Hargett Construction Co.

National Labor Relations Board - Board Decisions

Jun 2, 1964

147 N.L.R.B. 210 (N.L.R.B. 1964)

210 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Hargett Construction Company and Don Taylor
Local Union No . 2058, United Brotherhood of Carpenters and
Joiners of America , AFL-CIO, and its Agent Robert Rodgers
[Hargett Construction Company ] and Don Taylor . Cases Nos.
9-CA-2957 and 9-CB-1146. June 2, 1964
DECISION AND ORDER
On March 19, 1964, Trial Examiner Fannie M. Boyls issued her
Decision in the above-entitled proceeding, finding that the Respond-
ents, Hargett Construction Company; Local Union No. 2058, United
Brotherhood of Carpenters and Joiners of America, AFL-CIO; and
the Local's agent, Robert Rodgers, had engaged in and were engaging
in certain unfair labor practices and recommending that they cease
and desist therefrom and take certain affirmative action, as set forth
in the attached Trial Examiner's Decision. Thereafter, Respondent
Local 2058 and Respondent Hargett filed exceptions to the Trial Ex-
aminer's Decision and supporting briefs.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Members Leedom, Fanning, and
Brown].
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 Trial
Examiner's Decision and the entire record in this case, including the
exceptions and briefs, and hereby adopts the findings, conclusions,
and recommendations of the Trial Examiner.'
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the Board hereby adopts as its Order, the Order recom-
mended by the Trial Examiner and orders that Respondent Local
Union No. 2058, United Brotherhood of Carpenters and Joiners of
America, AFL-CIO, its officers , agents , and representatives, and Re-
' We find no merit in Respondent Hargett's contention that, absent proof of specific
knowledge , it cannot be held responsible for Respondent Union's unlawful application of
the parties ' valid union-security and hiring hall arrangement . Having agreed to use the
Union's hiring hall as its exclusive source of carpenters , Respondent Hargett, in effect,
appointed Respondent Local 2058 as its exclusive agent for selecting men to be hired.
Accordingly, Respondent Hargett, as party to the exclusive hiring hall arrangement, was
liable with its agent, Respondent Local 2058, for the discriminatory refusal to refer
Taylor. Lummus Company , 142 NLRB 517 , and cases cited therein . In any event, as
the Trial Examiner found, Respondent Hargett did have specific knowledge of the Re-
spondent Union's discriminatory hiring hall practices.
147 NLRB No. 32.
HARGETT CONSTRUCTION COMPANY 211
spondent Hargett Construction Company, its officers, agents, succes-
sors, and assigns, shall take the action set forth in the Trial Examiner's
Recommended Order.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Upon charges filed by Don Taylor, an individual , on September 11, 1963, against
Hargett Construction Company, herein called Respondent Employer, and Local
Union No. 2058, United Brotherhood of Carpenters and Joiners of America, AFL-
CIO, herein called Respondent Local, and its agent , Robert Rodgers , a complaint
was issued on October 31, 1963. The complaint alleges that at all times material
herein , Respondent Local and Respondent Employer have maintained an exclusive
hiring arrangement or practice whereby all applicants for employment are cleared
through or referred for employment by Respondent Local or its agent , Robert
Rodgers, and that Respondent Local and its said agent , in violation of Section 8(b)
(2) and (1) (A) of the National Labor Relations Act, as amended, refused to refer
the Charging Party, Don Taylor, to an available job with Respondent Employer be-
cause of Taylor's lack of membership in Respondent Local, and that Respondent
Employer, in violation of Section 8 (a) (3) and (1) of the Act, refused to hire Taylor
because he was not referred by and was not a member of Respondent Local. Each
Respondent filed an answer denying that it had engaged in the unfair labor practices
alleged. A hearing was held before Trial Examiner Fannie M. Boyls on Decem-
ber 11 and 12, 1963, at Lexington , Kentucky. Subsequent to the hearing all parties
filed briefs which I have carefully considered.
Upon the entire record in this case , and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT
I. THE BUSINESS . OF RESPONDENT EMPLOYER
Respondent Employer is a Kentucky corporation having its principal office and
place of business at Lexington , Kentucky, where it is engaged as a general contractor
in the building and construction industry . During the year preceding the issuance
of the complaint , Respondent Employer performed services valued in excess of
$50,000 within the State of Kentucky for International Business Machines Corpora-
tion , which enterprise annually produces and ships goods valued in excess of $50,000
directly out of the State wherein said enterprise is located . Respondents concede, and
I find, that Respondent Employer is an employer as defined in Section 2(2) of the
Act, and that it is engaged in commerce and in operations affecting commerce as
defined in Section 2(6) and (7) of the Act. I further find that it will effectuate the
policies of the Act for the Board to assert jurisdiction herein.
