Daugherty Co., Inc.

National Labor Relations Board - Board Decisions

Jun 1, 1955

112 N.L.R.B. 986 (N.L.R.B. 1955)

986 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Allied Electric rule. The Board has held that such ballots necessarily
tend to suggest Board approval of the material thereon, and therefore,
interfere with the employees' free choice in the election.2 Because of
this Board policy not to permit the reproduction and distribution of
marked sample ballots, the application of the Allied rule is not de-
pendent on whether the employees were, in fact, misled by the altered
ballot. In view, therefore, of the Board's rule that the reproduction
and distribution of altered sample ballots are, per se, sufficient grounds
for setting ,aside the election, we shall set aside the election held in the
present proceeding and direct that a new election be conducted.
[The Board set aside the election held on March 25, 1955.]
[Text of Direction of Election omitted from publication.]
9 Memp his Furnoiture Manufacturing Company, 111 NLRB 204.
Daugherty Company, Inc. and Joseph B. Irwin and Howard P.
McClure and United Association of Journeymen and Appren-
tices of the Plumbing and Pipe Fitting Industry of the United
States and Canada , A. F. of L., United Association of Journey-
men and Apprentices of the Plumbing and Pipe Fitting Indus-
try of the United States and Canada , Local Union No. 625, A. F.
of L., Parties to the Contracts
United Association of Journeymen and Apprentices of the Plumb-
ing and Pipe Fitting Industry of the United States and Canada,
A. F. of L., and James Switalski , Special Representative, and
United Association of Journeymen and Apprentices of the
Plumbing and Pipe Fitting Industry of the United States and
Canada, Local Union No . 625, A. F. of L. and Joseph B. Irwin
and Howard P. McClure and Daugherty Company, Inc.; Grin-
nell Company, Inc.; Hartwell Co., Inc.; Plumbing , Heating, Pip-
ing and Air Conditioning Contractors of Charleston, West
Virginia, and Vicinities , West Virginia Heating & Plumbing
Company, Conditioned Air, Inc., Casdorph Lippert Heating &
Plumbing Co ., Appalachian Heating & Plumbing Co ., Meyers
Bros., Bentley Plumbing & Heating, Goff Matthews Plumbing
Co., John R. Kegley, Inc., Thrush Refrigeration Co., Harry
Dougherty & Sons, Inc., Boddel & Company, Baldwin Plumb-
ing & Heating Co., J. E. Patton Plumbing & Heating, Paul K.
Yates Plumbing & Heating, H. M. Krafft Plumbing & Heating,
Webster Plumbing & Appliance Co., Inc., Parties to the Con-
tracts
112 NLRB No. 122.
DAUGHERTY COMPANY, INC. 987
United Association of Journeymen and Apprentices of the Plumb-
ing and Pipe Fitting Industry of the United States and Canada,
A. F. of L., and James Switalski, Special Representative, and
the United Association of Journeymen and Apprentices of the
Plumbing and Pipe Fitting Industry of the United States and
Canada, Local Union No. 625, A. F. of L. and Paul McClure
and The Babcock and Wilcox Company; Plumbing, Heating,
Piping and Air Conditioning Contractors of Charleston, West
Virginia, and Vicinities, West Virginia Heating & Plumbing
Company, Conditioned Air, Inc., Casdorph Lippert Heating
91, Plumbing Co., Appalachian Heating & Plumbing Co., Mey-
ers Bros., Bentley Plumbing & Heating, Goff Matthews Plumb-
ing Co., John R. Kegley, Inc., Thrush Refrigeration Co., Harry
Dougherty & Sons, Inc., Boddel & Company, Baldwin Plumb-
ing & Heating Co., J. E. Patton Plumbing & Heating, Paul K.
Yates Plumbing & Heating, H. M. Krafft Plumbing & Heating,
Webster Plumbing & Appliance Co., Inc., Parties to the Con-
tracts. Cases Nos. 9-CA-731, 9-CB-9201, and 9-CB-902. June 1,
1955
DECISION AND ORDER
On October 7, 1954, Trial Examiner Stephen S. Bean issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondents had engaged in and were engaging in certain unfair
labor practices and recommending that they cease and desist there-
from and take certain affirmative action, as set forth in the copy of the
Intermediate Report attached hereto. The Trial Examiner also found
that the Respondents had not engaged in certain other alleged unfair
labor practices and recommended that the complaint be dismissed
with respect to such allegations. Thereafter, the General Counsel
filed exceptions to the Intermediate Report and a supporting brief.
The Respondents filed briefs in support of the Intermediate Report.
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
the case and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner, with the additions and modifications
noted below.
1. We agree with the Trial Examiner that the Respondent Com-
pany and the Respondent Unions respectively violated Section 8 (a)
(3) and (1) and Section 8 (b) (2) and (1) (A) of the Act by main-
taining and enforcing hiring agreements not sanctioned by the Act.
As the record establishes, and as the Trial Examiner found, that the
Respondent United also maintained and enforced an illegal hiring
988 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
agreement with Grinnell Company and Hartwell Co.,' and that the
Respondent Local 625 maintained and enforced an illegal hiring agree-
ment and practice with the named Local Contractors 2 and Babcock
and Wilcox Company,' we find that the Respondent Unions thereby
also violated Section 8 (b) (2) and (1) (A) of the Act. Accordingly,
we shall modify the Trial Examiner's recommended order against the
Respondent Unions to require the Unions to cease and desist from
maintaining and enforcing unlawful hiring agreements, understand-
ings, or practices, not only with the Respondent Company, but also
with Grinnell Company, Hartwell Co., the Local Contractors, and Bab-
cock and Wilcox Company. We shall also similarly enjoin the Re-
spondent Unions from causing or attempting to cause the foregoing
companies to engage in illegal hiring practices. Because of the Re-
spondent Unions' widespread use of hiring agreements and practices
not sanctioned by the Act, we find that it will effectuate the policies of
the Act to require the Respondent Unions to refrain from maintaining
or enforcing such agreements, understandings, and practices with
other employers and from causing or attempting to cause such other
employers to discriminate against employees in violation of the Act.4
However, the restrictions thus imposed upon the Respondent Unions
are not intended to apply to any employer over whom the Board will
not assert jurisdiction.'
2. Contrary to the General Counsel's contention, we agree with the
Trial Examiner that the Respondent Unions and International Rep-
resentative Switalski did not violate Section 8 (b) (2) and (1) (A)
of the Act in causing the discharge of Joseph B. Irwin and Howard
P. McClure and that the Respondent Company did not violate Section
8 (a) (3) and (1) of the Act in discharging these employees. As dis-
cussed in the Intermediate Report, Irwin and McClure 6 were dis-
i These companies are signatories to the same contract as the Respondent Company
and were served with copies of the complaint herein which identified them as Parties to
the Contract
9 We find that Plumbing, Pleating, Piping and Air Conditioning Contractors of Charles-
ton, West Virginia, and Vicinities, herein called Local Contractors, is engaged in commerce
within the meaning of the Act
3 All the local contractors named in the complaint are signatories to the June 1953 area
contract and eight of them were also signatories to the June 1952 area agreement. The
Babcock and Wilcox Company orally adopted the area agreements and complied with them
These companies were served with copies of the complaint which identified them as Parties
to the Contiact
4International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of
America, APL, Local 179, 110 NLRB 287, cf. N. L P B. V. Express Publishing Company,
312 U. S 426. 436-437
6 Sterling Furniture Company, 105 NLRB 653 remanded 202 F 2d 41, 44-45 (C A. 9).
The Board's prevailing standards for the assertion of jurisdiction are indicated in Jones-
boro Grain Drying Cooperative, 110 NLRB 481, and other reported decisions
e The Trial Examiner erroneously stated in his Intermediate Report that McClure signed
an apprenticeship agreement on August 25, 1953, instead of October 1, 1951.
DAUGHERTY COMPANY, INC. 989
charged because, although only apprentices , they had improperly been
referred to, and were working on the job as journeymen at journey-
men's wages , and because they, as well as other apprentices , were in ex-
cess of the number of apprentices allowable on the job under the par-
ties' contracts . As these employees were thus discharged for reasons
unrelated to union membership or the performance of union obliga-
tions, we find that the Respondent Company did not discriminate
against them to encourage union membership within the meaning of
Section 8 ( a) (3). By the same token, we find that the Respondent
Unions did not cause or attempt to cause the Respondent Company to
discriminate against employees , within the meaning of Section 8 (b)
(2).' Accordingly, we shall dismiss the allegations of the complaint
relating to the discharge of Irwin and McClure.
ORDER
Upon the entire record in this case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that :
I. The Respondent, Daugherty Company, Inc., Youngstown, Ohio,
its officers, agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Executing, maintaining, or enforcing any provision of an agree-
ment or understanding or from maintaining any practice with United
Association of Journeymen and Apprentices of the Plumbing and Pipe
Fitting Industry of the United States and Canada, A. F. of L., or its
Local Union No. 625, which requires membership in either organiza-
tion as a condition of employment, except as authorized by Section 8
(a) (3) of the Act.
(b) Requiring employees or applicants for employment to obtain
clearance or job referrals from the above-named Unions or from any
other local of the Respondent United Association of Journeymen and
Apprentices of the Plumbing and Pipe Fitting Industry of the United
States and Canada, A. F. of L., as a condition of employment, except
to the extent permitted by Section 8 (a) (3) of the Act.
(c) In any like or related manner interfering with, restraining, or
coercing its employees or applicants for employment, in the exercise
of their right to self-organization, to form, join, or assist labor organi-
zations, to bargain collectively through representatives of their own
choosing, and to engage in concerted activities for the purpose of col-
lective bargaining or other mutual aid or protection, or to refrain
7 Cf. Radio Officers' Union etc. V D' L. R B., 347 U. S. 17.
D90 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
from any and all such activities, except to the extent that such right
may be affected by an agreement requiring membership in a labor
organization as a condition of employment, as authorized in Section
8 (a) (3) of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Post at its main office at Youngstown, Ohio, and at all projects
now being operated by it at which pipefitters are employed, copies of
the notice attached hereto marked "Appendix A." 8 Copies of such
notice, to be furnished by the Regional Director for the Ninth Region,
shall, after being duly signed by the Respondent Company's repre-
sentative, be posted by it immediately upon receipt thereof, and main-
tained 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 Company
to insure that said notices are not altered, defaced, or covered by any
other material.
