Daniel Hamm Drayage Co., Inc.

National Labor Relations Board - Board Decisions

Jun 22, 1949

84 N.L.R.B. 458 (N.L.R.B. 1949)

In the Matter of DANIEL HAMM DRAYAGE COMPANY, INC. and LODGE
No. 1500, INTERNATIONAL ASSOCIATION OF MACHINISTS
Case No. 10-CA-163.-Decided June 22,1949
DECISION
AND
ORDER
On February 7,1949, Trial Examiner William F. Scharnikow issued
his Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. The Trial Examiner also found that
the Respondent had not engaged in certain other alleged unfair labor
practices. Thereafter, the Respondent and United Brotherhood of
Carpenters & Joiners of America, and Muscle Shoals Building & Con-
struction Trades Council, both affiliated with the American Federation
of Labor, herein called the Intervenors, filed exceptions to the Inter-
mediate Report and supporting briefs.
The Board has reviewed the rulings made by the Trial Examiner
and finds that no prejudicial error was conunitted. The rulings are
hereby affirmed. The Board has considered the Intermediate Report,
the exceptions and briefs, and the entire record in the case and hereby
adopts the findings, conclusions, and recommendations of the Trial
Examiner with the following addition and corrections:'
1. We agree with the Trial Examiner's finding that the Respond-
ent's operations affect.commerce within the meaning of the Act and
therefore that it is subject to the jurisdiction of the Board. We also
find that it will effectuate the policies of the Act to assert jurisdiction
1 On page 468 of the Intermediate Report, the Trial Examiner inaccurately stated that
the amended proviso to Section 8 ( a) (3) of the Act requires a "majority of the employees"
to approve a compulsory membership provision . The Act provides that the approval must
be given by a "majority of the employees eligible to vote ." Accordingly we hereby correct
the Intermediate Report in this respect
On page 466 of the Intermediate Report the Trial Examiner also incorrectly stated that
the Respondent hired one man on January 16, 1948 The record shows and we find that
the correct date was January 6, 1948.
84 N L. R. B., No. 56.
458
DANIEL: HAMM DRAYAGE COMPANY, INC. 459
in this case.2 The Respondent is engaged in these operations in many
States.
2. We also agree with the Trial Examiner's finding that, by refus-
ing to hire H. B. Penn, Elmer L. Allen, R. L. Bryant, W. D. Sparks,
Brooks Lindler, Sam White, and Lon W. Smith, the Respondent dis-
criminated against them in violation of Section 8 (a) (3) of the Act.3
Pursuant to its contract with the general contractor, Foster &
Creighton Company, the Respondent agreed with the Carpenters
Union, No. 1274, Decatur, Alabama, herein called the Decatur Local
that the Union would supply all men needed to complete the sub-
contract. In actual practice, the intent and effect of this arrange-
ment was to delegate the hiring of new employees to the Decatur
Local and to require all employees to be members of the Decatur
Local. Thus, individuals who applied directly to the Respondent
for work, including the seven men found herein to have been dis-
criminated against, were told that all hiring was being done through
the Decatur Local. Those applicants who thereafter applied to the
Decatur Local were told that the Union was referring only its own
members and that it already had sufficient men to fill the Respond-
ent's needs. The Respondent did not hire any man who was not re-
ferred by the Decatur Local; in every case, the man so referred was
put to work. Some of the seven after being told of the Respondent's
practice were among those denied referral by the Decatur Local. It
is clear and we find, that it would have been futile, for those who did
not pursue the Respondent's advice, to have gone to the Decatur Local
and that they reasonably so understood. We conclude, therefore, that
all seven men were not employed because they were not members of
the Decatur Local.
By refusing to employ these seven complainants because they were
not referred by the Decatur Local, the Respondent patently discrim-
inated against them in violation of Section 8 (a) (3) of the Act,-,
unless the hiring practice here followed was privileged by the various
contracts described in the Intermediate Report. We agree with the
Trial Examiner that none of these contracts is a defense to the dis-
criminatory hiring practices followed in this case.
2 United Brotherhood of Carpenters v Sperry, 170 F ( 2d) 863 (C A 10) ; Matter of
Gould & Preisner, 82 N L. R: B. 1195; Matter of Osterink Construction Company, 82
N L R B 228 , Matter of J H Patterson Co , 79 N L R B 355
3 Neither the charging party nor the Respondent charged either of the Intervenors with
having , committed unfair labor practices in connection with the discriminatory hiring
practices followed on the job.
4 Section 8 (a) (3) of the amended Act provides that it shall be an unfair labor practice
for an employer "by discrimination in regard to hire or tenure of employment or any term
or condition of employment to encourage or discourage membership in any labor organi-
zation."
460 DECISIONS OF NATIONAL LABOR RELATIONS BOARDS
The Respondent,5 contends, however, that no discrimination against
the seven, complainants actually occurred because (1) the complain-
ants did not apply for work to the Respondent, nor were they refused
such employment, and because (2) at the time the complainants made
their applications, there was no work available for them.
First: The evidence shows clearly, and we find, as did the Trial Ex-
aminer , that the complainants did apply for work, either individually
or in groups and were refused employment.
Second: It is true that on the days the complainants applied for
work, the Respondent had no work immediately available for them.
