International Brotherhood of Boilermakers, Iron Ship Builders, and Helpers of America

National Labor Relations Board - Board Decisions

Jun 4, 1953

105 N.L.R.B. 339 (N.L.R.B. 1953)

LOCAL 13, INTERNATIONAL BROTHERHOOD OF BOILERMAKERS 339
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor
Relations Board , and in order to effectuate the policies of the
National Labor Relations Act, as amended , we hereby notify
our employees that:
WE WILL bargain collectively upon request with Amal-
gamated Clothing Workers of America , C.I.O., Local 297, as
the exclusive representative of all employees in the bar-
gaining unit described below with respect to wages, rates
of pay, hours of employment , or other terms or conditions
of employment and, if an understanding is reached , embody
such understanding in a signed agreement . The bargaining
unit is:
All employees in the men's and women's alteration
departments at the Respondent ' s Los Angeles, Long
Beach , Hollywood , Huntington Park, San Diego,
Pomona, Burbank, and San Bernardino , California,
retail establishments , including tailors, bushelmen-
fitters, finishers , operators , rippers, and pressers,
excluding all supervisors within the meaning of the
Act.
WE WILL NOT in any manner interfere with the efforts
of the above - named union to bargain collectively with us,
or refuse to bargain with said union as the exclusive repre-
sentative of the employees in the bargaining unit set forth
above.
FOREMAN & CLARK, INC.,
Employer.
Dated ................. By...................................................
(Representative ) (Title)
This notice must remain posted for 60 consecutive days from
the date hereof, and must not be altered, defaced, or covered
by any other material.
LOCAL 13, INTERNATIONAL BROTHERHOOD OF BOILER-
MAKERS, IRON SHIP BUILDERS, AND HELPERS OF
AMERICA, AFL: AND JOHN KENNEDY., Its Business Agent
and FRANK H. DONLON, Jr. and THE BABCOCK & WILCOX
CO. Case No. 4-CB-129. June 4, 1953
DECISION AND ORDER
On January 15, 1953, Trial Examiner James A. Shaw
issued his Intermediate Report in the above-entitled pro-
105 NLRB No. 31.
340 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ceeding, finding that the Respondent Union and its business
agent 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 copy of the Intermediate Report attached hereto. There-
after the Respondent Union filed exceptions to the Intermediate
Report and a supporting brief.
The Board ' has reviewed the rulings made by the Trial
Examiner at the hearing and finds no prejudicial error was
committed. The rulings are hereby affirmed. The Board has
considered the Intermediate Report, the exceptions and the
brief, and the entire record in the case, and hereby adopts the
findings , conclusions , and recommendations of the Trial
Examiner, with the following additions and modifications.2
1. We agree with the Trial Examiner that although there
was no written contract between Babcock & Wilcox and the
Respondent Union there was a tacit understanding or working
arrangement between them that on jobs requiring work of
the kind customarily performed by members of the Respondent
Union, Babcock & Wilcox would hire only members of the
Respondent Union who had been referred by it for employ-
ment. This understanding reflects the general practice of the
Respondent Union, which in turn stems directly from its
working rules .' As pointed out in the Intermediate Report,
rule 17 provides that ''Only members in good standing shall
be employed on all jobs coming under the jurisdiction of
Lodge No. 13. All men shall be hired through the business
representative of Lodge No. 13," and rule 8 provides that
"the business representative shall have access to all jobs,
and it shall be his duty to appoint foremen and stewards on
all jobs." Rule 8 imposes on the stewards the duty, inter
alia, of s eeing that the working rule s are enforced.
James J. Ryan was vice president of the Local when the
present working rules were drafted in 1947 and continued in
that office until June 1952. While holding that office he fre-
1 Pursuant to the provisions of Section 3 (b) of the Act , the Board has delegated its powers in
connection with this case to a three- member panel ( Members Houston , Murdock , and Peter-
son]
'Consistent with the views expressed in his dissenting opinions in American Pipe and Steel
Corporation, 93 NLRB 54, and Byers Transportation Company, Inc., 94 NLRB 1494, Member
Murdock would be disposed to find that there was no restraint, coercion, or discrimination
to encourage membership in a labor organization shown, and would accordingly dismiss the
complaint In his view, Donlon, who had chosen to be a member of the Union, had agreed to
be bound by its rules which provided a fair and equitable rotation of job opportunities among
out-of-work members Donlon therefore could not complain against the withdrawal of a job
assignment mistakenly given him in the belief that he was out of work and entitled to the next
opportunity However, recognizing that his views are contrary to the majority decisions in the
cases referred to, and that he is bound thereby, Member Murdock has signed the decision in
this case.
3Indicative of the significance of the working rules to the Respondent Union's practices is
the fact that in at least one instance in which the Respondent Union had a written contract
with an employer , Philadelphia Iron Works, Inc ., the contract provided that " , . the working
conditions of Local Lodge No 13 shall be complied with in conjunction with this Agreement."
See Philadelphia Iron Works , Inc., 103 NLRB 596.
LOCAL 13, INTERNATIONAL BROTHERHOOD OF BOILERMAKERS 341
quently served as steward on various jobs, the last of which
terminated in March 1951. Several of these were jobs in
which Babcock & Wilcox was the employer. He testified
without contradiction that on all these jobs, when men were
needed, the erector conveyed his needs to the foreman, the
foreman told the steward how many men would be required,
and the steward called the union office and told them to send
the requisite number of men. No men were placed on the
payroll until they had reported to the steward. Usually they
had written evidence of referral by the Local but if not,
the steward would check with the Local's office to make
sure they had clearance satisfactory to the business agent.
In filling the requests made by stewards, the business
agent, or persons acting under his supervision, referred
members in rotation from the out-of-work-list which was
maintained in the office of the Local for that purpose. The
charging party, Frank Donlon, testified, also without con-
tradiction, that at a meeting of the Respondent Union in May
or June 1951, Frank Kennedy, its business agent, taking
hold of the current out-of-work list, said, "This is the work
list and this is the only way anyone will go to work in Local
13, through this list and myself."'