H. THE RESPONDENT LOCAL
Respondents concede, and I find , that Respondent Local is a labor organization
within the meaning of Section 2 (5) of the Act, and that Respondent Robert Rodgers
at all times material herein has been the business agent of Respondent Local and
an agent acting in its behalf within the meaning of Sections 2(13) and 8(b) of the
Act.
III. THE UNFAIR LABOR PRACTICES
A. The issues presented
There are substantial conflicts in the testimony of the Charging Party, Don Taylor,
and Respondent Local's business agent, Robert Rodgers , regarding the details of what
was said between them during the period when Taylor was seeking carpentry work
through Respondent Local, but the essential facts relating to the issues , as I see them,
are not in dispute . Thus, it is conceded that Taylor sought referral through Respond-
ent Local to an available carpenter 's job at the Sylvania jobsite of Respondent Em-
ployer and that Respondent Local refused to refer him to the job or give him a
work permit because he was over 2 months delinquent in the payment of dues to a
sister local to which Taylor belonged.
Under these- circumstances , whether Respondent Local's refusal to clear him or
refer him to the job, and Respondent Employer's refusal to hire him for the job with-
out clearance by Respondent Local, constituted a violation of Section 8(b)(2) and
212 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(1) (A) of the Act on the part of Respondent Local, and of Section 8(a) (3) and
(1) of the Act on the part of Respondent Employer, depends, in my view, upon
whether Respondent Local and Respondent Employer were operating under a con-
tract, arrangement, or understanding whereby Respondent Local had exclusive
authority to refer or clear applicants for jobs. There is described below the con-
tractual arrangements and understandings between Respondent Local and Respond-
ent Employer.
B. The hiring arrangements and practices
When Respondent Employer commenced the construction of its Sylvania plant in
Versailles, Kentucky, in early June 1963, it signed the area contract which Respond-
ent Local had negotiated with the General Contractors of Frankfort, Kentucky.
This agreement contained , inter alia , a maintenance-of-membership clause and a
union-shop provision requiring membership in Respondent Local on or before the
8th day of employment as a condition of employment (article IV, sections I and II).
It also required the employer to notify the Union when additional or replacement
employees were needed and obligated the Union to furnish applicants to perform
the necessary work within 48 hours after request had been received, providing, how-
ever, that the decision with regard to hire and tenure of employment would be made
by the employer (article IV, section III). Under the contract, Respondent Local
also agreed to refer carpenters on a nondiscriminatory basis (article VI, section I).
It was further provided, however, that the employer would give careful considera-
tion in hiring to those carpenters previously employed by him and whose skill and
proficiency were known to him, and that in the event he hired an applicant directly
on the jobsite he would notify Respondent Local of the names and classifications and
dates of hiring (article VI, sections II and III).
The General Counsel does not contend that this contract on its face required any
unlawful hiring practice, and, indeed, it appears to conform to the requirements of
Section 8(f) of the Act for contracts covering employers in the building and con-
struction industry. The General Counsel contends, however, that the arrangements
and practices under this contract show that the parties contemplated and actually
operated under an exclusive hiring hall procedure.
It is undisputed that after Respondent Employer had been awarded the contract
for the Sylvania project , Job Superintendent Harold Bowlin , in accordance with his
customary procedure , sought out the business agent of the Respondent Local in the
area, informed him of Respondent Employer 's anticipated needs with respect to
carpenters , and asked if the Respondent Local would be able to meet those needs.
Respondent Rodgers, business agent of Respondent Local , promised to supply the
needed carpenters . During the conversation Bowlin indicated that Respondent Em-
ployer would abide by the area collective -bargaining agreement . Also, in accord-
ance with customary procedure , Bowlin informed Rodgers that Respondent Em-
ployer wished to bring with it to the project its carpenter foreman and one other
carpenter already in its employ, and Rodgers approved this proposal . Pursuant to
Bowlin 's request that two carpenters be referred immediately , Rodgers sent two of
those on its out-of-work list-the first of whom , Douglas Choate, became Respondent
Local's steward on the job. Thereafter, with one exception, whenever Bowlin an-
ticipated that he would need additional carpenters , he informed Choate of the number
he expected to use and the date upon which they should report for work. Choate,
in turn , transmitted these requests to Business Agent Rodgers and. Rodgers referred
carpenters to the job in the order in which they had informed Rodgers that they were
out of work. The one exception to this procedure was an occasion upon which
Bowlin requested Rodgers to clear a specifically named carpenter whose special
qualifications for a particular type of carpentry were known to Bowlin and whose
special services he needed . In accordance with Respondent Local's practice when a
specifically named person is requested by the employer , Rodgers granted Bowlin's re-
quest in this instance.