(b) Notify the Regional Director for the Ninth Region, in writing,
within ten (10) days from the date of this Order, as to what steps the
Respondent Company has taken to comply herewith.
II. The Respondent United Association of Journeymen and Ap-
prentices of the Plumbing and Pipe Fitting Industry of the United
States and Canada, A. F. of L., Washington, D. C., and the Respondent
United Association of Journeymen and Apprentices of the Plumbing
and Pipe Fitting Industry of the United States and Canada, A. F.
of L., Local Union No. 625, Charleston, West Virginia, their officers,
representatives, agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Executing, maintaining, or enforcing any provision of an
agreement or understanding, or from maintaining any practice with,
Daugherty Company, Inc., Grinnell Company, Inc., Hartwell Co.,
Inc., Plumbing, Heating, Piping and Air Conditioning Contractors
of Charleston, West Virginia, and Vicinities, The Babcock and Wilcox
Company, or any other employer, which requires membership in their
organization as a condition of employment, except as authorized by
Section 8 (a) (3) of the Act.
(b) Causing or attempting to cause Daugherty Company, Inc.,
Grinnell Company, Inc., Hartwell Co., Inc., Plumbing, Heating, Pip-
ing and Air Conditioning Contractors of Charleston, West Virginia,
and Vicinities, The Babcock and Wilcox Company, or any other em-
8 In the event that this Order is enforced by decree of a United States Court of Appeals,
there shall he 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 "
DAUGHERTY COMPANY, INC. 991
ployer to require employees or applicants for employment to obtain
clearance or job referrals as a condition of employment from the
Respondent Unions or from any local union of United Association of
Journeymen and Apprentices of the Plumbing and Pipe Fitting In-
dustry of the United States and Canada, A. F. of L., except to the
extent permitted by Section 8 (a) (3) of the Act.
(c) In any like or related manner restraining or coercing employees
of, or applicants for employment with, the above-named Employers
or any other employer in the exercise of their 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 organiza-
tion as a condition of employment, as authorized by Section 8 (a) (3),
of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Post at their respective business offices and meeting halls in
Washington, D. C., and Charleston, West Virginia, copies of the
notice attached hereto marked "Appendix B."' Copies of said notice,
to be furnished by the Regional Director for the Ninth Region, shall,
after being duly signed by representatives of the Respondent Unions,
be posted by them immediately upon receipt thereof, and maintained
by them for sixty (60) consecutive days thereafter in conspicuous
places, including all places where notices to members are customarily
posted. Reasonable steps shall be taken by the Respondent Unions to
insure that such notices are not altered, defaced, or covered by any
other material.
(b) Mail to the Regional Director for the Ninth Region signed
copies of the notice attached hereto marked "Appendix B," for posting,
the Respondent Daugherty Company, Inc., being willing, at building
projects on which the said Respondent Company is engaged and em-
ploys pipefitters, in places where notices to employees are customarily
posted. Copies of said notices, to be furnished by the Regional Director
for the Ninth Region, shall, after being signed as provided for above,
be forthwith returned to the said Regional Director for the Respondent
Company's permissive posting.
(c) Notify the Regional Director for the Ninth Region, in writing,
within ten (10) days from the date of this Order, as to what steps
the Respondent Unions have taken to comply herewith.
IT Is FURTHER ORDERED that the complaint be, and it hereby is, dis-
missed insofar as it alleges that the Respondent Daugherty Company,
Inc., violated Section 8 (a) (3) and (1) of the Act in discharging
"See footnote 8
992 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Joseph B. Irwin and Howard P. McClure , and that the Respondent
United Association of Journeymen and Apprentices of the Plumbing
and Pipe Fitting Industry of the United States and Canada, A. F.
of L., and the Respondent United Association of Journeymen and
Apprentices of the Plumbing and Pipe Fitting Industry of the United
States and Canada, Local Union No. 625, A. F. of L., violated Sec-
tion 8 ( b) (2) and (1) (A) of the Act in causing these discharges, and
insofar as the complaint alleges that the Respondent James Switalski
engaged in any unfair labor practices.
MEMBERS RODGERS and LEEDOM took no part in the consideration of
the above Decision and Order.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board and in order to effectuate the policies of the National Labor
Relations Act, as amended , we hereby notify our employees that :
WE WILL NOT execute, maintain , or enforce any provision of an
agreement or understanding , or maintain a practice with, United
Association of Journeymen and Apprentices of the Plumbing
and Pipe Fitting Industry of the United States and Canada,
A. F. of L., or its Local Union No . 625, which requires member-
ship in either organization as a condition of employment , except as
authorized by Section 8 (a) (3) of the Act.
WE WILL N OT require our employees or applicants for employ-
ment to obtain clearance or job referrals from the above-named
Unions or from any other local of United Association of Journey-
men and Apprentices of the Plumbing and Pipe Fitting Industry
of the United States and Canada, A. F . of L., as a condition of
employment, except to the extent permitted by Section 8 (a) (3)
of the Act.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce our employees or applicants for employment, in
the exercise of their right to self-organization , to form, join, or
assist labor organizations , to bargain collectively through repre-
sentatives of their own choosing , and to engage in concerted ac-
tivities for the purpose of collective bargaining or other mutual
aid or protection , or to refrain from any and all such activities,
except to the extent that such right may be affected by an agree-
ment requiring membership in a labor organization as a condition
of employment , as authorized in Section 8 (a) (3) of the Act.
DAUGHERTY COMPANY, INC. 993
All our employees are free to become, remain , or refrain from be-
coming or remaining , members of the above-named Unions or any other
labor organization , except to the extent that this right may be af-
fected by an agreement authorized in Section ( a) (3) of the Act.
DAUGHERTY COMPANY, INC.,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered , defaced, or covered by any other material.
APPENDIX B
NOTICE TO ALL MEMBERS OF UNITED ASSOCIATION OF JOURNEYMEN AND
APPRENTICES OF TILE PLUMBING AND PIPE FITTING INDUSTRY OF THE
UNITED STATES AND CANADA, AFL, INCLUDING MEMBERS OF LOCAL
UNION No. 625, AND ALL EMPLOYEES OF DAUGHERTY COMPANY, INC.
Pursuant to a Decision and Order of the National Labor Relations
Board and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify you that :
AVE WILL NOT execute, maintain, or enforce any provision of an
agreement or understanding, or maintain a practice with
Daugherty Company, Inc., Grinnell Company, Inc., Hartwell Co.,
Inc., Plumbing, Heating, Piping and Air Conditioning Contrac-
tors of Charleston, West Virginia, and Vicinities, The Babcock
and Wilcox Company, or any other employer, which requires
membership in their organization as a condition of employment,
except as authorized by Section 8 (a) (3) of the Act.
^jrE WILL NOT cause or attempt to cause Daugherty Company,
Inc., Grinnell Company, Inc., Hartwell Co., Inc., Plumbing,
Heating, Piping and Air Conditioning Contractors of Charleston,
West Virginia, and Vicinities, The Babcock and Wilcox Company,
or any other employer to require employees or applicants for em-
ployment to obtain clearance or job referrals as a condition of
employment from our organization or from any local union of
United Association of Journeymen and Apprentices of the
Plumbing and Pipe Fitting Industry of the United States and
Canada, A. F. of L., except to the extent permitted by Section 8
(a) (3) of the Act.
WE WILL NOT in any like or related manner restrain or coerce
employees of, or applicants for employment with, the above-
named Employers or any other employer in the exercise of their
994 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 by Section 8 (a) (3) of the Act.
UNITED ASSOCIATION OF JOURNEYMEN AND
APPRENTICES OF TITS PLUMBING AND PIPE
FITTING INDUSTRY OF TILE UNITED STATES
AND CANADA , A. F. OF L.,
Labor Organization.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
UNITED ASSOCIATION OF JOURNEYMEN AND
APPRENTICES OF TITE PLUMBING AND PIPE
FITTING INDUSTRY OF TITE UNITED STATES
AND CANADA , LOCAL UNION No. 625,
A. F. OF L.,
Labor Organization.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered , defaced, or covered by any other material.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
Charges were filed by Joseph B. Irwin herein called Irwin and an amended charge
was filed by Irwin and Howard P. McClure, herein called McClure,' against the
above-named Respondent Company, herein called the Company, and the Respondent
Unions, herein called on occasion United and Local 625, respectively, and on occa-
sion the Union, jointly, in Cases Nos 9-CA-731 and 9-CB-201 and a charge was
filed by Paul McClure,2 against Respondents United and James Switalski and an
amended charge was filed by Paul McClure against Respondents United, Switalski,
and Local 625 in Case No. 9-CB-202. On April 29, 1954, the General Counsel for
the National Labor Relations Board, herein called the General Counsel and the
Board, respectively, through the Regional Director for the Ninth Region, entered an
order consolidating the three cases and issued a complaint alleging that the Respond-
ents had engaged in unfair labor practices affecting commerce within the meaning of
the National Labor Relations Act, 61 Stat. 136, herein called the Act. More specifi-
cally, the complaint alleged that Respondent Company violated Section 8 (a) (1)
and (3) of the Act by discharging Irwin and McClure, hereinafter occasionally called
the complainants, on September 1, 1953, and failing to reinstate them and by main-
taining and enforcing written agreements, understandings, and practices containing
terms and conditions of employment violative of Section 8 (a) (3) of the Act. It
alleged that Respondent Union and its special agent, Switalski, violated Section 8
(b) (1) (A) and (2) of the Act by attempting to cause and causing Respondent Com-
pany to discharge Irwin and McClure and by maintaining, attempting to enforce, and
enforcing written agreements, understandings, and practices containing terms and
conditions of employment violative of Section 8 (a) (3) of the Act.
Respondent Union filed an answer in all cases, denying generally the allegations of
the complaint. It affirmatively alleged that Irwin and McClure falsely and fraudu-
'As will appear, IToward P McClure sought to withdraw his charge before the hearing
and may be considered as not thereafter having been represented by Air Maroney.
s Paul McClure , having been a supervisor, was not named in the complaint.