The circumstances fully set forth in the Intermediate
Report, under which Frank Donlon was refused employment
with Babcock & Wilcox at its University of Pennsylvania
job in June 1951, clearly indicate that Babcock & Wilcox was
complying with the demand of the Respondent for such action,
transmitted through the Respondent Kennedy, Peterson, and
St. John, the latter two being respectively the steward and
the foreman on the jobs
4Kennedy made this statement immediately after a member had obtained the floor and
advocated throwing the then current out-of-work-hst "out the window" because he believed
that "it was not worked fairly " The Trial Examiner admitted this testimony but rejected
subsequent offers of proof that Kennedy repeated his statement in substance at later union
meetings . The Trial Examiner also rejected questions designed to elicit how many union
meetings occurred at which the out-of-work list was discussed. In his intermediate Report
(footnote 11) the Trial Examiner states that he "ignores all testimony in the record as
regards what was said and by whom at meetings of Local 13" (underscoring supplied)
because such testimony concerns the internal affairs of the Union. We do not adopt the
Trial Examiner's remarks in this connection insofar as they imply that the Board should
not rely on testimony relevant to the issues in a case before it because such testimony
may involve the internal affairs of a union. Although most of the testimony and offers of
proof to which the Trial Examiner refers were not clearly relevant, the quoted statement
of Kennedy was and, in fact, objection was not made to its receipt in evidence.
5St John testified that on June 18, 1951, Peterson told him that Kennedy had telephoned
Peterson and told him "not to allow Frank Donlon to go to work when he showed up " Peter-
son, whose testimony was not introduced until after St John's, testified that before Donlon
appeared at the University of Pennsylvania job site, but on that same day, Kennedy tele-
phoned him and said, "If Frank Donlon shows up not to allow him to go to work."
The Respondent Union contends that this testimony of St John's has no probative value
because it was hearsay and that of Peterson so confusing and inconsistent as to lose any
aspect of credibility. Although St John's testimony was hearsay as to whether Kennedy
called Peterson and what he told him, it was clearly admissible to establish the fact that
Peterson informed St. John that there was such a conversation and Peterson's version of
the substance of the conversation. After the introduction of Peterson's testimony the Trial
342 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The record shows that Kennedy made his demand because
he had learned, after telegraphing Donlon to report at the
University of Pennsylvania job, that while Donlon's name was
on the out-of-work list Donlon had obtained employment
outside the jurisdiction of the Respondent Union without
reporting that fact to the Union, thus disrupting the rotation
system. The conduct of Kennedy and of Babcock & Wilcox
is thoroughly consistent with the practice described above
of restricting employment to members of Local 13 referred
by the Local, thus supporting the conclusion that there was
a tacit understanding between the Respondent Union and
Babcock & Wilcox to observe such practice. We find, like
the Trial Examiner, that because there was no lawful obligation
for Babcock & Wilcox to limit employment in this manner,
the conduct of the Respondent Union in demanding that Donlon
not be permitted to work and the compliance of Babcock &
Wilcox with this demand were in violation of Section 8 (b)
(1) (A), 8 (b) (2), and 8 (a) (3) of the Act, respectively.6
2. In the absence of exceptions thereto, we adopt the
recommendations of the Trial Examiner that Frank Donlon's
right to back pay be limited to the period set forth in section
V of the Intermediate Report entitled "The Remedy."
3. Also in the absence of exceptions thereto, we adopt
the recommendation of the Trial Examiner that Respondent
Kennedy not be held personally liable for a proportional
share of the back pay recommended above.
ORDER
Upon the entire record in the case, and pursuant to Section
10 (c) of the National Labor Relations Act, the National Labor
Relations Board hereby orders that: the Respondent Local
No. 13, International Brotherhood of Boilermakers , Iron Ship
Builders , and Helpers of America , AFL, and its officers, rep-
resentatives , and agents , shall:
Examiner was justified in treating St. John's testimony as highly corroborative of Peter-
son's. Peterson 's testimony showed no confusion as to the substance of his conversation
with Kennedy or that it took place on the day when Donlon appeared at the job site and
before his appearance but only as to the calendar day on which these events took place.
Eventually he fixed the day as June 18. Peterson, St. John, Costello (the erector for Babcock
& Wilcox on the university job), and Donlon all agree that Donlon appeared at the job site
on June 18, 1951, and was refused employment.
St John testified further that when Donlon appeared on the 18th, St. John told him, in
the presence of Peterson and Costello, that "John Kennedy instructed us not to allow him
to go to work." The testimony of Costello and of Donlon corroborates this, and both also
testified that at this time Peterson also stated that Kennedy had called him and told him
not to let Donlon go to work. Costello admits that he did not even attempt to see that Donlon
be given a chance to work.
6 Philadelphia Iron Works Inc., supra Although we agree with this conclusion of the Trial
Examiner we do not adopt the reasoning by which he reached it insofar as it implies, or might
be interpreted as implying, that there are no circumstances in which an agreement condition-
ing employment upon a union 's approval, without more , may be lawfully complied with. National
Union of MarineCooks andStewards, CIO(Pacific American Shipowners Association), 90 NLRB
1099, 1101; Pacific American Shipowners Association , et al., 98 NLRB 582
LOCAL 13, INTERNATIONAL BROTHERHOOD OF BOILERMAKERS 343
A. Cease and desist from:
(1) Requiring employees of, or applicants for employment
with, The Babcock & Wilcox Co. to obtain clearance or job
referrals from Local 13, International Brotherhood of Boiler-
makers, Iron Ship Builders, and Helpers of America, AFL, as
a condition of employment, unless such referrals are made
on a nondiscriminatory basis, pursuant to an agreement
entered into in conformity with the Act.
(2) Causing or attempting to cause The Babcock & Wilcox
Co., its officers, agents, successors , or assigns , to discrimi-
nate against applicants for employment or its employees, in
the aforesaid or in any other manner, with respect to their hire
or tenure of employment, in violation of Section 8 (a) (3) of the
Act.
(3) In any like or related manner restraining or coercing
applicants for employment with or employees of The Babcock
& Wilcox Co., its successors or assigns , in the exercise of
their rights under Section 7 of the Act.
B. Take the following affirmative action which the Board
finds will effectuate the policies of the Act:
1. Notify The Babcock & Wilcox Co., in writing, that it does
not object to that Company employing Frank H. Donlon, Jr.,
but on the contrary now requests that it do so, in accordance
with the recommendations in the section of the Intermediate
Report entitled "The Remedy."
2. Notify, in writing, all other employees, in the area over
which it claims jurisdiction and to whom it has furnished work-
men, that it does not object to the employment of Frank H.
Donlon, Jr.
3. Notify Frank H. Donlon, Jr., in writing, that it has so
advised The Babcock & Wilcox Co. and other such employers
in the area.