A number of men from time to time would come to the jobsite looking for work
and, according to Bowlin , he would tell them that he needed no additional men
then and that when he did need them he would get them through Respondent Local;
or, he might indicate to them that he would be needing men soon and suggest that
they get cleared through Respondent Local.
Respondent Employer stipulated at the hearing that there was an exclusive hiring
practice in effect on the Sylvania job. Respondent Local, however, although initially
admitting in its answer that it maintained an exclusive hiring arrangement or practice
whereby all applicants for employment with Respondent Employer were cleared
through or referred for employment by Respondent Local, later amended its answer
to deny this. Respondent Local contends that it operates a "first opportunity hiring
HARGETT CONSTRUCTION COMPANY 213
hall" rather than an exclusive hiring hall, pointing out that if, after first being given
an opportunity to refer carpenters to Respondent Employer, it failed to refer them,
the employer would then be permitted under the contract to obtain carpenters in
any way it could. This understanding, nevertheless, recognizes the exclusive right
of Respondent Local to refer or clear applicants for employment and it is the posses-
sion of this right, whether or not exercised, which determines whether Respondent
Local and Respondent Employer maintain an exclusive hiring practice or arrange-
ment. It seems clear to me that they in fact did maintain such practice or
arrangement.
As I see the issue here, however, it is not important whether the arrangement be
characterized as a first opportunity or as an exclusive hiring arrangement. In either
event Respondent Local's control over job opportunities at Respondent Employer's
project was such that it had power to cause Respondent Employer to discriminate in
hiring and was, therefore, such as to require Respondent Local to refer or clear ap-
plicants on a nondiscriminatory basis, as, indeed, the collective-bargaining agreement
required it to do. N.L.R.B. v. George D. Auchter Company, et al., 209 F. 2d 273
(C.A. 5).
C. The circumstances under which Don Taylor failed to obtain employment
Early in June 1963, while employed on a construction job in Lexington, Kentucky,
Taylor went to the Sylvania jobsite at Versailles, Kentucky, to inquire about employ-
ment there. Job Superintendent Bowlin told him that Respondent Employer would
be needing some carpenters later and that Taylor should see Respondent Local's busi-
ness agent if he wanted a job. Taylor continued to work on his Lexington job until
about the end of the first week in August, but while still working, as well as after his
job ended, he checked with Bowlin from time to time about job opportunities. On
these occasions, or some of them, Bowfin would indicate when he thought a car-
penter's job might open up but at all times made it clear that Taylor would have to
get a work permit from Rodgers or be referred by him before Bowlin could employ
Taylor.
It would appear from the record that no additional carpenters were in fact needed
by Bowfin until Monday, August 26. Taylor testified that on Friday, August 23,
Bowlin told him that some carpenters would be needed on the following Monday
morning and that Taylor should see Rodgers and be at the jobsite on Monday morn-
ing. I am convinced, however, from Bowlin's credited testimony as well as from
Taylor's testimony that Bowfin only informed Taylor as to his need for carpenters
on Monday and did not offer him a job. At all times Bowlin made it plain that
he hired through Respondent Local and that Taylor in order to get a carpenter's
job with Respondent Employer would have to be cleared through Respondent Local.
It is undisputed that Bowlin did not request either Union Steward Choate or Busi-
ness Agent Rodgers to clear Taylor. There was no reason for Bowlin to treat
Taylor differently than he did the numerous other jobseekers who appeared at the
jobsite, and I am convinced that he, in fact, did not treat him differently.
After each occasion when Taylor saw'Bowlin at the jobsite he would get in touch
with Rodgers either by telephone or in person . There is a substantial conflict in the
testimony of Taylor and Rodgers as to what was said on these occasions. I am
satisfied , however, that during the course of these conversations Taylor told Rodgers
that he was a member of the Madisonville, Kentucky, local of the Carpenters, that
he needed work, and that he desired carpentry work in the territorial jurisdiction of
Respondent Local; that Rodgers informed him that no work was then available and
that a large number of Respondent Locals' members were out of work and waiting
for referral; and that Rodgers, nevertheless, took Taylor's name and address, added
it to his out-of-work list, and told Taylor that he would be called and referred to
work upon the payment of a work permit fee after Rodgers had referred the other
carpenters who were already on the out-of-work list.
About 7:30 p.m. on Sunday, August 25, after having been told by Bowlin on
the preceding Friday that some carpenters would be needed Monday, August 26,
on the Sylvania project, Taylor went to Rodgers' home. Rodgers told Taylor that
he was at that moment about to telephone the trailer camp where Taylor was stay-
ing in an attempt to reach him and notify him of available work. He informed
Taylor that his name had been reached on the out-of-work list and that Rodgers was
ready to refer him to a job at the Sylvania project. He then asked to see Taylor's
dues book. Taylor's dues book, when produced, indicated that he had not paid
any dues to his Madisonville local since May. Taylor, although owing dues for the
months of June, July, and August, attempted to deceive Rodgers into believ;ng that
his dues were in fact current but had not been posted in his dues book because
Taylor needed the book with him as an identification in applying for carpentry jobs.