DAUGHERTY COMPANY, INC. 995
lently represented themselves to Respondent Company as journeymen pipefitters
when in truth and fact they were apprentices; that by virtue of their false representa-
tions, they received journeymen's wages under a collective-bargaining agreement
when they should have been receiving apprentices' wages; and that their employment
was terminated because of their false representations Respondent Company (also
Hartwell Co., Inc, and Grinnell Company, Inc.) filed an answer in Cases Nos.
9-CA-731 and 9-CB-201, denying generally the material allegations of the com-
plaint imputing to them the commission of unfair labor practices
Pursuant to notice, a hearing was held on May 25, 26, and 27, 1954, at Charleston,
West Virginia, and on July 26, 1954, at Washington, D. C., before me, the Trial
Examiner duly designated by the Chief Trial Examiner. The General Counsel, the
Respondent Union, the Respondent Company, and the Charging Parties, Irwin and
Paul McClure, were represented by counsel. Full opportunity to be heard, to ex-
amine and cross-examine witnesses, to present oral argument and file briefs as well
as proposed findings of fact and conclusions of law was afforded all parties. A mo-
tion for costs and attorney's fees made by counsel for Irwin must be denied, there
being no warrant in the Act for its allowance. Other motions made during the course
of the hearing, on which rulings were reserved, are disposed of in accordance with
the findings of fact and rulings of law made below. Briefs filed by the Company, the
General Counsel, and the Union, on August 25, 26, and 27, 1954, have been care-
fully considered.
Upon the entire record in the case, and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
Respondent Company, Daugherty Company, Inc., is an Ohio corporation main-
taining its principal office and place of business in Youngstown, Ohio, and is en-
gaged in the business of performing industrial and power plant construction through-
out the United States. At all times material to the issues in this case, the Company
was engaged tinder a contract assigned to it by Grinnell Company, Inc. (a joint sig-
natory with the Company to a nationwide collective-bargaining agreement with
United to be mentioned later, and named as a Party to the Contract in Case No.
9-CB-201) , in the erection of systems of piping of various descriptions in an electric
energy plant being constructed at a cost in excess of $6,000,000 near Glasgow, West
Virginia, for Appalachian Electric Power Company, a Virginia public utility corpo-
ration engaged in the business of producing and distributing electric energy in the
State of West Virginia.
There is evidence that the Company's part in this project terminated on May 20,
1954.
During the 12 months prior to May 26, 1954, the Company caused materials and
supplies valued at more than $500,000 to be shipped to the Glasgow project site
from points in States outside the State of West Virginia, and also performed piping
construction in several States, including Texas, Ohio, and Pennsylvania, and caused
materials and supplies valued at more than $500,000 to be shipped into those States
from points other than the States of Texas, Ohio, and Pennsylvania.
During the past 12 months, The Babcock and Wilcox Company (named as a
Party to the Contract in Case No. 9-CB-202), which is a New Jersey corporation
and a manufacturer and erector of power plant boilers throughout the United States
and which erected the boilers at the Glasgow project, caused to be purchased and
shipped to its site, materials and supplies valued at more than $1,000,000, over 90
percent in value of which was shipped to The Babcock and Wilcox Company from
points in States other than the State of West Virginia.
There is evidence that The Babcock and Wilcox Company's part in the Glasgow
project terminated in January 1954.
During the past 12 months, Hartwell Co., Inc. (also a joint signatory with the
Company as well as with Grinnell Company, Inc, to the nationwide collective-bar-
gaining agreement with United, referred to above, and named as a Party to the Con-
tract in Case No 9-CB-201), which is a Rhode Island corporation with its home
office and principal place of business in Providence, Rhode Island, performed piping
construction in several States of the United States and caused materials and supplies
valued at more than $1,000,000 to be shipped to it from points in States other than
the States in which its project sites were located.
During the past 12 months for which figures are available, Harry Dougherty and
Sons, Inc., unaffiliated with Respondent Daugherty Company, Inc. (named as a
369028=I6-vol 112---- 64
996 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Party to the Contract in Cases Nos. 9-CB-201 and 9-CB-202), a Pennsylvania
plumbing contractor corporation, which did a total business in the amount of
$3,200,000 and in the State of West Virginia to the extent of $660,000 and has per-
formed work for 3 years under a contract in the State of Ohio to the total extent of
$800,000, caused to be purchased and shipped to jobs in the State of West Virginia,
materials and supplies valued at approximately $300,000, approximately 10 percent
in value of which was shipped to it from points in States other than the State of
West Virginia.
It is admitted that Respondent Company, Daugherty Company, Inc, The Bab-
cock and Wilcox Company, Grinnell Company, Inc., Hartwell Co., Inc., and Appa-
lachian Electric Power Company are engaged in commerce and business activities
which affect commerce, as defined in the Act, and I find that Respondent Company
is engaged in commerce within the meaning of the Act, and that it will effect the
policies of the Act to assert jurisdiction in these cases.3
II. THE LABOR ORGANIZATIONS INVOLVED
United Association of Journeymen and Apprentices of the Plumbing and Pipe
Fitting Industry of the United States and Canada, A. F. of L., and the United Asso-
ciation of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry
of the United States and Canada, Local Union No. 625, A. F. of L., are labor
organizations within the meaning of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Alleged violations by the Company in maintaining and enforcing illegal hiring
agreements and by the Union in maintaining and enforcing, and causing the
Company to maintain and enforce, the same
1. The nationwide agreement with United
On March 19, 1953, the Company, together with Grinnell Company, Inc., and
Hartwell Co., Inc., executed a "National Agreement" with United containing clauses,
the mole pertinent of which, or portions of which, are as follows:
The Employer agrees to employ Journeymen and Apprentice members of
the Union on all work coming under the jurisdiction of the Union, as set
forth herein
The Employer agrees that none but Journeymen Pipe Fitters and registered
Apprentices whose qualifications as such are recognized by the Union and
Employer as hereinafter set out, shall be employed. .
It is agreed that Employer will use Journeymen and Apprentice members
of the Union in good standing on all work coming under the jurisdiction of
the United Association of Journeymen and Apprentices of the Plumbing and
Pipe Fitting Industry of the United States and Canada. . . .
The Employer shall secure his Journeymen and Apprentices from the Local
Union having territorial jurisdiction over the job.
The Employer agrees that wherever the Local Union's contract or working
rules are in conflict with the National Agreement . . . the local contract or
working rules shall prevail.
This agreement shall be in full force and effect for a period of one (1) year
from the above date [March 19, 1953] and shall continue from year to year
thereafter, unless notice of termination or modification is given in writing by
either party to the other sixty (60) days prior to such anniversary date.
On March 19, 1953, Hugh Welshman, Jr., who acted as the Company's agent in
negotiating and executing this agreement, wrote (with presumable, though not
necessarily sole, reference to a paragraph providing that "the Employer agrees,
insofar as Employer can under existing conditions of applicable State and Federal
On August 10, 1954, the General Counsel mailed to the Trial Examiner and all parties
a statement that facts and stipulations contained in the record disclose that Daugherty
Company, Inc, The Babcock and Wilcox Company, and Master Plumbers Association of
Charleston, West Virginia (Plumbing, Heating, Piping and Air Conditioning Contractors
of Charleston, `Vest Virginia, and Vicinities), ale engaged in commerce within the new
jurisdictional standards of the National Labor Relations Board, announced, June 30, 1954.
For findings concerning the business of 8 out of l6 companies associated as Plumbing,
FIeating, Piping and Air Conditioning Contractors of Charleston, West Virginia, and
Vicinities and named as parties to the contract, reference is here made to footnote 4, infra.
DAUGHERTY COMPANY, INC. 997
laws, that it shall be a condition of continuous employment for an employee to
become and remain a member of the Union as provided by law") Peter I. Schoemann,
United's acting general president. The letter stated that the National Agreement
had been signed with the understanding that United was not demanding or requesting
a closed shop, but that its members would work under the Labor Management
Relations Act union-security provisions. Schoemann replied that Welshman might
be sure that the stipulation as to any clause which might be interpreted illegal insofar
as the Taft-Hartley Act is concerned, would be met and that United intended to
see that all of the provisions of the contract were carried out insofar as is possible.
The March 19, 1953, contract is still in effect having been automatically renewed
in the same language in accordance with its terms. As it now stands the contract
will not expire until March 19, 1955.
2. The area agreement with Local 625
By virtue of contracts running respectively from June 1, 1952, to June 1, 1953,
and from June 1, 1953, to June 1, 1954, there has been in existence an areawide
collective-bargaining agreement governing the relationship between a group of 16
local contractors,4 including Harry Dougherty and Sons, Inc., mentioned supra
(named as Parties to the Contracts in Cases Nos. 9-CB-201 and 9-CB-202), called
"the Plumbing, Heating, Piping and Air Conditioning Contractors of Charleston,
West Virginia, and Vicinities," herein called the Local Contractors, and Local 625
to which United ceded territorial jurisdiction over an area including that in which
the Company operated in Glasgow. This agreement contains clauses, the more
pertinent of which, or portions of which, are as follows:
Party of the first part agrees that they will employ only members of Journey-
men and Apprentices of Local Union No. 625.
Upon the signing of this agreement, Party of the first part will immediately
employ members of the United Association on all other jobs under their super-
vision or under contract by them. All members to be assigned by their respective
Local Union.
The contractor must keep within the terms of this agreement, and the Working
Rules of Local Union No. 625... .
The working rules provide that:
The Business Manager will furnish all contractors or Employers with the
required journeymen for all jobs under the jurisdiction of Local No. 625. No
member will be hired on any job unless assigned to job by the Business Manager;
and, in regard to stewards, that
Upon being appointed shop and job steward by the Business Agent, he shall
work under instructions of the Business Agent and/or Executive Board in the
execution of his duties. . . Stewards shall check all members dues books on
the first of each month, and see that they have building trade cards and report
at each meeting how many men are working and notify the Executive Board
or Financial Secretary of any delinquent member, upon removing said member
from the job.
All of the contractors named in the area agreements, as well as The Babcock and
Wilcox Company, employed union labor. Most, but not all of them, are members
of Charleston Master Plumbers Association. Not all of the members of Charleston
Master Plumbers Association are parties to the area agreements. Those who are
not, do not employ union labor.
3. Hiring procedure
In late 1951 or early 1952 when the Company's work was about to start, Fred M.
Daugherty, its president, accompanied by its job superintendent, visited Clifford G.