4. Make Frank H. Donlon, Jr., whole for any loss of pay or
earnings he may have suffered because of the discrimination
against him, in the manner and to the extent set forth in the
section of the Intermediate Report entitled "The Remedy."
5. Post at the office of Local 13 in Philadelphia, Pennsylvania,
copies of the notice attached hereto and marked "Appendix A." 7
Copies of said notice , to be furnished by the Regional Director
for the Fourth Region, shall, after being duly signed by repre-
sentatives of the Respondent Union, be posted by it immediately
upon receipt thereof and maintained by it for a period of sixty
(60) consecutive days thereafter in conspicuous places, including
all places where notices to members are customarily posted.
Reasonable steps shall be taken by the Union to insure that
such notices are not altered, defaced, or covered by any other
materials.
6. Mail to the Regional Director for the Fourth Region copies
of the notice attached hereto as Appendix A for posting, The
IIn 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 "Pur-
suant to a Decree of the United States Court of Appeals. Enforcing an Order."
Z9t555 0 - 54 - 23
344 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Babcock & Wilcox Co. being willing, in places where notices to
its employees are posted . Copies of said notice to be furnished
by the Regional Director for the Fourth Region shall, after
being signed as provided in paragraph numbered 5 , above, be
forthwith returned to the said Regional Director for the said
posting.
7. Notify the Regional Director for the Fourth Region in
writing within ten (10) days from the date of this Order what
steps the Respondent has taken to comply herewith.
APPENDIX A
NOTICE
TO ALL MEMBERS OF LOCAL NO. 13, INTERNATIONAL
BROTHERHOOD OF BOILERMA KERS, IRON SHIP
BUILDERS, AND HELPERS OF AMERICA, AFL, AND TO
ALL EMPLOYEES OF THE BABCOCK & WILCOX CO.
Pursuant to a Decision and Order of the National Labor Re-
lations Board, and in order to effectuate the policies of the
National Labor Relations Act, as amended, we hereby notify
you that:
WE WILL NOT require applicants for employment with,
or employees of, The Babcock & Wilcox Co. to obtain
clearance or job referrals from this union as a condition
of employment, unless such referrals are made on a non-
discriminatory basis, pursuant to an agreement entered
into in conformity with the Act.
WE WILL NOT cause or attempt to cause the above-
named employer, its officers, agents, successors, or
assigns, to discriminate against its employees , or appli-
cants for employment with it, in the aforesaid or in any
other manner with respect to their hire or tenure of em-
ployment, in violation of Section 8 (a) (3) of the Act.
WE WILL NOT in any like or related manner restrain
or coerce applicants for employment with such employer,
or its employees, in the exercise of their rights under
Section 7 of the Act.
WE WILL make Frank H. Donlon, Jr., whole for any
loss of pay he may have suffered because of the discrimi-
nation against him.
INTERNATIONAL BROTHERHOOD OF BOILER-
MAKERS, IRON SHIP BUILDERS, AND HELPERS
OF AMERICA, LOCAL 13, AFL.
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.
LOCAL 13, INTERNATIONAL BROTHERHOOD OF BOILERMAKERS 345
Intermediate Report
STATEMENT OF THE CASE
Upon charges filed by Frank H. Donlon, Jr., an individual, the General Counsel of the
National Labor Relations Board.' by the Regional D i rector for the Fourth Region (Philadelphia,
Pennsylvania), issued a complaint dated July 31, 1952, against Local 13, International Brother-
hood of Boilermakers, Iron Ship Builders, and Helpers of America, AFL: and John Kennedy, Its
Business Agent, hereinafter referred to respectively as the Respondent Union and Respond-
ent Kennedy,2 alleging that the Respondents had engaged in and were engaging in unfair labor
practices affecting commerce within the meaning of Section 8 (b) (1) (A) and 8 (b) (2) and Sec-
tion 2 (6) and (7) of the National Labor Relations Act, as amended, 61 Stat. 136, herein
called the Act. Copies of the charges, complaint, and notice of hearing were duly served
upon each of the Respondents.3
With respect to the unfair labor practices the complaint alleged in substance that: (1) At
all times since on or about May 27, 1951, Respondent Union has been party to, has maintained,
and has enforced an arrangement, understanding, or agreement with B & W, whereunder, for
work to be performed within the geographic jurisdiction of Respondent Union, applicants for
employment must be approved for such employment by Respondent Union; (2jon or about
June 14, 1951, Respondent Union, through Respondent Kennedy, directed Frank H. Donlon, Jr.,
to report for work at an installation for B & W, thereafter on or about the same date. Re-
spondent Union, through Respondent Kennedy, directed Frank H. Donlon, Jr., not to report
for work at said installation; thereafter on or about the same date, Respondent Union, through
Respondent Kennedy, directed B & W, through its agents and representatives, td withhold em-
ployment from Frank H. Donlon, Jr.; (3) as a result of the acts of Respondent Union-de-
scribed immediately hereinabove, B & W did, on or about June 18, 1951, refuse employment
to Frank H. Donlon, Jr., and has since that date refused employment to Frank H. Donlon, Jr.;
and (4) by the acts described above, and by each of said acts, the Respondents did restrain
and coerce and are restraining and coercing employees in the exercise of the rights guar-
anteed employees by Section 7 of the Act, and by said acts the Respondents did cause an
employer to discriminate against an employee in violation of Section 8, subsection (3) of the
Act, and that by the whole of said acts described above Section 8 subsections (b) (1) (A) and
(b) (2) of the Act.
On August 7, 1952, the Respondent Union and Respondent Kennedy filed a joint ariswer in
which in substance they denied knowledge of B & W's interstate affairs and demanded proof
of same; admitted that the Union is a labor organization within the meaning of the Act, and
that Respondent John Kennedy is its business agent ; that the charging party herein was and
is a member of the Union at all times material herein; denied that at all times since on or
about May 27, 1951, Respondent Union has been party to, has maintained, and has enforced
an arrangement , understanding, or agreement with B & W, whereunder, for work to be per-
formed within the geographical jurisdiction of Respondent Union, applicants for employment
must be approved for such employment by Respondent Union; concedes that the Respondents,
"on or about June 14, 1951, through John Kennedy, notified Frank H. Donlon, Jr., that, in
effect, work was available at an installation of B & W so that Frank H. Donlon, Jr., may, if
he chose, endeavor to secure such employment"; 4 that "on or about the same date, the Re-
spohdent John Kennedy notified Frank H. Donlon, Jr., that, in effect, there was no knowledge
that Frank H. Donlon, Jr., was already employed and, therefore, had no need to seek other
i The General Counsel and his representative at the hearing are referred to as the General
Counsel. The National Labor Relations Board is herein called the Board
2On occasion the Respondent Union and the Respondent Kennedy are referred to herein as
the Respondents. The Respondent Kennedy is also referred to as John A. Kennedy, which the
undersigned finds is his true name. Consequently the undersigned on his own motion corrects
the caption in the case, the pleadings, and the record as a whole to read "John A. Kennedy."
