Contracting Plasterers' Association of Southern California, Inc.

National Labor Relations Board - Board Decisions

Jan 23, 1961

129 N.L.R.B. 1396 (N.L.R.B. 1961)

1396 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Night distribution clerk
Clerk-smokehouse
Clerk-sliced bacon department
Hog test clerk
Stock clerk-dairy, poultry and produce department
Stock clerk-frozen for cure, dry salt, beef, and ham tongues
Clerk-loading department
Clerk-dock office
Stock clerk-freezer department
Scaler-stock office and curing department
Expediter-loading dock
Contracting Plasterers ' Association of Southern California, Inc.
and its Employer Members; and Orange County Lathing and
Plastering Contractors Association , Inc. and its Employer
Members and Arnold Graski and Southern California District
Council of Laborers , International Hod Carriers, Building
and Common Laborers Union of America and its affiliated
Los Angeles Local 300, Pasadena Local 439, Long Beach Local
507, Santa Ana Local 652, Wilmington Local 802, Pomona
Local 806 and El Monte Local 1082, Parties to the Contract
Southern California District Council of Laborers , International
Hod Carriers, Building and Common Laborers Union of
America, and its affiliated Los Angeles Local 300, Pasadena
Local 439, Long Beach Local 507, Santa Ana Local 652, Wil-
mington Local 802, Pomona Local 806 and El Monte Local
1082 and Arnold Graski and Contracting Plasterers ' Associa-
tion of Southern California, Inc. and its Employer Members;
and Orange County Lathing and Plastering Contractors Asso-
ciation , Inc. and its Employer Members , Parties to the Contract.
Contracting Plasterers ' Association of Southern California, Inc.
and its Employer Members and Henry C. Martin
Orange County Lathing and Plastering Contractors Association,
Inc. and Henry C. Martin
Hod Carriers & Common Laborers Union Los Angeles Local 300,
and Sam Baquera and Ignacio Alcala and Martin Brothers,
Party to the Contract
Hod Carriers & Common Laborers Union Pomona Local 806
and Booker T. Cole and Charles R. Lampson , Party to the
Contract
129 NLRB No. 172.
CONTRACTING PLASTERERS' ASSN. OF S. CALIF., ETC. 1397
Southern California District Council of Laborers , International
Hod Carriers, Building and Common Laborers Union of
America, and its affiliated Local Unions and Henry C. Martin
and Ludlow Bros . Co., Inc., Party to the Contract
Hod Carriers & Common Laborers Union Santa Ana Local 652
and Jack Laskey and Ludlow Bros. Co., Inc., Party to the
Contract
Southern California District Council of Laborers, International
Hod Carriers, Building and Common Laborers Union of
America, and its affiliated Los Angeles Local 300, Pasadena
Local 439, Long Beach Local 507, Santa Ana Local 652, Wil-
mington Local 802, Pomona Local 806 and El Monte Local
1082 and Henry C. Martin and Contracting Plasterers' Asso-
ciation of Southern California , Inc. and its Employer Mem-
bers, Parties to the Contract
Southern California District Council of Laborers, International
Hod Carriers, Building and Common Laborers Union of
America, and its affiliated Los Angeles Local 300, Pasadena
Local 439, Long Beach Local 507, Santa Ana Local 652, Wil-
mington Local 802, Pomona Local 806 and El Monte Local
1082 and Henry C. Martin and Orange County Lathing and
Plastering Contractors Association , Inc., Party to the Contract
Hod Carriers & Common Laborers Union Los Angeles Local 300
and Voide Smith and Schian and Trautschold , Party to the
Contract
Hod Carriers & Common Laborers Union Long Beach Local 507
and William Rhone and Williamson Plastering Company,
Party to the Contract
Hod Carriers & Common Laborers Union Wilmington Local 802
and Joe R. Davis and L. J. Koontz, Party to the Contract
Hod Carriers & Common Laborers Union Wilmington Local 802,
and Southern California District Council of Laborers , Inter-
national Hod Carriers , Building and Common Laborers Union
of America and Edward R. Long and H. M. Bell & Son, Party
to the Contract
Hod Carriers & Common Laborers Union Los Angeles Local 300
and Ben Payne and R. W. Longstreet, Inc., Party to the
Contract
Norpal , Inc. and Mack Fancy and Local 300, International Hod
Carriers, Building and Common Laborers Union , AFL-CIO,
Party to the Contract
1398 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Local 300, International Hod Carriers, Building and Common
Laborers Union , AFL-CIO and Ben Payne and Williamson
Plastering Company, Party to the Contract. Cases Nos. 21-CA-
3170, 21-CB-1158, 221-CA-3025, 21-CA-3050, 21-CB-1019, 01-CB-
1020, 21-CB-1056, 21-CB-1057, 21-CB-1067, 21-CB-1080, 21-CB-
1090,21-CB-1095, 21-CB-1115, 21-CB-1167, 21-CB-1233,21-CA-
33981 an d 21-CB-1305. January 23, 1961
DECISION AND ORDER
On May 27, 1960, Trial Examiner David F. Doyle issued his Inter-
mediate 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 there-
from and take certain affirmative action, as set forth in the copy of
the Intermediate Report attached hereto. With respect to certain
other unfair labor practice allegations, the Trial Examiner recom-
mended dismissal thereof. Thereafter, the Respondents filed excep-
tions to the Intermediate Report and supporting briefs.'
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record in
this case, and hereby adopts the findings,2 conclusions, and recom-
mendations of the Trial Examiner, except as hereinafter noted.
The Trial Examiner concluded that the Respondent Associations
and the Respondent Unions, respectively, violated Section 8(a) (1)
and (3) and 8(b) (1) (A) and (2) of the Act by maintaining and
enforcing a collective-bargaining contract containing illegal provi-
sions. He found that this contract was unlawful (1) because it con-
tained an exclusive hiring-hall arrangement which did not meet the
requirements of Mountain Pacific Chapter of the Associated General
Contractors, Inc., et al., 119 NLRB 883, and (2) because it delegated
to the unions involved complete control over determination of seniority
in making job referrals under the contract, in contravention of the
Board's rule in Pacific Intermountain Express, 107 NLRB 837. Chair-
man Leedom and Members Fanning and Kimball agree with the Trial
Examiner that the Respondents violated the Act, as set forth above,
but in doing so, they rely only on ground numbered 1, above s They
' The Respondent Unions request that this case be consolidated with Peterson Construc-
tion Company, Case No. 21--CA-2392 et al and Mason Contractors Exchange , Case No.
21-CA-3171, et al. The Board has already issued its decision in Peterson . See 128
NLRB 969. Mason is presently pending before the Board . As no persuasive reason has
been presented for consolidation , the motion to consolidate is hereby denied
2 The Trial Examiner 's finding in the section of the Intermediate Report entitled "Con-
cluding Findings" that Local 502 caused the discharge of Laskey is corrected to read
"Local 652 " The remedial order is also corrected accordingly.
