (a) (3) of the Act, as amended, could only be found in the Union's
administration of its "agency " powers, unfair labor practices would be imputable
to the Respondent Company, it is true, only after a finding that the Union had
acted in fact , as its agent . The liability of the Respondent Company in the
present case , however, need not be bottomed upon the imputation to it of con-
duct for which the Union may be primarily responsible . There was implicit in
the agreement of the parties , whatever its form might be, a commitment on the
part of the Respondent Company, as an Association member, to limit its staff
of commercial insulation workers to union members and nonmembers cleared
or referred by that organization . Such a commitment is inherently discrimina-
tory and calculated to encourage membership in the Respondent Union ; the
willingness of the Respondent Company to accept and enforce it , in my opinion,
involved the firm directly in the commission of unfair labor practices statutorily
proscribed.
On the evidence sunimarzied in this report , it is clear and I find, without
further ado , that the Respondent Company-in its treatment of Bourbeau and
Bundick-discriminated in regard to their hire and tenure of employment, and
their terms or conditions of employment , to encourage membership in the Re-
spondent Union, in violation of Section 8 (a) (1) and ( 3) of the Act, as amended.
By its course of conduct , as outlined in this report , and by the statements of
Burns on behalf of the Respondent Company to each of the Complainants pre-
viously named , the Respondent Company interfered with, restrained , and co-
erced employees in the exercise of the rights statutorily guaranteed them, in
violation of Section 8 (a) (1), and contributed support to the Respondent
Union, a labor organization , in violation of Section 8 (a) (2) of the Act, as
amended . Had Standard Asbestos been named as a party respondent , similar
conclusions with respect to its conduct could have been reached upon the present
record.
In the light of the facts as found it would seem to be clear, also , that the
Respondent Union caused the employers involved in this case to discriminate
against Bourbeau , Bundick, and Anderson , respectively , and thereby became
involved in unfair labor practices under Section 8 ( b) (2) and 8 (b) (1) (A)
of the statute . In reaching these conclusions I find it unnecessary to rely upon
any factual inference that represenatives of the Respondent Union had
threatened a strike in protest against the employment of "asbestos workers" by
the Respondent Company or Standard Asbestos without referral slips. (The
available evidence , in my opinion , would not support any such conclusion.)
Nor, in the light of established precedent , as previously noted, do I find it neces-
sary to determine whether the Respondent Union caused the discrimination in
question under the terms of its 1948-1949 contract with the Association mem-
bers as annually renewed thereafter , pursuant to a tacit understanding between
the contractual parties that its closed shop or preferential employment pro-
visions would be enforced despite their failure to express an agreement in
CONSTRUCTION SPECIALTIES COMPANY 1559
written form, or under an oral agreement on the part of the Association mem-
bers that they would employ commercial insulation workers only if they pre-
sented the Respondent Union 's referral slip. I find it clear , in the light of the
record considered as a whole , that the Respondent Union and the Association
members had some agreement or understanding , tacit if not express, that closed
shop or preferential employment conditions would be maintained on the jobs
run by the associated employers . The specific nature of the commitments en-
tered into by the representatives of the Respondent Union and the Association
members is likewise clear, I find ; at all times material , for the purpose of this
report , they were commitments that the Association members would hire union
members only , if union members were available , and that nonmembers would
be hired only pursuant to permits or referral slips which the Respondent Union
would issue. The Union, when it became a party to these commitments, be-
came responsible jointly with the Respondent Company ( an Association mem-
ber) for the establishment of a discriminatory hiring policy . In discriminating
against Bourbeau , Bundick, and Anderson , by conditioning their employment on
the possession of referral slips from the Respondent Union , the Respondent
Company and Standard Asbestos were giving effect to the unlawful employment
