Indianapolis and Central Indiana District Council

National Labor Relations Board - Board Decisions

Dec 15, 1958

122 N.L.R.B. 396 (N.L.R.B. 1958)

396 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
enterprises which exert, or tend to exert, a pronounced impact on
commerce. Keeping in mind the significant increase in its caseload
which may be expected not alone under this standard but under
other standards as well, the Board does not believe it to be adminis-
tratively feasible at this time to extend its jurisdiction further in
this area.
As the Employer derives in excess of $50,000 gross revenues for
the transportation of mail in interstate commerce, we find that it
will effectuate the policies of the Act to assert jurisdiction herein.
2. The Petitioner, an employee of the Employer, asserts that the
Union is no longer the representative, as defined in Section 9(a) of
the Act, of the employees designated in the petition. The Union is
the certified bargaining representative of such employees.
3. A question affecting commerce exists concerning the representa-
tion of employees of the Employer within the meaning of Section
9(c) (1) and Section 2(6) and (7) of the Act.
4. The following employees of the Employer constitute a unit ap-
propriate for the purposes of collective bargaining within the mean-
ing of Section 9(b) of the Act: All motor vehicle drivers and me-
chanics employed by the Employer at its Charleston, W. Va., termi-
nal, including those employees stationed at Buckhannon, W. Va., but
excluding all guards, office clerical employees, professional em-
ployees, and supervisors as defined in the Act. This is the unit for
which the Union was certified and is currently recognized.
[Text of Direction of Election omitted from publication.]
Indianapolis and Central Indiana District Council , United
Brotherhood of Carpenters and Joiners of America , AFL-CIO
and Local 60, United Brotherhood of Carpenters and Joiners
of America , AFL-CIO and Mechanical Handling Systems,
Incorporated, Party to the Contract and Hafford B. Carter
and Elza Stevenson
United Brotherhood of Carpenters and Joiners of America,
AFL-CIO and Mechanical Handling Systems , Incorporated,
Party to the Contract and Hafford B. Carter. Cases Nos.
35-CB-203, 35-CB-203-1, and 35-CB-220. December 15, 1958
DECISION AND ORDER
On January 30, 1958, Trial Examiner Louis Plost issued his Inter-
mediate Report in the above-entitled proceeding, finding that the
Respondents , Indianapolis and Central Indiana District Council,
United Brotherhood of Carpenters and Joiners of America, AFL-
122 NLRB No. 51.
INDIANAPOLIS AND CENTRAL INDIANA DISTRICT COUNCIL 397
CIO, hereafter referred to as the Council, and Local 60, United
Brotherhood of Carpenters and Joiners of America, AFL-CIO,
hereafter referred to as the Local, have engaged in and are engaging
in certain unfair labor practices in violation of Section 8(b) (1) (A)
and (b) (2), and recommending that they cease and desist therefrom
and take certain affirmative action as set forth in the copy of the
Intermediate Report attached hereto.
He further found that the United Brotherhood of Carpenters and
Joiners of America, AFL-CIO, hereafter referred to as the Interna-
tional, had not engaged in any of the unfair practices alleged in the
complaint and recommended the dismissal of the complaint in Case
No. 35-CB-220.
None of the Respondents filed exceptions. However, the General
Counsel filed exceptions, and a supporting brief. On May 9, 1958,
the International filed a motion to dismiss and a memorandum in
support thereof, to which the General Counsel filed suggestions in
opposition to Respondent's motion to dismiss.
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 In-
ternmediate Report, the exceptions and briefs, and the entire record
in the case, and adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner only to the extent consistent herewith.
The motion to dismiss, filed by the International, seeks to have
the Board dismiss the proceedings insofar as the International is
concerned, on the ground that the exceptions filed by the General
Counsel on February 21, 1958, were not served on the International
"immediately" as prescribed by Section 102.46 of the Board's Rules
and Regulations. The order transferring the cases to the NLRB
stated that "Exceptions to the Intermediate Report must be received
by the Board in Washington, D. C., on or before February 24, 1958."
In acknowledgement of the International's motion to dismiss, the
Board's Assistant Executive Secretary wrote McGowan, on May
22, 1958, carbon copy to the International, granting an extension
until June 11, 1958, to file exceptions and brief in this proceeding.
The General Counsel asserts in opposition to the motion to dismiss
that exceptions and a brief in support thereof were mailed to the
Board on February 21, 1958, and at the same time copies were served
upon each of the parties by duly mailing said copies by certified
mail pursuant to Sections 102.46 and 102.89 of the Board's Rules
and Regulations. In support thereof, the General Counsel submits
an affidavit that such mailing was made by certified mail; that the
certified article number is C 255895; that efforts to trace said certi-
fied letter have been unavailing; that no certified return receipt has
been received by the General Counsel from the International, but
398 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that such receipts have been received from Local 60 and the Council
which mailings were made at the same time.
William A. McGowan is the assistant general counsel of the Inter-
national and appeared at the hearing for Local 60 and the Council.
Also, he, with Francis X. Ward, the International's general counsel,
appeared at the hearing for the International. Both McGowan and
Ward signed the motion to dismiss. Undisputed is the fact that both
Local 60 and the Council received the exceptions and brief mailed
by the General Counsel.
Because of the inability to trace the certified mailing of the ex-
ceptions and brief, personal service of such items was obtained on
the general counsel of the International on the 18th day of April,
1958. It is this service which the International contests, contending
that such service 51 days after the due date for exceptions does not
constitute "immediate" service within the Board's Rules and Regu-
lations.
As urged by the International, the Board's Rules and Regulations,
Section 102.46, requires that the parties be served with copies of the
exceptions immediately after filing same with the Board. However,
Section 102.90 provides that the date of service shall be the day
when the matter is deposited in the mail, and that failure to make
proof of service does not affect the validity of service.