8 Peterson Construction Co., cited supra.
CONTRACTING PLASTERERS' ASSN. OF S. CALIF., ETC. 1399
do not reach and therefore do not pass on the validity of ground
numbered 2, above.' Members Rodgers 5 and Jenkins would adopt
the Trial Examiner's findings and conclusions in their entirety, except
that Member Jenkins, for the reasons stated by him in his separate
concurrence and dissent in Shear's Pharmacy, Inc., 128 NLRB 1417,
and his dissents in Southeastern Plate Glass Company, etc., 129 NLRB
412, and Local Union No. 450, International Union of Operating
Engineers, AFL-CIO (Proton), 129 NLRB 937, does not join
in the application of the Brown-Olds reimbursement remedy in this
case . In all other respects, the Board is unanimously in agreement.
ORDER
Upon the entire record in the case and pursuant to Section 10(c) of
the National Labor Relations Act, as amended , the National Labor
Relations Board hereby orders that :
A. Respondent Unions , Southern California District Council of
Laborers , International Hod Carriers , Building and Common Labor-
ers Union of America , AFL-CIO, and Hod Carrier Locals 300, 439,
507, 652, 802, 806 , and 1082, their respective officers , representatives,
agents , successors , and assigns , shall:
1. Cease and desist from :
(a) Maintaining , performing , or otherwise giving effect to the pro-
visions of any agreement or maintaining and enforcing any agree-
ment, understanding , or practice with the Respondent Associations
which unlawfully conditions the retention of employes or the hire of
applicants for employment or any term or condition upon referral
or clearance by the Respondent Unions except as authorized in Section
8(a) (3), as modified by the Labor -Management Reporting and Dis-
closure Act of 1959.
(b) Operating an exclusive hiring hall except under the standards
specified in the Mountain Pacific case, supra.
(c) Causing or attempting to cause the Respondent Associations or
their respective members , including Martin Brothers , Charles R.
Lampson, Ludlow Brothers Co., Inc., Schian and Trautschold, Wil-
liamson Plastering Company , L. J. Koontz, H . M. Bell & Son, R. W.
Longstreet, Inc., and Norpal , Inc., to discriminate against employees
or applicants for employment in violation of Section 8(a) (3) of the
Act, as modified by the Labor-Management Reporting and Disclosure
Act of 1959.
(d) In any other manner restraining or coercing employees of, or
applicants for, employment with members of the Respondent Associa-
* Member Fanning wishes to note that , in any event, he Is In disagreement with the
Board's decision in Pacific Intermountain Express, cited supra.
5 See Member Rodgers separately stated position in Peterson Construction Corp., et at,
128 NLRB 969, footnote 9.
1400 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tions or in the exercise of the rights guaranteed in Section 7 of the Act,
except to the extent permitted by an agreement authorized in Section
8(a) (3) of the Act, as modified by the Labor-Management Reporting
and Disclosure Act of 1959.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
(a) Make whole the following-named individuals as set forth in
"The Remedy" section of the Intermediate Report and as noted
hereafter:
(1) Respondents District Council and Local 300 shall jointly and
severally with the Respondent Associations make whole Voide Smith,
Ben Payne , and Ignacio Alcala.
(2) Respondents District Council and Local 507 shall jointly and
severally with the Respondent Associations make whole William
Rhone.
(3) Respondents District Council and Local 652 shall jointly and
severally with the Respondent Associations make whole Jack Laskey.
(4) Respondents District Council and Local 802 shall jointly and
severally with the Respondent Associations make whole Joe Davis
and Edward Long.
(5) Respondents District Council and Local 806 shall jointly and
severally with Respondent Associations make whole Booker T. Cole.
(b) Jointly and severally with all the Respondent Associations re-
imburse all present and former employees of members of the Respond-
ent Associations for all fees , dues, assessments , or other moneys un-
lawfully exacted from them as the price of their employment, in the
manner and to the extent set forth in the section of the Intermediate
Report entitled "The Remedy."
(c) Notify in writing each Respondent Association and those em-
ployers named herein as parties to the contract , that they have no
objection to the employment of Ignacio Alcala, Booker T. Cole, Jack
Laskey , Voide Smith , William Rhone, Joe R . Davis, Edward R. Long,
and Ben Payne, and immediately send copies thereof to the afore-
named persons.
(d) Preserve and, upon request, make available to the Board and
its agents, for examination and copying , all membership dues, records,
permits, and other records necessary to compute the moneys illegally
exacted from employees of the respective members of the Respondent
Associations.
(e) Post at their respective offices in conspicuous places, including
all places where notices to members are customarily posted, copies of
the notice attached hereto marked "Appendix A." 6 Copies of said
6In 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."
CONTRACTING PLASTERERS' ASSN. OF S. CALIF., ETC. 1401
notice, to be furnished by the Regional Director for the Twenty-first
Region, shall, after being duly signed by the Respondent Unions'
respective representatives, be posted immediately upon receipt thereof
and be maintained by each of the Respondent Unions for 60 con-
secutive days thereafter. Reasonable steps shall be taken by the
Respondent Unions to insure that said notices are not altered, defaced,
or covered by any other material.
(f) Post at the same places and under the same conditions as set
forth in (e) above, and as soon as they are forwarded by the aforesaid
Regional Director, copies of Respondent Employers' notices, attached
hereto marked "Appendix B."
(g) Deliver to the Regional Director for the Twenty-first Region
signed copies of "Appendix A" for posting by the Respondent Associa-
tions and their members. Copies of said notices, to be furnished by
said Regional Director, shall, after being signed by the Respondent
Unions' respective representatives, be forthwith returned to said Re-
gional Director for such posting.
(h) Notify the Regional Director for the Twenty-first Region, in
writing, within 10 days from the date of this Order, what steps they
have taken to comply herewith.
B. The Respondents, Contracting Plasterers' Association of South-
ern California and Orange County Lathing and Plastering Con-
tractors Association, their respective officers, agents, successors, and
assigns, shall :
1. Cease and desist from :
(a) Encouraging membership in the Respondent Unions, or in any
other labor organization, by discharging employees or by refusing to
hire applicants for employment because they were not cleared or
approved by the Respondent Unions, or in any other manner dis-
criminating in regard to hire or tenure of employment or any term or
condition of employment, except to the extent permitted by Section
8(a) (3) of the Act, as modified by the Labor-Management Reporting
and Disclosure Act of 1959.
(b) Maintaining and enforming any agreement, understanding, or
practice whereby membership in, clearance from, or approval of, the
Respondent Unions is required as a condition of employment, or which
requires that preference in employment be given to members of the
Respondent Unions, except as authorized in Section 8(a) (3) of the
Act, as modified by the Labor-Management Reporting and Disclosure
Act of 1959.
(c) In any other manner interfering with, restraining, or coercing
employees or applicants for employment in the exercise, of the rights
guaranteed in Section 7 of the Act, except to the extent that such rights
may be affected by an agreement requiring membership in a labor
organization as a condition of employment as authorized in Section
1402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
8(a) (3) of the Act, as modified by the Labor-Management Reporting
and Disclosure Act of 1959.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
(a) Make whole the following-named individuals for any loss of
pay suffered as a result of the discrimination against them as set forth
in "The Remedy" section of the Intermediate Report and as noted
hereafter:
(1) Jointly and severally with Respondent District Council and
Local 300 make whole Voide Smith, Ben Payne, and Ignacio Alcala.