But on those days, it expected to have work available within a short
period of time and so informed the complainants. After their first
applications were rejected, they did not reapply s However, it is ap-
parent that, if the complainants had reapplied, they would have re-
ceived the same treatment as on the first occasion because, throughout
the period in question, the Respondent continued unchanged its dis-
criminatory referral and hiring arrangement. In these circumstances,
we find that the complainants, having made their initial application
and having been informed of the Respondent's discriminatory hiring
policy, were not obliged to continue making the useless gesture of con-
tinuous reapplication in order to establish the Respondent's responsi-
bility for the discrimination practiced against them.7
In defense'of its hiring practices, the Respondent urges earnestly
that the Board take judicial notice of the fact that "it is the general
custom and practice in the construction industry for contractors to
enter into arrangements with local building and trades unions for the
unions to furnish the workmen needed on the construction project
and that such arrangements are and must be made before the contractor
begins work on a construction project."
The Respondent's argument is directed to the wisdom of the con-
gressional ban against union security arrangements which do not meet
the requirements of the proviso clause to Section 8 (a) (3) of the Act
as amended in 1947. That argument should properly be addressed to
Congress and not to this Board. As we have frequently remarked,
it is our duty as administrators to enforce the law as written and not to
pass upon the wisdom or practicality of its provisions.8 Congress has
s The Intervenors make substantially the same contentions as the Respondent.
e.With the exception of Sam White, who applied for work on November 8, 1947, and
again on December 9, 1947.
' See Matter of Nevada Consolidated Copper Corporation , 26 N. L . R. B. 1182, enfd.
316 U. S. 105; Matter of Ellss Canning Company, 76 N. L. R. B. 99; Matter of Pinaud,
Incorporated, 51 N. L. R. B. 235; Matter of Olympia Shingle Co., 26 N. L. R. B. 1398,
1413-1415.
8 Matter of National Maritime Union of America, 78 N. L R. B 971.
DANIEL HAMM DRAYAGE COMPANY, INC. 461
made unlawful the hiring practices followed by the Respondent. We
have no authority to engraft exceptions upon the congressional enact-
ment because this now unlawful practice was sanctioned by custom in
this particular industry before 1947 or may be thought economically
desirable or necessary.
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 the Respondent, Daniel Hamm
Drayage Company, Inc., St. Louis, Missouri, and its officers, agents,
successors, and assigns, shall :
1. Cease and desist from :
(a) Discouraging membership in Lodge No. 1500, International
Association of Machinists, or in any other labor organization of em-
ployees or applicants for employment, or encouraging membership in
United Brotherhood of Carpenters and Joiners of America, AFL, or
in any other labor organization of employees or applicants for em-
ployment by refusing to hire and employ properly qualified applicants,
or in any other manner discriminating in regard to their hire or tenure
of employment, or any term or condition of their employment, except
insofar as such activity is affected by an agreement requiring member-
ship in a labor organization as a condition of employment, as author-
ized in Section 8 (a) (3) of the Act;
(b) In any other manner interfering with, restraining, or coercing
employees or applicants for employment, in the exercise of the right
to self-organization, to form labor organizations, to join or assist
Local No. 1500, International Association of Machinists, or any other
labor organization," to bargain collectively through representatives
of their own choosing, and to engage in concerted activities for the
purpose of collective bargaining or other mutual aid or protection,
and to refrain from any or all of such activities, except to the extent
that such right may be affected by an agreement requiring member-
ship in a labor organization.
2. Take the following affirmative action which the Board finds will
effectuate the purposes of the Act :
(a) Make whole H. B. Penn, Elmer L. Allen, R. L. Bryant, W. D.
Sparks, Brooks Lindler, Sam White, and Lon W. Smith for any loss
of pay each may have suffered by reason of the Respondent's discrimi-
nation against them, by payment to each of them of a sum of money
equal to the amount which he normally would have earned as wages
from the date of Respondent's discrimination to August- 22, 1948, the
853396-50-vol. 84-33
462 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
date of the completion of the Respondent's project at Decatur, Ala-
bama, less his net earnings 9 during that period;
(b) Post at its office in St. Louis, Missouri, and at all its presently
operating projects, copies of the notice attached hereto and marked
"Appendix A." 10 Copies of such notice, to be furnished by the Re-
gional Director for the Tenth Region, shall, after being duly signed by
the Respondent's representative, be posted by the Respondent imme-
diately upon receipt thereof and maintained by it for sixty (60) con-
secutive days thereafter in conspicuous places, including all places
where notices to employees and applicants for employment are cus-
tomarily posted. Reasonable steps shall be taken by the Respondent
to insure that said notices are not altered, defaced, or covered by any
other material;
(c) Notify the Regional Director for the Tenth Region (Atlanta,
Georgia) in writing, within ten (10) days from the date of this Order,
what steps the Respondent has taken to comply herewith.
IT IS FURTIIER ORDERED that, insofar as it alleges that the Respondent
discriminatorily refused to hire and employ C. C. Rogers, the com-
plaint herein be, and it hereby is, dismissed.
MEMBER GRAY took no part in the consideration of the above Decision
and Order.
APPENDIX A
NOTICE TO ALL EMPLOYEES AND APPLICANTS FOR EMPLOYMENT
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 and applicants for em-
ployment that :
WE WILL'NOT discourage membership in LODGE No. 1500, INTER-
NATIONAL ASSOCIATION OF MACHINISTS, or in any other labor or-
ganization or encourage membership in United Brotherhood of
Carpenters & Joiners of America, AFL, or in any other labor
organization by refusing to hire and employ properly qualified
applicants, or in any other manner discriminating in regard to
their hire or tenure of employment, or any term or condition of
their employment, except insofar as such activity may be affected
by an agreement requiring membership in a labor organization
as a condition of employment as authorized in Section 8 (a) (3)
of the Act.
9 Matter of Crossett Lumber Co , 8 N L. R. B 440, 497-8; Matter of Republic Steel
Corporation v N L R B, 311 U S 7.