The General Counsel used an authorized method of service by
depositing in the United States mail, duly certified, copies of its
exceptions and brief properly addressed. After failing in its attempt
to trace the documents, personal service was made on the general
counsel of the International. Thus it appears that the General Coun-
sel has done all that could be done under the circumstances. There-
after, the Respondent International was granted adequate additional
time to file an answer to the exceptions and brief. It is clear that
the exceptions and brief were filed timely on Local 60 and the
Council, both represented by the International's assistant general
counsel who also represented the International in these proceedings.
The International makes no contention nor showing that it was
prejudiced in any manner, and due to the extension of time here-
tofore granted the International, we find no prejudice nor lack of
due process.
Under these circumstances, we deny the International's motion to
dismiss and find that valid service was made on the International.
The Trial Examiner found that the Respondents, the Council,
and Local 60, had violated 8(b) (1) (A) and (b) (2) of the Act. No
exceptions were filed by either of the Respondents. Therefore, we
adopt the findings of the Trial Examiner, not for the reasons he
ascribes, but for the reasons hereinafter stated.
INDIANAPOLIS AND CENTRAL INDIANA DISTRICT COUNCIL 399
The Trial Examiner found that the International's agreement of
May 10, 1956, with the Employer is illegal. But, he found no con-
nection between this agreement and the agreement made later be-
tween the Employer and the Respondents, the Council and Local
60. We disagree.
The International's agreement in this case is identical to the agree-
ment involved in the Marley case.' As the Board said in that case,
it is unrealistic to suggest that the arrangements of the Local and
Council at local projects have no relationship to the master agree-
ment between the International and the Employer. We find that the
two agreements, one nationwide and with the parent union, and
the other, areawide with the Local and Council, dovetailed so pre-
cisely so as to reveal a single comprehensive scheme for complete
evasion of the statutory ban on all closed shops.
The Respondent International filed no exceptions to the finding
that the agreement of May 10, 1956, was illegal. By its terms the
Agreement binds the Company to employ members of the Car-
penters International. In view of the reference therein to rules and
regulations established by the Local of any particular area, the
working rules and regulations of the Council and Local 60 were also
incorporated into the contract as if "they had been physically em-
bodied in the document itself." The rules of the Council provide,
inter alia, that no member is permitted to work with a member or
ex-member who has been suspended or fined until the fine is paid;
and, that no member is permitted to work with nonmembers with-
out permission of the Council. The constitution of the Council,
which also provides working rules, provides for a clearance card
committee to examine all clearance cards and recommend their ac-
ceptance to the Local ; that the finances of the District Council were
to be derived, from the sale of working cards and permits, etc. ; that
the District Council has sole right to issue quarterly working cards
to Locals for members "together with such extra cards as may
possibly be required in addition thereto, taking a receipt therefrom,
and the Local Union shall be held strictly accountable therefor";
for the Council's right to full control over working cards with au-
thority to revoke; that members coming into the district are required
to procure working cards before seeking employment; that mem-
bers of construction [sic] whether following trade actively or not,
are required to secure working cards; that carpenters are subject
to fine if the working card is not presented to the steward before
going to work; and, the requirement of a foreman for every three
journeymen-who must be a member in good standing and is charged
with the responsibility of enforcing the trade rules. We find that
1 The Marley Company, 117 NLRB 107.
400 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
working rules which provide such limitations on hiring as do these
set out above, together with the contract, are outlawed by statute in
that they establish closed-shop conditions.
The Trial Examiner found the existence of an oral agreement be-
tween Local 60 and the Council and the Employer concerning the
employment conditions of employees to be hired, and that they were
aware that a denial of a clearance or referral by them would deprive
an applicant of employment in violation of 8(b) (1) (A) and (b) (2).
It is our opinion that such oral agreement between the Employer
and Local 60 and the Council was to implement the existing master
contract between the Employer and the Respondent International,
and was a part of a single comprehensive scheme for complete eva-
sion of the statutory ban on closed shops.
Accordingly, we find that the three Respondents, the International,
Council, and Local 60, violated Section 8(b) (1) (A) and (b) (2) of
the Act in maintaining and enforcing an agreement which established
closed-shop preferential hiring conditions. Furthermore, we find that
by causing or attempting to cause the Company to refuse to hire
Elza Stevenson, the Respondents, Council and Local 60, violated
8(b) (1) (A) and (b) (2) ; and that the Respondents, International;
the Council, and Local 60, by causing or attempting to cause the
Company to refuse to hire Hafford B. Carter violated 8(b) (1) (A)
and (b) (2).z
THE REMEDY
In addition to the Trial Examiner's finding that the Respondents,
Local 60 and the Council, have engaged in unfair labor practices, we
have found that the International also engaged in the same unfair
labor practices. It will be recommended that all the Respondents
cease and desist therefrom and take certain affirmative action, de-
signed to effectuate the policies of the Act.
As part of the remedy, therefore, we shall order the Respondents
jointly and severally, to make whole Hafford B. Carter '3 and the Re-
spondents, excepting the International, to make whole Elza Steven-
son, for any loss of pay they may have suffered as a result of the
discrimination against them by payment to each of them a sum of
money equal to that which would normally have earned as. wages
but for the discrimination, less his net earnings during such period,
the back pay to be computed in the manner prescribed by the Board
in F. W. Woolworth Company, 90 NLRB 289.
Since it has been found that the Respondents have maintained and
enforced an unlawful agreement which involves terms and condi-
2 Elza Stevenson did not file a charge against the International.
3 However, as the Trial Examiner recommended dismissing the complaint filed by
Carter against the International , we shall exclude the period from the date of the
Intermediate Report to the date of the Order herein in computing the award of back
pay for which the Respondent International is responsible.