4 Eight of the local contractors named in the complaint were signatories to the contract
running from June 1952 to June 1, 1953, and all 16 were signatories to the contract
running from June 1, 1953, to June 1, 1954. During the past 12 months the 8 local con-
tractors who were parties to both contracts collectively caused materials and supplies
valued at more than $1,000,000 to be shipped into West Virginia from States other than
the State of West Virginia and during the same period shipped materials and supplies
valued at mote than $100,000 to points and States outside the State of West Virginia and
from points and States in which they were engaged in business.
998 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Morris, then business agent of Local 625, and Robert C. Rogers, then its financial
secretary, at the Local's office in Charleston.
At this meeting Daugherty stated that he did not know exactly when the job was
to begin and requested and was given copies of the Local's contract with the Local
Contractors, additional copies of which were later mailed to the Company's princi-
pal office at Youngstown. Daugherty was informed and assured that when he needed
pipefitters and steamfitters the Local could furnish them to the best of its ability.
In turn, Daugherty assured Local 625's representatives that he would abide by the
Local's agreement with the Local Contractors to the best of his ability. No written
agreement between Local 625 and the Company was executed. Daugherty knew
that the Local 625 was the only available source from which pipefitters and steam-
fitters could be obtained in the Glasgow area. In its hiring practices the Company
conformed to the contractual requirements in the nationwide agreement to employ
union members, to employ none but journeymen and apprentices whose qualifica-
tions as such were recognized by it and the Union, to use journeymen and apprentice
members of the Union in good standing, and to secure its journeymen and appren-
tices from Local 625. The Company generally conformed to the provisions in the
area agreement and working rules to employ only members of Local 625.
All journeymen hired by the Company were referred (assigned) to the job by
Local 625's Business Agent Morris or Secretary Rogers, up to August 11, 1953, from
then to September 2, 1953, by William C. Reed, who replaced Morris, through
Rogers, and from September 2, 1953, and thenceforth, as well, by C. W. Worley,
who succeeded to Reed's business agent functions.5
Worley testified that he thus referred about 60 individuals.
No persons other than those who were referred by Local 625, applied to the Com-
pany for work and no other method of hiring than through such referrals was used.
The following method of hiring was employed by the Company during the course
of its Glasgow operations:
Upon a call from the Company for pipefitters, Morris, Rogers, Reed, or Worley
sent to the Company the number of men requested, each armed with a referral slip
in the form of a recommendation All prospective employees thus referred were
either members of Local 625 or of United or individuals who had filed applications
for such membership. The latter were called "permit men." Instead of paying $5 a
month journeymen's or $3 a month apprentices' dues, permit men were charged $2 a
week. Upon arrival at the job site, the prospective employee turned over his re-
ferral slip to the job steward (who occasionally checked with Local 625's office before
0. K.'ing the slip of a permit man). The steward then took the applicant to the
timekeeper or paymaster who filled out his W-2 form, whence he went out on the
job. The steward turned over the referral slips after checking them to the Company's
job superintendent. When layoffs became necessary, usually members of locals of
United other than 625 were dropped first, then permit men, and lastly members of
Local 625.
Applicants were also referred to, hired by, and laid off by The Babcock and Wilcox
Company whose work of boiler installations was completed in January 1954, in
much the same fashion as they were sent to, hired by, and laid off by Respondent
Company.
In 1952 there was a conference between Messrs. Morris and Reed for Local 625
and Messrs. Severs and Popoff for the boiler installers. Severs asked for copies of the
contract and working rules, assured Morris and Rogers that he would go along with
Local 625 to the fullest extent, and stated he would call upon it to supply men as
they became needed. After some disagreement and a threat by Morris of taking
"drastic steps" which arose over The Babcock and Wilcox Company employing non-
member boilermakers in the performance of work Local 625 claimed to be within
its jurisdiction, and following an agreement by Morris and Severs that one of Local
625's members, Paul McClure, who had been working for Daugherty Company, Inc.,
would be acceptable as The Babcock and Wilcox's general foreman, McClure started
asking Morris for men. In response to these requests Morris or Rogers, beginning
on December 18, 1952, and continuing to April 23, 1953, sent on signed referral
slips to The Babcock and Wilcox Company at least 49 employees These slips were
on printed forms with blank spaces for the date, name, and location of the job, the
name of contractor, and the name of the referred person and his status in Local 625.
All disclosed that the applicants were members of Local 625. The job steward saw
5 Reed was appointed acting supervisor of Local 625 under United's order suspending
the Local's charter and after approximately 3 weeks Worley was appointed to assume the
position of business agent which previously had been a part of Reed's duties
DAUGHERTY COMPANY, INC. 999
to it that each applicant possessed a referral slip before he was taken to the office,
signed up, and put on the payroll. After Morris was relieved of his duties on August
11, 1953, Worley does not recall having referred any pipefitters to The Babcock and
Wilcox Company but he has referred a number of welders to that Company.
The record shows that Local 625 has also referred members to other employers
in the area for employment and other employers have hired them, in a manner simi-
lar to that pursued by and followed by the Local and Respondent Daugherty Com-
pany, Inc., and The Babcock and Wilcox Company. Thus Irwin was sent out on
a referral slip and was working as a journeyman for Riggs-Distler Company, a na-
tional contractor, when he was initiated as an apprentice on August 28, 1951, and
McClure was given a referral slip to Bechtol Corporation (not named as a Party to
the Contract), as an apprentice on October 12, 1953, but did not go to work and was
given a referral slip on May 25, 1954 (the day this hearing started), to Harry
Dougherty and Sons, Inc., whom we have seen was a Party to the Contract, whose
representative, when telephoned to by Worley, said he would employ McClure.
4. Conclusions
Section 8 (a) (3) of the Act forbids an employer "to encourage or discourage
membership in any labor organization by discrimination in regard to hire or tenure
,of employment." Section 8 (b) (2) prohibits a union from causing an employer to
violate Section 8 (a) (3). Both employer and union violate these prohibitions if
they execute, maintain, or enforce a closed-shop agreement making union member-
ship a prerequisite to initial employment or arrange to give union employees priority
in employment, whether through the device of requiring referral by the Union, or not.
N. L. R B. v. McGraw and Co, 206 F. 2d 635 (C. A. 6) and cases cited at p. 639.
Derivatively, such discriminatory hiring practices also constitute restraint or coercion
of employees which is forbidden by Section 8 (a) (1) and (b) (1) (A) of the Act.
In my opinion the facts plainly show that membership, or application for mem-
bership, in Local 625 or membership in United was a condition of employment
by the Company, by the Local Contractors in the territorial jurisdiction ceded to
Local 625 by United, and by The Babcock and Wilcox Company which orally
adopted the area agreement and in practice carried out the method of hire it pre-
scribed. The Company's compliance in practice with the requirements of the area
agreement to employ none but members of the Local assigned to the job by its
business manager constituted an adoption of its terms as a supplement to the National
Agreement in which it covenanted to secure journeymen and apprentices from the
local union having territorial jurisdiction over the job in accordance with the proced-
ure provided in the area agreement.
Because of this system of hiring, nonunion employees had no alternative but to
apply for membership as a prerequisite for obtaining jobs; existing members were
constrained to retain their memberships to preserve their opportunity for employ-
ment. Whether the end result of the agreements and the practices ensuing there-
from may be characterized as maintaining a closed shop or preferential hiring, the
arrangement between Union and Company clearly contravened the provisions of
Section 8 (a) (3) of the Act prohibiting a contractual requirement of union mem-
bership as a condition of employment except on or after its 30th day. Moreover,
even after the 30-day period expires a union may not condition employment upon
qualifying for membership unless such qualification is restricted to tendering "the
periodic dues and initiation fees uniformly required as a condition of acquiring or re-
taining membership." As the Supreme Court said in Radio Officers' Union etc. v.
N. L. R. B , 347 U. S 17, 41 ". . . Congress intended to prevent utilization of union
security agreements for any purpose other than to compel payment of union dues
and fees "
Respondents cannot escape responsibility for their illegal conduct on the ground
that the Company and United, in an interchange of letters, interaccorded to the effect
that the National Agreement of March 19, 1953, was not to be understood to con-
stitute a union demand or request for a closed shop or to incorporate any clause
"which might be interpreted to be illegal insofar as the Taft-Hartley Act is concerned."
This understanding may fairly be regarded as modifying that agreement by the addi-
tion thereto of a "saving clause " There is no evidence in the record to suggest that
the parties intended to suspend the application of the illegal union-security clause.
On the contrary, the March 16, 1953, agreement has been renewed in the same
language, and the substantial performance by the parties since that date points to the
opposite conclusion and shows that the purpose, object, and effect of the language
was to postpone the issue of the legality of the union-security provision for future
determination. An employee could not be expected precisely to predict the validity
1 000 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of an understanding such as this even if it should come to his attention, which is un-
likely, and would feel compelled to join or apply for membership in a union where
a security clause of only questionable validity exists, if only a hedging device against
a possible future upholding of the modifying agreement. Although we may assume
the genuineness of the parties' assertions that they did not intend to violate the law,
nevertheless they did and it must be so adjudicated 6
Neither can Respondents evade liability for their illegal conduct on the ground that
United had "a closed shop contract with Daugherty and Company dated before the
Taft-Hartley Act, in March 5, 1946, that provides for a valid closed shop. It has an
automatic renewal clause and it continued to automatically renew itself."
Assuming, as I am willing to, on the basis of counsel's representation that there was
a 1946 contract, and assuming further that work was performed thereunder during
1952 and until March 19, 1953, there is no substantial evidence upon which it could
be found that the contract provided for a valid closed shop and continued automatically
to renew itself.? But going further, even if one were permitted to find in the absence
of supporting evidence, that the Union supplied and the Company employed, pipe-
fitters at the Glasgow project under a valid closed-shop contract during some part of
the year 1952 (there being direct evidence of hirings as early as September 15, 1952, at
least), and the first quarter of 1953 and hence did not transgress the Act during that
period, it does not follow that they were not in violation during the 13 months between
March 19, 1953, when the National Agreement was signed and May 20, 1954, when
the Company's part in the project was completed.