10 In the event that this Order is enforced by decree of a United States Court of Appeals,
there shall be inserted before the words "A DECISION AND ORDER ," the words : "A
DECREE OF THE UNITED STATES COURT OF APPEALS ENFORCING."
DANIEL HAMM DRAYAGE COMPANY, INC. 463
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees or applicants for employment, in the exer-
cise of their right to self-organization, to join or assist LOCAL No.
1500, INTERNATIONAL ASSOCIATION OF MACHINISTS, or any other
labor organization, to bargain collectively through representatives
.of their own choosing, and to engage in concerted activities for
the purpose of collective bargaining or other mutual aid or protec-
tion, and to refrain from any or all of such activities, except to the
extent that such right may be affected by an agreement requiring
membership in a labor organization.
WE WILL MAKE WHOLE H. B. Penn, Elmer L. Allen, R. L.
Bryant, W. D. Sparks, Brooks Lindler, Sam White, and Lon W.
Smith, for any loss of pay suffered as a result of our discrimination
against them at Decatur, Alabama.
DANIEL HAMM DRAYAGE COMPANY, INC.,
Employer.
By ------------------------------------------
(Ropresentn.tive) (Tale)
Dated--------------------
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
Mr. Willis C. Darby, for the General Counsel.
Mr. John A. Caddell, of Decatur, Ala., for the Respondent.
Mr. Fred G. Koenig, Sr, of Birmingham, Ala., for the Carpenters.
Mr. Morton Crist, of Sheffield, Ala., for the Muscle Shoals Council'
Mr. John W. Carlton, of Birmingham, Ala., and Mr. W. H. Johnson, of Sheffield,
Ala., for the I. A. M.
STATEMENT OF TILE CASE
Upon an amended charge filed on March 24, 1948, by Lodge No. 1500, Inter-
national Association of Machinists, herein called the I. A. M., the General Counsel
of the National Labor Relations Board,' by the Regional Director for the Tenth
Region (Atlanta, Georgia), issued a complaint dated September 1, 1948, against
Daniel Hamm Drayage Company, Inc., of St. Louis, Missouri, herein called the
Respondent, alleging that the Respondent had engaged in and was engaging in
unfair labor practices affecting commerce within the meaning of Section 8 (a) (1)
and (3) and Section 2 (6) and (7) of the National Labor Relations Act as
amended ,2 herein called the Act. Copies of the complaint, the charge, and a
notice of hearing were duly served on the Respondent and the I. A. M.
" The General Counsel and his representative are herein referred to as the General
Counsel , and the National Labor Relations Board, as the Board.
2 49 Stat 449 as amended by 61 Stat. 136.
464 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
With respect to the unfair labor practices, the complaint alleges in substance
(1) that on various dates from November 8, 1947, to February 1, 1948, inclusive,
the Respondent refused to hire and employ eight applicants for employment'
in the Respondent's installation, as subcontractor, of machinery in a copper
tubing plant then under construction in Decatur, Alabama, by Foster & Creighton
Company, as the general contractor, because the applicants were not members of,
and failed and refused to become members of, United Brotherhood of Carpenters
and Joiners of America, affiliated with the American Federation of Labor, a
labor organization hereinafter called the Carpenters; and (2) that the Respond-
ent, in violation of Section 8 (a) (1) and (3) of the Act, thereby discriminated
in regard to the hire and tenure of employment of the aforesaid applicants,
in order to encourage membership in the Carpenters, and also interfered with,
restrained, and coerced its employees in the rights guaranteed in Section 7 of
the Act.
The Respondent in its answer as amended admits certain allegations of the
complaint but denies the commission of any unfair labor practices. In substance,
it further asserts in its answer as amended, (1) that the I. A. M. filed the charge
in the present case without the knowledge, consent, or authorization of the al-
leged applicants for employment; (2) that prior to the beginning of construc-
tion on the copper tubing plant, Foster & Creighton Company, entered into an
agreement with the Muscle Shoals Building and Construction Trades Council
(A. F. of L.) herein called the Muscle Shoals Council, that "it and all of its sub-
contractors would employ members of the crafts of [Muscle Shoals Council]
exclusively" ; (3) that in the subcontract subsequently entered into between the
Respondent and Foster & Creighton Company the Respondent agreed "that it
should employ only men whose work would be in harmony with other workmen
employed by the Contractor [Foster & Creighton Company]"; (4) that on July
28, 1947, the Respondent also entered into a contract with the Carpenters
through its Carpenters District Council of St. Louis (herein called the Car-
penters St. Louis District Council) whereby the Respondent agreed that on all
its jobs, outside of as well as within St. Louis, the Respondent would employ
only members of the Carpenters; and (5) that by reason of all the aforesaid
contracts, which were binding on the Respondent, the Respondent at all times
complained of in the complaint, "did employ all of its workmen through [Muscle
Shoals Council] and that it never employed any men directly and never refused
to employ any men directly, but referred all prospective employees to the said
[Muscle Shoals Council] and that each time that it required employees it notified
said Council and said Council furnished such employees that respondent needed
in said work."
Pursuant to notice, a hearing was held in Decatur, Alabama, from October 26
to October 29, 1948, inclusive, before the undersigned Trial Examiner, duly
designated by the Chief Trial Examiner. At the beginning of the hearing, the
8 The names and dates of application given in the complaint are as follows :
Sam White, November 8, 1947.
H B. Penn, December 2, 1947.
Elmer L Allen, December 2, 1947.
R. L. Bryant, December 2, 1947.
W. D Sparks, December 2, 1947.
Brooks Lindler, December 2, 1947.
Lon W. Smith, December 9, 1947.