INDIANAPOLIS AND CENTRAL INDIANA DISTRICT COUNCIL 401
tions of employment and practices pursuant thereto violative of
8(b) (1) (A) and (b) (2), it will be ordered that they refrain from
maintaining and enforcing its unlawful agreement with Mechanical
Handling Systems, Incorporated. Furthermore, since the Board has
had before it a similar agreement executed by the Respondents and
another employer,4 we shall require the Respondents" to cease and
desist from maintaining and enforcing such agreements, understand-
ings , or practices, not only with Mechanical Handling Systems, In-
corporated, but with any other employers, provided that any such
employers which are parties to such agreements or arrangements, are
employers over which the Board would assert jurisdiction in an ap-
propriate proceeding.
Furthermore, as we find that dues, nonmembership dues, assess-
ments, and work permit fees, were collected under the illegal contract
as the price employees paid in order to obtain or retain their jobs,
we do not believe it would effectuate the policies of the Act to permit
the retention of the payments which have been unlawfully exacted
from the employees.
In addition therefore, we shall order the Respondents, jointly or
severally, to refund to the employees involved the dues, nonmember-
ship dues, assessments, and work permit fees, paid by the employees
as a price for their employment.5 These remedial provisions, we be-
lieve, are appropriate and necessary to expunge the coercive effect
of Respondents' unfair labor practices.6
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 that :
A. The Respondents, Local 60, United Brotherhood of Carpenters
and Joiners of America, AFL-CIO, Indianapolis and Central In-
diana District Council, United Brotherhood of Carpenters and
Joiners of America, AFL-CIO and United Brotherhood of Car-
penters and Joiners of America, AFL-CIO, their officers, representa-
tives, agents, and assigns shall :
1. Cease and desist from :
(a) Executing, maintaining, performing, or enforcing any agree-
ment, understanding, or practice with Mechanical Handling Sys
tems, Incorporated, or any other employer which requires member-
ship in its organization as a condition of employment, except as au-
thorized by Section 8(a) (3) of the Act.
4 The Marley Company, supra.
5 Respondents ' liability for reimbursement shall include the period beginning 6 months
prior to the filing and service of the initial charge against each Respondent herein and
shall extend to all such moneys thereafter collected.
s See Los Angeles -Seattle Motor Express, Incorporated , 121 NLRB 1629.
505395-59-vol. 122-27
402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) Causing and attempting to cause the Employer, Mechanical
Handling Systems, Inc., its officers, agents, or assigns, or any other
employer, to refuse to hire employees unless they have obtained re-
ferral slips from or have been cleared by either of them, or to dis-
criminate against the employees in any term or condition of employ-
ment, except to the extent permitted by Section 8(a) (3) of the Act.
(c) In any like or related manner restraining or coercing em-
ployees of the Mechanical Handling Systems, Inc., or of any other
employer in the exercise of the rights guaranteed in Section 7 of the
Act, except to the extent that such rights may be affected by an
agreement permitted 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) Jointly and severally make Hafford B. Carter whole in the
manner set forth in "The Remedy" section of this Decision and
Order.
(b) Reimburse all employees of Mechanical Handling Systems,
Incorporated, in the full amount for all moneys illegally exacted
from them provided, however, that this Order shall not be construed
as requiring reimbursement for any such dues, nonmembership dues,
assessments, and work permit fees collected more than 6 months prior
to the date of service of the original charge against each Respondent
herein.
(c) Post at their offices in Indianapolis, Indiana, at all locations
where notices to members are customarily posted, copies of the notice
hereto attached marked "Appendix A." 7 Copies of said notice to
be furnished by the Regional Director for the Ninth Region shall,
after being duly signed by a representative of the Respondents, In-
dianapolis and Central Indiana District Council, United Brother-
hood of Carpenters and Joiners of America, AFL-CIO and Local 60,
United Brotherhood of Carpenters and Joiners of America, AFL-
CIO, be posted by them immediately upon receipt thereof and con-
spicuously maintained by them for a period of sixty (60) consecu-
tive days thereafter in all places where notice to members are cus-
tomarily displayed at International, Council, and Local headquar-
ters. Reasonable steps shall be taken by the Respondents to insure
that said notices are not altered, defaced, or covered by other ma-
terial.
(d) Additional copies of the said notice hereto attached marked
"Appendix All shall be signed by a representative of each Respond-
ent and forthwith returned to the Regional Director for the Ninth
Region. These notices shall be posted, Mechanical Handling Systems,
7 In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order."
INDIANAPOLIS AND CENTRAL INDIANA DISTRICT COUNCIL 403
Incorporated, willing, in places where notices to the employees of
Mechanical Handling Systems, Incorporated, are customarily posted.
(e) Notify, in writing, Mechanical Handling Systems, Incorpo-
rated, and Hafford B. Carter that the Respondents have withdrawn
their objection to the hiring or continued employment of Carter by
Mechanical Handling Systems, Incorporated; and also notify Haf-
ford B. Carter, in writing, that henceforth they will not coerce him
or restrain him by unlawfully denying to him a work referral slip
or by otherwise interfering with the rights guaranteed to him by
Section 7 of the Act.
(f) Notify the Regional Director for the Ninth Region in writ-
ing, within ten (10) days from the date of this Order, as to what
steps the Respondents have taken to comply herewith.
B. The Respondents Local 60, United Brotherhood of Carpenters
and Joiners of America, AFL-CIO, and the Indianapolis and Cen-
tral Indiana District Council, United Brotherhood of Carpenters and
Joiners of America, AFL-CIO, in addition to the above shall:
(a) Jointly and severally make Elza Stevenson whole in the man-
ner set forth in "The Remedy" section of this Decision and Order.
(b) Notify, in writing, Mechanical Handling Systems, Incorpo-
rated, and Elza Stevenson that the Respondents have withdrawn
their objection to the hiring or continued employment of Stevenson
by Mechanical Handling Systems, Incorporated; and also notify
Elza Stevenson, in writing, that henceforth they will not coerce or
restrain him by unlawfully denying to him a work referral slip or
by otherwise interfering with the rights guaranteed to him by Sec-
tion 7 of the Act.
(c) Notify the Regional Director for the Ninth Region, in writing
within ten (10) days from the date of this Order, what steps the Re-
spondents have taken to comply herewith.
