E. F. Shuck Construction Co. Inc.

National Labor Relations Board - Board Decisions

Oct 28, 1955

114 N.L.R.B. 727 (N.L.R.B. 1955)

E. F. SHUCK CONSTRUCTION CO. INC. 727
c. All production and maintenance employees at the Employer's
Hagerstown, Indiana, plant, excluding office clerical employees, plant
clerical employees, employees of engineering or administrative de-
partments, cafeteria employees, professional employees, guards, and
supervisors as defined in the Act.'
[Text of Direction of Elections omitted from publication.]
MEMBER MURDOCK took no part in the consideration of the above
Decision and Direction of Elections.
4 in accordance with a stipulation of the parties, we exclude from the unit students
employed as part-time employees.
E. F. Shuck Construction Co. Inc. and The Associated General
Contractors of America, Seattle Chapter, Inc. and The Seattle
Construction Council and Hod Carriers , Building and Com-
mon Laborers Union , Local No. 242, AFL and Richard B. Kie-
burtz . Cases Nos. 19-CA--851 and 19-CB-261. October 28, 1955
DECISION AND ORDER
On January 15, 1954, Trial Examiner Wallace E. Royster issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondents had engaged in certain unfair labor practices and recom-
mending that they cease and desist therefrom and take certain af-
firmative action, as set forth in the copy of the Intermediate Report
attached hereto. Thereafter, Respondents, The Associated General
Contractors of America; Seattle Chapter, Inc., and The Seattle Con-
struction Council, filed exceptions to the Intermediate Report and a
supporting brief. On February 9, 1955, the Board ordered that the
record in the proceeding be reopened, that a further hearing be held
before a Trial Examiner for the purpose of obtaining additional com-
merce data, and that "the Trial Examiner shall prepare and serve upon
the parties a Supplemental Intermediate Report containing findings of
fact upon the evidence pursuant to the provisions of this order." On
April 14, 1955, Trial Examiner Martin S. Bennett issued his Supple-
mental Intermediate Report in the above-entitled proceedings setting
forth his findings of fact pursuant to the provisions of the Order of the
Board issued February 9, 1955. Thereafter, Respondents, The As-
sociated General Contractors of America, Seattle Chapter, Inc., and
The Seattle Construction Council, filed exceptions to the Supple-
mental Intermediate Report and a supporting brief.
The Board has reviewed the rulings of the Trial Examiners made
at the initial hearing and the supplemental hearing and finds that no
prejudicial error was committed. The rulings are hereby affirmed.
114 NLRB No. 116.
',7 28 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The 13oard has considered the Intermediate Report, the Supplemental
Internlttiiate Report, the exceptions to both the Intermediate and
Supplemental Intermediate Reports, and the briefs in support of the
exceptions, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiners, with the following additions :
It appears from the findings of fact made in the Supplemental In-
termediate Report that the construction work performed by members
of the Seattle Chapter of The Associated General Contractors of
America is in excess of $100,000,000 a year, and that of this amount,
at least 10 percent represents work performed outside the State of
Washington by the Washington contractors who belong to this chapter.
It also appears that during 1953, various members of the Seattle
Chapter of The Associated General Contractors engaged in construc-
tion within the State of Washington, directly involved in the national
defense effort, including projects under direct contracts with the
United States Government, i. e., construction of a powder magazine
for the Navy in the sum of $1,397,000; a boat storage plant for the
Navy in the sum of $1,321,000; and transmitter facilities for the Atomic
Energy Commission in the sum of $437,000 and $1,278,000, respectively.
On the basis of the foregoing, we find that the operations of all the
named Respondents herein fall within the Board's jurisdiction and
that it will effectuate the policies of the Act to assert jurisdiction
>>erein.l
In agreement with the Trial Examiner in the original proceeding, we
find that by the discharge of Kieburtz, Respondent Shuck discrim-
inated in regard to his hire and tenure of employment, thus encourag-
ing membership in the Union, and thereby violating Section 8 (a) (3)
of the Act; that by giving effect to the unlawful union-security pro-
vision in the contract, the Respondent Union caused Shuck to dis-
criminate in regard to the hire and tenure of employment in violation
of Section 8 (a) (3) and thereby violated Section 8 (b) (2) of the Act;
by such conduct Respondents Shuck, The Associated General Con-
tractors, and The Seattle Construction Council interfered with, re-
strained, and coerced employees in the exercise of rights guaranteed in
Section 7 of the Act, and thereby violated Section 8 (a) (1) of the Act;
and that the Respondent Union thereby restrained and coerced em-
ployees in the exercise of rights guaranteed in Section 7 of the Act and
thereby violated Section 8 (b) (1) (A) of the Act. We further find,
as did the Trial Examiner in the original proceeding, that as the dis-
Moto, Truck Association. 110 NLRB 2151 ; Capital Beer Distributors. 109 NLRB 178;
1'tiagara Beer Distributors, 108 NLRB 2217, Insulation Contractors, 110 NLRB 038 In
Insulation Contractors, the Board slated
Although the Board has recently announced new minimum requirements for the
assertion of its jurisdiction , we will adhere to our past practice of considering all
association members who participate in multiemployer bargaining as a single employer
for jurisdictional purposes.