214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Rodgers, however, insisted that the dues book had to show that Taylor was current
in the payment of his dues before Rodgers would refer him to a job, and refused
to issue a permit to Taylor under the circumstances .1 In this connection Rodgers
refused to wait until Taylor could make the trip to see his business agent at Madison-
ville-a round trip of almost 400 miles-before taking further steps to obtain the
carpenters needed by Bowlin on the following morning. Nothing was apparently
said about the payment by Taylor of a permit fee on this occasion , but on the basis
of the evidence as to Rodgers ' uniform practice , I shall assume that if Taylor's dues
book had been in order , Rodgers would have issued a permit to Taylor upon Taylor's
payment of the regular permit fee of $5.75 2
After thus refusing to refer Taylor to the Sylvania job, Rodgers telephoned
Chester Hays, the business agent of the nearby Lexington local, and requested the
latter to send two carpenters to the jobsite on the following morning. Hays did so.
Respondent Local's steward , Choate, upon checking the dues cards of the two men,
found that one of them , Scott, had not paid his current month 's dues in the Lexington
local and refused to permit him to work .. Scott left and returned in about an hour
with his dues card showing his dues were current . He was then permitted to work.
Job Superintendent Bowlin was standing nearby and heard Choate send Scott away
because his dues were not current but Bowlin said nothing.
D. Analysis and conclusions
It is settled, as the Supreme Court pointed out in The Radio Officers' Union of
the Commercial Telegraphers Union, AFL (A. H. Bull Steamship Company) v.
N.L.R.B., 347 U.S. 17, 40, that the "policy of the Act is to insulate employees' jobs
from their organizational rights" and that Section 8(a) (3) of the Act "prohibits an
employer from discriminating against an employee by reason of his membership or
nonmembership in a labor organization except to the extent that he obligates him-
self to do so under the terms of is permitted union shop or maintenance of member-
ship contract."
It is equally well established that a labor organization may not cause or attempt
to cause the employer to discriminate except in those limited circumstances. The
permitted union-shop and maintenance-of-membership contract cannot require an
applicant for employment to be a union member or pay dues as a condition pre-
cedent to his employment. Under Section 8(f) of the statute, an agreement cover-
ing employees in the building and construction industry may not require a new em-
ployee, as a condition of employment, to join the union or pay dues to it until after
the 7th day of his employment or the effective date of the contract, whichever is
the later. Accordingly, Respondent Local, operating under its union-shop and
maintenance-of-membership contract and its exclusive hiring arrangement with Re-
spondent Employer, could not lawfully refuse to refer even one of its own members
because of his delinquency in the payment of dues.
Respondent Local suggests in its brief that Taylor became is member of the bar-
gaining unit and was covered by the contract between Respondent Local and Re-
spondent Employer at the time he sought referral to a job with Respondent
Employer in June 1963, and that he thereupon became obligated under the collective-
bargaining agreement to remain in good standing by keeping his dues current in his
home local. I cannot accept these premises. In the first place, it certainly cannot
be said that one becomes an employee in the bargaining unit merely by applying for
I On the following day Taylor mailed a check for 4 months' dues to L. E. Tucker, busi-
ness agent of the Madisonville local, along with his dues book. The dues book was then
posted on August 27 to show a payment of dues through September and promptly re-
turned to Taylor. The check, however, "bounced" because of "not sufficient funds." In
September, Taylor obtained work in Ohio and at the date of the hearing had apparently
become current in the payment of his dues.
2 Because of certain inconsistencies in Taylor's -testimony and •hls prior written state-
ments, as well as because of my appraisal of his character, I do not credit some of his
testimony, denied by Rodgers, about statements made to him by Rodgers-in particular,
testimony that Rodgers at their first meeting, as well as thereafter, told him it would be
necessary for him to pay a work permit fee of $100 before he would be referred to a job.'
It is possible, of course, that there was some mention. of Respondent Local's $100 initia-
tion fee for new members and that Taylor honestly misunderstood what Rodgers said. In
any event , Rodgers impressed me 'as an honest man and I credit his denial that he ever
made any such statement to Taylor . Rodgers' denial , moreover, is corroborated by the
testimony of his wife who stated that she was present or in hearing distance on each
occasion when Taylor visited the Rodgers' home.