C. C. Rogers, February 1, 1948.
DANIEL HAMM DRAYAGE COMPANY, INC. 465
undersigned granted motions to intervene made by the Carpenters and the
Muscle Shoals Council, herein sometimes referred to as the Intervenors. There-
upon the General Counsel, the Respondent, and the Intervenors participated in
the hearing and were afforded full opportunity to be heard, to examine and cross-
examine witnesses, and to introduce evidence bearing upon the issues. At the
conclusion of the hearing, all parties waived oral argument. Since the hearing,
the undersigned has received briefs from the Respondent and from the Inter-
venors.
Upon the entire record in the case and from his observation of the witnesses,
the undersigned makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent, a Missouri corporation, with its principal office located in
St. Louis, Missouri, is engaged in the installation of heavy machinery in indus-
trial buildings in the States of Missouri, Illinois, Indiana, Iowa, Arkansas, Ten-
nessee, and Alabama. From November 19, 1947, to August 22, 1948, the Respon-
dent, under a subcontract with Foster & Creighton Company, a general building
contractor, engaged in the installation of more than $1,000,000 worth of machin-
ery, approximately 95 percent of which was transported from points outside the
State of Alabama, in a plant in Decatur, Alabama, then in the course of con-
struction by the general contractor for the Wolverine Tube Division of Calumet
& Hecla Consolidated Copper Company. In the, course of its operations in con-
nection with the plant in Decatur, Alabama, the Respondent moved and caused
the movement of approximately $100,000 worth of trucks and equipment through
the States of the United States other than the State of Alabama, both to and
from the Decatur, Alabama, plant, then in the course of construction.
The Respondent and the Intervenors contend that the operations of the Re-
spondent are purely local and do not constitute or affect commerce within the
meaning of the Act' They disregard, however, the facts that the Respondent
in connection with the Decatur project, transported a considerable amount of
heavy equipment across State lines, and derived most of the machinery which
it installed from States other than the State of Alabama. In the opinion of the
undersigned, these facts demonstrate that to a considerable degree the Respond-
ent's operations involve and affect interstate commerce. The undersigned there-
fore finds that the Respondent is engaged in commerce and also that its opera-
tions affect commerce within the meaning of the Act.
H. THE ORGANIZATIONS INVOLVED
Lodge No. 1500, International Association of Machinists ; United Brother-
hood of Carpenters and Joiners of America, affiliated with the American Federa-
tion of Labor ; Muscle Shoals Building and Construction Trades Council (A. F.
of L.) ; and Carpenters District Council of St. Louis and vicinity, affiliated with
the American Federation of Labor, are all labor organizations within the mean-
ing of the Act.
* The Intervenors rely principally upon the decision of the United States District Court
for the District of Colorado in ,Sperry v. Denver Building & Construction Trades Council
et al, 77 F. Supp . 321, and cases therein cited.
466 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE UNFAIR LABOR PRACTICES
A. The facts
Between September 1946 and August 22, 1948, Foster & Creighton Company,
general building contractors of Nashville, Tennessee, built a copper tubing plant
in Decatur , Alabama, for the Wolverine Tube Division of Calumet and Hecla
Consolidated Copper Company. Under a subcontract awarded on November 4,
1947, the Respondent erected and installed the heavy machinery in the plant
between December 1947 and the middle of August 1948.
Foster & Creighton Company and the Respondent had made various agree-
ments which the Respondent and the Intervenors contend required the Respond-
ent to hire only members of American Federation of Labor building and con-
struction trades unions Thus, on July 28, 1947, the Respondent in the general
course of its business and not with reference to the tubing plant job which it had
not yet received, agreed in writing with the Carpenters St. Louis District Coun-
cil that for a period of 2 years, it would employ only members of the "Union"
in its operations in St. Louis and elsewhere The other contracts or agreements
referred specifically to the personnel to be employed on the tubing plant project.
In the first of these, which was made-just before any construction was started
in September 1946, Vice-President R T. Creighton of the Foster & Creighton
Company orally agreed with the business agents of the building and construction
trades unions of the American Federation of Labor composing the Muscle Shoals
Council and including the Decatur Carpenters Local,' that these unions would
supply all the rank and file employees needed for the construction of the tubing
plant and that Foster & Creighton Company and its subcontractors would employ
only members of these unions. Consistent with this requirement and its own
existing contract with the Carpenters St. Louis District Council, the Respond-
ent in a letter to Foster & Creighton Company dated October 4, 1947, in which
it submitted its bid for the installation and erection of the machinery, specifically
.agreed to employ "American Federation of Labor union members " As a result,
on November 4, 1947, Foster & Creighton Company and the Respondent entered
into a subcontract for the Respondent's erection and installation of the inn-
,chnnery, in which the Respondent agreed to employ "only men whose work will
be in harmony with other workmen employed by the Contractor " Before the
Respondent began any of its work on the project, its superintendent, John C.
Feuerborn, arranged with Business Agent R. C. Halbrooks of the Decatur Car-
penters Local, that that union would exclusively supply the Respondent' s needs
for employees on the tubing plant job
Beginning on December 1, 1947, the Respondent recruited an entirely new
staff of rank and file employees for the project. The Respondent hired the first
2 men on December 1, 1947, and thereafter, in the early weeks of its work on
the project, it hired 2 more men on December 2, 1947; 1 on December 5, 1947;
1 on January 16, 1948; 5 on January 21, 1948; and 2 on January 26, 1948. In
all, 57 men weie hired by the Respondent for this work during the 81/2 months
taken to complete it. From January 5, 1948, until August 26, 1948, the staff
was never less than 8 and at times numbered as many as 30.