"The Company's brief makes clear its position that it did not intend to execute and does
not believe it did execute an illegal union-security provision, but that if it is mistaken in
that belief, it stands ready and willing to clarify the language so that there can be no
question of any illegal union-security clauses remaining in a new agreement
7 During the hearing, counsel for the Union, while cross-examining him, handed former
Secretary Rogers of Local 625, a document which counsel stated purported to be a national
agreement between United and the Company dated Match 5, 1946, and requested that
same be marked for identification as an exhibit. Later in the hearing counsel for the
Union, while cross-examining him, handed a former steward on the Company's job, what
was stated to be a photostatic copy of it national agreement between the Company and
United The witness testified that it was dated March 5, 1946 Objections were raised by
counsel for the Charging Parties to a question as to whether the paper handed the witness
was it national agreement under which the Company was working in 1952, on the dual
grounds that the witness could not know and that the paper was not an original. Although
there is no direct evidence of the fact that the asserted photostatic copy handed the former
steward was the sar " paper as that handed the former secretary it Is a fail inference that
it was Counsel for the Union stated that when it came time to put in his case in chief
he would get an original contract.
At no time did the Union's counsel, tipsissrinis verbis, move for receipt into the evidence,
as an exhibit, of any March 5, 1946, agreement or copy thereof. Subsequently the General
Counsel offeied in evidence, Geneial Counsel's Exhibit No 6 for identification, a mimeo-
giaph copy of the National Agreement dated March 19, 1953, which has been discussed at
some length, supra Counsel for the Union first objected to its admission unless the orig-
inal was unavailable, save an agreement that the photostat he had handed the former
steward (and infeientially the former secietary) might also "go in." Thereupon, one of
the two counsels for the Charging Parties who had earlier objected to the question-based
on the paper handed the foimer stewaid (but obviously not to its introduction into evi-
dence as an exhibit, since no motion to that effect had been made) then withdiew his
objection to its "offer "
While technically theie never had been any previous "offer" of the photostat, it is clear
that the paities had no objection to its receipt into evidence as an exhibit and understood
that it would become a part of the record However, it was never actually offered in evi-
dence although I asked that it be so offered and stated I would receive it at the same time
that the General Counsel's March 19, 1953, exhibit was received. (The Trial Exanunei's
statement reported at lines 21 and 22 of page 176 of the record was "well, offer that docu-
ment in evidence and I'll receive it at the same time I receive this document in evidence,"
and the record is hereby amended by adding th" emphasized f"ur letters ) The General
Counsel then reoffered his Exhibit No. 6 iiid a document which counsel foi the I-n.on
stated was the same, was marked General Counsel's Exhibit No 7 for identification The
recoil shorans that a single document maiked Geneiai Counsel's Exhibits Nos 6 and 7 was
received in evidence As included among the original exhibits in the official report of
proceedings, this mimeographed document-a copy of the March 19, 1953, National Agree-
ment-is marked "Official Exhibit No GC-6 Identified GC-7 "
DAUGHERTY COMPANY, INC. 1001
Obligations performed under a previously lawful collective-bargaining agreement
entered into before the enactment of the Taft-Hartley Act are, by Section 102, im-
munized from the statute's unfair labor practice provisions unless "such agreement was
renewed or extended" after such Act became effective. The short answer to Re-
spondent's claim of exemption from the consequences of maintaining and enforcing
closed-shop practices is that, whatever the agreement which may have been in force
before March 19, 1953, it became inoperative after that date by virtue of the execu-
tion of a new contract which on its face in no way referred to any such former agree-
ment. After March 19, 1953, at least, the obligations performed were not those in-
curred before August 22, 1947. Moreover, the 1953 National Agreement conjoined
the subject of wages with the rates specifically set forth in the two area agreements
which increased the wages the Company was required to pay journeymen from a
minimum of $2.75 per hour in 1952 and 1953 to a minimum of $2 90 per hour in 1953
and 1954 and thus, if any pre-Taft-Hartley agreement could be found to have been
still operative in those years, the 1953 contract "renewed or extended" it and thereby
removed it from whatever protection it otherwise may have been entitled to under
Section 102.
Deferring for subsequent consideration, the allegations relating to the discharge of
the two complainants and its causation, which allegations are hereinafter recommended
to be dismissed, I conclude that both Respondent Company and Respondent United and
Local 625 have maintained and enforced a hiring agreement under which, and without
benefit of the required 30-day grace period, membership in Local 625 and United
was a condition of employment requiring clearance for employment by Local 625
with preference in order, for members of Local 625, members of other locals of United,
and applicants for membership in Local 625. Respondent Company has thereby
violated Section 8 (a) (1) and (3) of the Act; Respondent United and Local 625 has
thereby violated Section 8 (a) (1) (A) and (2) of the Act.8
B. Alleged violations by the Company in discriminating against Joseph B. Irwin
and Howard P. McClure 9 and by the Union in causing the Company to
discriminate
1. The agreements
In addition to previously noted clauses in the National Agreement, that the Com-
pany shall employ apprentice members of the Union, that none but registered
qualified apprentices in good standing shall be employed and that they shall be
procured from the local having territorial jurisdiction; in the area agreement, that
the employer shall employ only members of Local 625; and, in the working rules,
that no-member of Local 625 shall be hired unless assigned by the business manager,' -
all of which agreements were abided to by the parties, the National Agreement pro-
vides that:
The responsibility for Selecting the required number of apprentices and the
administration of the Apprentice System shall be governed by the method of
procedure provided in the local agreement of the Local Union having territorial
jurisdiction where the job is performed.
8 N L R B v McGraw and Co , 206 F 2d 635 (C A 6) supra; Philadelphia Iron Works
and Local No 13, International Brotherhood of Boilermakers, etc, 103 NLRB 596, enfd.
211 F 2d 937 (C A 3) : The Babcock if Wilcox Co , 105 NLRB 339; Local 803, Interna-
tional Brotherhood of Boilermakers, etc, 107 NLRB 1011 ; Ebasco Services Incorpotiated,
107 NLRB 617 , International Brotherhood of Boilermakers, etc, and Consolidated Western
Steel Corporation, 94 NLRB 1590, Peimanente Steamship Corp, 107 NLRB 1111, N L.
R B v Gottfried Baking Co, et at, 210 F. 2d 772 (C A. 2) , N. L R. B v George D.
Auchter, 209 F 2d 273 (C A 5)
9 On the second day of the heating, the General Counsel introduced into the record a
letter addressed by McCluie on that date to the Boaid's Ninth Regional Office withdrawing
his charge against United and Local 625 On the following day, McClure called as a
witness by the Company, testified that lie had dropped his charge and relinquished all claims
in his case against the Company, which he understood was combined with the case against
the Union The General Counsel voiced his opposition to granting withdrawal of the
charge and dismissal of the complaint as to McClure The acceptance or rejection of
retractions of charges is a responsibility of the appropriate Regional Director but, insofar
as it might be consideied, by virtue of the introduction of the letter and McClure's testi-
mony into the record, that the granting of withdrawal was requested of, or action thereon
was felt to be the function of, the Trial Examiner heating the case, the request was denied.
Cf. Schenley Distillers Corporation, 78 NLRB 504, 505.
1002 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The area agreement provides that this responsibility for selection and administra-
tion and the adopting and administering of National Apprentice Standards "shall
be vested in a joint Local Committee." Such standards had been adopted locally
in 1946 and have since been administered by a joint local apprenticeship committee
including representatives of management, members of Local 625, as well as by mem-
bers of a local plumber's union. These standards include a provision that the term
of apprenticeship shall be not less than 5 years or 10,000 hours of work and related
school instruction.
The area agreement also stipulates that apprentices shall comply with section 151
of United's constitution which in turn provides that:
. . . Apprentices must be members of the United Association and no Journey-
men members will be permitted to work with a(n) Apprentice who is not a
member. It is recommended that whenever necessary, local Unions may allow
each Contractor and Apprentice where one or more journeymen are employed
steadily and one additional Apprentice for every five men steadily employed, but
in no case should any Contractor be entitled to more than five apprentices.
The term of apprenticeship or learning shall. not be less than five years. [Em-
phasis supplied.]
2. Status and discharge of the complainants
Irwin was initiated into United on August 28, 1951, when he signed an appren-
ticeship agreement between himself and the joint apprenticeship committee wherein
he bound himself to work in accordance with the regulations of the committee and
the apprenticeship standards. As set forth in the agreement, he was allowed 6
months' credit for previous experience at the trade, leaving a remaining period of
41/2 years' apprenticeship to be served.
McClure's similar (except for the amount of time credit) agreement was signed on
August 25, 1953, although he had been initiated on April 8, 1952. Both agreements
were registered by Bureau of Apprenticeship, U. S. Department of Labor, as incor-
porating the basic standards recommended by the Federal Committee on Appren-
ticeship.
Between November 26, 1952, and August 12, 1°53, the Company hired as journey-
men 13 apprentices, including Irwin and McClure, on referrals from officials of
'Local 625 which incorrectly listed each of them as journeymen although they were
in fact apprentices. Between September 15, 1952, and August 6, 1953, the Company
hired nine apprentices as apprentices. On August 12, 1953, William C. Reed, who it
will be recalled was a special representative of United appointed acting supervisor over
Local 625 on August 11, 1953, and James Switalski (named as a joint Respondent in
Cases Nos. 9-CB-201 and 9-CB-202) another special representative of United in
the district which included Local 625, visited Lee L. Lorren, the Company's super-
intendent on the job site.
Reed informed Lorren that Local 625's records disclosed that there were 20 or
21 apprentices on the job of whom 11 or 12 were working as journeymen and asked
and was granted permission to interview some employees. Lorren expressed doubts
that he had hired that number of apprentices and requested that he be supplied with
a list of those who were on the job. Reed subsequently complied with this request and
submitted a roll showing that as of September 1, 1.953, the Company had in its
employ 13 apprentices who were being paid journeymen's wages and 9 other appren-
tices who were being paid at various rates below journeymen's wages. Although
Lorren was aware of the constitutional limitation of the number of apprentices to
5 on any 1 job and considered that the National Agreement bound the Company to
that maximum, he checked with Reed and Switalski, who affirmed his belief, to con-
firm his understanding that the constitution restricted the Company to 5 apprentices.
Upon receipt of the list, Lorren on September 1 1953, discharged Irwin and McClure
and 15 more of the 22 apprentices and retained the 5 whose "books" showed the
longest period of apprenticeship service.