HARGETT CONSTRUCTION COMPANY 215
a job therein even if that person is not already employed elsewhere in another bar-
gaining unit as Taylor was when he first sought referral. In the second place,
whether or not a member of Respondent Local, of some other local or of no union,
Taylor would have been entitled to 8 days under the contract in which to satisfy
the dues-paying membership requirements of Respondent Local. To construe the
contract otherwise would make it vulnerable under Section 8(a)(3) and 8(f) of the
statute. Plasterers' Union Local No. 77, Operative Plasterers' and Cement Masons'
International Association (Piper & Greenhall, Inc.), 143 NLRB 765. In their
briefs, the parties have treated at length the obligations of membership set forth in
the International's constitution and general laws and in the Respondent Local's
bylaws, but I need not decide what Taylor's union obligations were to his own union,
the International, or to Respondent Local. The union membership requirements
may not be enforced so as to prevent him from obtaining, as distinguished from
retaining, employment by reason of nonpayment of dues in his own or in any other
union .3
In view of the exclusive hiring arrangement between Respondent Local and Re-
spondent Employer, I am constrained to find that Respondent Local, in refusing to
refer Taylor to an available job with Respondent Employer on August 26 because
of his dues delinquency in the Madisonville local, thereby causing Respondent Em-
ployer not to hire him, violated Section 8(b)(2) and (1)(A) of the Act. I also
find that Respondent Employer, by failing to hire Taylor for a job available for him
on August 26 because of the Union's refusal to refer or clear him for the position,
violated Section 8 (a) (3) and (1) of the Act. To be sure, Taylor did not return to
the jobsite on August 26, but Job Superintendent Bowlin had made clear to him on
the preceding Friday as well as on other occasions that he would have to be cleared
or referred by Respondent Local before he could be hired. It would, therefore,
have been futile for Taylor to have returned since he was unable to obtain a work
permit from Rodgers. The futility of an applicant's reporting for work without first
complying with Respondent Local's dues-paying requirements was, moreover, amply
demonstrated by the manner in which Scott, from the Lexington local, with Respond-
ent Employer's acquiescence, was turned away from the jobsite on August 26 until
he had satisfied Respondent Local's requirements. Respondent Employer-whose
job superintendent was a member of a Carpenters local and who knew of Respondent
Local's discriminatory practices-is jointly responsible with Respondent Local and
Respondent Rodgers for the discrimination against Taylor. This discrimination, con-
trary to Respondent Employer's contention, clearly encouraged membership in a labor
organization and interfered with the right of employees to "freely exercise their right
to join unions, be good, bad, or indifferent members, or abstain from joining any
union without imperiling their livelihood" within the meaning of Section 8(a)(3)
and (1) of the Act. The Radio Officers' Union of the Commercial Telegraphers'
Union, AFL (A. H. Bull -Steamship Company) v. N.L.R.B., 347 U.S., 17, 40;
N.L.R.B. v. F. H. McGraw and Company, 206 F. 2d 635 (C.A. 6).
I am aware of the fact that it was the theory of the General Counsel in issuing the
complaint and arguing the case before me that Respondent Local violated Section
8(b)(2) and (1) (A) and Respondent Employer violated Section 8(a)(3) and (1)
of the statute because Taylor's failure to obtain employment with Respondent Em-
ployer was due to his nonmembership in Respondent Local, whereas my finding of
statutory violations are not based on Taylor's lack of membership in Respondent
Local. The facts concerning Taylor's failure to obtain employment with Respond-
8 Cf. N.L.R.B. v. Local Union No. 1842, International Brotherhood of Electrical Work-
ers, AFT CIO (Avco Mfg. Corp., Crosby Division), 283 F. 2d 112 (C.A. 6), enfg. 124
NLRB 794, 795, wherein the Board found that a union' had violated Section 8(b) (2)
and (1 ) (A) of the Act by causing the discharge of an employee who was already a mem-
ber of the union when hired because that employee later refused to pay dues for a 6-week
probationary period provided under the contract for new employees. In that case the
Board stated, "Moreover, even if the Union had a different union-security agreement, re-
quiring the immediate payment of dues without any preliminary grace period for new
employees who were union members, such an agreement would clearly be beyond the
limits permitted by the proviso to Section 8(a) (3)." See also N.L.R.B. v Spector Freight
Systems, Inc., at al., 273 F. 2d 272 (C.A. 8), cert. denied 362 U.S. 962, wherein it was
held that the employer and union had violated Section 8(a) (3) and 8(b) (2) of the Act,
respectively, when the employer, at the union's request, discharged an employee under a
union-security contract because that employee, a union member when hired, failed to pay
preemployment union dues. To similar effect, see N.L.R.B. v. Murphy's Motor Freight,
Inc., and Local 107, International Brotherhood of Teamsters, eto., AFL, 231 F. 2d 654
(C.A. 3).