E. F. SHUCK CONSTRUCTION CO. INC. 729
crimination found hereinabove stemmed from a contractual relation-
ship between Shuck and the Union, and because the contract was the
product of negotiations between The Associated General Contractors
and The Seattle Construction Council on the one hand and the Union
on the other, that The Associated General Contractors and The Seattle
Construction Council discriminated in regard to the hire and tenure
of employment of Kieburtz to the same extent as Shuck, thus en-
couraging membership in the Union and thereby violating Section 8
(a) (3) of the Act.'
ORDER
-Upon the entire record in these cases, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders :
1. The Respondent E. F. Shuck Construction Co. Inc., Seattle,
Washington; its officers, agents, successors, and assigns, shall :
A. Cease and desist from :
(1) The practice of conditioning hire of applicants or tenure of
employment in laborer or hod carrier positions upon clearance or ap-
proval by Hod Carriers, Building and Common Laborers Union,
Local No. 242, AFL, or any other labor organization, except under
an agreement requiring membership in a labor organization as a condi-
tion of employment as authorized by Section 8 (a) (3) of the Act, as
amended.
(2) Performing, enforcing, or giving effect to its contract of No-
vember 1950 with the above-named Union in respect to union security
or entering into or enforcing any extension, renewal, modification, or
supplement thereof, or any superseding agreement with the same
Union, or any other labor organization, containing union-security
provisions, except as authorized by Section 8 (a) (3) of the Act, as
amended.
(3) In any like or similar manner interfering with, restraining, or
coercing employees in the right of self-organization , to form labor
organizations , to join or assist any labor organization , to bargain
collectively through representatives of their own choosing, and to
engage in 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 agreement requiring membership in a
labor organization as .a condition of employment, as authorized by
Section 8 (a) (3) of the Act, as amended.
2 See George D. Auchter Co., 102 NLRB 881, enfd. 209 F. 2d 273 ( C. A. 5). With
respect to the Respondents ' contention that the roster of members of the Seattle Chapter
of The Associated General Contractors in 1953 Included "E. F. Shuck" but not "E. F.
Shuck Construction Co. Inc," it seems clear that the business was incorporated as far
back as 1949 and that it has been represented In collective bargaining by the Seattle
Chapter in that corporate capacity The record evidence adequately supports the factual
findings made in the Supplemental Intermediate Report.
730 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(1) Make whole Richard B. Kieburtz for any loss of pay he may
have suffered by reason of the discrimination against him in the man-
ner set forth in the section of the Intermediate Report entitled "The
Remedy."
(2) Preserve and make available to the Board or its agents upon
request, for examination and copying, all payroll records, social-
security payment records, timecards, personnel records and reports,
and all other records necessary to analyze the amounts of back pay
due and the rights of employment under the terms of this Order.
(3) Post at each construction site in the jurisdiction covered by the
Respondent Union in conspicuous places, including all places where
notices to employees or prospective employees are customarily posted,
copies of the notice attached to the Intermediate Report marked
"Appendix A." 3 Copies of said notice, to be furnished by the Re-
gional Director for the Nineteenth Region, shall, after being duly
signed by Respondent Shuck's representative, be posted by it im-
mediately upon receipt thereof and be maintained by it for sixty (60)
consecutive days thereafter. Reasonable steps shall be taken by it to
insure that said notices are not altered, defaced, or covered by other
material.
(4) Notify the Regional Director for the Nineteenth Region in
writing, within ten (10) days from the date of this Order, what steps
Respondent Shuck has taken to comply herewith.
II. The Associated General Contractors of America, Seattle Chap-
ter, Inc., and The Seattle Construction Council, the officers, agents,
successors, and assigns of each, shall :
A. Cease and desist from :
(1) Enforcing or giving effect to any agreement with the Respond-
ent Union or any other labor organization which conditions the hire
of applicants for employment or the retention of employees in em-
ployment with any employer whose operations are in or affect com-
merce upon clearance by the Respondent Union or any other labor
organization, except under an agreement requiring membership in a
labor organization as a condition of employment as authorized by
Section 8 (a) (3) of the Act, as amended.
(2) In like or similar manner interfering with, restraining, or co-
ercing employees in the exercise of the right of self-organization, to
'form labor organizations, to join or assist any labor organization, to
3 This notice, however, shall be, and it hereby is, amended by striking from the first
paragraph thereof the words "The Recommendations of a Trial Examiner " and substituting
in lieu thereof the words "A Decision and Order" In the event that this Order is en-
forced by a decree of a United States Court of Appeals, there shall be substituted for the
words "Pursuant to a Decision and Oider" the voids "Pursuant to a Decree of the
United States Court of Appeals, Enforcing an Order."