(2) Jointly and severally with the Respondent District Council and
Local 507 make whole William Rhone.
(3) Jointly and severally with the Respondent District Council and
Local 652 make whole Jack Laskey.
(4) Jointly and severally with the Respondent District Council and
Local 802 make whole Joe Davis and Edward Long.
(5) Jointly and severally with the Respondent District Council and
Local 806 make whole Booker T. Cole.
(b) Jointly and severally with all the Respondent Unions reimburse
all present and former employees of members of the Respondent Asso-
ciations for all fees, dues, assessments, or other moneys unlawfully
exacted from them as the price of their employment, in the manner and
to the extent set forth in the section of the Intermediate Report en-
titled "The Remedy."
(c) Notify in writing their respective employer-members of the
terms of this Order, including specific notices to Martin Brothers,
Charles R. Lampson, Ludlow Brothers Co., Inc., Schian and Traut-
schold, Williamson Plastering Company, L. J. Koontz, H. M. Bell &
Son, R. W. Longstreet, Inc., and Norpal, Inc., that Ignacio Alcala,
Booker T. Cole, Jack Laskey, Voide Smith, William Rhone, Joe R.
Davis, Edward R. Long, and Ben Payne may be employed without re-
gard to union membership or clearance except to the extent provided
by a contract which conforms to the requirements of Section 8(a) (3)
of the Act, as modified by the Labor-Management Reporting and Dis-
closure Act of 1959, and invoke such powers and rights as they may
have as to their employer-members in order to discharge their financial
obligations and insure the cooperation of their employer-members in
effectuating the terms of this Order.
(d) Preserve and, upon request, make available to the Board and
its agents, for examination and copying, all payroll records, social
security payment records, timecards, personnel records and reports,
and all other records necessary to analyze and compute the amount of
backpay due.
(e) Post at their respective offices and at construction sites of mem-
bers within the geographical jurisdiction of the Respondent Unions,
CONTRACTING PLASTERERS' ASSN. OF S. CALIF., ETC. 1403
copies of the notice attached hereto marked "Appendix B." ' Copies
of said notice, to be furnished by the Regional Director for the Twenty-
first region, shall, after being duly signed by the Respondent Associa-
tions' authorized representatives, be posted immediately upon receipt
thereof and maintained for 60 consecutive days thereafter in conspicu-
ous places, including all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by the Respondent
Associations to insure that said notices are not altered, defaced, or
covered by any other material.
(f) Post at the same places and under the same conditions as set
forth in (e) above, as soon as they are forwarded by said Regional
Director, copies of the Respondent Union's notice, herein marked
"Appendix A."
(g) Deliver to said Regional Director signed copies of "Appendix
B" for posting by the Respondent Unions as provided herein. Copies
of said notices, to be furnished by said Regional Director, shall, after
being duly signed by the respective Respondent Associations, herein,
be forthwith returned to said Regional Director for such posting.
(h) Notify the Regional Director for the Twenty-first Region, in
writing, within 10 days from the date of this Order, what steps they
have taken to comply herewith.
IT IS FURTHER ORDERED that the allegations of the complaint that
Norpal, Inc., apart from its membership in the Associations, engaged
in conduct violative of the Act shall be, and hereby are, dismissed.
° See footnote 6.
APPENDIX A
NOTICE TO ALL MEMBERS OF SOUTHERN CALIFORNIA DISTRICT COUNCIL
OF LABORERS, INTERNATIONAL HOD CARRIERS, BUILDING AND COM-
MON LABORERS UNION OF AMERICA, AND ITS AFFILIATED Los
ANGELES LOCAL 300, PASADENA LOCAL 439, LONG BEACH LOCAL
507, SANTA ANA LOCAL 652, WILMINGTON LOCAL 802, POMONA
LOCAL 806 AND EL MONTE LOCAL 1082; AND TO EMPLOYEES OF
CONTRACTING PLASTERERS' ASSOCIATION OF SOUTHERN CALIFORNIA,
INC., AND ORANGE COUNTY LATHING AND PLASTERING CONTRACTORS
ASSOCIATION, INC., AND THEIR CONSTITUENT EMPLOYER MEMBERS
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify you that :
WE WILL NOT cause or attempt to cause Contracting Plasterers'
Association of Southern California, Inc., or Orange County
Lathing and Plastering Contractors Association, Inc., or Their
Constituent Employer Members, to discriminate against em-
ployees or applicants for employment in violation of Section
1404 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
8(a) (3) of the Act, as modified by the Labor-Management Re-
porting and Disclosure Act of 1959.
WE WILL NOT maintain in our collective-bargaining agree-
ments with Contracting Plasterers' Association of Southern
California, Inc., and Orange County Lathing and Plastering
Contractors Association, Inc., and Their Constituent Employer
Members, any provision which requires membership in, or clear-
ance from us as a condition of employment, or which requires
that preference in employment be given to our members, except
as authorized in Section 8(a) (3) of the Act, as modified by the
Labor-Management Reporting and Disclosure Act of 1959.
WE WILL NOT maintain and enforce any agreement, under-
standing, or practice with Contracting Plasterers' Association of
Southern California, Inc., and Orange County Lathing and
Plastering Contractors, Inc., and Their Constituent Employer
Members, whereby membership in, clearance from, or approval
of us, is required as a condition of employment, or which re-
quires that preference in employment be given to our members,
except as authorized in Section 8(a) (3) of the Act, as modified by
the Labor-Management Reporting and Disclosure Act of 1959.
WE WILL NOT operate an exclusive hiring hall except under the
standards specified in the Mountain Pacific case, 119 NLRB 883.
WE WILL NOT in any other manner restrain or coerce employees
or applicants for employment in the exercise of the rights guar-
anteed in Section 7 of the Act, except to the extent that such
rights may be affected by an agreement requiring membership
in a labor organization as a condition of employment as author-
ized in Section 8(a) (3) of the Act, as modified by the Labor-
Management Reporting and Disclosure Act of 1959.
WE WILL reimburse all employees of members of Contracting
Plasterers' Association of Southern California, Inc., and Orange
County Lathing and Plastering Contractors Association, Inc.,
and Their Constituent Employer Members, for the initiation
fees, dues, permit fees, assessments, and other moneys they were
unlawfully required to pay our unions as the result of the illegal
hiring provisions in our contracts or understandings with the
aforementioned associations and their constituent employer
members.
WE WILL make whole Ignacio Alcala, Booker T. Cole, Jack
Laskey, Voide Smith, William Rhone, Joe R. Davis, Edward R.
Long, and Ben Payne for loss of pay resulting from the discrimi-
nation against them.
WE WILL notify Contracting Plasterers' Association of South-
ern California, Inc., and Orange County Lathing and Plastering
Contractors Association, Inc., and the employers named herein
CONTRACTING PLASTERERS' ASSN. OF S. CALIF., ETC. 1405
as parties to the contract in writing, and immediately serve
copies upon the employees involved, that we have no objections
to the employment of Ignacio Alcala, Booker T. Cole, Jack
Laskey, Voide Smith, William Rhone, Joe R. Davis, Edward R.