Under the arrangements previously made by Superintendent Feuerborn and
Business Agent Halbrooks, the Respondent hired none of these men directly but
only upon referral to it for employment by the Decatur Carpenters Local.
6 Carpenters Union No. 1274 , Decatur , Alabama.
DANIEL HAMM DRAYAGE COMPANY, INC. 467
Whenever men were needed, Feuerborn notified Halbrooks or Halbrooks' suc-
cessor,as business agent, who thereupon sent the Respondent the requisite num-
her of members of the Carpenters with referral cards In every case, the men
sent by the Decatur Carpenters Local were immediately put to work by the
Respondent.
In accordance with this arrangement, approximately 200 men who applied
directly to Superintendent Feuerborn for jobs, were told by Fenerborn that the
Respondent was hiring only men referred to it by Business Agent Halbrooks of
the Decatur Carpenters Local and that they should see Halbrooks if they wanted
jobs. When some of these men wlho• were not members of the Carpenters saw
Halbrooks, he told them that the Carpenters had enough men to fill the needs
of the project. If they then insisted upon making applications for membership
in the Carpenters, he accepted their applications, without guaranty, however,
that they would be referred to the Respondent for employment. No man who
was not a member of the Carpenters was referred by the Decatur Carpenters
Local to the Respondent for employment e
Among the approximately 200 men who applied for work to Superintendent
Feuerborn and were referred by him to Business Agent Halbrooks for clearance,
were Samuel L. White, who applied on November 8, 1947, and again on Decem-
her 9, 1947; Elmer L Allen, Brooks Lindler, Walter Sparks, Robert L. Bryant,
and H. B. Penn, who applied on December 2, 1947; and Lon W. Smith, who
applied on December 9, 1947. All 7 of these men had had experience in setting
machinery but were not members of the Carpenters. None of them was hired
by the Respondent. According to the complaint, C C. Rogers was similarly
turned away on February 1, 1948. But Rogers did not testify and there was no
evidence of his unsuccessful application for employment.
B. Conclustoiis
The undersigned will, of course, recommend dismissal of the complaint so
far as it alleges discrimination by the Respondent against C. C. Rogers
The Respondent and the Intervenors deny that the other seven job applicants
named in the complaint were refused and thus deprrvod of jobs on the tubing
plant project because they were not members of the Carpenters. They contend,
in substance, that the facts (lo not demonstrate a refusal to hire these men
since the Respondent merely informed them that all hiring was being done on
referral from Business Agent Halbrooks of the Decatur Carpenters Local; and
that, in any event, there were no jobs then available because the Respondent was
riot ready to put any more men to work. Neither of these contentions is tenable.
The Respondent was engaged in the hiring of a complete, new staff for its work
on the tubing plant Pursuant to its general agreement with°the Carpenters St.
Louis Council that it would employ only members of the Carpenters, it had
arranged to hire this staff solely upon referrals from the Decatur Carpenters
Local, thereby leaving certification of eligible applicants to the Local. Certainly
Feuerborn's statement to the applicants that the Respondent would hire only
upon such referrals, was a deliberate, obvious refusal to hire applicants who
were unable to secure referrals because they were not members of the Carpenters.
G At least one man ( Oval Sanders ) who was not a member of the Carpenters at the time,
applied to the business agent and secured membership for the purpose of obtaining a job
with the Respondent . He was thereafter referred to the Respondent by the Decatur Car-
penter. Local and hired.
468 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Furthermore, since Feuerborn stated this to be the Respondent's position as to
all hiring for the tubing plant project, the Respondent thereby not only refused
immediate hire to the seven applicants who were not members of the Carpenters,
but also refused them hire to the prospective jobs which the Respondent intended
shortly thereafter to fill, and did fill, with members of the Carpenters upon refer-
rals from the Decatur Carpenters Local. Accordingly, the undersigned finds,
contrary to the arguments of the Respondent and the Intervenors, that, in
hiring its tubing plant staff, the Respondent refused to hire Sam White, H. B.
Penn, Elmer L. Allen, R. L. Bryant, W. D. Sparks, Brooks Lindler, and Lon W.
Smith, because they were not members of the Carpenters; that the Respondent
thereby discriminated against them in regard to their hire and tenure of em-
ployment to encourage membership in the Carpenters ; and that, unless its con-
duct was justified by the contracts upon which it relies, the Respondent com-
mitted unfair labor practices within the meaning of Section 8 (a) (1) and (3)
of the Act.
As has already been indicated, the Respondent relies upon a series of con-
tracts directly or indirectly requiring the Respondent to employ only members
of the Carpenters Union. Two of these contracts were executed before August
22, 1947, and two were executed after August 22, 1947, the effective date of
pertinent amendments of Section 8 (3) of the original National Labor Relations
Act, by section 8 (a) (3) of the Labor Management Relations Act of 1947.
Although Section 8 (a) (3) of the amended Act reenacted and thus continued
the general prohibition of Section 8 (3) of the original Act against discrimina-
tion by an employer in regard to hire and tenure. it modified the proviso as
to the extent to which an employer might nevertheless make and then observe
an agreement with a labor organization requiring membership in such labor
organization as a condition of employment Thus, the contracts relied upon
by the Respondent would afford justification for the Respondent's refusal to
hire any job applicants not referred to it by the Decatur Carpenters Local, only
if their execution and observance by the Respondent complied with the require-
ments of either the original statutory proviso or the amended proviso, which-
ever was applicable in the case of each of the contracts
Under both the original and the amended proviso, the contract, to be valid,
must be entered into by the employer of the employees subject to its provisions
and a labor organization which is the freely and independently established
"representative of the employees as provided in Section 9 (a), in the appro-
priate collective bargaining unit covered by such agreement when made" ; I. e.
the bargaining representative chosen by a majority of the employees in the
appropriate unit.' Here, however, the similarity between the original and
amended provisos ends The original proviso permitted the contract, with or
without the employees' express approval, to make membership in the contracting
labor organization a condition of original hire as well as of continuing employ-
ment. The amended proviso requires prior approval of the compulsory member-
ship provision by a majority of the employees in a Board-conducted election
and permits the contract merely "to require as a condition of employment mem-
bership [in the contracting labor organization] on or after the thirtieth day
following the beginning of such employment or the effective date of such agree-
ment, whichever is the later," thus clearly eliminating the previously existing
right to make membership in a labor organization a condition of original hire.