3. Discussion-conclusionary findings
a. The question of causation
There is a conflict of testimony on the questions, raised by the pleadings, as to
whether the Company discharged Irwin and McClure because of the demand of the
Union and Local 625 and its agents and whether the latter attempted to cause and
caused the Company to discriminate against the complainants. The evidence pre-
sented by Respondents seeking to show nonunion causation is mainly conclusionary,
DAUGHERTY COMPANY, INC. 1003
in character . On the other hand there is considerable credited evidence pointing to
the fact of union propulsion . Thus, Reed testified that, without reference to the
names of any specific individuals he ordered the Company to cut back journeymen to
apprentices , and that when Lorren stated he learned from the list Reed gave him
that nonjourneymen had been overpaid , that the Company could not stand for it
and was going to reduce - some and lay off others , he (Reed ) replied that Lorren
could do what he pleased . Furthermore, Irwin, Foreman Sam B. Maddox, and
employee Hubert M. Covert testified that W. A. Hahn, the night superintendent, told
Irwin that he was laid off by orders of Switalski . Hahn was called to the stand by
the Company for the apparent purpose of denying the mutually corroborative testi-
mony of these three witnesses . But in my opinion his halting testimony failed to
refute the mutually corroborative evidence of the other three witnesses.lo
Whether or not Hahn's statement to Irwin reflected the true reason for his dis-
charge, there is ample other testimony which in my opinion leads to the inescapable
inference that had the Union not brought to the Company 's attention the fact that the
complainants and others were falsely or improperly working under the guise of
journeymen , Irwin and McClure would not have been laid off on September 1, 1950.
The Union confirmed the Company 's belief that it was contractually precluded from
employing more than five apprentices and more than merely acquiesced in the Com-
pany's decision to discharge the surplus impermissible apprentices . il It was the
efficient agent in prompting the action which produced the final result and hence
in that manner was responsible for the separations. I therefore find that the Union
caused the Company to make the discharges.
b. Were the discharges and their causation unlawful?
A finding of causation does not ipso facto lead to the conclusion , ( as the General
Counsel urges ) that since the discharges resulted from other reasons and inducement
thereof than failure to pay dues, Section 8 (a) (1) and ( 3) and 8 ( b) (1) (A) and
(2) of the Act were transgressed. Before deciding this question it is necessary to de-
termine whether Respondent 's actions encouraged or discouraged union membership,
and if so, whether their conduct, otherwise discriminatory or coercive , was im-
munized by a lawful contractual obligation.
No Section 8 (b) (2) violation can be found here , unless that which was caused
was violative of Section 8 (3). Neither can any Section 8 (b) (1) (A) violation be
found , unless the right asse_te1 to have been infringed was one protected from inter-
ference by Section 8 (a) (1). A union does not engage in an unfair labor prac-
tice under Section 8 (b) (2) in causing an employer to discharge an employee unless
the employer 's action is attributable to the dischargee 's lack of membership in the
union or is otherwise "in violation of sub-section 8 (a) (3)." In Radio Officers' Union
etc., 347 U. S . 17, 43, the Court pointed out that Section 8 (a) (3) proscribes "only
such discrimination as encourages or discourages membership in a labor organiza-
tion. ... . If an employer 's conduct is of a character which "inherently encourages
or discourages union membership " and union membership includes such
factors as "adherence to and participation in union obligations and activities . .
the inference may be drawn that such conduct is unlawful per se "under the common
law rule that a man is held to intend the foreseeable consequence of his action."
But such an inference need not necessarily be drawn. For as made clear, in his
concurring opinion (p. 56), by Mr. Justice Frankfurter , any inference susceptible of
being drawn from an alleged discriminatory action may be rebutted by a showing
that such conduct was "so patently referrable to other [ and lawful] considerations"
that it could not reasonably be concluded that such conduct would encourage or dis-
10 Hahn testified that he wouldn't know whether he told Irwin he was laid off at the
orders of Switalski , if he did talk to him it was probably about the work ; there were a lot
of rumors going around at the time and if he made a statement to Irwin he believes it
was based on rumors ; he doesn 't believe Lorren or any other company supervisor told him
the reason for Irwin 's termination but Lorren could have said it and he would not say he
did not and he does know ; he talked to Irwin and his father and mention was probably
made of Switalski ; and, he signed a statement assorting that if he did tell Irwin that the
Union had laid him off, he was expressing a rumor and had no definite knowledge if the
Union had anything to do with it.
Though present throughout the hearing Switalski was not called to testify.
"The Union points out in its brief that when the fact of employees having been given
"books" marked "journeyman ," although in truth they were apprentices , was discovered
by United 's investigation , United called it to the Company's attention , as was its moral
as well as its legal responsibility , and that United assumes complete and sole responsibility
for this action.
1004 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
courage union membership. The detection and captivation of encouragement and
discouragement are "subtle things" requiring "a high degree of introspective percep-
tion." Cf. Donnelly Garment Co., 330 U. S. 219, 231. If this search and seizure
is successfully to be consumated, "the Board's task is" in the words of Mr. Justice
Frankfurter, "to weigh everything before it, including those inferences which with its
specialized experience it believes can be fairly drawn. On the basis of this process,
it must determine whether the alleged discriminatory acts of the employer were such
that he should have reasonably anticipated that they would encourage or discourage
union membership."
The fundamental reason for the suspensions of the complainants was that they
were discovered to have been working in excess of an allowable number of ap-
prentices and to have been working and paid as journeymen although only entitled to
apprentice status and wages.
The obligation to work as apprentices to which the complainants had bound them-
selves was not unlawful but on the contrary was entered into under the auspices of,
and in accordance with a policy established by, an arm of the Federal Govern-
ment.
Title 29, Sec. 50 of the U. S. Code Annotated, provides:
The Secretary of Labor is authorized and directed to formulate and promote the
furtherance of labor standards necessary to safeguard the welfare of apprentices,
to extend the application of such standards by encouraging the inclusion thereof
in contracts of apprenticeship, to bring together employer and labor for the
formulation of programs of apprenticeship, to cooperate with State Agencies
engaged in the formulation and promotion of standards of apprenticeship... .
Funds of the United States Government are utilized for the support of apprentice
training programs. As was testified by a field representative for the Bureau of Ap-
prenticeship, U. S. Department of Labor, the purpose of the apprenticeship training
program under which the complainants were registered was to provide proper train-
ing for the development of the skilled craftsmen necessary for the welfare, health,
and prosperity of the country.
Nor was the requirement that no more than five apprentices should be employed
per se an unlawful discriminatory condition of employment within the meaning of
Section 8 (a) (3). Rather such a limitation upon the utilization of inexperienced
hands is entirely consonant with the stated purpose to protect, and contribute to the
safety of, fellow workers. The meaning of the statute would be extended to an
absurd extreme if it were construed to forbid an employer to agree with his em-
ployees' representative to condition employment upon such factors as tend to further
a governmental policy established to promote the welfare, health, and prosperity
of the Nation and protect the safety of those who help build it.
Calling upon whatever modicum of "introspective perception" with which I may
be endowed, I am satisfied it would be unreasonable to conclude, on the basis of the
underlying reason for the suspensions, that the Company's alleged discrimination
was such that it could have reasonably anticipated it would give rise to such "subtle
things" as encouraging or discouraging union membership. Basically, Irwin and
McClure were discharged because they were apprentices. The only plainly resultant
encouragement was that of support to the Department of Labor's apprenticeship pro-
gram. The fact of their apprenticeship was in no way related to their union mem-
bership. The fact of their discharge, then, had no bearing on their union member-
ship. It was not governed by, conditioned upon considerations of, nor the result
of the enforcement of any incident of, union membership. Their loss of employ-
ment has been shown to have been from "so patently referable to other considera-
tions" than their adherence to the Union as to rebut the inference either of en-
couragement or uiscouragement of union membership.
Before departing from this aspect of the case we must determine whether the
Company violated Section 8 (a) (1) of the Act. In what manner can it be said
that the Company interfered with, restrained, or coerced the complainants in the
exercise of the right to self-organize, to form, join, or assist labor organizations, to
bargain collectively, or to engage in other concerted activities for the purpose of
collective bargaining or other mutual aid and protection to refrain therefrom? Their
self-organizational rights were not involved; nor their right to form, join, or assist
labor organizations. Their freedom to bargain or not to bargain collectively was
not impaired, nor can it be discerned that their right to engage in or refrain from
any form of mutual aid and protection, was impeded. It would be strange indeed
to say that an employer who engages in conduct not out of conformity with the Act,
by some queer metamorphosis becomes its violator when his conduct is impelled
by a union. The Company's conformity to a lawful condition of an agreement
DAUGHERTY COMPANY, INC. 1005
furthering a policy of the United States Government, in order to bring about com-
pliance therewith, cannot in my opinion be regarded as an infringement of any rights
guaranteed employees under Section 7 of the Act.
Although gayer the theme where seldom is heard a discouraging word, a final
refrain sounding of discouragement and its antonym seems necessary. Even if the
creation of some type of encouragement or discouragement could be inferred, the
fact still remains that, as the Court pointed out in Radio Officers' Union, etc , 347
U. S. 17, 42, 43, supra, "only such [encouragement or discouragement of membership
in labor organizations] as is accomplished by discrimination is prohibited." When
faced with the realization that it had too many apprentices in its employ and it had a
right, in the absence of unlawful discrimination, to discharge undesired or superfluous
employees, whether because of a contractual requirement or not, whether their
presence on the payroll became known through the instrumentality of the Union or
not, or whether on its own accord or not, without violating the Act, the Company
proceeded to separate the excess beginners in a manner completely devoid of any
semblance of discrimination. The Company, of course, knew or assumed that all
of the apprentices were members of Local 625 or other locals of the Union or
applicants for membership in the Union, but without any regard to, or the display
of any interest with respect to, the relative degree of any individual's enthusiasm
for or apathy toward the Union, the Company selected those for retention or suspen-
sion solely on the basis of length of apprenticeship service. Therefore it seems to
me, that even assuming, arguendo, the discharges of the complainants engendered en-
couragement or discouragement, they were not accomplished by discrimination and
hence not prohibited by the Act.