Long, and Ben Payne.
SOUTHERN CALIFORNIA DISTRICT COUNCIL OF
LABORERS, INTERNATIONAL HOD CARRIERS,
BUILDING AND COMMON LABORERS UNION
OF AMERICA,
Labor Organization.
Dated---------------- By-------------------------------------
(Representative ) (Title)
Los ANGELES LOCAL 300,
Labor Organization.
Dated---------------- By------------------------------------
(Representative) ( Title)
PASADENA LOCAL 439,
Labor Organization.
Dated---------------- By-------------------------------------
(Representative ) (Title)
LONG BEACH LOCAL 507,
Labor Organization.
Dated---------------- By-------------------------------------
(Representative ) (Title)
SANTA ANA LOCAL 652,
Labor Organization.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
WILMINGTON LOCAL 802,
Labor Organization.
Dated---------------- By-------------------------------------
(Representative ) (Title)
POMONA LOCAL 806,
Labor Organization.
Dated---------------- By-------------------------------------
(Representative ) (Title)
EL MONTE LOCAL 1082,
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.
1406 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX B
NOTICE TO ALL EMPLOYEES OF AND APPLICANTS FOR EMPLOYMENT WITH
CONTRACTING PLASTERERS' ASSOCIATION OF SOUTHERN CALIFORNIA,
INC., AND ORANGE COUNTY LATHING AND PLASTERING CONTRACTORS
ASSOCIATION, INC., AND THEIR CONSTITUENT EMPLOYER MEMBERS ;
AND TO ALL MEMBERS OF SOUTHERN CALIFORNIA DISTRICT COUNCIL
or LABORERS, INTERNATIONAL HOD CARRIERS, BUILDING AND COMMON
LABORERS UNION OF AMERICA AND ITS AFFILIATED Los ANGELES
LOCAL 300, PASADENA LOCAL 439, LONG BEACH LOCAL 507, SANTA
ANA LOCAL 652, WILMINGTON LOCAL 802, POMONA LOCAL 806, AND
EL MONTE LOCAL 1082
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL NOT encourage membership in Southern California
District Council of Laborers, International Hod Carriers, Build-
ing and Common Laborers Union of America and its affiliated
Los Angeles Local 300, Pasadena Local 439, Long Beach Local
507, Santa Ana Local 652, Wilmington Local 802, Pomona Local
806 and El Monte Local 1082, or in any other labor organization,
by discharging or laying off employees or refusing to hire appli-
cants for employment or in any other manner discriminating in
regard to hire or tenure of employment or any term or condition
of employment, except to the extent permitted by the proviso to
Section 8 (a) (3) of the Act, as modified by the Labor-Management
Reporting and Disclosure Act of 1959.
WE WILL NOT maintain and enforce any agreement, understand-
ing, or practice whereby membership in, clearance from, or ap-
proval of, Southern California District Council of Laborers,
International Hod Carriers, Building and Common Laborers Un-
ion of America and its Affiliated Locals above named, is required
as a condition of employment, or which requires that preference in
employment be given to members of those Unions, except as au-
thorized in Section 8(a) (3) of the Act, as modified by the Labor-
Management Reporting and Disclosure Act of 1959.
WE WILL NOT in any other manner interfere with, restrain, or
coerce employees or applicants for employment in the exercise of
the rights guaranteed in Section 7 of the Act, except to the extent
that such rights may be affected by an agreement requiring mem-
bership in a labor organization as a condition of employment, as
authorized in Section 8(a) (3) of the Act, as modified by the
Labor-Management Reporting and Disclosure Act of 1959.
WE WILL make whole Ignacio Alcala, Booker T. Cole, Jack
Laskey, Voide Smith, William Rhone, Joe R. Davis, Edward R.
CONTRACTING PLASTERERS' ASSN. OF S. CALIF., ETC. 1407
Long, and Ben Payne, for any loss of pay suffered as a result of
the discrimination against them.
WE WILL reimburse all the employees of our members within
the geographical jurisdiction of the above-named labor organi-
zations for the initiation fees, dues, permit fees, assessments, and
.other moneys illegally exacted from them as the result of the
illegal hiring hall arrangement with the above-named labor
organizations.
CONTRACTING PLASTERERS' ASSOCIATION OF
SOUTHERN CALIFORNIA, INC.,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
ORANGE COUNTY LATHING AND PLASTERING
CONTRACTORS ASSOCIATION, INC.,
Employer.
Dated---------------- By-------------------------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered , defaced, or covered by any other material.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon charges, and amended charges duly filed by the above-named individuals and
four complaints duly issued by the General Counsel in the above-captioned cases, and
upon the answers of the Respondent Unions and Respondent Employers, the above-
named consolidated cases were heard by the duly designated Trial Examiner at Los
Angeles, California, on various dates from July 13 to September 23, 1959.
All parties were represented by counsel, who were afforded full opportunity to
introduce evidence pertinent to the issues, to examine and cross-examine witnesses,
to argue orally upon the record at the conclusion of the case, and to file briefs and
proposed findings of fact and conclusions of law.
The Stipulated Transcript of Testimony and Exhibits
At the hearing, after the introduction of the formal documents into evidence, all
counsel jointly represented to the Trial Examiner, that the issues herein were prac-
tically identical with the issues presented in a companion consolidated case, entitled
Petersen Construction Corp. et al., Case No. 21-CA-2892 et al., which was heard by
Trial Examiner Howard Myers, between March 30 and May 25, 1959, at the City of
Los Angeles. Counsel jointly suggested, that the hearing herein could be expedited,
if certain portions of the testimony in the Petersen case, supra, with pertinent ex-
hibits were stipulated into evidence in the instant hearing. Thereafter, 4 days of
hearing were devoted mainly to the receipt of various stipulations of counsel which
presented testimony, exhibits, and the motions of counsel, pertinent to the issues
herein. The final hearing session was held on September 23, 1959, and the hearing
closed upon that date. However, the evidence was not closed, nor was the case
submitted on that date, because all counsel on that date stipulated that, counsel for
the Respondent Unions and counsel for the Respondent Employers would have an
opportunity to prepare and file physically with the Trial Examiner certain specific
testimony and exhibits, which were then in the file of the Petersen case. It was the
tenor of the stipulation that upon receipt of that material by the Trial Examiner the
evidence would be closed, and the case submitted for decision. Counsel for the
Unions and the Employers encountered considerable difficulty in procuring and repro-
ducing the voluminous exhibits from the Petersen case, with the result that, the final
a
1408 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
group of exhibits herein was not submitted to the Trial Examiner until January 28,
1960, on which date the evidence was closed and the case submitted.
The result of counsel's diligence and cooperation is the stipulated record herein;
several features of which should be noted. First, there were no witnesses sworn in
the course of the instant proceeding, although there are several hundreds of pages
of testimony stipulated into the record herein from the Petersen case, together with
pertinent motions of counsel and the rulings of Trial Examiner Myers thereon. Sec-
ond, counsel also stipulated that if the discriminatees in this proceeding were called,
they would testify in accord with certain affidavits copied verbatim into this record.