MEMBER BEAN took no part in the consideration of the above De-
cision and Order.
APPENDIX A
NOTICE TO ALL MEMBERS OF UNITED BROTHERHOOD OF CARPENTERS
AND JOINERS OF AMERICA, AFL-CIO ; INDIANAPOLIS AND CENTRAL
INDIANA DISTRICT COUNCIL, UNITED BROTHERHOOD OF CARPENTERS
AND JOINERS OF AMERICA, AFL-CIO; AND, LOCAL 60, UNITED
BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, AFL-CIO,
AND TO ALL EMPLOYEES OF AND APPLICANTS FOR EMPLOYMENT 117',TH
MECHANICAL HANDLING SYSTEMS, INCORPORATED
Pursuant to a Decision and Order of the National Labor Rela-
tions Board, and in order to effectuate the policies of the National
Labor Relations Act, we hereby notify all of you that:
404 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT, jointly or severally , enter into , perform, main-
tain , or otherwise give effect to the provisions of any agreement
with Mechanical Handling Systems, Incorporated , or any other
employer, which requires employees or prospective employees to
obtain job referrals or permits , or which unlawfully conditions
the hire of applicants for employment or retention of employees
in employment by such employer or any other employer, upon
clearance or approval by any of us , except as authorized by Sec-
tion 8 ( a) (3) of the Act.
WE WILL NOT, jointly or severally , cause or attempt to cause
Mechanical Handling Systems, Incorporated , or any other em-
ployer, to discriminate against employees in violation of Section
8(a)(3) of the Act.
WE WILL NOT, jointly or severally, in any like or related man-
ner restrain or coerce employees or prospective employees of
Mechanical Handling Systems, Incorporated , or any other em-
ployer, in the exercise of the rights guaranteed in Section 7 of
the Act, except to the extent that such rights may be affected by
an agreement requiring membership in a labor organization as a
condition of employment as authorized by Section 8(a) (3) of
the Act.
WE, the United Brotherhood of Carpenters and Joiners of
America, AFL-CIO; the Indianapolis and Central Indiana Dis-
trict Council , United Brotherhood of Carpenters and Joiners of
America, AFL-CIO ; and Local 60, United Brotherhood of Car-
penters and Joiners of America, AFL-CIO, jointly or severally
will make Hafford B. Carter whole for any loss he may have
suffered as a result of the discrimination practiced against him
in his failure to obtain employment from Mechanical Handling
Systems, Incorporated , by our refusal to issue a clearance or
work permit to him.
WE, the Indianapolis and Central Indiana District Council,
United Brotherhood of Carpenters and Joiners of America,
AFL-CIO, and Local 60, United Brotherhood of Carpenters and
Joiners of America, AFL-CIO, jointly or severally will make
Elza Stevenson whole for any loss he may have suffered as a
result of the discrimination practiced against him in his failure
to obtain employment from Mechanical Handling Systems, In-
corporated , by our refusal to issue a clearance or work permit
to him.
WE WILL notify, in writing, Mechanical Handling Systems,
Incorporated , and Hafford B. Carter that we have withdrawn
our objection to the hiring or continued employment of Hafford
B. Carter, and that henceforth we will not coerce or restrain
INDIANAPOLIS AND CENTRAL INDIANA DISTRICT COUNCIL 405
him by discriminatorily denying to him a clearance or a work
referral slip or by otherwise interfering with his rights in Sec-
tion 7 of the Act.
WE, excepting herefrom the Respondent International,' will
notify in writing, Mechanical Handling Systems, Incorporated,
and Elza Stevenson that we have withdrawn our objection to
the hiring or continued employment of Elza Stevenson, and that
henceforth we will not coerce or restrain him by discriminatorily
denying to him a clearance or a work referral slip or by other-
wise interfering with his rights in Section 7 of the Act.
WE WILL reimburse all employees of Mechanical Handling
Systems, Incorporated for all dues, nonmembership dues, assess-
ments, and work permit fees, which we have collected pursuant
to our unlawful agreement with the aforementioned Company
beginning with all such dues, nonmembership dues, assessments,
and work permit fees, collected 6 months prior to the filing to
the initial charge against each Respondent.
Signed copies of this notice have been mailed to the National
Labor Relations Board's Regional Director for the Ninth Region
for posting by Mechanical Handling Systems, Incorporated, that
company willing, in all locations where notice to employees of Me-
chanical Handling Systems, Incorporated, are customarily posted.
UNITED BROTHERHOOD OF CARPENTERS
AND JOINERS OF AMERICA, AFL-CIO,
Union.
Dated---------------- By------------------------------- ------
(Representative) (Title)
INDIANAPOLIS AND CENTRAL INDIANA
DISTRICT COUNCIL, UNITED BROTHER-
HOOD OF CARPENTERS AND JOINERS OF
AMERICA, AFL-CIO,
Union.
Dated---------------- By-------------------------------------
(Representative ) (Title)
LOCAL 60, UNITED BROTHERHOOD OF
CARPENTERS AND JOINERS OF AMER-
ICA, AFL-CIO,
Union.
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.
1 Elza Stevenson did not file a charge against the International.
406 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
INTERMEDIATE REPORT
STATEMENT OF THE CASE
Upon a charge filed on behalf of H. B. Carter with the Thirty-fifth Subregion
of Region 9 of the National Labor Relations Board (Board) on March 19, 1957,
and thereafter amended July 31, 1957, and September 10, 1957, by first and sec-
ond amended charges duly filed, all docketed as 35-CB-203, and on a charge
likewise filed March 19, 1957, on behalf of Elza Stevenson and docketed 35-CB-
203-1 and on a charge filed with said Subregion on September 10, 1957, on behalf
of Hafford B. Carter, amended October 7, 1957, by a first amended charge, dock-
eted as 35-CB-220, all said charges alleging that: (a) Indianapolis and Central
Indiana District Council, United Brotherhood of Carpenters and Joiners of Amer-
ica, AFL-CIO; (b) Local 60, United Brotherhood of Carpenters and Joiners of
America, AFL-CIO; and (c) United Brotherhood of Carpenters and Joiners of
America, AFL-CIO (collectively herein called the Respondents, and severally
herein called Respondent Council, Respondent Local 60 and Respondent Interna-
tional), respectively, engaged in certain unfair labor practices affecting commerce
as set forth and defined in the National Labor Relations Act, as amended, 61 Stat.