7 So far as its provisions are material to the present discussion, Section 9 (a) has
remained unchanged by the amendments to the Act.
DANIEL HAIVIM DRAYAGE COMPANY, INC. 469
Finally, Section 102 of the amendatory Act, notwithstanding its inclusion of
the new proviso concerning permissible union-security contracts, continued the
more liberal protection of the original proviso with respect to the execution and
observance of contracts made before June 23, 1947 (the date of enactment of
the amendatory Act) and of contracts for not more than a year made between
June 23 and August 22, 1947 (the effective date of the amendatory Act), by
providing that the performance of any obligation under such a contract should
not be deemed an unfair labor practice unless it would have constituted an
unfair-labor practice under the original Act.'
The Respondent's agreement with the Carpenters St. Louis District Council
that it would employ only members of the Carpenters in its St. Louis and field
operations, was made on July 28, 1947, and, according to Section 102 of the
amendatory Act, should be appraised in the light of the proviso to Section 8 (3)
of the original Act' Under that proviso, the material questions are simply
whether, at the time of the execution of the contract, the Carpenters St. Louis
District Council represented a majority of the Respondent's -employees in an
appropriate unit covered by the contract, and if so, whether the employees
subsequently hired for the Decatur staff became part of the appropriate unit
under the contract. Counsel for the Respondent contended at the hearing that,
on July 28, 1947, the date the contract was executed, and continuously for at
least 10 years prior thereto, the Carpenters St. Louis District Council and its
constituent locals represented all the Respondent's St. Louis and field employees
under closed-shop contracts. Counsel for the Respondent further contended at
the hearing that its St. Louis and field employees, who were covered by the con-
tract of July 28, 1947, and these earlier contracts, constituted an appropriate
bargaining unit and that its Decatur employees, although subsequently hired
as a new, separate staff seedy for the period and the purposes of the tubing
plant project, became part of the established unit and subject to the contract
of July 28, 1947.
The record fails to support these contentions of the Respondent None of
the alleged earlier closed-shop contracts was produced at the hearing, nor was
there any other evidence that, on July 28, 1947, either the Carpenters St. Louis
District Council or any other American Federation of Labor building and con-
struction trades union was the choice of a majority of the Respondent's employees
covered by the contract of July 28, 1947 Nor can the undersigned find that
employees who are hired, as were the Respondent's Decatur employees, as mem-
bers of a separate, sizeable, construction staff for a limited though appreciable
time, have such a community of interest with other employees of the same
employer in other parts of the country as would warrant grouping them in
8 Sec 102 . . . the provisions of section 8 (a) (3) . . . of the National'Labor Rela-
tions Act as amended by this title shall not make an unfair labor practice the performance
of any obligation under a collective -bargaining agreement entered into prior to the date of
the enactment of this Act, or (in the case of an agreement for a period of not more than
one year) entered into on or after such date of enactment, but prior to the effective date
of this title , if the performance of such obligation would not have constituted an unfair
labor practice under section 8 (3) of the National Labor Relations Act prior to the effec-
tive date of this title, unless such agreement was renewed or extended subsequent thereto.
Since the undersigned finds, for the reasons set forth in the text, that this contract does
not meet the more liberal requirements of the proviso to Section 8 (3) of the original Act,
it is unnecessary to pass upon the question of whether its term of 2 years subjected it to
the more stringent requirements of Section 8 (a) (3) of the amended Act It is therefore
assumed, though not decided, that the validity of this contract during its first year is to be
tested under the proviso to Section 8 ( 3) of the original Act.
470 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
an existing bargaining unit with the other employees, especially when the exist-
ing unit to which they would be annexed is already covered by a collective-
bargaining agreement negotiated by a representative presumably chosen by the
other employees. The undersigned therefore finds, contrary to the Respondent's
contentions, that it does not appear from the record that on July 28, 1947, the
Carpenters St Louis District Council represented a majority of the Respondent's
employees covered by the contract of that date, or that the employees sub-
sequently hired by the Respondent for the Decatur project became part of any
appropriate unit covered by that contract. Consequently, the undersigned con-
cludes that the contract made between the Respondent and the Carpenters St.
Louis District Council on July 28, 1947, did not satisfy the applicable require-
ments of the proviso to Section S (3) of the original Act and therefore, that it
did not justify the Respondent's refusal to hire applicants on the tubing plant
project unless they were referred to it for employment by the Decatur Carpenters
Local.