216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ent Employer were, however, fully litigated and all parties were aware that the
legality of Respondent Local's refusal to refer him and Respondent Employer's fail-
ure to hire him was in issue . Accordingly, an incorrect or unsubstantiated theory of
the General Counsel will not preclude the Trial Examiner, the Board, or the courts
from correctly applying the statutory provisions in issue to those facts. N.L.R.B. v.
MacKay Radio & Telegraph Co., 304 U.S. 333, 349.
CONCLUSIONS OF LAW
1. Respondent Local and Respondent Employer at all times material herein main-
tained an agreement, understanding, or arrangement whereby all applicants for em-
ployment, as a condition of employment with Respondent Employer, were required
to be referred by or cleared through Respondent Local.
2. By refusing to hire Don Taylor for a carpenter's job available on August 26,
1963, at its Sylvania jobsite, Respondent Employer engaged in an unfair labor prac-
tice within the meaning of Section 8(a) (3) and (1) of the Act.
3. By causing Respondent Employer to violate Section 8(a)(3) and (1) of the
Act in refusing to hire Taylor for carpentry work on August 26, Respondent Local
and its agent, Respondent Rodgers, have engaged in an unfair labor practice within
the meaning of Section (b) (2) and. (1) (A) of the Act.
4. By maintaining and enforcing a hiring arrangement whereby applicants for
employment were required to be current in the payment of their union dues, Respond-
ent Local and its agent, Respondent Rodgers, violated Section 8(b)(2) and (I) (A)
of the Act, and Respondent Employer violated. Section 8(a) (3) and (1) of the Act.
5. The aforesaid unfair labor practices affect commerce within the meaning of
Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondents have engaged in the unfair labor practices de-
scribed above, my Recommended Order will require that they cease and desist there-
from and take certain affirmative action designed to effectuate the policies of the Act.
It having been found that Respondent Local and its agent, Respondent Rodgers,
discriminatorily refused to issue a work permit to Don Taylor after his name had
been reached on its out-of-work list, these Respondents will be required to issue
such work permit to him upon his tender of the permit fee uniformly required of
other carpenters seeking referral, and these Respondents will also be required to notify
the Respondent Employer that they have no objection to the employment of Taylor
by Respondent Employer .4
Respondent Employer will be required to offer Taylor immediate employment as
a carpenter at its Sylvania jobsite upon compliance by Taylor with the customary
and lawful permit fee requirements of Respondent Local if such carpentry services
are needed by Respondent Employer, displacing, if necessary, any carpenter whose
name was reached on Respondent Local's out-of-work list subsequent to the time
Taylor's name was reached on said list and who may have been hired by Respondent
Employer; provided, however, That if Respondent Local, subsequent to August 26,
has offered to refer Taylor to such job, no offer at this time by Respondent Em-
ployer will be necessary.5
Since Respondent Local and Respondent Employer have been found jointly respon-
sible for the discrimination against Taylor, they will be required jointly and severally
to make him whole for any loss of pay suffered as a result of the discrimination
against him . The backpay shall be computed in accordance with the formula set
forth in F. W. Woolworth Company, 90 NLRB 289, with interest at the rate of 6
percent per annum on all amounts due Taylor, as provided in Isis Plumbing &
Heating Co., 138 NLRB 716. Since Respondent Rodgers was merely acting as an
agent of Respondent Local in engaging in the unlawful conduct for which Respond-
ent Local is responsible, it will not be necessary in order to effectuate the policies of
the Act that he be required personally to reimburse Taylor for any loss of pay.
Myles Worstell, Business Agent of Local 2023; Local 2023 of the United Brotherhood
of Carpenters and Joiners of America, AFL (Baker & Coombs, Inc.), 114 NLRB 503,
514. Respondents will also be required to post appropriate notices.
I The General Counsel has not contended that the amount of the work permit fee, $5.75,
which is also the amount of the monthly dues In Respondent Local, is an unreasonable
amount for the use of Respondent Local's hiring facilities and I shall assume for the pur-
poses of this proceeding that it is not excessive.
5 There was a suggestion in the record that Respondent Local may have offered to refer
Taylor subsequent to August 26.
HARGETT CONSTRUCTION COMPANY 217
RECOMMENDED. ORDER
Upon the entire record in this case , and pursuant to Section 10(c) of the National
Labor Relations Act, as amended, it is hereby ordered that:
A. The Respondent , Hargett Construction Company, its officers , agents, successors,
and assigns , shall:
1. Cease and desist from:
(a) Refusing employment to Don Taylor, or any other prospective, employee, in
violation of Section 8(a) (3) of the Act.