Third, the stipulation also provided that various motions asking for the dismissal of
the proceedings in the Petersen case, were to be considered as being made in the
instant proceeding.
All of the voluminous testimony and exhibits have been examined and considered
and all motions of counsel to dismiss the complaints herein on various grounds are
hereby denied in accordance with the findings, conclusions, and recommendations
hereafter set forth.
Upon the entire record in the case, the Trial Examiner makes the following:
FINDINGS OF FACT
1. THE BUSINESS OPERATIONS OF THE EMPLOYERS HERE INVOLVED
Contracting Plasterers' Association of Southern California, Inc. herein called
CPA and Orange County Lathing and Plastering Contractors Association, Inc., herein
called OCLPCA, and collectively called the Associations, are trade associations which
admit to membership firms engaged in the building and construction industry and exist
in part for the purpose of representing their employer-members in collective bargain-
ing with labor organizations, in the course of which, they negotiate, execute, and
administer collective-bargaining contracts on behalf of their employer-members with
various building and construction trade unions including the Respondent Unions.
The members of CPA and OCLPCA who participate in multiemployer bargaining
have principal offices and places of business in the State of California and in the
aggregate these member-employers annually sell goods and perform services valued
in excess of $50,000 to other California business enterprises which annually ship
goods and perform services outside the State of California valued in excess of $50,000.
Martin Brothers, Charles R. Lampson, Ludlow Brothers, Schian and Trautschold,
Williamson Plastering Company, J. L. Koontz, H. M. Bell & Son, R. W. Longstreet,
Inc., and Norpal, Inc. are members of the above-named Associations.
H. THE LABOR ORGANIZATIONS
Southern California District Council of Laborers, International Hod Carriers,
Building and Common Laborers Union of America, is a labor organization which
exists in part for the purpose of representing its constituent Local Unions including
the above-named local unions in collective bargaining with employers and employer
associations including CPA and OCLPCA. It participates through its representative
in the negotiation, execution, and administration of collective-bargaining agreements
on behalf of itself and its affiliated Local Unions, including the following-named local
unions who are Respondents herein; Santa Ana Local 652, Los Angeles Local 300,
Pasadena Local 439, Long Beach Local 507, Wilmington Local 802, Pomona Local
806, and El Monte Local 1082.
III. THE UNFAIR LABOR PRACTICES
A. The issues
The record establishes that all of the above-named companies through the agency
of the employer associations, and all of the Local Unions through the agency of the
District Council agreed upon the terms of a contract, for the employment of laborers
in the plastering industry in the Los Angeles area.' Thereafter, the Associations, the
members of the association here involved, the District Council, and the Local Unions,
here involved, all jointly enforced the terms of this contract.
The General Counsel contends, that (1) the contract is in violation of the Act, and
(2) the Association, Norpal, Inc., the District Council and the Local Unions com-
mitted specific acts of discrimination pursuant to the contract, against the named
individuals who are Charging Parties herein.
The Respondents deny the commission of unfair labor practices.
1 Norpal, Inc., was not a member of either association at the time of the execution of
the contract Later, however, it joined and became bound by the contract
a
CONTRACTING PLASTERERS' ASSN. OF S. CALIF., ETC. 1409t
B. The contract
It is admitted that at all times since July 30 , 1957, the Associations , and their indi-
vidual members here involved, and the District Council and the Local Unions, here
involved , gave effect to the contract, of which the General Counsel complains. The
provisions of this contract , which are basic to this controversy are as follows:
ARTICLE II
HIRING AND TRANSFER OF WORKMEN
That in the employment of workmen for all work covered by this Agreement
in the territory above described , the following provisions , subject to the condi-
tions of Article I, above, shall govern:
A. That the Local Unions establish and maintain open and nondiscriminatory
employment lists for employment of workmen in the work area jurisdiction of
each respective Local Union.
That the Contractors shall first call upon the respective Local Unions having,
work and area jurisdiction , or their Agents, for such men as they may from time
to time need, and the respective Local Unions, or their agents , shall immediately,
furnish to the Contractors the required number of qualified and competent,
workmen and skilled mechanics of the classification needed by the Contractors..
That the respective Locals Unions, or their Agents, will furnish each such,
required competent workman or skilled mechanic entered on their lists, to the
Contractors by use of a written referral and will furnish such workmen or skilled-
mechanics from the respective Local Union's listings in the following manner:
1. Workmen who have been laid off or terminated, within the last thirty (30)
calendar days, in that respective Local Union's work and area jurisdiction by
the Contractors now desiring to re-employ the same workmen in that same area,
provided they are available for employment.
2. Workmen who have been employed by Contractors in the respective Local
Union's work and area jurisdiction within the multiple-employer unit during the
previous ten (10 ) years, and are available for employment.
3. Workmen whose names are entered on the list of the respective Local
Union having work and area jurisdiction and who are available for employment.
B. It is agreed between the signatory parties that any signatory Contractor
will be permitted to clear from the jurisdiction of 'a Local Union to the jurisdic-
tion of any other Local Union not to exceed 10% of his crew for the particular
job, unless by mutual agreement the Local Union and the Contractor have
agreed that a greater percentage of the Contractor's regular crew may be
cleared, in which case the agreement must be reached prior to the starting of
the job.
Where a plastering Machine or machines (plastering gun) are to be used on
a particular job, the Unions agree to allow the Contractor to bring in the third
(3rd) man. After which the 10% clause shall prevail, with the allowed third
(3rd) man being considered in the computation.
C. That reasonable advance notice (but not less than 24 hours) will be
given by the Contractors to the Unions, or their Agents, upon ordering such
workmen or mechanics; and in the event that 48 hours after such notice, the
Union, or their Agents, shall not furnish such workmen, the Contractors may
procure workmen from any other source or sources. If men are so employed,
the Contractors will immediately report to the Local Unions having work and
area jurisdiction, or their Agents, each such workman by name
D. That workmen employed by the Contractors for a period of thirty (30)
days continuously or accumulatively within the multiple-employer unit and
procured in accordance with Article II (C), above, of procured from other
sources by the Contractors themselves, shall become members of the appropriate
craft Union signatory hereto immediately, upon terms and qualifications not
more burdensome than those applicable at such times to other applicants to
such Union, and that after thirty (30) days of employment as set forth above,
the workmen shall maintain their membership in the Union as a condition of
continued employment. [Emphasis supplied ]
In connection with the above provisions the General Counsel argues that they
violate the Act for several reasons: (1) The contract creates an exclusive hieing
arrangement which fails to provide for: (a) a nondiscriminatory basis for referral;
(b) the employer's right to reject applicants for employment; and (c) notice to
586439-61-vol. 129-90
1410 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees as to the manner in which the exclusive hiring arrangements shall
function-the requirements of a lawful hiring-hall arrangement, as set forth in the
Board's decision in Mountain Pacific Chapter of the Associated General Contractors,
et al., 119 NLRB 883.
He also contends that the contract is violative of the Act in that it purports to
set up a standard of preference in employment for "employees recently laid off . .
in a geographical area designated as the Local Union's . . . area jurisdiction," but
fails to state or define what that area jurisdiction is.