136, hereinafter called the Act, the General Counsel of the National Labor Rela-
tions Board, on October 8, 1957, on behalf of the Board, by the Regional Director
for the Ninth Region, issued a consolidated complaint against the Respondents
alleging that the Respondents had engaged in and were engaging in unfair labor
practices within the meaning of Section 8(b)(1)(A) and (2) and Section 2(6) and
(7) of the Act.
With respect to the unfair labor practices the complaint alleged in substance
that: (1) on or about May 10, 1956, Respondent Internaional and Mechanical
Handling Systems, Incorporated, herein called Party to the Contract, or Mechani-
cal Handling, entered into an illegal closed-shop agreement; (2) on or about Janu-
ary 9, 1957, the Respondent Council adopted and enforced the agreement above
mentioned; (3) the Respondents Council and Local 60 adopted the illegal contract
aforesaid, have enforced said agreement as to Mechanical Handling, and have
required Mechanical Handling to illegally hire only members of Respondents or
others approved by them; (4) on or about February 6, 1957, the Respondents,
Council and Local 60, caused Mechanical Handling to refuse employment to cer-
tain individuals not approved for employment by the Respondents; and (5) pur-
suant to the terms of the illegal agreement above mentioned the Respondents
have exacted dues from "unknown employees" of Mechanical Handling "in amounts
unknown to the Regional Director."
The Respondents duly filed answers denying that they had engaged in any of
the unfair labor practices alleged.
Copies of the complaint, the charges, and a notice of hearing were duly served
on the Respondents, the Charging Parties, and the Party to the Contract.
Pursuant to notice a hearing was held at Indianapolis, Indiana, November 25
and 26, 1957, before Louis Plost, the duly designated Trial Examiner.
All the parties were represented, their representatives being herein referred to
in the names of their principals. All the parties were afforded full opportunity to
be heard, to examine and cross-examine witnesses, to introduce evidence bearing
upon the issues, to argue orally and to file briefs, proposed findings of fact and/or
conclusions of law, with the Trial Examiner.' The parties waived oral argument.
A brief has been received from the General Counsel.
Upon the entire record and from his observation of the witnesses, the Trial
Examiner makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
Party to the Contract
Mechanical Handling Systems, Incorporated, is a Michigan corporation engaged
in the manufacture, design, and installation of conveyors and allied equipment,
and at all times material herein was engaged in such operations at the Ford Motor
Company plant in the city of Indianapolis, Indiana.
During the calendar year 1956, which is a representative period, Mechanical
Handling sold and shipped, from its plants located in Detroit and Van Dyke,
1 The time for filing briefs was extended by the Chief Trial Examiner to December 26.
INDIANAPOLIS AND CENTRAL INDIANA DISTRICT COUNCIL 407
Michigan, directly to points located outside the State of Michigan, products of a
value in excess of $1,000,000.
It is conceded that now and at all times material to the issues herein, Mechani-
cal Handling is and has been an employer engaged in "commerce" or in "opera-
tions affecting commerce" as those terms are defined in Section 2(6) and (7) of the
Act.
II. THE RESPONDENT LABOR ORGANIZATIONS
The Respondents admit the allegation set forth in the consolidated complaint
that each of them, are, and have been, at all times material to the issues herein
labor organizations as defined in Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
Sherman P. Roberts, field superintendent of Mechanical Handling at its Indian-
apolis project, affected by this proceeding, testified that Mechanical Handling was
party to an agreement with the Respondent International. This agreement is
dated May 10, 1956, and provides:
We, the firm of MECHANICAL HANDLING SYSTEMS, INC., AGREE
to recognize the jurisdiction claims of the United Brotherhood of Carpenters
and Joiners of America, to work the hours, pay the wages and abide by the
rules and regulations established or agreed upon by the United Brotherhood
of Carpenters and Joiners of America of the locality in which any work of
our company is being done, and employ members of the United Brotherhood
of Carpenters and Joiners.
The agreement is attached hereto as "Appendix A," as a part of this report.
There can be no doubt that the agreement between Mechanical Handling and
the Respondent International attempts to set up an illegal closed shop and an
equally illegal preferential hiring system?
Roberts further testified that Mechanical Handling is also party to a collective-
bargaining contract with Millwrights Local 1102 of Detroit, Michigan, affiliated
with the Respondent International and that:
Well, whenever we go out of town, wherever we go we work under the same
agreement, you see. We work under the same agreement out of town as we
do in.
However according to Roberts the jurisdiction of Local 1102 does not extend into
Indiana.
Field Superintendent Roberts further testified that on January 4, 1957, Mechani-
cal Handling started a certain job at the Ford Motor Company's plant in Indian-
apolis, he being in charge; that "two or three days" later Ralph R. Smith, busi-
ness representative of the Respondent Council, and the business agent for the
Iron Workers Union called on him at the Ford job, this being the first time he
had ever met Smith; that the two business agents conferred in his presence; that
he did not participate in the conversation but "let them do their own talking,
make their own decisions" because:
Mr. Smith and the business agent for the Steelworkers was deciding who was
going to have the jurisdiction of putting the trough sections in the floor.
That during Smith's initial visit he told Smith "we wanted millwrights" and "we
got four or five millwrights the next day."
According to Roberts during this first conversation he agreed with Smith on a
procedure to be followed thereafter by which millwrights and carpenters would
be hired through Respondent Local 60, the arrangement being:
Well, the men of Local 60, Mr. Bereman, or whoever issues this referral
card, then it is addressed to Roberts or whoever it is on the job of Mechanical
Handling Systems.