Foster & Creighton Company's oral agreement with 'the Muscle Shoals Coun-
cil, which was made in September 1946, also failed to satisfy the applicable re-
quirements of the proviso to Section 8 (3) of the original Act so far as the
Respondent's Decatur employees were concerned. The proviso permitted only
the execution and performance by an employer of a closed-shop or union-shop
contract which covered his own employees, for the obvious purpose of providing
him with a defense to the otherwise possible charge that he was thereby dis-
criminating in regard to the hire and tenure of his own employees and prospec-
tive employees. It certainly did not justify an agreement by Foster & Creighton,
as a general contractor, that his subcontractors would employ members of a
certain labor organization. Furthermore, although Foster & Creighton Com-
pany's agreement with the Muscle Shoals Council by its terms covered the em-
ployees of all the subcontractors on the tubing plant project, including the
Respondent, the Muscle Shoals Council or its constituent locals could not pos-
sibly have then been the majority representative of the Respondent's Decatur
staff of employees, which was not then in existence but was formed more than a
year later. The undersigned accordingly rejects the Respondent's contention
that Foster & Creighton Company's oral agreement, with the Muscle Shoals
Council had legally effective application to the Respondent's future Decatur
staff, or that it justified the Respondent's hiring only applicants for the, tubing
plant job who were referred to it by the Decatur Carpenters Local as a member
of the Muscle Shoals Council.
The Respondent's subcontract with Foster & Creighton Company and its ex-
clusive hiring arrangement with the Decatur Carpenters Local were both made
after August 22, 1947, and are, therefore, subject to the proviso to Section 8 (a)
(3) of the amended Act. Contrary to the requirements of this proviso, both of
these agreements conditioned original hire, as well as continuing employment,
upon membership in a labor organization, and neither agreement was authorized
in a Board-conducted election. Moreover, these agreements were also generally
defective, as were the contracts which have previously been discussed, in that at
the time they were made, there was no existing appropriate unit including -the
Respondent's Decatur employees, which had designated the Decatur Carpenters
Local or any other American Federation of Labor building and construction
trades union as its bargaining representative. Finally, the subcontract between
the Respondent and Foster & Creighton Company was , in any event not such a
DANIEL HAMM DRAYAGE COMPANY, INC. 471
contract as would be protected by either the proviso to Section 8 (3) of the
original Act or the proviso to Section 8 (a) (3) of the amended Act, since it was
not made with a labor organization. Because of these defects, the undersigned
flnds ,that neither the subcontract nor the agreement with the Decatur Carpenters
Local justified the Respondent's refusal to hire job applicants other than those
who were referred to it by the Decatur Carpenters Local.
Upon the foregoing considerations, the undersigned finds and concludes (1)
that none of the contracts or agreements relied upon by the Respondent justified
its practice of hiring for its Decatur staff of employees only such applicants as
were members of the Carpenters and referred to it by the Decatur Carpenters
Local, and refusing to hire other applicants; (2) that therefore by refusing to
hire H. B. Penn, Elmer L. Allen, R. L. Bryant, W. D. Sparks, Brooks Lindler,
Sam White, and Lon W. Smith, because they were not members of the Carpenters
referred to it for employment by the Decatur Carpenters Local, the Respondent
discriminated against these applicants in regard to their hire and tenure of em-
ployment, thereby encouraging membership in the Carpenters and also interfer-
ing with, restraining, and coercing its employees in the exercise of the rights
guaranteed in Section 7 of the Act; and (3) that the Respondent thereby com-
mittedtunfair labor practices within the meaning of Section 8 (a) (1) and (3)
of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in Section III, above, occurring in
connection with the operations of the Respondent described in Section I, above,
have a close, intimate, and substantial relation to trade, traffic, and commerce
among the several States, and tend to lead to labor disputes, burdening and
obstructing commerce and the free flow of commerce.
V. THE REMEDY
Since it has been found that the Respondent has engaged in unfair labor
practices within the meaning of Section 8 (a) (1) and (3) of the Act, the
undersigned will recommend that it cease and desist from and take certain
affirmative action in order to effectuate the policies of the Act.
The undersigned has found that the Respondent discriminated against H. B.
Penn, Elmer L. Allen, R. L. Bryant, W. D. Sparks, Brooks Lindler, Sam White,
and Lon W. Smith in regard to their hire and tenure of employment thereby
encouraging membership in United Brotherhood of Carpenters and Joiners of
America, a labor organization affiliated with the American Federation of Labor.
Since the copper tube plant project has been completed, the General Counsel does
not request any provision requiring the Respondent to offer these men employ-
ment. However, in accordance with the request of the General Counsel, and in
order to effectuate the policies of the Act, it will be recommended that the
Respondent make the said seven individuals whole for any loss of earnings
suffered by them by reason of the Respondent's discrimination against them,
by payment to each of them of a sum of money equal to that which he normally
would have earned as wages from the date of the Respondent's refusal to hire
him to August 22, 1948, the date of the completion of the project, less his net
earnings during that period."
10 Matter of Crossett Lumber Co., 8 N . I, R. B. 440, 497-498.
472' DECISIONS OF NATIONAL LABOR RELATIONS' BOARD
Upon the basis of the above findings of fact and upon the entire record in they
case, the undersigned makes the following :
CONCLUSIONS OF LAW
1. Lodge No . 1500, International Association of Machinists ; United Brother-
hood of Carpenters and Joiners of America , affiliated with the American Federa-
tion of Labor ; Carpenters ' District Council of St. Louis and vicinity ( A. F. of L.) ;
and Muscle Shoals Building and Construction Trades Council ( A. F. of L.) are
labor organizations within the meaning of Section 2 (5) of the Act.
2. By discriminating in regarding to the hire and tenure of employment of
H. B. Penn , Elmer L. Allen, R . L. Bryant, W . D. Sparks, Brooks Lindler, Sam
White, and Lon W . Smith, and thereby encouraging membership in United
Brotherhood of Carpenters and Joiners of America , affiliated with the American
Federation of Labor, the Respondent has engaged in and is engaging in unfair
labor practices within the meaning of Section 8 ( a) (3) of the Act
3. By interfering with, restraining , and coercing its employees in the exercise
of the rights guaranteed in Section 7 of the Act , the Respondent has engaged in
and is engaging in unfair labor practices within the meaning of Section 8 (1)
of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 ( 6) and ( 7) of the Act.