C. The individual cases of discrimination
Counsel stipulated that the eight discriminatees if called as witnesses would testify
in accordance with their affidavits set forth in the record. I credit this stipulated
testimony.
(1) Cole-Lampson-Local 806, Pomona
Booker T. Cole testified that he is a resident of Los Angeles and that he had
worked for the C. R. Lampson Company, mostly in the area jurisdiction of Local
300, as a plasterer tenderer for the past 10 years.
From January 22 to about January 29, 1958, he worked on a job in Pomona, in
the jurisdictional area of Local 806, and that he had taken that job without clearing
through the hiring hall of Local 806. On January 29, 1958, Pedro H. Garcia,
business representative of Local 806, visited the job, and told the employer, Charles
R. Lampson, that in accordance with the contract, an employer could not transfer
more than 10 percent of his employees from the area jurisdiction of one local to the
area jurisdiction of another local, and that the employer had exceeded that limit.
Forrest Lampson, job superintendent then asked Garcia, which of the two outsiders,
Cole and another man, Davis, should be fired. Garcia replied, that decision was up
to Lampson, who then chose to keep Davis and laid off Cole. After the termination
of his employment Cole had his name entered on the out-of-work list of Local 806,
and when his name reached the top, he was dispatched to the Lampson job.
(2) Davis-Koontz-Local 802, Wilmington
Joe R. Davis testified that he had been in the employ of L. J Koontz, a plastering
contractor, for approximately 7 years, and that in February 1958, he was working on
the Rivera Hospital Job in Torrence, California, when a business agent of Local 802,
came on the job and told the foreman that Davis would have to go, because the
employer did not have enough men on the job to permit a transfer from another
jurisdiction. Davis was then discharged. He was not registered with Local 802.
(3) Smith-Schian and Trautschold-Local 300, Los Angeles
Voide Smith testified that he is a member in good standing of Local 300, Los
Angeles, and has been a member for 17 years.
On or about May 5, 1958, the foreman for Schian and Trautschold, plastering
contractors, called Smith about a job, for Tuesday, May 6, 1958. Smith reported
to the jobsite in Van Nuys, and was hired as a hod carrier. About 9:15 a in. the
same day, the business representative of Local 300, appeared at the jobsite and
told the foreman that Smith would have to go, because he hadn't been cleared through
the Union. Smith was thereupon terminated. He had not registered with the Union,
nor asked to be registered.
(4) Payne-R. W. Longstreet, Inc.-Local 300, Los Angeles
Ben Payne testified that he resides in Pacoima, California, and is a member in
good standing in Local 300, Los Angeles, and that he usually registered for em-
ployment at the Pacoima office of the Local. On or about October 31, 1958, he
secured a job on his own initiative with R. W. Longstreet, Inc., a plastering contractor.
The job was in La Canada, which is within the jurisdiction of Local 300. About
a week after he began work, the business agent of Local 300, came on the job
and asked Payne if he had been cleared to the job by the Local. Payne answered in
the negative. On November 4, 1958, the business agent again came to the job and
told the foreman, that Payne would have to get off the job, because he had not been
cleared by the Union On the next day, Payne was transferred to a job in San
Fernando, which did not work that day. He did not register on the Union out-of-
work list for the Longstreet job in La Canada.
CONTRACTING PLASTERERS' ASSN. OF S. CALIF., ETC. 1411
(5) Payne-Williamson Plastering Company-Local 300, Los Angeles
Ben Payne also testified that on or about March 5, 1959, he was working for
Williamson Plastering Company, on a job he had secured for himself. On that date,
Manuel Smith, union steward on the job, told him that he couldn't continue to work,
without a clearance from Local 300; which had the area jurisdiction for the job.
When he reported for work on the next day, he was given his paycheck, and the
union steward told him that he could not work, without clearance from Local 300.
Payne did not have such a clearance and he refused to ask the Union for one.
(6) Alcala-Martin Brothers-Local 300, Los Angeles
Ignacio Alcala testified that he has been a member of Local 300, for about 14
years, and had been classified as a plasterer tenderer since 1952, and had worked
for Martin Brothers, lathers and plasterers, for about ,6 months in 1956.
On January 20, 1958, he received a phone call from Martin Brothers, asking him
to report for work the next day at the Children's Hospital job on Vermont Avenue,
Los Angeles. He reported and worked for 2 days, and was then sent to a job at
Wilshire and Crenshaw Boulevards, Los Angeles. On January 27, Sam Bequerra, a
field representative for Local 300, came on the job and asked him how he happened
to be working, and if he had a clearance from the Union. When he replied in the
negative, Baquerra told him he couldn't work any more until he got clearance from
Local 300.
On the next morning he went to the Local, and posted his name on the out-of-work
list, and requested dispatch to Martin Brothers. He was told there were 33 men
ahead of him on the list, and it could not be done. Alcala did not know how many
of these men had worked for Martin Brothers in the last 10 years, or who, if anyone
was sent to the job in his place.
(7) Rhone-Williamson Plastering Co.-Local 507
William Rhone testified that he lives in Los Angeles, and is a member of Local 300,
and had worked for Williamson Plastering Co. for about 2 years prior to May 17,
1958. On that date the foreman of the company called him on the phone and told
him to go to the hiring hall of Local 507, Long Beach, to get a clearance, and report
to a job in Bellflower, which is within the jurisdiction of that local.
On May 20, 1958, Rhone went to the office of Local 507 and asked for clearance
to the above job. Muller, the business agent, told Rhone, he had not received a
request by name for Rhone from the company, so he would not clear Rhone.
Rhone went back to the foreman and told him about the situation, then filed these
charges with the board.
On May 22, 1958, Rhone went back to Local 507, and this time there was a call
from the employer asking for Rhone by name, and Rhone was given a referral slip.
Rhone testified that his name was not registered at Local 507, nor did he request
his name to be registered on the list when he appeared there on May 20, 1958.
(8) Long-H. M. Bell & Son-Local 802, Wilmington
Edward Long testified that he lives in Los Angeles, California, and is a member
of Local X652, Santa Ana, and that he has been employed by H. M. Bell & Son,
plastering contractors, for about 21 years prior to August 14, 1958. On that date
he was instructed by his employer to work on a job at Shopper's Market in San
Pedro, which is within the jurisdiction of Local 802, Wilmington. He was given a
letter by the company addressed to that local requesting clearance for himself, and
for another workman named Hale.
On August 15, 1958, he went to the hiring hall of Local 802 at Wilmington and
talked to Business Agent McClain, who told Long that he would clear only one of
the men. Long and Hale discussed the situation, and requested that Hale be cleared.
McClain stated that his reason for not clearing both men was article II, paragraph B,
of the contract and that the local had a large number of eligible men on the
out-of-work list.
Long did not register on the list or request that his name be registered.
(9) Laskey-Ludlow Bros.-Local 652, Santa Ana
Jack Laskey testified that he resides in Los Angeles, California, and is a member
of Local 300, and that he worked periodically for Ludlow Bros., a contractor, for
approximately 17 or 18 years as a hod carrier.