3 The charges, the caption of the complaint, and certain paragraphs refer to "Babcock &
Wilcox Co., Party to aContract. " Babcock& Wilcox Co is referred to hereinafter as "B& W "
Its role in the alleged unfair labor practices of the Respondents will be fully discussed here-
inafter.
4Quoted portion sets forth paragraph 7 of Respondents' answer in its entirety
346 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employment"; 5 and further specifically denies that the Respondents engaged in or were en-
gaging in any of the unfair labor practices alleged in the complaint.
Pursuant to notice a hearing was held on August 20, 1952, before James A. Shaw, the
undersigned Trial Examiner duly designated by the Chief Trial Examiner. The General
Counsel, the Respondents, and the charging party were represented by counsel. Full oppor-
tunity to be heard, to examine and cross-examine witnesses, and to introduce evidence
bearing on the issues was afforded all parties. At the onset of the hearing the General
Counsel moved to amend paragraph 11 of the complaint to read " . that employer Babcock
& Wilcox refused to reemploy Frank H Donlon, Jr , from on or about June 18, 1951 to
March, 1952"6 and in addition to add the following phrase to said paragraph, "within the
jurisdiction of the Respondent Union." The motion to amend was granted by the undersigned
At the close of the General Counsel's case-in-chief, counsel for the Respondents moved
to adjourn the hearing until Friday, August 22, 1952, for the reason that he had a previous
engagement in one of the local courts. The motion was granted by the undersigned.
In the interim the undersigned was advised by the parties by telegraph that the Respondents
did not choose to offer any evidence and desired to rest their case. Accordingly the under-
signed on August 21, 1952, issued an order closing the hearing as of Wednesday, August 20,
1952. On September 17, 1952, the General Counsel filed with the undersigned a "Motion to
Correct the Record." The motion is hereby granted. On or about September 25, 1952, the
General Counsel and counsel for the Respondents filed briefs with the undersigned. They
have been duly considered.
Upon the entire record in the case and from his observation of the witnesses, the under-
signed makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Upon the entire record in the case the undersigned finds that the Employer herein, Babcock
& Wilcox Co., is a corporation organized and existing under the laws of the State of New
Jersey with its principal offices in New York, New York. It is engaged in the manufacture
and installation of steam generating plants throughout several States of the United States.
Its principal manufacturing plant is located in Barberton, Ohio. In addition it owns and
operates similar plants in the cities of Alliance, Ohio, and Beaver Falls, Pennsylvania, and
in addition operates a brick plant in Augusta, Georgia. During the calendar year of 1951, it
received the sum of $256,000 for erection work in the Commonwealth of Pennsylvania. In
the past the Board has asserted jurisdiction over its business operations on numerous
occasions.?
From all of the foregoing, the undersigned is convinced and finds that the Employer herein,
Babcock & Wilcox Co., is engaged in commerce within the meaning of Section 2 (6) of the Act.
IL THE LABOR ORGANIZATION INVOLVED
Local 13, International Brotherhood of Boilermakers, Iron Ship Builders, and Helpers of
America, AFL, is a labor organization within the meaning of Section 2 (5) of the Act
As indicated above, the events with which we are concerned herein center around the em-
ployment practices of The Babcock & Wilcox Co., and its relations with the Respondents in
this regard. In the course and conduct of its business B & W requires the services of skilled
workers. The procurement of such workers is absolutely essential if it is to remain alive
in its chosen field, that is the manufacture, sale, and erection of steam generating plants
throughout th. country. Over the years workers skilled in the various crafts essential to the
manufacture, placement, and/or erection of tanks, boilers, superheaters, the like that are
5Quoted portion sets forth paragraph 8 of Respondents' answer in its entirety.
Since the answer of the Respondents is not in form a general denial but for the most part
specific denials of each of the alleged unfair labor practices, paragraph by paragraph, each
commencing with the phrase, "It is denied," except as regards the paragraph referred to in
this and footnote 4, the undersigned consequently concludes that by the language used in para-
graphs 7 and 8 in said answer they constitute allegations ordinarily characterized as by way
of "confession and avoidance," and they are so treated by the undersigned in his ultimate
findings herein
6See infra.
7See, for example, the following cases: 8 NLRB 514; 52 NLRB 900; 61 NLRB 529 and 533;
65 NLRB 83; and 72 NLRB 1256.
LOCAL 13, INTERNATIONAL BROTHERHOOD OF BOILERMAKERS 347
required in the completion of such plants have for the most part gravitated into the Union for
their mutual aid and protection. In many communities over the country such workers are
strongly organized. It is conceded by the Respondents herein that in the Philadelphia area
such workers are "10016" organized and members of the Respondent Union. a It is in the light
of this background that the events with which we are concerned herein occurred.
Though there is no substantial evidence in the record of the existence of a written contract
between B & W and the Respondent Union, the undersigned nevertheless is convinced and finds
from the record as a whole that there was an arrangement or understanding between them to
the effect that only members of the Union referred to B & W at the job site by Business Agent
Kennedy would be considered for employment. This is evidenced by the undenied and uncon-
tradicted testimony of Foreman St. John, and that of Martin Costello, B & W's superintendent
in direct charge of the job involved herein. A resume of their testimony follows below.
The pleadings and the record clearly show that the issues with which we are concerned
herein center around the working rules of Local 13, and the activities and conduct of John
Kennedy, its business agent. Consequently, no understanding of the issues could be had without
reference to the "Constitution and By-Laws" of the International Union and the "Working
Conditions and Scale of Wages of Local Lodge No. 13." which were in full force and effect at
all times material herein.9 Moreover, the issues herein also concern the authority and con-
duct of the foreman and steward who were working on the University of Pennsylvania job for
B & W at the time of the alleged discrimination against the charging party herein, Frank H
Donlon, Jr. Since any authority that either the foreman or the steward may have had stems
from the "Working Conditions and Scale of Wages of Local Lodge No. 13," it is all the more
important that this report comment at some length on this phase of the issues herein.