E. F. SHUCK CONSTRUCTION CO. INC . 731
bargain collectively through representatives of their own choosing,
and to engage in collective bargaining or other mutual aid or protec-
tion, or to refrain from any or all such activities, except to the extent
that such right may be affected by an agreement requiring member-
ship in a labor organization as a condition of employment as author-
ized by Section 8 (a) (3) of the Act, as amended.
B. Take the following affirmative action which the Board finds
will effectuate the policies of the Act :
(1) Make whole Richard B. Kieburtz for any loss of pay he may
have suffered by reason of the discrimination against him in the man-
ner set forth in the section of the Intermediate Report entitled "The
Remedy."
(2) Post at each construction site of E. F. Shuck Construction Co.
Inc., within the jurisdiction of the Respondent Union, in conspicuous
places, including all places where notices to employees or prospective
employees are customarily posted, copies of the notice attached to the
Intermediate Report marked "Appendix B."' Copies of said notice,
to be furnished by the Regional Director for the Nineteenth Region,
shall, after being duly signed by Respondent The Associated General
Contractors and Respondent The Seattle Construction Council, be
posted by one of them immediately upon receipt thereof and main-
tained by them for sixty (60) consecutive days thereafter. They shall
take reasonable steps to insure that said notices are not altered, de-
faced, or covered by other material.
(3) Notify the Regional Director for the Nineteenth Region, in
writing, within ten (10) days from the date of this Order, what steps
the said Respondents have taken to comply herewith.
III. Respondent Hod Carriers, Building and Common Laborers
Union, Local No. 242, AFL, its officers, representatives, agents, suc-
cessors, and assigns, shall :
A. Cease and desist from :
(1) Performing or giving effect to its contract of November 1950
with the Respondents, The Associated General Contractors of Amer-
ica and The Seattle Construction Council, covering employees of E. F.
Shuck Construction Co. Inc., in respect to union security or entering
into or enforcing any extension, renewal, modification, or supplement
thereof which conditions the hire of applicants for employment upon
clearance by the Union or any other labor organization, except under
an agreement requiring membership in a labor organization as a con-
dition of employment as authorized by Section 8 (a) (3) of the Act,
as amended.
(2) In like or similar manner causing or attempting to cause Re-
spondent Shuck, Respondent The Associated General Contractors
See footnote 3 for amendments to notice attached to Intermediate Report as Appendix B.
732 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of America, Respondent The Seattle Construction Council, or any
other employer whose operations are in or affect commerce, to discrim-
inate against any employee or prospective employee in violation of
Section 8 (a) (3) of the Act, as amended.
(3) In like or similar manner restraining or coercing employees
in the exercise of the right of self-organization, to form labor organ-
izations, to join or assist any labor organization, to bargain collectively
through representatives of their own choosing, and to engage in col-
lective bargaining or other mutual aid or protection or to refrain from
any or all such activities except to the extent that such right may be
affected by an agreement requiring membership in a labor organiza-
tion as a condition of employment as authorized by Section 8 (a) (3)
of the Act, as amended.
B. Take the following affirmative action which the Board finds
will effectuate the policies of the Act :
(1) Make whole Richard B. Kieburtz for any loss of pay he may
have suffered by reason of the discrimination against him in the man-
ner set forth in the section of the Intermediate Report entitled "The
Remedy."
(2) Post at its office in Seattle, Washington, and at each construc-
tion site of Respondent,E. F. Shuck Construction Co. Inc., within
the jurisdiction of the Respondent Union, in conspicuous places, in-
cluding all places where notices to employees or prospective employees
are customarily posted, copies of the notice attached to the Intermedi-
ate Report marked "Appendix C." Copies of said notice, to be fur-
nished by the Regional Director for the Nineteenth Region, shall, after
having been duly signed by the Respondent Union's representative, be
posted by it immediately upon receipt thereof and be maintained by it
for sixty (60) consecutive days thereafter. Reasonable steps shall be
taken by it to insure that the said notices are not altered, defaced, or
covered by any other material.
(3) Notify the Regional Director for the Nineteenth Region in
writing, within ten (10) days from the date of this Order, what steps
Respondent Union has taken to comply herewith.
MEMBER MURDOCK took no part in the consideration of the above
Decision and Order.
See footnote 3 for amendments to notice attached to Intermediate Report as Appendix C.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon charges filed by Richard B. Kieburtz, an individual, against E. F. Shuck
Construction Co. Inc., herein called Shuck; The Associated General Contractors of
America, Seattle Chapter, Inc., herein called the General Contractors; The Seattle
Construction Council, herein called the Construction Council: and Hod Carriers,
Building and Common Laborers Union, Local No. 242, AFL, herein called the
E. F. SHUCK CONSTRUCTION CO. INC. 733
Union, the General Counsel for the National Labor Relations Board issued his
complaint against each of the above-named Respondents alleging certain violations
of the National Labor Relations Act, as amended, 61 Stat. 136.