On or about March 25, 1958, he was working on a job at Patillo and Highway 101,
which was in the jurisdiction of Local 652, Santa Ana, when Hernendez, the business
1412 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
agent of the Local came on the job. Hernendez told Laskey, he would have to
leave the job, because he came from a different area, and that the ratio of 10 to 1,
set out in the contract had been exceeded. Laskey worked until quitting time, when
he was discharged. He had not registered or requested registration on the available
list of Local 652.
The matters urged by counsel for the Respondents as defenses in this case are
contained in the portions of this record, which have been stipulated from the Petersen
case, supra. In the Petersen case, Trial Examiner Myers found that those matters
did not constitute a defense , and I am constrained to the same conclusion in this
case. Therefore, the facts above set forth are the basis of the following findings.
(d) Norpal, Inc.parties to the contract-the phrase "and its members"
is struck from the complaints
Mack Yancey is named as the Charging Party in the complaint against Norpal„
Inc. He did not testify, so the only proof in this record that Norpal, Inc., violated
the Act in any respect rests on the stipulation of its counsel that, though Norpal,
Inc., was not a member of the Associations at the time of the execution of the illegal
contract, it thereafter joined the Associations, became bound by the contract, and
enforced it. Hence, Norpal, Inc., at this juncture of the case is the only individual
employer named and served with process herein, as a Respondent, since all other
individual employers are named and served with process only as "parties to the
contract." It is clear to me that it was not the intention of counsel, in offering the
stipulation above, nor of the Trial Examiner in the acceptance of the same, to thus
make Norpal, Inc., the victim of such disparate treatment, and fasten on that com-
pany a different liability and remedy than that visited on all other individual em-
ployers, named and served only as parties to the contract. With this view of the
stipulation of counsel, I find, therefore, that Norpal, Inc., is a party to the illegal
contract, but, in the interests of substantial justice, dismiss the complaint against
that company. This action will leave Norpal, Inc., in the same position as all
other members of the Associations, they will be only indirectly responsible, through
the medium of the Associations, for remedying the unfair labor practices, found to,
have been committed above.
The situation as to Norpal, Inc., also brings into focus a motion of counsel for
the Respondent Employers in the course of the hearing. On two occasions counsel
for the Respondent Employers moved to strike from the complaints the descriptive
phase, "and its employer-members," which follows the proper name of each Asso-
ciation, in the complaints. Counsel argued that none of these members had been
served with process, except those named for a limited purpose, as "parties to the
contract." Counsel contended that in essence this phrase was surplusage, since the
employer-members were not before the court, and thus could not be the recipient of
an order from the Board. Counsel for the General Counsel stated that the phrase,
after the name of each Association, was proper, for the Associations were proper
Respondents herein, and the General Counsel sought to make the individual mem-
bers indirectly responsible, through the medium of the Associations, for the correc-
tion of the unfair labor practices alleged in the complaint. At the hearing the Trial
Examiner denied the motion. On reconsideration in the light of all the evidence, I
am satisfied that the ruling was incorrect, and that permitting the phrase to stand
in the complaints, since the members were not served with process, would serve no
useful purpose, and may lead to confusion in the application of the so-called
"Brown-Olds Remedy" which I will hereafter recommend. For those reasons, the
motion of counsel for the Respondent Employers is granted, and I hereby order
that the phrase "and its employer-members," be stricken from the complaints,
wherever it appears, after the proper name of each Association, except in such
allegations as state that the Associations and their employer-members are engaged
in interstate commerce within the meaning of the Act.
Concluding Findings
It is the contention of the General Counsel that the contract executed by the
employer-associations on behalf of their members and the District Council on behalf
of its constituent unions is unlawful on two principal grounds. His first contention
is that the contract does not meet the requirements of a legal hiring hall, as spelled
out by the Board in its decision in Mountain Pacific, supra. His second contention
is that the contract is unlawful, because it sets up a system of seniority and pref-
erence in employment, the administration of which is left exclusively in the hands
of the Union.
Turning to his first contention, examination of the contract reveals that the
contract established an exclusive hiring system whereby the Respondent Associations,
CONTRACTING PLASTERERS' ASSN. OF S. CALIF., ETC. 1413
and their members, were obligated to employ only such employees as the Respondent
Union referred for employment. This conclusion is drawn from a consideration of
the pertinent provisions of the contract, one of which requires that the employer
"first call" upon the Union for such workmen as he needs. Although the employer
is permitted by a second provision to secure employees elsewhere, "in the event that
the Union does not supply those workers within 48 hours," the entire tenor of the
instrument is, that in the first instance, the employer must hire his men through
the medium of the Union. Such provisions constitute "an exclusive referral
contract." 2
In the Mountain Pacific case, supra, the Board held that an exclusive hiring-hall
agreement was lawful only if it specifically provided certain safeguards to protect
the statutory rights guaranteed to all employees to engage in or to refrain from
engaging in union activities.
Counsel for the various Respondents challenge the validity of the Mountain
Pacific rationale on various grounds, all of which are now being considered by the
courts. However, the Board continues to follow that decision pending a disposition
of the questions involved by the U.S. Supreme Court. Under the circumstances I
am bound to follow the Mountain Pacific decision, even though serious doubts have
been cast upon its validity by recent decisions of the courts. On its face, it is clear
that the contract here involved does not meet the requirements of the Mountain
Pacific decision, and I so find.
Upon the evidence here produced I must also find in agreement with the second
contention of the General Counsel. It is patent that the instant contract sets up a
system or arrangement whereby men are referred for employment on the basis of
a "seniority-priority" and that the employers had no voice or part in the determina-
tion of this seniority-priority. The entire tenor of the contract is that the Unions
would maintain the out-of-work lists, and assign to each workman such seniority-
priority as the Union decided was proper under the contract. Counsel for the
Employers refers to this task as being "ministerial" only, but in my judgment this
agreement of the employers that the Union would maintain the lists and assign
seniority-priority to each workman, has the same vice as the contract in Pacific-
Intermountain Express, 107 NLRB 838, and constitutes a delegation to the Unions
of exclusive control over the seniority-priority system. In the Pacific-Intermountain
Express contract, all controversies concerning seniority were to be decided solely
by the Union. However, that contract at least afforded an aggrieved worker a
method of appeal from the seniority originally assigned to him. Here, the em-
ployee had to accept the seniority-priority assigned to him by the Union, without
recourse to any system of appeal. Viewed realistically, the contract set up three
grades of priority in employment, but since the Unions were the sole and absolute
judges of the priority to be assigned, the individual employee had to take any
priority assigned to him, and the Unions acquired absolute control of employment
in the industry.
Therefore, I find that by the maintenance and enforcement of this contract, the
Respondent Unions violated Section 8(b)(1)(A) and (2), and the Respondent
Associations violated Section 8(a)(1) and (3) of the Act as alleged in the
complaints.
It is also clear from the undisputed evidence as to the individual incidents of
contract enforcement set forth above, that the Respondent Associations, the Re-
spondent District Council, and the following Respondent Unions caused the follow-
ing named employers, parties to the contract, to discriminate in the hire, tenure, and
working conditions of the individuals hereafter named, thereby committing add-
tional violations of Section 8(b) (1) (A) and (2) of the Act (1) Respondent Local
806, Pomona, caused Employer Charles R. Lampson to lay off employee Booker T.