provisions of their commitments . And the fact that the Respondent Union may
not have requested , specifically , that the Respondent Company or Standard
Asbestos discharge or refuse to employ the Complainants does not exculpate
that labor organization . As the Board has said, once such an unlawful agree-
ment has resulted in actual discrimination , the Union involved , by its execution
and enforcement of the contract , must be deemed to have caused such discrimi-
nation. Childs Company, 93 NLRB 281, 285 ; Mundet Cork Corporation , et al.,
96 NLRB 1142 . Accordingly , I conclude that the Respondent Union caused
the Respondent Company and Standard Asbestos to discriminate against the
Complainants in violation of Section 8 (a) (3) of the statute, and thus com-
mitted unfair labor practices under Section 8 (b) (2) and 8 (b) (1) (A) of the
Act, as amended , even though no representative of the Union may have asked
the employers involved , specifically , to discharge or refrain from hiring these
individuals.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent Company and the Union , set forth in sec-
tion III , above, which occurred in connection with the operations of the Respond-
ent Company and Standard Asbestos set forth in section I, above, have a close,
intimate, and substantial relation to trade, traffic , and commerce among the
several States and tend to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
V. THE REMEDY
Since it has been found that the Respondent Company and the Union have
engaged in unfair labor practices , it will be recommended that each of them
cease and desist therefrom and take certain affirmative action , including the
posting and distribution of appropriate notices, designed to effectuate the policies
of the Act.
I have found that the Respondent Company, when it accepted the determina-
tion of the Respondent Union as to the identity of those who should be permitted
to work for it, interfered with , restrained , and coerced employees in their
exercise of rights guaranteed by the statute , contributed assistance and support
to the Respondent Union , and discriminated in regard to the hire and tenure of
1560 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employment of its employees , and their terms or conditions of employment, to
encourage membership in that organization . Because of the interference,
restraint , and coercion implicit in the Respondent Company's course of conduct,
as revealed in this report , and because of its discriminatory character, I shall
recommend that the Company cease and desist from any encouragement of
membership in the Respondent Union by the discharge , suspension , or layoff
of any of its employees , or by the refusal of employment to applicants , because
of their nonmembership in the Respondent Union or their failure to obtain a
work referral from that organization . It will also be recommended that the
Respondent Company refrain from the execution , renewal, or enforcement of
any agreement or commitment under which membership in the Respondent Union
or clearance by it would be required as a condition of employment , unless such
agreement , understanding or commitment shall have been authorized pursuant to
the proviso to Section 8 (a) (3) of the Act. Additionally , it will be recommended
that the Respondent Company cease and desist from discrimination against
employees in any other manner, with respect to their hire or tenure of employ-
ment or any term or condition of their employment, except to the extent permitted
by the aforesaid statutory provisions , and to refrain from interference , restraint,
or coercion directed against employees, in any other manner , in their exercise
of the rights guaranteed in Section 7 of the Act, as amended.
Under established Board precedents , a conclusion that the Respondent Com-
pany contributed illegal assistance and support to the Respondent Union here,
under Section 8 (a) (2) of the Act, would normally call for a recommendation-
remedial in character-that the Company cease giving effect to its agreements
with the Respondent Union , and to any modification, extension , supplement or
renewal of them ; and that it withdraw and withhold recognition from the
Union as the representative of its employees , unless and until that organization
shall have been certified by the Board as the exclusive representative of the
employees aforesaid . See Julius Resnick, Inc., 86 NLRB 38; Salant & Salant,
incorporated , 86 NLRB 215; Strauss Stores Corporation , 94 NLRB 440. In my
opinion, however , the facts in this case do not warrant such remedial action.