The core of the complaint is that the Construction Council, a division of the
General Contractors, in behalf of Shuck and other employers, entered into and gave
effect to a collective-bargaining agreement with the Union, contemplating that only
members of the Union would be hired for employment in any work performed by
members of the General Contractors and the Construction Council. It is alleged
that Kieburtz, after obtaining employment with Shuck, was discharged because he
was not a member of the Union.
Pursuant to notice a hearing was held before the duly designated Trial Examiner
in Seattle, Washington, on October 29 and 30, 1953. All parties were represented,
were permitted to examine and cross-examine witnesses, and to participate fully in
the hearing Briefs have been received from the General Counsel, the Union, the
General Contractors, and Shuck.
Upon consideration of the record and the briefs, and from my observation of the
witnesses, I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENTS
Shuck, a Washington corporation engaged in general construction work with its
principal offices in Seattle, Washington, annually engages in construction work valued
in excess of $50,000 for employers who operate facilities of interstate and national
commerce and for other employers whose operations produce goods and services for
out-of-State delivery valued in excess of $25,000 annually.
The General Contractors and the Construction Council have as members em-
ployers engaged in the Seattle area in the construction of buildings and highways.
The General Contractors and the Construction Council negotiate collective-bargaining
agreements with trade unions for their members, some of whom engage in con-
struction work to an extent exceeding $50,000 annually for employers who operate
facilities of interstate and national commerce and for other employers who produce
goods and services for out-of-State delivery valued in excess of $25,000 annually.
The Union is a labor organization admitting to membership employees of Shuck
and of other members of the General Contractors and the Construction Council.
II. THE UNFAIR LABOR PRACTICES
On November 3, 1950, the General Contractors and the Construction Council in
behalf of their members, including Shuck, entered into a collective-bargaining agree-
ment with the Union which was still in effect at the time of the hearing and which
provided that none of the employer members would employ other than members
of the Union. The practice under this contract in respect to Shuck and the Union
was foi the former to advise the Union of any need for laborers or hod carriers, who
then would be dispatched from the union hall to the construction site. In June 1953
Shuck began work looking toward the construction of several school buildings in or
near Seattle.
Richard Kieburtz, age 19, a student at the University of Washington, in July 1953
was seeking temporary employment. Learning that his opportunity to find work
would be greater if he was a member of the Union, Kieburtz went to the Union's
office where he spoke to Robert Buchanan, a business agent. Buchanan told him,
Kieburtz testified credibly, that if he found a job to have the employer call the
Union in connection with getting a permit for Kieburtz to work on a temporary
basis. On the same day Kieburtz applied to Everett Sayler, Shuck's job superin-
tendent on the school construction, for work. Sayler suggested that Kieburtz leave
his name in Shuck's office and Kieburtz did so On July 28 Kieburtz was informed
by telephone that Shuck had a job for him to begin the next morning. On July 29,
a Wednesday, Kieburtz reported to work on the school construction job. Sayler that
morning, according to Kieburtz, said, "We'll have to see how this union business
works out later." Kieburtz was put to work with another laborer, Sam Swatack,
under the supervision of Foreman Chester Tucker. About 10.30 in the morning of
Friday, July 31, Kieburtz, he testified, saw Elmer Wood, another of the Union's
business agents, in conversation with Superintendent Sayler, and noticed one of
them pointing in his direction. Wood then spoke to Foreman Tucker and coming to
Kieburtz asked if Kieburtz had a "card or anything " Kieburtz answered that he
would like to join the Union but had no card. Wood answered that Kieburtz could
not become a union member. Tucker came over at this point, according to Kieburtz,
734 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
:and said that Kieburtz would be permitted to work out the day. Kieburtz remarked
.to Wood that he thought he was entitled to join the Union as long as he had a job
within its jurisdiction. Wood answered that there were too many members unem-
ployed and that new ones would not be taken in. At the close of the workday
Foreman Tucker gave Kieburtz 2 checks, 1 for the work on Wednesday, the end of
a payroll period, and the other for Thursday and Friday. Tucker remarked, "Sorry,
bat that is the way it is." Kieburtz went to Superintendent Sayler who said, in the
`words of Kieburtz, "I don't know just what to tell you, kid. We have to go along
with the Union on this or they can make trouble for us." Sayler said that Shuck
had an agreement with the Union to hire through the Union's hall. Kieburtz
protested that he thought the Taft-Hartley Act made such an arrangement unlawful.
Sayler answered that the contract with the Union must be honored. Kieburtz on
the following Monday filed the charges giving rise to this proceeding.
Robert Buchanan testified that laborers were dispatched from the Union's hall to
Shuck and other employers upon request and that members of the Union were
invariably dispatched before anyone without that qualification. In respect to stu-
dents, Buchanan testified it was the Union's practice to give permits upon the applica-
tion of an employer enabling a student to work throughout the vacation period and
if such an employee was retained for more than 10 days, to require him to pay a
$5 permit fee Such permits were never given directly to the student on his applica-
tion. Buchanan denied that he or the Union was in any respect concerned in
Kieburtz' discharge.