Cole; (2) Respondent Local 802, Wilmington, caused Employer L. J. Koontz to
discharge employee Joe R. Davis; (3) Respondent Local 300 caused Employer
Schian and Trautschold to discharge employee Voide Smith; caused Employer
Williamson Plastering Company to discharge employee Ben Payne and Employer
R. W. Longstreet, Inc., to transfer with loss of pay, the said Payne; and caused
Employer Martin Brothers to discharge employee Ignacio Alcala; (4) Respondent
Local 502 caused Employer Ludlow Bros. to discharge employee Jack Laskey;
(5) Respondent Local 507 refused clearance to employee William Rhone to a job
with Employer Williamson Plastering Company; and (6) Respondent Local 802
refused clearance to employee Edward Long to a job with Employer H. M. Bell
& Son.
2 United Association of Journeymen, etc. (J S. Brown-E F Olds Plumbing & Heating
Corporation), 115 NLRB 594
1414 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
From the above specific findings it follows that the Respondent Associations,
and the Respondent Unions have committed the entire sequence of unfair labor
practices set forth in the complaints.
V. THE REMEDY
Having found that the Respondent Associations, the Respondent District Council,
and Respondent Local Unions, Nos. 806, 802, 300, 502, and 507, have engaged in
and are engaging in unfair labor practices, the Trial Examiner recommends that
they, and each of them, be ordered to cease and desist therefrom and to take cer-
tain affirmative action designed to effectuate the policies of the Act.
Since the hiring provisions of the contract executed by the Respondent Associa-
tions and the Respondent District Council have been found to be illegal, it will be
recommended that the Respondent Associations, the Respondent District Council,
and Respondent Local Unions be ordered to cease performing, maintaining, or
giving effect to said contract.
Since it has been found that the employers named as parties to the contract un-
lawfully discriminated against certain employees, as found above, and that the
Respondent Unions unlawfully caused the discrimination against the aforemen-
tioned employees, it is recommended that to remedy each instance of discrimination
found above, that the Respondent District Council and the particular Respondent
Local Union involved in each particular case, notify the Respondent Associations
and the particular employer involved, in writing, and serve a copy upon the in-
dividual discriminated against, that they have no objection to the employment of
that individual by any member of the Associations.
It is further recommended that to remedy each instance of discrimination found
above, the Respondent District Council and the particular Respondent Local Union
involved in each case, and the Respondent Associations, jointly and severally make
whole the employee who was the object of their discrimination, for any loss of
wages he may have suffered as the result of the discrimination against him The
amount of backpay in each case to be computed and paid in accordance with the
Board's usual formula .3
Since it has been found that Respondent Associations, the Respondent District
Council, and Respondent Local Unions are parties to an illegal hiring-hall arrange-
ment, which is contained in a signed collective-bargaining agreement, it follows that
the parties thereto have coerced employees to pay dues, fees, and assessments
necessary to achieve and retain membership in Respondent Unions to obtain work
within the Respondent Unions' territorial jurisdiction. In order to expunge the
coercive effect of these illegal exactions, and adequately to remedy the unfair labor
practices found, it is recommended that Respondent Associations, the Respondent
District Council, and Respondent Local Unions be ordered to jointly and severally
reimburse employees working for the members of Respondent Associations for any
dues, fees, assessments, permits, or other moneys, which were unlawfully exacted
from them as a condition of obtaining or retaining employment.
The liability for reimbursement shall include the period beginning 6 months
immediately prior to the filing and service of the first charge herein, upon the
Respondent Associations and the Respondent District Council and shall extend
until abandonment by Respondent Unions and Respondent Associations of the
unlawful hiring practices?
Upon 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. The Respondent Associations and their members are employers , engaged in
commerce within the meaning of Section 2(6)(7) of the Act.
2. The Respondent District Council and Respondent Local Unions are labor
organizations within the meaning of Section 2(5) of the Act.
3 F. W. Woolworth Company, 90 NLRB 289. In the cases of individuals discharged or
laid off, backpay will run from the date of their respective discharges or layoff to the date
of reinstatement or the date when they would normally have been terminated whichever
is earlier, less net earnings during such period
4 J. S. Brown-E. F Olds Plumbing and Heating Corporation, et al , supra. The Trial
Examiner feels bound to recommend this remedy under Board policy at this time, pending
final disposition of the serious questions of law Involved in the remedy See NLRB v
United States Steel Corp, 278 F. 2d 896 (CA. 3), dated April 13, 1960, which collates
all cases on this subject in the various Circuit Courts of Appeal. See also, Ninth Circuit
decision In Morrison-Knudsen Co. v. N.L.R B., 276 F. 2d 63.
VICTORY GROCERY CO., A DIVISION OF E. J. KEEFE CO. 1415
3. By maintaining and enforcing a collective-bargaining contract containing an
illegal hiring -hall arrangement , the Respondent Associations have engaged in and
are engaging in unfair labor practices within the meaning of Section 8(a)(3) of
the Act.
4. By engaging in the foregoing conduct Respondent Associations have engaged
in and are engaging in unfair labor practices within the meaning of Section
8(a)(1) of the Act.
5. By maintaining and enforcing a collective -bargaining contract containing an
illegal hiring-hall arrangement , the Respondent Unions have engaged in and are
engaging in unfair labor practices within the meaning of Section 8 (b) (2) of the Act.
6. By engaging in the foregoing conduct Respondent Unions have engaged in
and are engaging in unfair labor practices within the meaning of Section 8 (b) (1) (A)
of the Act.
7. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) (7) of the Act.
[Recommendations omitted from publication.]
Victory Grocery Company, a Division of E. J. Keefe Company 1
and Citrus, Cannery, Food Processing and Allied Workers,
Drivers, Warehousemen and Helpers, Local Union 444, affili-
ated with the International Brotherhood of Teamsters , Chauf-
feurs, Warehousemen and Helpers of America , Petitioner.
Case No. 1 2-RC-1057. January 23, 1961
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 Frank James Kruzich,
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 [Members Rodgers, Jenkins, and Fanning].
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 certain employees of the Employer within the meaning of
Section 9 ( c) (1) and Section 2(6) and (7) of the Act.'
1 The name of the Employer appears as amended at the hearing
2 The Employer moved to dismiss the petition on the grounds that ( 1) the Regional
Director did not conduct an investigation of the petition prior to the hearing as required
by Section 9(c) (1) of the Act, and (2 ) there was neither a proper demand for recognition
by the Petitioner , nor a refusal on behalf of the Employer. As to ( 1), it suffices to say
that the adequacy of such an investigation is an administrative matter and not subject
to collateral attack. Moreover , we are administratively satisfied that an adequate investi-
gation in the matter was conducted As to ( 2), the record shows that the Employer at
the hearing declined to recognize the Petitioner in the unit alleged appropriate See
Advance Pattern Company, 80 NLRB 29. The Employer also raised certain substantive
questions in its motion which are treated in the body of the Decision . The motion to
dismiss is denied.
129 NLRB No. 174.