(b) Entering into, performing , maintaining , or otherwise giving effect to any ar-
rangement with Respondent Local whereby the payment of union dues is required
as a condition precedent to the obtaining of employment; provided, however, that
nothing herein or in the notices referred to hereinafter shall be construed to prohibit
any agreement or practice permitted by Section 8(f) of the Act, as amended, where
applicable.
(c) In any like or related manner interfering with, restraining, or coercing em-
ployees or applicants for employment in the exercise of rights guaranteed in Section
7 of the Act.
2. Take the following affirmative action designed to effectuate the policies of the
Act:
(a) Offer employment to Don Taylor in the manner described in the section of
the Trial Examiner's Decision entitled "The Remedy," without prejudice to any
seniority or other rights or privileges 'to which he would have been entitled but for
the discrimination against him.
(b) Jointly and severally with Respondent Local Union No. 2058, United Brother-
hood of Carpenters and Joiners of America, AFL-CIO, make Don Taylor whole for
any loss of pay he may have suffered because of the discrimination against him in
the manner set forth in the section of the Trial Examiner's Decision entitled "The
Remedy."
(c) Preserve and, upon request , make available to the Board or its agents, for
examination and copying , all payroll records, social security payment records, time-
cards, personnel records and reports, and all other records necessary . to analyze the
amounts of backpay due under the terms hereof.
(d) Post at.its Sylvania jobsite, copies of the attached notice marked "Appendix
A." 6 Copies of such notice, to be furnished by the Regional Director for the Ninth
Region , shall, after being signed by Respondent Employer 's authorized representa-
tive, be posted by it immediately upon receipt thereof, and be maintained by it for a
period of 60 consecutive days thereafter , in conspicuous places, including all places
where notices to its employees are customarily posted. Reasonable steps shall be
taken by Respondent Employer to insure that said notices are not altered , defaced, or
covered by any other material.
(e) Post at the same place and under the same conditions as set forth in (d) above
and as soon as they are forwarded by the Regional Director , copies of the Respond-
ent Local's notice herein marked "Appendix B."
(f) Mail ,to the Regional Director signed copies of Appendix A for posting by
Respondent Local as provided herein. Copies of said notice, to be furnished by the
Regional Director , shall, after being signed as provided above, be forthwith returned
to the Regional Director for disposition.
(g) Notify the Regional Director for the Ninth Region, in writing, within 20 days
from the receipt of this Recommended Order , what steps the Respondent Employer
has taken to comply herewith.?
B. The Respondent , Local Union No. 2058, United Brotherhood of Carpenters
and Joiners of America , AFL-CIO, its officers , representatives , agents, successors,
and assigns, and Respondent Robert Rodgers , business agent for said Local , shall:
1. Cease and desist from:
(a) Refusing to refer or clear Don Taylor, or any other prospective employee, for
employment with Respondent Hargett Construction Company, or any other employer,
because such employee is not current in the payment of his union dues.
C If this Recommended Order is adopted by the Board, the words "a Decision and Order"
shall be substituted for the words "the Recommended Order of a Trial Examiner" in the
notice. In the further event that the Board's Order is enforced by a decree of a United
States Court of Appeals, the words "a Decree of the United States Court of Appeals,
Enforcing an Order" shall be substituted for the words "a Decision and Order."
7If this Recommended Order is adopted by the Board, this provision shall be modified
to read: "Notify said Regional Director, in writing, within 10 days' from the date.of this
Order, what steps the Respondent Employer has taken to comply herewith."
218 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) Entering into, performing, maintaining, or otherwise giving effect to any
arrangement with the Respondent Employer whereby the payment of union. dues
is required as a condition precedent to the obtaining of employment; provided,.
however, that nothing herein nor the notices referred to hereinafter shall be con-
strued to prohibit -any -agreement or practice permitted by Section 8(f) of the Act,
as amended, where applicable.
(c) In any like or related manner restraining or coercing employees or applicants
for employment in the exercise of rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action designed to effectuate the policies of
the Act:
(a) Upon the tender by Don Taylor of the fee uniformly required of other
carpenters seeking referral to jobs, issue to him a work permit and refer him or
clear him for employment on a nondiscriminatory basis.
(b) Notify Hargett Construction Company that it has no objection to the em-
ployment of Don Taylor or any other carpenter who has qualified for referral or
clearance in the manner set -forth above.
(c) Jointly and severally with Hargett Construction Company make Don Taylor
whole for any loss of pay he may have suffered because of the discrimination against
him in the manner set forth in the section of the Trial Examiner's Decision entitled
"The Remedy."
(d) Post at its office and meeting hall, copies of the attached notice marked
"Appendix B." 8 Copies of said notice, to be furnished by the Regional Director
for the Ninth Region, shall, after being duly signed by Respondent Local's business
agent, be posted immediately upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places, including all places where notices
to members are customarily posted. Reasonable steps shall be taken to insure that
said notices are not altered, defaced, or covered by zany other material.