The Respondent Union in order to carry on its affairs and render service to its membership
maintains a business office in Philadelphia. The Respondent John A. Kennedy is in charge of
the office in his capacity as business agent. 10 His authority as such stems from the inter-
national Union's "Constitution and By-Laws" and from theprovisions set forth in the "Work-
ing Conditions and Scale of Wages of Local Lodge No. 13." His duties as described in the
"Constitution and By-Laws of the International," are as follows:
BUSINESS MANAGERS
Sec. 11. Business Managers may be elected in cities or localities where there are suf-
ficient members to support such an officer. The duties of a Business Manager shall con-
sist of organizing, negotiating, handling grievances under existing agreements, assigning
members to work, collecting dues and such other duties as the Subordinate Lodge or the
International President may require. He shall also perform the duties required of him
under Sections 15 and 17 of this Article, in the supervision of Auxiliary Lodges. The
Business Manager shall be bonded, as provided for in Article XIV of the International
Lodge Constitution, and such bond shall be signed by the Business Manager and the
President and filed with the President of the Subordinate Lodge.
The working rules of Local 13 provide inter alia as regards the duties of the business agent
and the stewards assigned to jobs by the business agent as follows:
No. 6. It will be understood that the Business Representative's office in the localities
in which the work is being erected will be notified before the start of any job, so that the
Business Representative can furnish competent Foremen, Boilermakers, Welders and
Helpers; and as much advance notice as possible is to be given by the Contractor.
No. 7. The Business Representative shall have access to all jobs and it shall be his
duty to appoint Foremen and Stewards on all job.
No. 8. The Steward's duties shall be to settle all grievances that may arise on the job;
if unable to do so he shall notify the Business Representative; if the Business Repre-
sentative is unable to settle the grievance, the International Office shall be notified at once
and give in detail a full report of said grievance. The Steward shall have authority to
examine cards of all members employed as often as he deems necessary. Stewards shall
see that the working rules of the local are enforced and that all safety rules of the state
8 See the comment in this regard in the Respondents' brief.
9 The International Union is not a party to this proceeding and reference to its constitution
and bylaws is made solely for the purpose of clarifying the issues herein, particularly as
regards the activities of Business Agent John A. Kennedy
toReferred to in the International's "Constitution and By-Laws" as "Business Managers."
348 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
where work is being performed are fully complied with. Steward shall not be empowered
to call any strike or work stoppage. The Steward and the Foreman shall be the last men
laid off.
In addition to the above, the working rules provide the following as regards the foremen who
are assigned to the jobs coming under the jurisdiction of Local 13:
No. 3. All Foremen and Assistant Foremen shall be practical mechanics of the trade
and must hold membership in the Local in the locality in which the job is being performed.
There shall be a Foreman on each job and an Assistant Foreman after the first ten men,
and an Assistant Foreman for each additional ten men thereafter, except , however, if
the Company sees fit to provide additional Assistant Foremen.
Orders to men on a jobwillbegiven only by Foremen and/or Assistant Foremen. There
shall be a working Foreman up to five men and when the fifth man is employed, the Fore-
man shall not work with the tools.
Paragraph No. 17 of the "Working Rules and Scale of Wages of Local Lodge No. 13" further
provides that:
No. 17. Only members in good standing shall be employed on all jobs coming under the
jurisdiction of Lodge No. 13. All men shall be hired through the Business Representa-
tive of Lodge No. 13. [Emphasis supplied.]
One of the principal duties of the business agent is to police contracts and/or working agree-
ments between the Union and employees in the territory under the jurisdictional control of the
Union. In the instant case Local No. 13 has geographical jurisdiction over 41 counties in the
eastern part of Pennsylvania, which includes the city of Philadelphia.
The record clearly shows that one of the most important deities of the business agent is to
see that employers with whomLocal 13 has contractual arrangements, either written or oral,
employ only members of the Union who are in good standing and that such employees be as-
signed to the jobs in accordance with their position on the "out-of-woik" list which is kept in
the Union 's office. The custom was, at all times material herein, for employees to report to
the office as soon as a job was completed and register with one of the clerks in attendance
so that his name would then be placed on the "out-of-work" list. When calls for workers are
received from employers with whom the Union has contractual relations the business agent
or someone under his supervision and direction goes to the "out-of-work" list and removes
the name or names of those who are on top of the list, and the member or members thus
selected are then sent to the job site. By this process each member on the list gradually
reaches the top and jobs are assigned strictly m accordance with his position on the list. The
obvious purpose of this system is to see that each member of the Union gets a fair "shake,"
so to speak, as jobs become available. Having thus determined who is entitled to the job, the
business agent or his assistants in the office contact the member or members so selected,
either personally or by telephone , telegraph , or some other means of communication . As indi-
cated above, and as amply demonstrated in the record, it is the "out-of-work" list and the
consequences which flow from its use by the Union and the Company that "are primarily at
issue herein. 11
Frank H. Donlon, Jr., joined the Union sometime in 1940 and at all times material herein
was a member in good standing. Like other members he conformed to the rules of the Union
"Though the record contains much testimony as regards the internal affairs of the Union,
it is for the most part in the form of "offers of proof" except as to a small portion of the
testimony of Robert Burke, which went into the record without objection by any of the parties,
the undersigned is of the opinion that such testimony should not be considered in his deter-
mination of the issues herein. Primarily for the reason that to do so would in the long run do
more harm than good and be of little or no value in effectuating the policies of the Act. More-
over to do so would in the considered opinion of the undersigned be an unwarranted invasion
of the rights of the Union as regards its internal affairs. As the undersigned sees it, even
though there may have been dissensioh amongst the membership as regards the use or abuse
of the "out-of-work" list, this is no affair of the Board It is not the function of the Board
to police the internal affairs of unions It is assunied that as democratic organizations they
have the capacity to police and clean up their own affairs if such be necessary, without any
interference by the Board or any other instrumentality of Government. For these reasons
the undersigned ignores all testimony in the record as regards what was said and by whom at
meetings of Local 13.
LOCAL 13, INTERNATIONAL BROTHERHOOD OF BOILERMAKERS 349
and entered his name on the"out-of-work"listas soon as a job to which he had been assigned
was completed . Sometime in March 1951, he went on the "out -of-work" list. From that date
until sometime in May 1951, he was referred to but 3 small jobs by Business Agent Kennedy,
on which he worked a total of about 32 days and which he considered inadequate to support
his family . As a consequence , Donlon went outside the jurisdiction of the Respondent Union
and secured a job at Claymont , New Jersey , through Local No. 193 of Baltimore , Maryland.