That on the Ford job no carpenters or millwrights were hired who were not re-
ferred to him by the Respondent Local 60, a referral slip being required of every
applicant before he was hired.
Roberts testified that at no time during his first conversation with Smith or in
any subsequent conversation was the matter of Mechanical Handling's agreement
with the Respondent International discussed.
Ralph R. Smith testified that during all times material herein he was president
of Respondent Council as well as its business agent and further that he was and
2J. J. White, Inc., 111 NLRB 1126.
408 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
is the only person who "can make an agreement officially" for Respondent Coun-
cil and Represent Local 60.
. Respondent District Council is "composed of regularly elected delegates" from
various local unions "in Indianapolis and vicinity."
Respondent Local 60 is a conventional craft union affiliated with Respondent
International and has delegate representation in Respondent Council.
It is clear that Smith in his capacity of representative of Respondent Council
entered into contracts through the Council for and in behalf of Respondent
Local 60.
Smith further testified:
Q. (By Mr. McGowan.) Let me ask you this, Mr. Smith: In connection
with the relationship between any particular contractor and the District
Council, where you have an agreement in effect, is your relationship controlled
by your bylaws?
A. Our relationship is controlled by the agreement we have with the Con-
tractors Association.
Logically this means that the relationship of Respondent Local 60 and employ-
ers contracting through Respondent Council is also controlled by the same agree-
ment.
Business Representative Smith corroborated Roberts' testimony that the agree-
ment existing between Mechanical Handling and Respondent Local was not dis-
cussed between them, however in an affidavit Smith made for the General Coun-
sel's field examiner, Smith, averred that in his first meeting with Roberts "he
[Roberts] advised me that his company had an International Agreement with our
Union and that he would abide by its terms."
This language does not, in the opinion of the Trial Examiner, spell out a dis-
cussion, or adoption of an existing contract by the parties.
With respect to his first meeting with Roberts, the business representative testi-
fied:
At that time I gave him a copy of the contract that we had with the Gen-
eral Contractors Association, which we asked that he work under.
The record is clear that the document given to Roberts at the time was a copy
of "Joint Agreement by and between Building Contractors Association and Indi-
anapolis and Central District Council." 3 According to Smith:
I gave Mr. Roberts the agreement, and I said, "We live by this 100 percent.
What is in it we will do. That's our agreement with you."
Smith testified that although he and Roberts acting for their principals signed
no written agreement they entered into a binding verbal contract which carried
union-shop provisions, the oral contract being Mechanical Handling's agreement
to abide by the terms of the Respondent's (Council and Local 60) agreement with
the Building Contractors Association.
Smith testified that at the time the agreement was entered into Mechanical
Handling had hired no employees for the Ford job in Indianapolis and had only
one employee (other than Roberts) at Indianapolis, a foreman brought from De-
troit, who was a member of a Detroit, Michigan, local.
Smith testified:
The WITNESS: I believe that they had one man from 1102 in Detroit, was
on the job.
TRIAL EXAMINER: Just one. But anyone from your jurisdiction here on the
job?
The WITNESS: No. He hadn't hired anybody.
TRIAL EXAMINER: He hadn't hired anyone. And at that time when he had
not hired and merely had here a man from Detroit who was a member of the
craft, he made an agreement with you to abide by the local contract?
The WrrNEss: Yes.
The record discloses that not only did Mechanical Handling agree to abide by
the Respondent's (Council and Local 60) contract with the Indianapolis Building
Contractors Association but it did adhere to the closed-shop conditions imposed
on it by the Respondent Council and Respondent Local 60.
Hafford B. Carter corroborated by Elza Stevenson testified he had been em-
ployed for a 21/2 year period by Mechanical Handling on a job at Louisville,
e s Respondent 's Exhibit No. 1.
INDIANAPOLIS AND CENTRAL INDIANA DISTRICT' COUNCIL 409
Kentucky; that on advice of his foreman he came to Indianapolis, together with
Elza Stevenson, to seek employment from Roberts on the Ford job there; that
late in January 1957, he and Stevenson called on Roberts at the Ford job and
asked Roberts for employment. Carter testified:
As near as I can remember, sir, he [Roberts] said that he would like to have
me especially as I had worked for him before, on the job, it was just begin-
ning, but he felt like that I would have an awful lot of trouble getting
through the local and getting a clearance card to go to work; and for me to
go back down to the local and wait until someone came in to see as to
whether or not I could get clearance.
According to Carter, he was also told by Roberts that the job had not yet started
because of lack of materials; that he and Stevenson then went to the District
Council's office, where they asked for referrals to the Ford job but after the
person they talked to telephoned Roberts (Carter listening on a connecting phone)
and Roberts stating he would have work for them the following week, they left
without being given referrals and returned to Louisville; that on February 5, 1957,
Carter telephoned Roberts and
He told me to come over the next day and get Mr. Stevenson, that he had
plenty of work and would definitely like to have us go to work at that time.
That on the next day he and Stevenson called on Roberts at the job talked to
Roberts and Ernest A. Wallace, the general foreman under Roberts, and
He (Roberts) and Mr. Wallace said that we were still going to have trouble
trying to get through the union, and didn't know as to whether or not we
would, but he was going to give it a try. And Mr. Wallace recommended
that he give us a letter of recommendation, and Mr. Roberts said, "Well,
that will be all right. Go ahead and write it up and I will sign it."
The following letter was given Carter:
DEAR MR. R. R. SMITH, I would like to request that these two men, Elza W.
Stevenson and H. B. Carter be given a working permit for this job; these
men have worked for Mechanical Handling Systems on several occasions.
They are both good conveyor men. I would appreciate your coorperation
in this matter.
Yours very truly,
(Signed) S. P. Roberts,
MR. S. P. ROBERTS,
Gen. Field Supt., Mechanical Handling Systems.