Superintendent Sayler testified that Kieburtz applied to him for work, that Sayler
instructed him to leave his name at the office, and that about a week or so later
Kieburtz appeared on the job. According to Sayler he had need on July 29 for
some additional laborer help because concrete footings were about to be poured
on some of the school buildings. Sayler testified that Kieburtz was called to work
through error, that he had in mind another applicant. Upon Kieburtz' first appli-
cation, according to Sayler, the latter asked him if he was a member of the Union.
Kieburtz answered that he was not but that he would handle that matter himself.
On the morning of July 29, according to Sayler, there was no mention of union
membership between him and Kieburtz. During the next 3 days Sayler observed,
he testified, that Kieburtz was not cleaning out the bottom of the footing forms
properly and that he was a slow worker. Still according to Sayler, Foreman Tucker
complained that Kieburtz did not follow instruction. Sayler observed, he testified,
that Kieburtz was not keeping pace with the other laborers on the job. Before
noon on Thursday, July 30, Sayler concluded that Kieburtz would not do and
determined to discharge him. Sayler denied that Business Agent Wood spoke to
him concerning Kieburtz. Foreman Tucker testified that Kieburtz was "satisfactory,"
but would do things in his own way rather than follow literal instruction. Tucker
testified that he told Superintendent Sayler he did not think Kieburtz would be a
satisfactory employee. Tucker testified that Business Agent Wood, as far as his
knowledge extended, had nothing to do with Kieburtz' discharge, but did recall that he
heard Wood tell Kieburtz to get himself straightened out with the Union.
Sam Swatack, a member of the Union who worked closely with Kieburtz, testified
that Kieburtz appeared to be inexperienced and for that reason, Swatack did not
like to work with him.
E. F. Shuck, Sr., testified that he observed Kieburtz at work on July 29 and
indicated to Superintendent Sayler that Kieburtz was not satisfactory. The next
day, according to Shuck, he told Sayler to get rid of Kieburtz as soon as it was
convenient. About 8:30 on the morning of July 31, according to Shuck, he signed
the final check for Kieburtz and later that morning delivered it to the job.
Eugene Shuck, Jr., testified that his Company had employed students during the
summer months on other occasions and sought permits from the Union for those
who proved their competency as workers. No such permit was requested for
Kieburtz by his Employer. The job of laborer in construction work appears to be
one requiring no particular training although, as in almost any field, I assume
that experience is of some value. Kieburtz in previous summers had worked in
such employment and was not entirely unfamiliar with construction work from
the standpoint of a laborer. His appearance is that of a young man of good physique
and intelligence. Superintendent Sayler must have concluded at the time of his
first interview with Kieburtz that the latter probably would make an acceptable
worker-for it seems unlikely that otherwise, he would have suggested that Kieburtz
leave his name and telephone number at the employment office. But within 11/2
days after Kieburtz reported for work Sayler became convinced, he testified, that
Kieburtz was not earning his way. There is nothing inherently improbable about
such a development. But what puzzles is the retention of Kieburtz on the job for
F. F SHUCK CONSTRUCTION CO. INC. 735
more than a day after Sayler had reached that conclusion. E. F. Shuck, Sr.,
testified that he had instructed Sayler to release Kieburtz as soon as convenient.
Although Sayler did not testify that Shuck had so instructed him, no reason is
suggested for retaining Kieburtz after the finish of work on July 30. Kieburtz' im-
mediate foreman, Tucker, characterized Kieburtz' work as satisfactory, with the
qualification that he did not follow instruction. Kieburtz testified that at no time
during the 3 days that he worked was his work in any respect criticized or was he
at any time told that he had failed in any fashion to follow an instruction.
The contract running between the General Contractors and the Union covering
the operations of Shuck contains a patently unlawful provision in respect to union
security. An employer in an operation in commerce or affecting commerce may
not lawfully agree to prefer union members for hire, and a union may not lawfully
contract with such an employer to that effect. It is argued that section 11 of that
contract, reading
If any section, subsection, clause, sentence or phrase of this agreement is,
for any reason, held to be repugnant to or in conflict with or in violation of
the-Labor-Management Relations Act of 1947, otherwise known as the Taft-
Hartley Labor Act, being 29 U. S. C., et seq, such repugnancy, conflict or
violation shall not affect the validity of the remaining portions of this agree-
ment , and all portions thereof not repugnant to or in conflict with or in viola-
tion of said Labor-Management Relations Act of 1947 shall be enforced and
abided by as herein written.
has the effect of removing the offending section and permitting the contract other-
wise to stand. 1 do not so interpret it. The section concerning employment imposes
.unlawful conditions and section 11 does no more than provide that if such illegality
is adjudicated the remaining portions of the agreement will continue in effect.