He was working as a foreman on this job on June 14, 1951. On that date Business Agent John
A. Kennedy sent to him at his home, 1422 North 61st Street , Philadelphia , Pennsylvania, the
following telegram:
P.ETA167 PD=PHILADELPHIA PENN JUNE 14 354P (sic)
Frank Donlon Jr
1422 NORTH 61 ST PHILA
REPORT FRIDAY EIGHT AM AT PENNSYLVANIA UNIVERSITY COLLEGE POWER
HOUSE 30TH AND SOUTH STS FOR MARTY COSTELLO
JOHN A KENNEDY
(437P)
Donlon did not see the telegram until he returned to his home on the night of June 14, 1951.
As soon as he read it he telephoned Joseph St. John, a brother union member , who he knew
was the foreman on the job mentioned in Kennedy 's telegram. In the course of his telephone
conversation with St. John, he told him about the job at Claymont , New Jersey , and asked
St. John if it would be satisfactory for him to complete his work on that job, which was about
finished , before reporting for work on the University of Pennsylvania job. St. John assured
him that this was entirely satisfactory and for him to report either on Monday, June 18, or as
soon as the Claymont, New Jersey , job was completed. On the next day, Friday, June 15, 1951,
Kennedy called Donlon on the telephone at the Claymont job. According to Donlon 's undenied
and uncontradicted testimony , which the undersigned credits , the following conversation between
them occurred:
Q. What next happened, with reference to this transaction?
A. Well, when I got home the following evening--I beg your pardon. There came a tele-
phone call in the midst of the day, while I was working, and the erector came and got me,
and brought me over to the telephone, and it was Mr. John Kennedy on the telephone.
Q. What day would that be?
A. That would be Friday, the 15th, the same day I received this other telegram.
Q. We aren't talking about another telegram yet. We only have one telegram in the
record.
A. This was the 15th.
TRIAL EXAMINER SHAW: Now, you are talking about the telephone call?
THE WITNESS: That's right, in the office of Merritt Chapman and Scott.
Q. (By Mr. Summers) Was that a Philadelphia contractor?
A. It was their office.
Q. Was that the prime contractor?
A. I believe so.
Q. On the job9
A. He was the general contractor.
Q. General contractor?
A. That's right.
TRIAL EXAMINER SHAW: All right, go ahead.
A. (Cont'd) Mr. Kennedy said to me, "Frank Donlon?" I said "Yes," so he said "This
is John Kennedy," and I said "What do you want with me?" He said "I sent you a tele-
gram to go to work," and I said "I know."
He said "I am telling you now you are not to go on that job," and I said "I have a tele-
gram to go to work, and Ihavewaited a long while to go to work, and I am going to work."
Q. (By Mr. Summers) Anything further in that conversation
A. He said "No, you are not, because I am going to have you knocked off," and I said,
"I am still going to work," and that ended the conversation.
Upon his return home that evening Donlon found the following telegram from Kennedy await-
ing him:'2
it The Respondents made much ado about the authenticity of the telegrams from Kennedy to
Donlon, at the hearing herein and again in their brief which they filed with the undersigned
after the close of the hearing The undersigned has considered their objections and contentions
350 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
P.ETA160 PD=PHILADELPHIA PENN 15 238P
FRANK H DONLON
1422 NORTH 61ST ST PHILA
DO NOT REPORT ON UNIVERSITY OF PENNSYLVANIA JOBMONDAY JUNE 18 AS THIS
OFFICE DID NOT KNOW YOU WERE WORKING AT GENERAL CHEMICAL JOB
JOHN A KENNEDY
316P
On Monday , June 18, 1951, Donlon reported to Foreman Joseph St . John at the University of
Pennsylvania , for work on the job that the Employer , B & W. was engaged in for that institu-
tion. Upon arrival at the job site he met St. John and Charles Peterson , the steward assigned
to the job by Kennedy . St. John said, "I have been given orders not to let you go to work ...
by Kennedy and by Peterson ... Kennedy has called Peterson and told hun not to let you go
to work. " Peterson , who was present, then said to Donlon , "Kennedy called me and told me
not to let you start on this job." Staddmg nearby during the course of the conversation was
Martin Costello , the erector or superintendent of the job . of whom more anon.
Donlon's next contact with the Union was in the latter part of October 1951. At that time,
according to Donlon's uncontradicted and undenied testimony which the undersigned credits,
the following incident occurred:
Q. Where did this happen , and about when?
A. It was at 1321 Arch Street, in our office, our Union office.
Q. And about when?
A. It was in the latter part of October. Brother Burke was with me at the time.
Q. In 1951?
A. That's right, sir.
Q. Now, what happened?
A. I went in to see where I stood on the out-of-work list, and the girl said to me, "You
are not on the out-of-work list." I said "I am not on the out-of-work list?" and she says
"No." I said "Well, I was."
Mr. Kennedy was there, and he had an inner office, and I said "Well. I would like to
speak to him," so she went in and got Kennedy , and he came out, and I said "How come I
am not on the out-of-work list?" He said, "Well, you have been working out in Jersey,
and I took you off the out-of-work list."
I said "I am paying my dues here , and I should be represented on that list ." I said "I
have to go out of my jurisdiction to get a job, and then come back here and find you took me
off." And sohetookthepad,theout-of-work list, and threw it to me, and said "Sign that."
I threw it back to him, and I said "I am not signing anything. I should be on the out-of-
work list." He said "If you don't sign, you don't go to work."
I threw it back to him, and that's when I went out and got a job with the pipefitters, in
the shop- - the pipe shop.
Q. That was out of your craft?
A. That's right, sir.
Following the above incident Donlon found it necessary to go outside his craft for employ-
ment. Through a friend he secured a permit from the pipefitters' union to work as a pipe-
fitter, and worked at that trade until sometime in March 1952. At about that time Donlon was
advised by one Richard Burke, a personal friend and brother union member, that jobs were
in this regard and again rejects them as being wholly without merit. Particularly because the
uncontradicted and undenied testimony in the record completely refutes their contention as
regards the authenticity of the telegrams Since Kennedy did not chose to testify at the hearing
herein in face of the damaging testimony as regards his conduct and the activities with which
we are concerned , it is most difficult to ascertain why the Respondents make such an issue of
the admissibility of the telegrams in evidence. While it may be true that there have been oc-
casions where the facilities of Western Union have been abused by unscrupulous persons,
nevertheless, in the considered opinion of the undersigned, this is the extremely rare excep-
tion and not the rule. Moreover, it is common and general knowledge that much of the business
life of the nation is and has been conducted for generations by means of the telegraph For
example , counsel for the Respondents themselves used the facilities of Western Union in their
request for extension of time to file briefs in this proceeding The undersigned accepted and
granted their request without question as regards the authenticity of their telegram that was
presented to him for consideration through the processes of the Board.