Carter and Stevenson then went to the office of Respondent Council, showed
the letter to Smith, and asked him for referrals to the Ford job. Smith refused
them referrals until he had "investigated"; told them to return the next day which
they did, Smith then refused to refer them to the job for work.
After Smith's refusal the two men called at the office of the Respondent In-
ternational and were told they could not get referrals for work until cleared by
the Respondent Local 60.
Stevenson who corroborated Carter testified that after being refused referrals to
the Ford job he so informed Foreman Wallace. Stevenson testified:
Q. And will you tell us about that conversation?
A. Well, I told him what had happened, that we hadn't been able to get a
permit or wasn't able to go to work for him the next morning-that morning
and all. And he asked if we would try to come back and we told him that
we might the following week. He said if we come back to get hold of an-
other fellow down there, Tommy Craig, and get him to come back and have
him to clear in at the same time that we were supposed to clear in.
Q. And do you recall whether or not he said anything about your being
employed?
A. Yes. We had a job if we come back.
Superintendent Roberts testified that he told Carter and Stevenson "that they
would first have to clear through the Carpenter's union," and that he issued the
letter above referred to.
Wallace testified with respect to the letter:
What I recollect was-I don't know who specifically asked for it. I didn't
pay too much attention , but I do know, in fact, I dictated the letter.
410 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Conclusion
On the above recited facts the complaint alleges violation of Section 8(b)(1)(A)
and (2) of the Act by the three Respondents, jointly and severally.
This section reads:
(b) It shall be an unfair labor practice for a labor organization or its
agents-
(1) to restrain or coerce (A) employees in the exercise of the rights guaran-
teed in section 7: * * *
(2) to cause or attempt to cause an employer to discriminate against an
employee in violation of subsection (a)(3)... .
The Trial Examiner has found that the agreement entered into May 10, 1956,
between Mechanical Handling and Respondent International is illegal, however
the Trial Examiner is not persuaded that except by the most irresponsible infer-
ence can this record be thought to show any connection between this illegal
agreement and the agreement later made by Mechanical Handling and Respond-
ents Council and Local 60.
The mere existence of an illegal contract between two parties does not warrant
findings and recommendations on it merely because one of the parties to it has
executed a different agreement with different parties also alleged to be illegal and
the basis of an unfair labor practice complaint. The Trial Examiner is not per-
suaded that the theory of the overt act may be scrapped in order to extend the
scope of an unfair labor practice charge.
The Trial Examiner will therefore recommend that the complaint as to Re-
spondent International, United Brotherhood of Carpenters and Joiners of America,
AFL-CIO (Case No. 35-CB-220) be dismissed.
The theory of the General Counsel is that the unfair labor practice herein is
grounded upon the illegal contract between Mechanical Handling and Respondent
International adopted by Respondents Council and Local 60. In rejecting this
theory the Trial Examiner does not consider that the case falls because it can-
not be sustained as alleged, for the reason that all acts and conduct of the
Respondents Council and Local 60 were fully litigated in the hearing.
The Trial Examiner will base his findings on such facts as revealed in the
litigation.
Upon the entire record the Trial Examiner finds that at the time of their first
meeting in January 1957, before Mechanical Handling had hired any employees
for its Ford job at Indianapolis, Smith, acting for the Respondent Council and
Local 60 jointly, and Roberts, acting for Mechanical Handling, entered into an
oral agreement covering the employment conditions of certain classes of labor to
be hired by Mechanical Handling for its Ford job.
It is clear, and the Trial Examiner finds, that the agreement was the joint and
several agreement of both the Respondents aforesaid.
It is also clear that in implementing the agreement Mechanical Handling hired
through both Council and Local 60 and that both Council and Local 60 referred
and cleared applicants to Mechanical Handling for the Ford job.
By demanding of and entering into this agreement with Mechanical Handling,
at a time when Mechanical Handling had no employees on the job, and binding
the employment rights of prospective applicants, the Respondent Council and
Respondent Local 60 engaged in conduct violative of Section 8(b)(2) of the Act 4
At the time the agreement was made it is clear that the Respondents, Council
and Local 60, knew as a practical matter if they refused to issue clearance or a
referral to an applicant he would not be hired by Mechanical Handling, thus they
arranged to deprive such applicants of the right of employment. At the time they
refused referrals to Carter and Stevenson, after Mechanical Handling had indi-
cated it would employ them, the Respondents, Council and Local 60, clearly vio-
lated Section 8(b)(1)(A) and (2) of the Act.5
The complaint alleges:
Now and at all times since on or about January 9, 1957, pursuant to said
contractual provisions and the illegal hiring practice above alleged, the Re-
spondents have regularly exacted and collected from all of the employees of
Mechanical Handling Systems, Incorporated and of other employers within
said territorial jurisdiction, whose names are unknown to the Regional Di-
rector, dues, non-membership dues, assessments, and work-permit fees, the
4 N.L.R.B. v. Local Union No. 55, and Carpenters' District Council, 218 F. 2d 226
(C.A. 10) ; N.L.R.B. v. Philadelphia Iron Works, Inc., 211 F. 2d 937 (C.A. 3) ; Radio
Officers' Union v. N.L.R.B., 347 U.S. 17.
5J. J. White, Inc„ 111 NLRB 1126.
INDIANAPOLIS AND CENTRAL.INDIANA DISTRICT COUNCIL 411
exact amounts of which said exactions and collections are. unknown to the
Regional Director.
The General Counsel argues in his brief that such collections be ordered re-
funded and "any specific person who has been discriminated against pursuant to
such practice" be made whole.
Again, other than the bare allegation in the complaint there is nothing in the
record in the way of proof or even statement with respect to the unfair labor
practice so charged, no named individuals suffering thereby, no named individuals
who enforced the alleged unlawful provisions for the Respondents or took part in
maintaining the alleged closed-shop provision by "check off" or otherwise on be-
half of the Respondents by Mechanical Handling.