By giving effect to a contract preferring members of the Union for hiring and
retention of employment, the General Contractors, the Construction Council, and
Shuck accomplish such an interference, restraint, and coercion of employees in
respect to rights guaranteed in Section 7 of the Act as amounts to a violation of
Section 8 (a) (1) of the Act.
By such conditioning of employment and retention of employment upon mem-
bership in or approval by the Union, those three Respondents encouraged member-
ship in the Union and thereby violated Section 8 (a) (3) of the Act.
By giving effect to this offending paragraph in the contract the Union restrained
and coerced employees in respect to rights guaranteed in Section 7 of the Act, in
violation of Section 8 (b) (1) (A) of the Act.
The contract and the hiring and referral practices under it constitute a successful
attempt by the Union to cause the employer signatories to discriminate against
employees, in violation of Section 8 (a) (3) of the Act, and the Union thereby
has violated and is violating Section 8 (b) (2) of the Act.
Against the setting of the contract provisions and the hiring practices, the dis-
charge of Kieburtz must be viewed. Kieburtz was in my opinion an honest and
truthful witness in respect to the developments concerning his employment. I
recognize of course that his appraisal of his work performance may be more
favorable to him than a disinterested observer would make But the complaints
voiced by Sayler, Tucker, and E F Shuck, Sr., are trivial I do not credit the testi-
mony that Kieburtz was an unwilling worker. The criticisms contained in the testi-
mony, if they have validity at all, appear to relate to conduct which quickly could
have been corrected by a word from any of those in a supervisory capacity. Kreburtz'
testimony already related concerning his conversation with Sayler after the receipt
of his final check on the evening of July 31, stands uncontradicted Sayler testified
that he recalled no conversation with Kieburtz at the time. I credit Kieburtz' relation,
of what occurred then.
On the basis of all the evidence, upon a conviction derived from the testimony
that Kieburtz was a reasonably competent worker and that Shuck had no serious
ground for complaint in respect to his work performance, I am convinced that his
discharge on July 31 was motivated by the conviction of Respondent Shuck that
his continued employment might lead to some difficulty with the Union. Sayler, as
quoted by Kieburtz, put it succinctly and truthfully when he said that the contract
with the Union must be honored. The reason for the discharge was thus admitted.
It will be recalled that Foreman Tucker testified to a conversation between Kreburtz
and Business, Agent Wood on the morning of July 31 to the effect that Kieburtz
himself make some arrangement with the Union It is urged by the General
Counsel that the evidence is sufficient to establish that a demand was made by the
Union upon Shuck that Kieburtz be discharged. The circumstances of the, visit
736 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the union agent to the job, his conversations with Sayler, Tucker, and Kieburtz,
and the discharge of Kieburtz at the close of that day are suggestive of such a
happening. But I do not find that any such demand was made. I am convinced,
as I have found, that the discharge of Kieburtz occurred because he was not a
member of the Union and because he did not have the permission of the Union
to remain in his employment. As the Union was a party to an agreement with
Shuck and other employers requiring union membership or approval for hire and
retention of employment, it is of no concern here whether in fact any demand was
made specifically requiring the discharge of Kieburtz. The fact is that by con-
tract the Union and Shuck and other employers had agreed that men, without union
membership or approval would not be hired or retained in employment. Kleburtz
was one such and his discharge followed. I find that by the discharge of Kieburtz
the Respondent Shuck discriminated in regard to his hire and tenure of employ-
ment, thus encouraging membership in the Union and thus violating Section 8 (a)
(3) of the Act. Because this discrimination stemmed from a contractual rela-
tionship between Shuck and the Union and because the contract was the product
of negotiation between the General Contractors and the Construction Council on
the one hand and the Union on 'the other, I find that the General Contractors and
the Construction Council to the same extent as Shuck discriminated in regard to the
hire, and tenure of employment of Kieburtz-thus encouraging membership in the
Union, and thereby violating Section 8 (a) (3) of the Act.'
By giving effect to the offending clause in the contract the Union caused Shuck
to discriminate in regard to the hire and tenure of employment, in violation of Sec-
tion 8 (a) (3) of the Act, and thereby violated Section 8 (b) (2) of the Act.
By the discharge of Kieburtz the Respondents Shuck, General Contractors, and
Construction Council interfered with, restrained, and coerced an employee in the
exercise of rights guaranteed in Section 7 of the Act and thereby violated Section
8 (a) (1) of the Act.
By contracting so as to make objectionable under the contract the continued em-
ployment of Kieburtz, the Union restrained and coerced an employee in the exercise
of rights guaranteed in Section 7 of the Act and thereby violated Section 8 (b)
(1) (A) of the Act.
The argument that the union-security clause of the contract finds protection in
Section 102 of the Act is untenable. The contract under which the discharge was
made was executed in November 1950. It may be true, as asserted, that the union-
security provision in that contract was no more than a reiteration of the same clause
in contracts which had been effective between the parties for years before the
passage of the Labor Management Relations Act, 1947, but the fact is that any
such agreement was renewed or extended in November 1950 and whatever protec-
tion Section 102 may have afforded the parties prior to that date was then and there-
by lost.
III. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section II, above, occurring incon-
nection with the operations of Respondent Shuck 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 com-
merce and the free flow of commerce.
IV. THE REMEDY
Because it has been found that Respondent Shuck , Respondent General Con-
tractors, Respondent Construction Council, and the Respondent Union have en-
gaged in certain unfair labor practices, it will be recommended that they cease and
desist therefrom and take certain affirmative action designed to effectuate the policies
of the Act. As the contract between the General Contractors and the Construc-
.`tton Council on the one hand and the Union on the other covering employees of
Respondent Shuck prevented Kieburtz ' from retaining his -employment , it will be
recommended that all Respondents , jointly and " severally, make him whole for any
loss he may have suffered as a result thereof by paying to Kieburtz an amount equal
to that which he would have earned in employment with Shuck following July 31,
1953, until his employment would otherwise have terminated , less his net earnings
during that period . Loss of pay shall be determined by deducting from a sum equal
to that which Kieburtz would normally have earned for each quarter or portion
thereof his net earnings , if any, in other employment during that period . Earnings
1 George D. Auchter Company , 102 NLRB 881
E. F. SHUCK CONSTRUCTION CO. INC. 1 737
in one particular quarter shall have no effect upon the back-pay liability for any
other quarter. The quarterly periods described herein shall begin with the first day
of January, April, July, and October.2 It is recommended further that Respondent
Shuck make available to the Board or its agents, upon request, payroll and other
records necessary to or convenient for a computation of the amount of back pay
due
Because the unlawful contract provisions assented to by all Respondents have
a purpose and tendency to restrict employment opportunity to members of the
Union, it will be recommended that all Respondents immediately cease giving effect
to the union-security clause in the November 1950 contract and refrain in the future
from contracting to such effect in respect to any employer whose operations are
in commerce or affect commerce.
Upon the basis of the above findings of fact, and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. E. F. Shuck Construction Co. Inc., is engaged in commerce within the mean-
ing of Section 2 (6) and (7) of the Act.
2. Hod Carriers, Building and Common Laborers Union, Local No. 242, AFL,
is a labor organization within the meaning of Section 2 (5) of the Act.
3 By enforcing the unlawful provisions of the November 1950 contract, thus
causing a discrimination in regard to the hire and tenure of employment of Richard
B. Kieburtz, Respondent Shuck, Respondent General Contractors, and Respondent
Construction Council have engaged in and are engaging in unfair labor practices
within the meaning of Section 8 (a) (3) of the Act.
4 By such conduct the three Respondents named above have interfered with,
restrained, and coerced employees in the exercise of rights guaranteed in Section
7 of the Act, in violation of Section 8 (a) (1) of the Act.
5. By enforcing the unlawful provisions of the November 1950 contract, thus caus-
ing Respondent Shuck to discriminate against Richard B. Kieburtz in respect to his
tenure of employment, the Respondent Union has engaged in and is-engaging in un-
fair labor practices within the meaning of Section 8 (b) (2) and Section 8 (b) (1)
(A) of the Act.
6. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication I
F. W. Woolworth Company. 90 NLRB 289
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor Re-
lations 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 maintain , give effect to, renew, or enforce any agreement with
Hod Carriers , Building and Common Laborers Union , Local No. 242, AFL,
or any other labor organization covering our employees , which requires job
applicants to be members in good standing of any labor organization or to
secure a work permit from any labor organization, nor will we maintain , renew,
or enforce any agreement which contains union -security provisions , except as
authorized by Section 8 (a) (3) of the National Labor Relations Act, as
amended.
WE WILL NOT interfere with , restrain, or coerce our employees or-prospective
employees in the exercise of the right to self-organization, to join or assist any
labor organization, or to bargain collectively through representatives of their
own choosing and to engage in concerted activities for the purposes of collective
bargaining or other mutual aid or protection , or to refrain from any or all such
activities , except to the extent that such right may be affected by an agreement
requiring membership in a labor organization as a condition of employment, as
authorized in Section 8 (a) (3) of the Act
WE WILL make whole Richard B. Kieburtz for any loss of pay suffered as a
result of the discrimination against him.
i
738 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
All our employees and prospective employees are free to become or remain, or
to refrain from becoming or remaining , members of any labor organization , except to
the extent that this right may be affected by an agreement in conformity with Section
8 (a) (3) of the Act.
E. F. SHUCK CONSTRUCTION CO INC.,
Employer.
Dated---------------- By----------------------------------------------(Representati ve) (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 EMPLOYEES OF E. F. SHUCK CONSTRUCTION CO INC.
Pursuant to the recommendations of a Trial Examiner of the National Labor Re-
lations Board, and in order to effectuate the policies of the National Labor Relations
Act, as amended , we hereby notify the employees and prospective employees of E F.