The contract or understanding under which the Company accepted the de-
termination of the Respondent Union as to those who should be permitted
to work for it represented a commitment by the Master Insulators' Associa-
tion-an organization which, as the record shows , includes more employers than
the Respondent Company named in this case . All of the employers privy to
-the commitment operate in the building construction industry . As such, they
offer employment by the job, and the employees involved may not work steadily
for any one employer . Under the circumstances , I believe it would be highly un-
fair and unrealistic to require the Respondent Company alone to cease giving
effect to its entire contract with the Respondent Union, and to withdraw and
withhold recognition from that organization, in a case in which the Board
would be unable to make any similar recommendation or order with respect to
the Association or its other members Compare Waterfront Employers of Wash-
ington, 98 NLRB 284. In the light of the General Counsel 's failure to name
the Association or any other Asssociation member as a party respondent, it
seems clear to me that a recommendation framed in accordance with the principles
of the Resnick case and related cases would not effectuate the purposes of the
Act, since it would not affect the Respondent Union ' s enjoyment of representa-
tive status with respect to the Association and each of its other constituent em-
ployers. The practical effect of such a recommendation would merely be to
deprive the Respondent Company's employees of their right to representation by
a labor organization during their period of employment with it . On the basis
CONSTRUCTION SPECIALTIES COMPANY 1561
of these considerations with respect to the equities involved, I will recommend
only that the Respondent Company cease giving effect to its illegal commitment,
as previously noted.
Since I have found that the Respondent Union caused the Respondent Com-
pany to discriminate against Donald Bourbeau and Gordon L. Bundick , and that
it also caused Standard Asbestos to discriminate against Cedric Anderson, I shall
recommend that the Union notify these Complainants , the Association, and the
employers involved, in writing, that it has withdrawn its objections to their
employment. All such notices should contain a request that the employers in-
volved offer the Complainants immediate and full reinstatement to their former
or substantially equivalent positions if such positions are available , without
prejudice to their seniority or other rights and privileges . See The Chase Na-
tional Bank of the City of New York, San Juan, Puerto Rico, Branch , 65 NLRB
827, for a definition of the phrase "former or substantially equivalent position"
as here used.
It will also be recommended that the Respondent Company and the Respondent
Union, jointly and severally, make whole Bourbeau and Bundick for any losses
of pay and other incidents of the employment relationship which they may
have suffered by reason of the discrimination practiced against them, and that
the Respondent Union make whole Cedric Anderson in similar fashion. These
Complainants should be made whole by : (1) The payment to each of them a sum
of money equal to the amount which they normally would have earned as
wages, from the date of their discriminatory layoff or the Company's discrimina-
tory refusal to employ them to the date of any unconditional offer of reinstate-
ment or employment made to them pursuant to the recommendations noted
elsewhere in this report, less the net earnings of each of them during such
period. See Crossett Lumber Company, 8 NLRB 440, 497-498, and less such
other sums as the employer involved, absent the discrimination , normally would
have deducted from their wages for deposit with State and Federal agencies on
account of social-security and other similar benefits.
In the case of Cedric Anderson, it will be recommended that the Respondent
Union make him whole by the payment to him of a sum of money equal to the
amount which he normally would have earned as wages, from the date on which he
was discriminatorily refused employment to 5 days after the date on which the
Respondent Union notifies Standard Asbestos and Anderson, in accordance with
these recommendations, that it no longer objects to his immediate reinstatement,
less his net earnings during such period, and less such other sums as the employer
absent the discrimination, would normally have deducted from his wages for
deposit with State or Federal agencies on account of social-security or other
similar benefits. In addition, it will be recommended that the Respondent Union
pay to the appropriate State and Federal agencies to the credit of Anderson and
Standard Asbestos, a sum of money equal to the amount which, absent the dis-
crimination , would have been deposited to such credit by Standard Asbestos,
either as a tax on that employer or on account of deductions made from
Anderson's wages by his employer, for social-security or other similar benefits.
The pay lost by each of the Complainants should be computed on a quarterly
basis, in the manner established by the Board in its recent Woolworth decision :
F. W. Woolworth Company, 90 NLRB 289. In order to insure expeditious com-
pliance with these recommendations in regard to back pay and reinstatement,
I shall recommend, finally, that the Respondent Company, upon request, make
available to the Board and its agents, all pertinent records.