The Trial Examiner sees no merit in an allegation not founded on a charge,
not in any way proven but treated merely as a shotgun blast aimed in general
direction of quarry hoping that game will be brought down .6
Concluding Findings
The Trial Examiner finds that by entering into and maintaining the oral illegal
agreement , herein above referred to and by generally issuing and refusing to issue
permits to work under the said agreement and by refusing to issue a referral to
the Mechanical Handling job at the Ford job in Indianapolis to Carter and Steven-
son, the Respondents (Council and Local 60) have engaged in and are engaging
in conduct violative of the Act, more particularly Section 8 (b)(1)(A) and (2)
thereof.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondents , Indianapolis and Central Indiana District
Council , United Brotherhood of Carpenters and Joiners of America , AFL-CIO
and Local 60 , United Brotherhood of Carpenters and Joiners of America, AFL-
CIO, in connection with the operations of Mechanical Handling Systems, Incor-
porated , Party to the Contract, occurring in connection with operations described
in section I, above, have a close , intimate , and substantial relation to trade, traffic,
and commerce among the several States , and tend to lead to labor disputes bur-
dening and obstructing commerce and the free flow of commerce.
V. THE REMEDY
Since it has been found that the Respondents (Council and Local 60) have
engaged in unfair labor practices, it will be recommended that each of them cease
and desist therefrom and take certain affirmative action, designed to effectuate the
policies of the Act.
Since it has been found that the Respondents (Council and Local 60) have
maintained and enforced an oral agreement understanding and practice which con-
tains and involves terms and conditions of employment and practices which are
violative of Section 8(b)(1)(A) and (2) of the Act, it will be recommended that
they cease and desist from giving effect to the unlawful provisions of said oral
agreement and understanding. Since it has been found that on February 6, 1957,
pursuant to said oral contractual provisions and illegal hiring practices, the Re-
spondent Council and the Respondent Local 60 by and through their agent Ralph
R. Smith, attempted to cause and caused Mechanical Handling to discriminatorily
refuse employment to Hafford B. Carter and Elza W. Stevenson because said labor
organizations refused clearance for employment to the said Carter and Stevenson
thereby causing said Carter and Stevenson to lose employment and incur losses
it will therefore be recommended that the Respondents aforesaid make them whole
for any loss of pay they may have suffered as a result of the discrimination against
them by payment to each of them of a sum of money equal to that which each
would normally have earned as wages but for the discrimination, less his net earn-
ings during such period, the back pay to be computed in the manner prescribed
by the Board in F. W. Woolworth Company, 90 NLRB 289.
Upon the basis of the foregoing findings of fact, and upon the record as a
whole, the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. Mechanical Handling Systems, Incorporated, is engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
0In passing the Trial Examiner points out that had a charge been filed, and a proper
complaint issued Mechanical Handling might well have been a proper party to the unfair
labor practices herein.
412 :DECISIONS OF :NATIONAL. LABOR RELATIONS. BOARD
I
2.. Indianapolis and Central Indiana District Council, United Brotherhood of
Carpenters and Joiners of America, AFL-CIO and Local 60, United Brotherhood
of Carpenters and Joiners of America, AFL-CIO, are labor organizations within
the meaning of the Act. '
3. By enforcing and maintaining an oral agreement and/or understanding and
.practice with Mechanical Handling Systems, Incorporated, which contains and in-
volves terms and conditions of employment requiring clearance or referral of
certain applicants of employment by the labor organizations aforesaid before their
employment by Mechanical Handling Systems, Incorporated , the said Respondent
labor organizations have engaged in and are engaging in unfair labor practices
within the meaning of Section 8(b)(2) of the Act.
4. By interfering with, restraining , and coercing employees in the exercise of
the rights guaranteed in Section 7 of the Act, the said Respondents have engaged
in unfair labor practices within the meaning of Section 8 (b) (1) (A) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
The Respondents have not engaged in any unfair labor practices alleged in the
complaint other than those specifically found herein.
The Respondent named in Case No. 35-CB-220, United Brotherhood of Car-
penters 'and Joiners of America, AFL-CIO, has not engaged in any of the unfair
labor practices alleged in the complaint.
[Recommendations omitted from publication.]
APPENDIX A
INTERNATIONAL AGREEMENT
Memorandum of Agreement between the firm of MECHANICAL HANDLING
SYSTEMS, INC., 4600 NANCY AVE., DETROIT 12, MICHIGAN, and the
United Brotherhood of Carpenters and Joiners of America
We, the firm of MECHANICAL HANDLING SYSTEMS, INC., AGREE to
recognize the jurisdiction claims of the United Brotherhood of Carpenters and
Joiners of America , to work the hours, pay the wages and abide by the rules and
regulations established or agreed upon by the United Brotherhood of Carpenters
and Joiners of America of the locality in which any work of our company is
being done, and employ members of the United Brotherhood of Carpenters and
Joiners.
No change to be made in the hours and wages in any locality , and no conditions
imposed other than are enforced on all Local firms.
In consideration of the foregoing, the United Brotherhood of Carpenters and
Joiners of America agree that no stoppage of work or any strike of its members,
either collectively or individually , shall be entered into pending any dispute being
investigated and all peaceable means taken to bring about a settlement.
MECHANICAL HANDLING SYSTEMS, INC.,
(Signed ) RALPH GRAY,
Asst. Director of Manufacturing.
For the United Brotherhood of Carpenters and Joiners of America.
(Signed) M. A. HUTCHESON,
General President.
DATED 10 May 1956.
Idaho Concrete Products Co. and Teamsters, Chauffeurs, Ware-
housemen & Helpers Local Union No. 983 . CaBe No. 19-CA-
1537. December 16, 1958
DECISION AND ORDER
On July 29, 1958, Trial Examiner Martin S. Bennett issued his
Intermediate Report in this proceeding, finding that the Respondent
,had engaged in certain unfair labor practices and recommending that
122 NLRB No. 65.