LOCAL 13, INTERNATIONAL BROTHERHOOD OF BOILERMAKERS 351
available in the craft at the Philadelphia Electric Company's plant at Beach and Palmer
Streets in Philadelphia, Pennsylvania. The employer there was B & W. Donlon went to the job
site and was put to work by the foreman on the job. The steward assigned to the job, one
Blackwell, made no objections to his working in spite of the fact that he had neither a re-
ferral slip to the job from Kennedy nor had been notified by him that he could work on the
job. According to the record no further objections were made to Donlon's working at his
trade by either Kennedy or any other responsible official of the Respondent Union.
Another factor which merits consideration is the factthat at no time between June 18, 1951,
and the date in October 1951 when Donlon and Kennedy had their dispute about the "out-of-
work" list, did either Kennedy or any member of his staff contact Donlon, though they well
knew that he was available for work within the jurisdiction of Local 13. This is true because
he so notified St. John, Peterson, and Kennedy himself on or about the time he was denied em-
ployment with B & W at the University of Pennsylvania job. Under such circumstances the
undersigned is convinced that it is reasonable to infer that one of the reasons he was not
referred to a job during this period was in retaliation for his defiance of Kennedy's authority
to deny him employment on the job at issue herein.
Concluding Findings
From all of the above the undersigned finds that at all times material herein there existed
an understanding or agreement between B & W, the Employer, and the Respondents to the
effect that only members of the Union in good standing would be employed by the Employer
on its jobs performed within the geographical jurisdiction of the Respondent (Local 13) Union,
and that only employees cleared through and assigned to such jobs by Business Agent John A.
Kennedy would be permitted to work on its jobs and placed on its payroll. This finding is but-
tressed by the testimony of Martin Costello, the Employer's representative on the job at issue
herein. Costello stood idly by and permitted the Respondent Union to discriminatorily refuse
employment to the charging party herein, Frank H. Donlon, Jr. By his silence Costello ratified
and adopted the Respondent's position in its successful attempts to deny Donlon employment
because he chose to ignore Respondent Kennedy's instructions not to report for work at the
job site. Moreover, the record clearly shows that Kennedy's action was predicated on his au-
thority as business agent to regulate and select from the Respondent Union's "out-of-work"
list members of the Respondent Union who were to be assigned to jobs within the Union's geo-
graphical jurisdiction. By its silence the Employer, B& W, knowingly permitted the Respond-
ents to usurp its normal rights to select its employees or discharge them. The mere fact that
the Employer herein is not named as a party to this proceeding is of no importance, for the
simple reason that it is enough if the facts show, and they do to a certainty here, that Donlon
was denied employment because he chose to refrain from using the Respondents' "out-of-work"
list and sought employment on his own initiative.
The vice of the Respondents' position herein is the fact that they did successfully cause the
Employer, B & W, to deny employment to Donlon, which if the Employer had independently
engaged in such conduct would have clearly been violative of Section 8 (a) (3) of the Act. As the
undersigned sees it , it is a violation of the Act if a union causes or induces an employer to
violate Section 8 (a) (3) of the Act.
As the undersigned sees it, B & W's refusal to employ Donlon without clearance with the
Respondents of necessity strengthened their position in its control over its membership, and
also their relationship with the Employer. In the considered opinion of the undersigned, the
issues involved here are well stated in the Board 's brief filed in the United States Court of
Appeals for the Second Circuit in N.L.R. B. v. The Radio Officers ' Union of the Commercial
Telegraphers Union, A,F.L., 196 F. 2d 960. It well states the law, and for this reason an
excerpt therefrom is set forth hereinbelow. i8
The company 's refusal to employ Fowler without respondent's clearance of necessity
resulted in strengthening the position of respondent in its control over its members, and
also improved its position in its dealings with the employer . Since respondent by enforcing
compliance with its practices and rules became the all important factor in whether a given
employee would be able to secure a position as a radio officer , nonmembers of necessity
were encouraged to join respondent and live up to its membership requirements in order
iSee 93 NLRB 1523. The undersigned , is not unmindful of the fact that this case is now be-
fore the Supreme Court of the United States for review . However , he feels that under all the
circumstances herein the reasoning of the Board in petition for enforcement before the Second
Circuit is applicable to the factual situation found herein.
352 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to obtain its benefits, and current members wereencouraged to maintain their membership
in order to avoid respondent's hostility. The policy of the Act, however, except in situa-
tions covered by the proviso to Section 8 (3), prohibits employers from aggrandizing the
power of a union by permitting to it dictate the terms of employment as was done in the
instant case.
Respondent argued before the Board that membership in respondent was not encouraged
because Fowler, as the Board found, was at all times a member, and the discrimination
was based not on Fowler's lack of membership but rather on his failure to follow the
luring hall procedure which respondent sought to impose. However, the Board has con-
sistently held that the prohibition in Section 8(3) and 8 (a) (3) of the Act against discrimi-
nation encouraging or discouraging membership in a labor organization extends not only
to discrimination against employee for failure to maintain formal membership in a union
but also discrimination against employees for failure to perform the various obligations
imposed by unions as a condition of maintaining membership in good standing. The Courts
have fully sustained the Board in this reasonable interpretation of the Act. Colonie Fibre
Co. v. N. L. R. B., 163 F. 2d 65, 68-69 (C. A. 2); N. L. R. B. v. Newman, 187 F. 2d 488
(C. A. 2), enforcing 85 N. L. R. B. 725; N. L. R. B. v. Federal Engineering Co., 153 F. 2d
233, 235 (C. A. 6); Union Starch& Refining Co. v. N. L. R. B., 186 F. 2d 1008. 1011 (C. A. 7),
certiorari denied, October 8, 1951; Local No. 2880, Lumber & Sawmill Workers Union v.
N. L. R. B., 158 F. 2d 365 (C. A. 9). Accordingly, when, as in the instant case the discrimi-
nation occurred for the purpose of enforcing compliance with respondent's practices on
which retention of membership depended, such discrimination was in fact an encourage-
ment of membership within the meaning of Section 8 (3). Moreover, the fact that the
discrimination was applicable to Fowler as a member of the respondent, does not preclude
a violation of Section 8 (3), for the discriminatory act equally encourages union member-
ship whether directed against a member or a nonmember of a union.