Even though the national and area agreements permitted the Union to control
employment to a large extent, they did not on their face require that the Company
should limit the number of apprentices on the basis of union affiliation or retention
of membership. The fact that an agreement may be unlawful in part does not
render invalid everything that may be done in compliance with those of its portions
which are beyond reproach. The Respondents' actions were predicated upon a lawful
contractual obligation to comply with the constitutional provisions genuinely believed
to entitle the Company to no more than five apprentices. Since meeting any demands,
requests, or suggestions of the Union to lay off apprentices in excess of the agreed
upon number did, in my opinion, not constitute a contravention of the provisions of
Section 8 (a) (3) on the part of the Company, it follows that the action of the Union
resulting in the bringing about of the discharges was not violative of Section 8
(b) (2).12
4. Ultimate conclusions
The essence of the questions presented here is (a) whether or not it is reasonably
to be concluded that the Company's action vis a vis the complainants amounted to an
encouragement of union membership and, (b) whether or not it is reasonably to be
concluded that such action was taken in compliance with a lawful contractual obliga-
tion, unrelated to, and unconditioned upon, union membership.
An inference of encouragement could conceivably be drawn from the mere finding
of union causation. But as Radio Officers' Union etc, 347 U. S. 17, supra, demon-
strates, such an inference is not a conclusive one in any event, but rather is rebuttable
by other evidence showing that the alleged discriminatory action was referable to
lawful action wholly unrelated to considerations of union membership and support.
The factual findings made in this case negate any inference that the Company's
discharge of the complainants, though caused by the Union, was due either to default
on their part in the performance of a union obligation or to some other lack of union
fealty. The record as a whole shows, instead, that the Company's action was due
to other considerations, unrelated to any aspect of union membership or support and
was not only within the Company's allowable prerogatives but also in consonance
with a lawful agreement.
On the record as a whole, I am unable to infer from the mere ground of union
causation that the Company's conduct was actuated by any considerations in depriva-
tion, or in derogation, of the complainants' rights under Section 7 of the Act For
the reasons stated above, I find that the General Counsel has not sustained the
allegations of the complaint that the Company violated Section 8 (a) (1) and (3) by
the suspension of the complainants. I further find that United, Local 625 and James
Switalski did not violate Section 8 (b) (1) (A) or (2) in connection with such
suspensions.
12 L ocal Union, United Mine Workers of America, et al, 100 NLRB 392, 393, and cases
there cited
1006 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
5. Remedial defenses
Although what I have found should completely dispose of the issues relating
to the discharge of the complainants, Respondents have raised defenses, going rather
to the remedy than to the merits, to the effect that even though their conduct was
technically in violation of the Act, which they deny, the complainants themselves
were guilty of such misrepresentation or misconduct that their reinstatement would
pervert the policies of the Act. Although hesitating needlessly to encumber this
report, I believe that in the interest of full discussion it is appropriate, even if not
essential, to consider these defenses and such collateral matters as they immediately
bring to mind. In so doing, it is of course to be understood that I am only assuming
arguendo and contrary to my findings, that the treatment of these complainants was
in violation of the Act.
The Union's position that as a result of the complainants having falsely and
fraudulently misprepresented themselves, they were paid greater wages than they
should have received and consequently were terminated, is adopted in modified
form by the Company which says that there was a misrepresentation and regardless
of whether the complainants had fraudulently dissimulated, it was the Company's
right to discharge them when it became apparent they were not journeymen. There-
upon they have addressed to me their argument ad verecundiam.
Effective June 1, 1953, the apprentice wage scale was based upon a sliding range
increasing upward 5 percent each 6 months over a period of 41/2 years to a maximum
of 90 percent of the prevailing journeymen's rate of $2.90 per hour. The Company
claims that because of the fact it paid 13 apprentices, including the complainants,
journeymen's rather than apprentices' wages and 9 other apprentices, more than the
proportion of journeymen's pay to which they were entitled under their terms of
apprenticeship, it sustained a loss of $17,441.73 between September 15, 1952, and
September 1, 1953. With particular reference to Irwin and McClure it asserts they
were overpaid $546 94 and $427.39 respectively.13 These figures, if correct, and
taken at face value show an egregious imposition upon the Company. Even though
the actual and realistic financial loss was far less than this amount, as I believe it
was,14 the Company's natural offhand belief that it had sustained considerable loss
furnished a sound justification for the separation of the complainants and others in
their situation, and its opinion that the act of discharge in no way violated the Act.
But Respondents do not contend that the financial aspects of the discharges are of
more than minor relevancy. The main point for determination in this phase of the
case is whether the complainants were guilty of such misconduct that (assuming, as
already emphasized, contrary to what I have previously found, that the Company
did violate Section 8 (a) (1) and (3) of the Act, and the Union did violate Section
8 (b) (1) (A) and (2) of the Act in connection with their discharges), their
"Allusion to this claim is in part made upon the basis of a stipulation which is hereby
received into evidence as Official Exhibit No RC 7.
14 As to the 13 apprentices who were discovered to have been working and paid as jour-
neymen, the evidence shows that they in general did the same work as journeymen The
Company's work ieganed the services of as many as 400 pipefitters at times If it hap-
pened that instead of employing these apprentices it had hired workmen who had qualified
as journeymen , the latter would have been paid at the same rate as were the 13 appren-
tices, and theie is no indication that even so the job would have advanced any faster than
it did Although theie is some testimony that complaints and criticisms had been made to
the super mtendent with respect to the progress of the work and the efficiency of the work-
men, these is no evidence that the ability of or the quality of the work of any of the
appientiees was brought into question , or that any of them weie considered accountable
Poi the causes of dissatisfaction Rather to the contraiy , indeed, the recoid suggests that
the apprentices is a whole held their own with the journeymen and that the two com-
plainants weic fiist -class mechanics
What has been said above is likewise applicable to the nine apprentices who worked and
were paid as such All of these nine were paid at considerably less than journeymen's
rates The recoid contains no explanation as to why they received , as deducible from the
Company ' s exhibit, an overall aveiage of approximately 77 cents per hour greater wages
than if they had been paid at what it asserts was theii correct or tine appientice i.ite
In view of these various considerations 1 doubt if the Company sustained much tangible
loss due to its overpayment of appientiees Were it to be said that had the Company paid
all of the 22 appientiees in question at what it asserts was their correct rates it would
have made a substantial savings, the answer then would be that it profited by its own
wrong in knowingly working more apprentices than it should have and lost through its
own negligence the asserted overpayment made to the five it could employ.
DAUGHERTY COMPANY, INC. 1007
7
reinstatement with back pay would not effectuate the policies of the Act. If
they were to be reinstated, should it be to their former or substantially equiva-
lent positions even though they occupied them only because of a misrepresen-
tation of their status? Is the Union to be compelled to send out as journeymen, mem-
bers who have not completed their apprenticeship training? Should the Respond-
ents be ordered jointly to make back payments to them even though in the absence
of misrepresentation, they would not have held-and hence would not have been
separated from-the jobs from which they were discharged? Are the policies of the
Act to be effectuated by means of unjustly enriching individuals? Should the Com-
pany be required to take the complainants on as additional apprentices despite the
fact that in good faith it had agreed not to employ more than five? Should the Board
require United and Local 625 to continue to breach its agreement with the Com-
pany? Should the Company be ordered to discharge apprentices who were retained
on the nondiscriminatory basis of seniority to make room for the complainants?
Should it be required to offer a job to, or should Respondents be required to pay
money to, McClure who withdrew his charge, and who has stated that he knew he
was wrong in working for the Company and representing himself as a journeyman
when he was only an apprentice? Should the Company be ordered to reinstate, or
the Respondents ordered to make back payments to, Irwin who has turned in his
"book," marked "journeyman" and received in exchange an apprentice certificate
and who was employed as an apprentice at the time the hearing closed? And if
these questions are not self-answerable would it not be an idle motion and a vain ges-
ture to order the present reinstatement, and statements of no objections to employ-
ment, of local residents on a construction project that has long since been completed
or future employment on a purely theoretical indigenous job by a national contractor
who it is altogether unlikely will ever return to a local's territorial jurisdiction?
Kingston Cake Co. v. N. L. R. B., 206 F. 2d 604 (C. A. 3), is of some pertinence
to point here to be determined. There, a union demanded that an employer dis-
charge an employee who was one of its officers, not because of his failure to pay dues
but because he refused to sign a Section 8 (f), (g), and (h) affidavit, thereby pre-
venting the union's name from being placed on an election ballot. The employer
acceded to the union's demand. In refusing to enforce the Board's 8 (a) (1) and
(3) and 8 (b) (1) (A) and (2) orders, the court majority said in part:
.. . Although the conduct of the company and the association in this case
was a violation of those provisions of the Act which Congress thought would
protect the individual employee in his right of free choice of bargaining repre-
sentative, at most, however, it would only remotely interfere with the freedom
of choice, whereas Williams' conduct constituted a direct, frontal attack upon
the principal means established by the Act to insure the individual his freedom
of choice. To reinstate with back pay an employee guilty of such perversion of
the Act would breed contempt for it rather than effectuate its policies.
We do not rely on any maxim of "clean hands," because the doctrine does
not apply since this is a proceeding by a governmental agency seeking enforce-
ment of its order in the public interest. . . . The "benefits" of the Board's
remedial process-run to the public. The fact that an individual employee may
also benefit is a means to the more important end of industrial peace. We are
convinced, however, that reinstatement of Williams with back pay would set
a pattern of profiting by one[']s own wrong, which is just as immoral
and inequitable in labor as in any other human relations." N. L. R. B. V. Dorsey
Trailers, Inc., 179 F. 2d 589, 592 (C. A. 5).
Here is no element of conduct attacking individual rights of free choice of bar-
gaining representative. Rather, there is a claim to the effect that the complainants
engaged in a "wrong" and should not profit thereby. The Board's discretion in or-
dering affirmative relief is wide and the powers of enforcing its orders are equitable
in nature and invocable when the relief sought is consistent with the principles of
equity, N. L. R. B. v. Glove Automatic Sprinkler Co., 199 F. 2d 64, 70 (C. A. 3).