(e) Post at the same places and under the same conditions as set forth in (d)
above and as soon as they are forwarded by the Regional Director, copies of the
Respondent Employer's notice marked "Appendix A."
(f) Mail to the Regional Director for the Ninth Region signed copies of Appen-
dix B for posting by Respondent Employer as provided herein. Copies of said notice,
to be furnished by the said Regional Director, shall, after being signed by Respondent
Local's business agent, be forthwith returned to the Regional Director for disposition.
(g) Notify the Regional Director for the Ninth Region, in writing, within 20 days
from the date hereof, what steps have been taken to comply herewith.s
8 See footnote 6, supra.
See footnote 7, supra.
APPENDIX A
NOTICE TO ALL EMPLOYEES AND APPLICANTS FOR EMPLOYMENT
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify you that:
WE WILL NOT refuse employment to Don Taylor or any other prospective
employee in violation of Section 8(a)(3) of the Act.
WE WILL NOT enter into, perform, maintain, or otherwise give effect to any
arrangement with Respondent Local Union No. 2058, United Brotherhood of
Carpenters and Joiners of America, AFL-CIO, whereby the payment of union
dues is required as a condition precedent to the obtaining, as distinguished from
the retaining , of employment.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce
employees or applicants for employment in the exercise of rights guaranteed in
Section 7 of the National Labor Relations Act.
WE WILL offer Don Taylor employment as !a carpenter upon compliance by
him with the customary and lawful permit fee requirements of Respondent
Local and under the conditions prescribed in the section of the Trial Examiner's
Decision entitled "The Remedy."
WE WILL jointly and severally with Respondent Local make Don Taylor
whole for any loss of pay suffered by reason of the discrimination against him.
HARGETT CONSTRUCTION COMPANY,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
STERILON CORPORATION 219
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced, or covered by any other material.
Employees may communicate with the Board 's Regional Office , Transit Building,
Fourth sand Vine Streets , Cincinnati , Ohio, Telephone No. 381 -1420, if they have
any question concerning this notice or compliance with its provisions.
APPENDIX B
NOTICE TO ALL MEMBERS OF LOCAL UNION No. 2058 , UNITED BROTHERHOOD OF
CARPENTERS AND JOINERS OF AMERICA, AFL-CIO , AND TO ALL EMPLOYEES OF
HARGETT CONSTRUCTION COMPANY
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board , and in order to effectuate the policies of the National Labor
Relations Act, as amended , we hereby notify you that:
WE WILL NOT refuse to refer or clear Don Taylor or any other prospective
employee for employment with Respondent Hargett Construction Company,
or any other employer , because such employee is not current in the payment
of his union dues.
WE WILL NOT enter into, perform , maintain , or otherwise give effect to any
arrangement with Respondent Hargett Construction Company, whereby the
payment of union dues is required as a condition precedent to the obtaining,
as distinguished from the retaining , of employment.
WE WILL NOT in any like or related manner restrain or coerce employees or
or applicants for employment in the exercise of rights guaranteed in Section 7
of the Act.
WE WILL notify Respondent Hargett Construction Company that we have no
objection to its employment of Don Taylor and will, upon the tender by Don
Taylor of the fee uniformly required of other carpenters seeking referral to a
job, issue to him a work permit and refer him or clear him for employment
on a nondiscriminatory basis.
WE WILL jointly and severally with Respondent Hargett Construction Com-
pany make Don Taylor whole for any loss of pay he may have suffered because
of the discrimination against him.
LOCAL UNION No . 2058, UNITED BROTHERHOOD OF
CARPENTERS AND JOINERS OF AMERICA, AFL-CIO,
Labor Organization.
Dated------------------- By-------------------------------------------
(ROBERT RODGERS , Bu&inesa Agent)
This notice must -remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced , or covered by any other material.
Employees may communicate with the Board 's Regional Office , Transit Building,
Fourth 'and Vine Streets, Cincinnati , Ohio , Telephone No. 381-1420 , if they have
any question concerning this notice or compliance with its provisions.
Sterilon Corporation and United Rubber, Cork, Linoleum and
Plastic Workers of America, AFL-CIO, Petitioner . Case No.
3-RC-1143. June 2, 1964
DECISION AND ORDER DENYING MOTION AND
REQUEST TO CLARIFY CERTIFICATION
On May 8, 1953, the Board certified the United Rubber, Cork,
Linoleum and Plastic Workers of America., AFL-CIO, as the bargain-
ing representative of all production and maintenance employees of the
Employer at its Buffalo, New York, plant, excluding office clerical
employees, professional employees, guards, and supervisors as defined
in the Act. On December 16, 1963, the Petitioner filed a motion and
147 NLRB No. 37.