Shuck Construction Co. Inc., that:
WE WILL NOT maintain , give effect to, renew, or enforce any agreement with
Hod Carriers , Building and Common Laborers Union, Local No. 242, AFL, or
any other labor organization covering employees of E F. Shuck Construction
Co. Inc , which requires job applicants to be members in good standing of any
labor organization or to secure a work permit from any labor organization, nor
will we maintain , renew, or enforce any agreement covering employees of an
employer whose operations are in or affect commerce which contains union-
security provisions , except as authorized by Section 8 (a) (3) of the National
Labor Relations Act, as amended
WE WILL NOT interfere with, restrain , or coerce the employees or prospective
employees of E F . Shuck Construction Co Inc ., in the exercise of the right
to self-organization , to form labor organizations , to join or assist any'labor
organization to bargain collectively through representatives of their own choos-
ing, and to engage in concerted activities for the purpose of collective bar-
gaining or other mutual aid or protection , or to refrain from any or all such
activities , except to the extent that such right may be affected by an agreement
requiring membership in a labor organization as a condition of employment,
as authorized in Section 8 (a) (3) of the Act.
WE WILL make whole Richard B Kieburtz for any loss of pay suffered as a
result of the discrimination against him.
All of the employees and prospective employees of E. F. Shuck Construction Co.
Inc., are free to become, to remain , or to refrain from becoming or remaining mem-
bers of any labor organization , except to the extent that this right may be affected
by an agreement in conformity with Section 8 (a) (3) of the Act.
THE ASSOCIATED GENERAL CONTRACTORS
OF AMERICA , SEATTLE CHAPTER, INC.,
Labor Organization.
Dated---------------- By----------------------------------------------
(Representative ) ( Title)
THE SEATTLE CONSTRUCTION COUNCIL,
Labor Organization.
Dated---------------- By----------------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof, and must not be
altered , defaced , or covered by any other material.
APPENDIX C
NOTICE TO ALL EMPLOYEES OF E. F . SHUCK CONSTRUCTION CO. INC.
Pursuant to the recommendations of a Trial Examiner of the National Labor Re-
lations Board, and in order to effectuate the policies of the National Labor Rela-
IRON CASTINGS, INC. 739
tions Act, as amended, we hereby notify the employees and prospective employees
of E. F. Shuck Consti uction Co. Inc., that:
WE WILL NOT maintain, give effect to, renew, enforce, or attempt to enforce
any agreement between ourselves and The Associated General Contractors of
America, Seattle Chapter, Inc., or The Seattle Construction Council, or E. F.
Shuck Construction Co. Inc., which requires job applicants to be members in
good standing of any labor organization or to secure a work permit from any
labor organization, nor will we maintain, renew, or enforce any agreement
which contains union-security provisions covering employees of any employer
whose operations are in or affect commerce, except as authorized by Section 8
(a) (3) of the National Labor Relations Act, as amended.
WE WILL NOT cause or attempt to cause E F. Shuck Construction Co. Inc., or
any other employer whose operations are in commerce or affect commerce to
discriminate against any employee or prospective employee, in violation of Sec-
tion 8 (a) (3) of the Act.
WE WILL make whole Richard B. Kieburtz for any loss of pay suffered as a
result of the discrimination against him.
HOD CARRIERS, BUILDING AND COMMON
LABORERS UNION, LOCAL No. 242, AFL,
Labor Organization.
Dated---------------- By----------------------------------------^ -----(Representative) (Title)
This notice must remain posted for 60 days from the date hereof, and must not be
altered, defaced, or covered by any other material.
Iron Castings , Inc. and International Molders & Foundry Work-
ers Union of North America, Local No. 228, AFL. Case No.
39-CA-466. October 98, 1955
DECISION AND ORDER
On July 14,1955, Trial Examiner Eugene E. Dixon issued his Inter-
mediate Report in the above-entitled proceeding, finding that the Re-
spondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and take
certain affirmative action, as set forth in the copy of the Intermediate
Report attached hereto. Thereafter, the Respondent filed exceptions
to 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 Interme-
diate Report, the exceptions,' and the entire record in the case, and
'The Respondent attached to its exceptions an affidavit signed by Joe Mabiey, the
Respondent's president. Mabrey says in the affidavit that the Union filed the charges in
this case to force \tabrey to withdraw his petition for an election, that the Board's
Regional Office officials advised hint of this, but that lie did not testify about it at the
bearing because he was not iepresented by counsel and was examined at length as an
adverse witness by the General Counsel.
We cannot consider the affidavit submitted at this late date as any part of the Re-
spondent's proof The Respondent was not denied counsel at the hearing It chose to
be represented b3 President MIabrey Mabrey had the opportunity to be heard, to examine
and cross-examine witnesses, to introduce reletant evidence, and to argue orally We
cannot now consider an affidavit , filed after the hearing and not subject to cioss-
examination , as evidence . Wigmore on Evidence, 3d Edition Sec 1384 Affidavits
114 NLRB No. 119.
387644-56-voi. 114 48