Among the 8 discharged apprentices working as journeymen, Irwin and McClure
were the only 2 to file charges. None of the nine discharged apprentices, whose
status was not mistaken or misrepresented but who were discharged as supernumerary,
filed charges McClure withdrew his charge with a statement that he knew he was
wrong in misrepresenting himself. Of 17, Irwin alone professed that he did not
know that he acted improperly. I cannot believe, however, that he did not appreciate
the meaning of his agreement of August 28, 1951, to faithfully perform work during
his term of apprenticeship according to the regulations set up in the apprenticeship
standards, that he was not fully aware of the fact that those standards required a
total term of apprenticeship of at least 5 years, and that he did not know, as clearly
1008 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
shown on his signed agreement, that his term of apprenticeship service would con-
tinue for a period of 41/2 years after August 28, 1951, i. e. until February 28, 1956.
Irwin is 25 years old and obviously an alert and intelligent person. His father
with whom he worked on the Glasgow job had long been a member of Local 625
and a qualified journeyman. 1 am convinced that both father and son were entirely
familiar with the facts of life of their trade, and of the distinction between an
apprentice and a journeyman. I feel sure that Irwin knew as well as McClure-
although he was less frank than was the latter-that he was "wrong."
The fact that under the aegis of a subsequently deposed official of Local 625,
Irwin was incorrectly registered, or referred for employment, as a journeyman,
whether through error or design, does little to palliate his conduct. There is slight
difference between negatively allowing oneself to be misrepresented and a positive
act of imposture. But even if Irwin was totally incognizant of any wrongdoing,
scienter is not a factor, since the fact remains that a misrepresentation did take
place. The doctrine of "clean hands" does not apply in proceedings such as this
where the "benefits" of any remedial process run to the public and not to individuals
who are advantaged, if at all, merely as a means to the end of a statutory objective.
Leaving aside the effect of McClure's admitted "wrong," the fact of the misrepre-
sentations of Irwin's status brought about two results that otherwise would not have
taken place; first Irwin was given a job and paid $1,366 35 that but for it he would not
have received (even if there had been no more than four apprentices working for the
Company on July 6, 1953, when he was hired-and such apparently was not the
case-he received more pay, the Company says $546 94 more, than his apprentice
status entitled him to) and, second, the Company was inveigled into breaching a
lawful agreement with the Union.
Thus it appears that not only did Irwin perpetrate a fraud against the Company,
but more seriously in my opinion, he was guilty of conduct resulting in the perversion
of a policy which, as we have seen, had been established under the auspices of the
Federal Government for the purpose of providing proper training of the skilled
craftsmen necessary for the welfare, health, and prosperity of the Nation.
Were the Board to come to the point of considering whether or not a remedial
order relating to the individual complainants should issue it seems to me that in
the exercise of its wide discretion it would be inclined to believe that an edict of
reinstatement would in no way serve the end of industrial peace and to stay its hand,
thereby refraining from apparently endorsing or, at least condoning, conduct not
only deceptive to the Company but far more importantly, contrary to governmental
policy.i5
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondents set forth in section III, above, occurring in
connection with the activities of the Respondent Company described in section 1,
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
Having found that the Respondents have engaged in certain unfair labor practices,
I will recommend that they cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act.
It has been found that Respondents have maintained and enforced agreements,
understandings, and practices which contain and involve terms and conditions of
employment requiring membership in the Union which are violative of Section 8
(a) (1) and (3) and 8 (b) (1) (A) and (2) of the Act. Accordingly, I will recom-
mend that the Respondents cease and desist from giving effect to the unlawful
provisions of their agreements and understandings and from engaging in unlawful
hiring practices thereunder. Although the evidence in this proceeding was largely
confined to the Glasgow project and the Company's work there has been completed,
it appears that the National Agreement has been renewed and since the Company
is engaged in general piping construction contracting throughout the United States
15 Of current interest to the instant problem, though not precedent-establishing, is Multi-
Hydromatice Welding and Manufacturing Company, et at., Cases Nos 7-CA-909 and 7-CB-
154, pending befoie the Board on exceptions to the Trial Examiner's Intermediate Repoit
recommending the withholding of reinstatement to an employee whom a union caused his
employer to discharge because he piocuied a journeyman's card through fraud and employ-
ment through forgery.
DAUGHERTY COMPANY, INC. 1009
it appears that any remedy not applicable to any of the Company's projects might
permit the Company and the Union in the future to engage elsewhere in the very
conduct here found to be unlawful.
The complaint itself gave Respondents notice that the legality of their nationwide
hiring practices would be brought in issue by alleging that they had violated the
Act "by maintaining and enforcing written agreements understandings and practices"
thereby discriminating against and causing discrimination against unnamed em-
ployees without limiting the practices to the Glasgow project In N. L R. B. v.
McGraw and Co., 206 F. 2d 635 (C. A. 6), supra, the court at 641 modified the
Board's order in F. H. McGraw and Company, 99 NLRB 695, 696, by deleting the
requirement that the employer post notices at places or projects other than the
project at which it was currently engaged in erecting a plant for the Atomic Energy
Commission and employed a force of between 10,000 and 12,000 workmen. In the
instant case, it has been established that Respondent and The Babcock and Wilcox
Company completed their contracts at Glasgow and they and their employees
departed their several ways several months ago. There is no evidence that any of
the named Parties to the Contracts other than The Babcock and Wilcox Company
had at any time there engaged in work.
It would be both meaningless and indefensible to recommend the present posting
of notices-mere foolscaps to flutter futilely in the Glasgow gusts-at a location where
no involved employees are, or ever will be, piesent to read them. If, however, no
notices were to be tacked up at any of the projects where the Company may now be
actually employing pipefitters, the existence of a cease-and-desist order would be
unknown to employees and applicants for employment and such an emasculated or
nugatory order would be ill-adapted to the situation which calls for redress since its
effect would not come to the attention of the very people whose right to refrain from
joining unions is at stake. Whatever may respectfully be said about the wisdom of
the court's holding under the circumstances in McGraw, where the posting of notices
was ordered at one project where they could be seen by thousands of employees, but
not elsewhere, I am loath to believe that under the different circumstances of the
instant case, an order of posting at the only places where employees in interest may
ever read notices would lack propriety as a means of effectuating the policies of the
Act.16
Accordingly, the above recommendations shall apply to the unlawful provisions
of agreements and understandings between, and the engagement in unlawful hiring
practices by, the Respondents at any of the Company's projects. I do not recommend
that other than in the specified particulars, Respondent Company shall refrain from
performing its agreements with Respondent Union.
Since it has been found that the Respondents neither discriminated against Joseph B.
Irwin and Howard P. McClure nor caused them to be discriminatorily treated, I will
recommend that those allegations of the complaint which relate to them be dismissed.
Upon the basis of the foregoing findings of fact, and upon the record as a whole,
I make the following:
CONCLUSIONS OF LAW
1. Daugherty Company, Inc., is engaged in commerce within the meaning of
Section 2 (6) and (7) of the Act.
2. United Association of Journeymen and Apprentices of the Plumbing and Pipe
Fitting Industry of the United States and Canada, A. F of L., and United Association
of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the
United States and Canada, Local Union No. 625, A. F. of L., are labor organizations
within the meaning of the Act.
3. By maintaining and enforcing agreements, understandings, and practices which
contain and involve terms and conditions of employment requiring membership in
the Union, the Respondent Company has engaged in and is engaging in unfair labor
practices within the meaning of Section 8 (a) (1) and (3) of the Act and the Re-
10 Cf I. B P IV v N L R B , 341 U S 694, 705-706, Local 74, U. B. C. J. v N. L
R B, 341 U S 707. 715 The courts have frequently enforced cease and desist and post-
ing requirements not only against the particular operation involved in the proceeding but
also against other operations by the respondent-employer or subject to the territorial
jurisdiction of the respondent-union See, e g, N L R B. v. Phnlleps Gas & Oil Co ,
141 F 2d 304, 306 (C A 3) , N L, R B v United Mine Workers, 195 F. 2d 961, 962
(C A 6) ; N L. R B v Hollywood-Maxwell Co, 126 F 2d 815, 819 (C A 9) Cf
N L R. B v. Waterman, S S Corp , 309 U S 206, 226, enfg 7 NLRB 237, 253 ; N L. R B
v. Wallick and Schlealm, 198 F 2d 477, 482 (C A 3).
1010 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
spondent Union has engaged in and is engaging in unfair labor practices within the
meaning of Section 8 (b) (1) (A) and (2) of the Act.
4. The unfair labor practices found herein are unfair labor practices affecting com-
merce within the meaning of Section 2 (6) and (7) of the Act.
5. The Respondents have not engaged in unfair labor practices within the meaning
of the Act with respect to Joseph B. Irwin and Howard P. McClure.
[Recommendations omitted from publication.]
Pioneer E lectronics Corporation and International Union of
Electrical Radio and Machine Workers, CI O, Petitioner. Case
No. 21-RC-3769. June 1, 1955
SUPPLEMENTAL DECISION AND CERTIFICATION OF
RESULTS OF ELECTION
Pursuant to a Decision and Direction of Election issued by the Board
on February 10,1954,' an election by secret ballot was conducted March
2,1955, under the direction and supervision of the Acting Regional Di-
rector for the Twenty-first Region, among the employees in the unit
found by the Board to be appropriate for the purposes of collective
bargaining. Following the election, a tally of ballots was furnished
the parties, which showed that of approximately 108 eligible voters, 46
cast votes for, and 45 cast votes against, the Petitioner. There were
no void ballots and one challenged ballot. The challenged ballot is de-
terminative of the results of the election.
On March 10, 1955, the Acting Regional Director issued his report
on challenged ballot, recommending that the ballot in question be de-
clared valid and counted as a no vote, and that the results of the election
be certified.
On March 16, the Petitioner timely filed its objections to Acting Re-
gional Director's report on challenged ballot.
The ballot used in the election was the customary one used in elec-
tions where only one union appears on the ballot. The voters were
asked the following question : "Do you wish to be represented for pur-
poses of collective bargaining by International Union of Electrical
Radio & Machine Workers, CIO?" The ballot contained instructions,
prominently displayed, for the voter to "MARK AN `X' IN THE
SQUARE OF YOUR CHOICE." The ballot contained 2 squares, 1
beneath the word "YES" and 1 beneath the word "NO."
The challenged ballot contained an "X" in the "NO" square and
the words "NO UNION" written out in pencil along side the "NO"
square.
The Acting Regional Director found that the ballot clearly shows
the intent of the voter and the marking on the ballot was not inherently
1 Case No 21-RC-3769, not reported in printed volumes of Board Decisions and Orders
112 NLRB No. 123.