1562 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CONCLUSIONS OF LAW
Upon these findings of fact , and upon the entire record in the case, I make
the following conclusions of law:
1. The Respondent Company and Standard Asbestos are employers within the
meaning of Section 2 (2) of the Act , engaged in commerce and business activities
which affect commerce , within the meaning of Section 2 (6) and ( 7) of the Act.
2. The International Association of Heat and Frost Insulators and Asbestos
Workers, Local No. 28, affiliated with the American Federation of Labor, is
a labor organization within the meaning of Section 2 ( 5) of the Act.
3. By its interference with , restraint , and corecion of its employees in their
exercise of the rights guaranteed in Section 7 of the Act , the Respondent Com-
pany engaged and continues to engage in unfair labor practices within the mean-
ing of Section 8 (a) (1) of the Act.
4. By its acceptance of the Respondent Union 's determination as to the iden-
tity of those who should be permitted to work for it, in the absence of any lawful
contractual obligation to accept such a determination , the Respondent Company
engaged and has continued to engage in unfair labor practices within the mean-
ing of Section 8 (a) (3) of the Act.
5. By the contribution of support and assistance to the Respondent Union,
through its acceptance of that organization 's determination as to the identity
of those who should be permitted to work for it, in the absence of any lawful
contractual obligation to accept such a determination , the Respondent Company
engaged and has continued to engage in unfair labor practices within the mean-
ing of Section 8 (a) (2) of the Act.
6. By attempting to cause and causing the Respondent Company and Stand-
ard Asbestos to discriminate against their employees , and thus to commit an
unfair labor practice within the meaning of Section 8 (a) (3) of the Act, the
Respondent Union engaged and has continued to engage in unfair labor practices
within the meaning of Section 8 (b) (2) of the Act.
7. By its restraint and coercion of employees in the exercise of certain rights
guaranteed in Section 7 of the Act , the Respondent Union engaged and has
continued to engage in unfair labor practices within the meaning of Section 8
( b) (1) (A) of the Act.
8. These unfair labor practices are unfair labor practices affecting commerce
within the meaning of Section 2 ( 6) and ( 7) of the Act.
[Recommendations omitted from publication in this volume.]
Appendix A
NOTICE To ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended , we hereby notify you that:
WE WILL NOT encourage membership in the INTERNATIONAL ASSOCIATION
OF HEAT AND FROST INSULATORS AND ASBESTOS WORKERS, LOCAL No. 28,
A. F. L., or any other labor organization of our employees , by discharging,
suspending or laying off any of our employees , or by denying employment
to qualified applicants , because of their nonmembership in, or their failure
to obtain a work referral or other clearance from that labor organization,
or by discriminating against them in any other manner in regard to their
CONSTRUCTION SPECIALTIES COMPANY 1563
hire or tenure of employment, or any term or condition of their employment,
except to the extent permitted by Section 8 (a) (3) of the Act.
WE WILL NOT in any other manner interfere with, restrain, or coerce our
employees in the exercise of the rights guaranteed in 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 by Section 8 (a) (3) of the Act.
WE WILL make Donald Bourbeau and Gordon L. Bundick whole for any
loss of pay they may have suffered by reason of the discrimination practiced
against them.
All of our employees are free to become, remain, or to refrain from becoming
or remaining members of the above-named union or any other labor organization,
except to the extent that this right may be affected by an agreement authorized
by Section 8 (a) (3) of the Act.
CONSTRUCTION SPECIALTIES COMPANY,
Employer.
By ----------------------------------------
(Representative ) (Title)
Dated -----------------------
This notice must remain posted for 60 days from the date of posting, and must
not be altered, defaced, or covered by any other material.