5. The Respondent has not discriminated against C . C. Rogers , as alleged in
the complaint.
RECOMMENDATIONS
Upon the basis of the above findings of fact and conclusions of law, the under-
signed hereby recommends that the Respondent , Daniel Hamm Drayage Company,
Inc., its officers , agents, successors , and assigns , shall :
1. Cease and desist from :
(a) Encouraging membership in United Brotherhood of Carpenters and Join-
ers of America , affiliated with the American Federation of Labor , or in any
other labor organization , by discriminatorily refusing to hire persons other than
members of such labor organizations;
(b) In any other manner interfering with, restraining , or coercing its em-
ployees in' the exercise of the right to self-organization , to form labor organiza-
tions, to join or assist any labor organization , to bargain collectively through
representatives of their own choosing , and to engage in concerted activities for
the purpose of collective bargaining or other mutual aid or protection, as
guaranteed in Section 7 of the Act.
2. Take the following affirmative action, which the undersigned finds will
effectuate the policies of the Act :
(a) Make whole H. B. Penn, Elmer L. Allen, R. L. Bryant , W. D. Sparks,
Brooks Lindler , Sam White , and Lon W. Smith for any loss of earnings they may
have suffered by reason of the Respondent 's discrimination against them, by
payment to each of them a sum of money equal to that which he normally would
have earned as wages in the employ of the Respondent from the date of the
Respondent 's refusal to employ him to August 22, 1948, less his net earnings
during the period ;
(b) Post at its office in St. Louis, Missouri , copies of the notice attached
hereto and marked "Appendix A ." Copies of said notice, to he furnished by the
Regional Director of the Tenth Region , shall, after being duly signed by the
Respondent , be posted by it immediately upon receipt thereof, and maintained
DANIEL HAMM DRAYAGE COMPANY, INC. 473
by it,for sixty (60) consecutive days thereafter, in conspicuous places, including
all places where notices to employees are customarily posted. Reasonable steps
,shall be taken by the Respondent to insure that said notices are not altered,
defaced, or covered by any other material ;
(c) Notify the Regional Director for the Tenth Region in writing within twenty
(20) days from the date of the receipt of this Intermediate Report, what steps the
Respondent has taken to comply with the foregoing recommendations. It is
further recommended that, unless the Respondent shall, within twenty (20)
days from the receipt of this Intermediate Report, notify the Regional Director
for the Tenth Region in writing that it will comply with the foregoing recommen-
dations, the National Labor Relations Board issue an order requiring the
Respondent to take the action aforesaid.
It is also recommended that the complaint, so far as it alleges that the
Respondent discriminatorily refused to employ C. C. Rogers, be dismissed.
As provided in Section 203.46 of the Rules and Regulations of the National Labor
Relations Board-Series 5, as amended August 18, 1948, any party may, within
twenty (20) days from the date of service of the order transferring the case to the
Board, pursuant to Section 203 45 of said Rules and Regulations, file with the
Board, Rochambeau Building, Washington 25, D. C, an original and six copies
of a statement in writing setting forth such exceptions to the Intermediate Report
and Recommended Order or to any other part of the record or proceeding (includ-
ing rulings upon all motions or objections) as he relies upon, together with the
original and six copies of a brief in support thereof ; and any party may, within
the same period, file an original and six copies of a brief in support of the Inter-
mediate Report and Recommended Order. Immediately upon the filing of such
statement of exceptions and/or briefs, the party filing the same shall serve a copy
thereof upon each of the other parties. Statements of exceptions and briefs
shall designate by precise citation the portions of the record relied upon and
shall be legibly printed or mimeographed, and if mimeographed shall be double
spaced. Proof of service on the other parties of all papers filed with the Board
shall be promptly made as required by Section 203.85 As further provided in
said Section 203.46 should any party desire permission to argue orally before
the Board, request therefor must be made in writing to the Board within ten
(10) days from the date of service of the order transferring the case to the Board.
In the event no Statement of Exceptions is filed as provided by the aforesaid
Rules and Regulations, the findings, conclusions, recommendations, and recom-
mended order herein contained shall, as provided in Section 203.48 of said Rules
and Regulations, be adopted by the Board and become its findings, conclusions,
and order, and all objections thereto shall be deemed waived for all purposes.
Dated at Washington, D. C, this 7th day of February 1949.
WLILIAM F. SCHARNIKOW,
Trial Examiner.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to an Intermediate Report and Recommended Order of a Trial Exam-
iner of the National Labor Relations Board, and in order to effectuate the policies
of the National Labor Relations Act, we hereby notify our employees that :
WE WILL NOT in any manner interfere with, restrain, or coerce our employ-
ees in the exercise of their right to self-organization, to form labor organiza-
tions, to join or assist any labor organization, to bargain collectively through
474 DECI41ONS OF NATIONAL LABOR RELATIONS BOARD
representatives of their own choosing, and to engage in concerted activities
for the purpose of collective bargaining or other mutual aid or protection.
WE WILL MAKE the following persons whole for any loss of earnings suffered
by them as a result of our failure to hire them :
H. B. Penn
Elmer L Allen
R L. Bryant
W D. Sparks
Brooks Lindler
Sam White
Lon W. Smith
WE WILL NOT refuse to hire any person because he is not a member of
UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, affiliated. with
the AMERICAN FEDERATION OF LABOR, or of any other labor organization.
DANIEL HAMM DRAYAGE COMPANY, INC.,
Employer.
Dated--------------------- By ---------------------------------------
(Representative) (Title)