Appendix B
NOTICE TO ALL MEMBERS OF INTERNATIONAL ASSOCIATION OF MEAT AND FROST
INSULATORS AND ASBESTOS WORKERS, LOCAL No. 28, A. F. L., AND TO ALL EM-
PLOYEES OF THE CONSTRUCTION SPECIALTIES COMPANY AND STANDARD ASBESTOS
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify you that :
WE WILL NOT cause or attempt to cause CONSTRUCTION SPECIALTIES COM-
PANY, STANDARD ASBESTOS, or any other company affiliated with the MASTER
INSULATORS' ASSOCIATION OF DENVER, their officers, agents, successors, or
assigns, to discharge, suspend, lay off, or in any other manner discriminate
against employees or applicants for employment because of their nonmember-
ship in, or their failure to obtain a work referral or other clearance from
our organization except as authorized by Section S (a) (3) of the Act, as
amended.
WE WILL NOT restrain or coerce employees Of CONSTRUCTION SPECIALTIES
COMPANY, STANDARD ASBESTOS, or any other employer affiliated with the
MASTER INSULATORS' ASSOCIATION OF DENVER, their successors or assigns, in
the exercise of the rights guaranteed in Section 7 of the Act, except to the
extent that such rights may be affected by an agreement requiring member-
ship in a labor organization as a condition of employment, as authorized by
Section 8 (a) (3) of the Act, as amended.
WE WILL notify the CONSTRUCTION SPECIALTIES COMPANY, STANDARD AS-
BESTOS, and all other employers affiliated with the MASTER INSULATORS' Asso-
CIATION OF DENVER, that we have no objection to the employment of Donald
Bourbeau, Gordon L. Bundick, Cedric Anderson, or any other person, in the
absence of evidence that they hold membership in our organization or have
received a work referral or clearance from it.
1564 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL make whole Donald Bourbeau, Gordon L. Bundick, and Cedric
Anderson for any loss of pay suffered because of the discrimination practiced
against them.
INTERNATIONAL ASSOCIATION OF HEAT AND
FROST INSULATORS AND ASBESTOS WORKERS,
LOCAL No. 28, A. F. L..
Labor Organization.
By -------------------------------------------------
(Representative ) ( Title)
Dated--------------------
This notice must remain posted for 60 days from the date of posting, and
must not be altered, defaced, or covered by any other material.
THE GREAT ATLANTIC AND PACIFIC TEA COMPANY and AMALGAMATED
MEAT CUTTERS & BUTCHER WORKMEN OF NORTH AMERICA, AFL,
LOCAL 264, PETITIONER . Case No. 15-RC-823. February 20, 1953
Decision and Direction of Election
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before Gerald Brissman, hearing
officer.' The hearing officer's rulings made at the hearing are free
from prejudicial error and are hereby affirmed.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Chairman Herzog and Members Styles and Peterson].
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of the
Act.
2. The labor organization involved claims to represent certain em-
ployees of the Employer?
3. A question affecting commerce exists concerning the representa-
tion of employees of the Employer within the meaning of Section 9
(c) (1) and Section 2 (6) and (7) of the Act.
1 An original hearing was scheduled in this case on September 19, 1952, and the
Employer 's request for a continuance was denied . The Employer was not represented
and did not participate in this hearing . The Board subsequently granted the Employer's
motion for further hearing . At the instant hearing, the Employer moved to strike the
record made es, parte on September 19, 1,952, and to conduct the instant hearing as an
original , and not as a further , hearing. This motion was referred to the Board. The
motion is granted.
2 The Employer contends that the Petitioner 's International and not Local 264 Is the
only proper petitioning labor organization because the International , and not a local,
petitioned for the meat department employees at the stores in Case No . 15-RC-751. We
do not agree . Local 264 , chartered by the International , receives into its membership
employees of the Employer . Its purpose is to bargain collectively with regard to wages,
hours , and working conditions . Local 264 is therefore a labor organization within the
meaning of the Act and a proper petitioner . Whether a local files a petition on its own
behalf or an International files on behalf of a local is a matter of internal union manage-
ment . Continental Baking Company, 99 NLRB 777; Clearfield Cheese Company, Inc., 85
NLRB 2.77.
102 NLRB No. 175.