The collective bargaining agreement between respondent and the company provided that
none of respondent's members could be employed without respondent's clearance. As we
have seen, the company desired to employ Fowler both in February and April, and the only
reason for its failure to do so was respondent's adamant refusal to issue Fowler the nec-
essary clearances. Respondent's refusals, therefore, caused the discrimination against
Fowler, and as the Board found, respondent thereby violated Section 8 (b) (2) of the Act
which makes it an unfair labor practice for a labor organization "to cause or attempt to
cause an employer" to unlawfully discriminate against an employee.
By the conduct described above the undersigned finds that the Respondents herein independ-
ently violated Section 8 (b) (2) of the Act.
The undersigned also finds that the Respondents by refusing to clear Donlon for employ-
ment with B & W, after he had been assured by Foreman St. John that he would be given em-
ployment on the job involved herein, violated Section 8 (b) (1) (A) of the Act. This section of
the Act makes it an unfair labor practice to restrain or coerce any employee in the exercise
of his rights under Section 7 of the Act which includes the right to refrain from any or all con-
certed activity.
Although the undersigned has found above that there is no evidence of any written agreement
between the Respondent Union and B&W, he has found thattherewas an arrangement or under-
standing between them to the effect that only members of Local 13 would be hired on jobs within
its geographical jurisdiction. Under such circumstances Donlon was not legally required to
even belong to the Union, or to maintain membership therein, let alone conform to its hiring
and employment practices with any employer. Consequently, he could seek employment wher-
ever he pleased and he was not required to conform to Respondents' practice and use of its
"out-of-work" list, or "hiring hall" policies (if one chooses to call the arrangement such).
Hence, when the Respondents caused Frank H Donlon, Jr., to be denied employment by B& W
on the morning of June 18, 1951, in an effort to compel him to conform, it restrained and
coerced him with respect to his right as an individual to refrain from this form of concerted
activity in violation of Section 8 (b) (1) (A) of the Act.
Clearly such conduct constitutes restraint and coercion within the meaning of the Act. Here
the conduct of the Respondents caused Donlon to be denied employment at the place of his
choice, and is economic coercion at its worst. In such an atmosphere workers are not free to
engage in or refrain from engaging in "concerted activities." Such power should not be
exercised by either unions or employers. To permit unrestrained control over the means of
livelihood of workers would in the considered opinion of the undersigned defeat the purposes
of the Act as stated in its preamble both before and after its amendment. It places a premium
on orthodoxy and discourages those amongst us who may choose to be "non-conformists," so
to speak.
LOCAL 13, INTERNATIONAL BROTHERHOOD OF BOILERMAKERS 353
In view of all of the foregoing , mcludmgthe use of the "out -of-work" list , which the under-
signed finds to have been a hiring-hall procedure , also including the requirement that em-
ployees be cleared with the Respondent Union, and of the Respondent Union's refusal to grant
Frank H. Donlon , Jr., clearance and/or approve him for employment on June 18 , 1951, because
of his refusal to conform to the "Working Conditions and Scale of Wages of Local Lodge No.
13," the undersigned concludes and finds that the Respondent Union and the Respondent John
A. Kennedy caused the Employer, Babcock & WilcoxCo., to discriminate in regard to the hire
of Frank H. Donlon , Jr., in violation of Section 8 (a) (3) of the Act and thereby the Respondent
Union and the Respondent John A. Kennedy violated Section 8 (b) (2) and 8 (b) (1) (A) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPONCOMMERCE
The activities of the Respondents set forth in section III, above, occur ring in connection with
the operations of the Employer, Babcock & Wilcox Co., described in section I, above, have a
close, intimate , and substantial relation to trade , traffic, and commerce among the several
States, and tend to lead to labor disputes burdening and obstructing commerce and the free
flow of commerce.
V. THE REMEDY
Since it has been found that the Respondents have engaged in unfair labor practices, the
undersigned will recommend that each of them cease and desist therefrom and take certain
affirmative action designed to effectuate the policies of the Act.
It has been found that the Employer herein, Babcock & Wilcox Co., has discriminated in
regard to hire and tenure of employment of Frank H. Donlon, Jr., at the request and demand
of the Respondent Union and Respondent John A. Kennedy , its business agent , thus causing the
Employer , Babcock & Wilcox Co., to so discriminate against Frank H. Donlon, Jr. The dis-
criminatory action taken by the Respondents in respect to Frank H. Donlon , Jr., was based
upon their hiring-hall practices ( i.e., use of the Respondent Union's "out -of-work" list), which
required employees to be cleared by the Respondent Union in its issuance of job-referral
cards , permits , or assignment of employees to work for employers within the limits of its
geographical jurisdiction as defined and described in its "Working Rules and Scale of Wages
of Local Lodge No. 13 ." Since the vice of the discriminatory action taken in regard to Donlon
arose from these practices , it will be recommended that the Respondents cease and desist
from the practice of requiring employees of and applicants for employment with the Employer
to obtain clearance of job referrals from the Respondent Union and Respondent John A.
Kennedy.
The problem of devising a remedy for the discriminatory action of the Respondents herein
in their denying permission for Donlon to work for the Employer, Babcock & Wilcox Co., on
its University of Pennsylvania job presents considerable difficulty, since that job was com-
pleted on or about October 6, 1951 . Again the very nature of the business of employers with
whom the Respondent Union has lawful agreements makes any recommendation for back pay
extremely difficult for the simple reason that the jobs they have are of necessity of indefinite
duration . The record clearly shows that members of the Union may work for any number of
employers in the course of a calendar year at numerous locations throughout the territory
under the Union's jurisdiction . In general , the record shows that as jobs are commenced em-
ployees are placed on the payrolls of these employers and dropped therefrom as soon as the
jobs are completed.
Under such circumstances and upon the entire record in the case , the undersigned will
recommend that the Respondents notify the Employer herein that they have no objections to
its employing Frank H. Donlon, Jr ., on any jobs that it currently may have in progress at the
time this Intermediate Report is issued . It will also be recommended that,the Respondents
notify any and all employers with whom it has contractual arrangements
,
written or oral,
understandings or agreements , lawful or unlawful (within the meaning of,t'he Act), that they
have no objection to their employing Frank H. Donlon, Jr ., in any capacity either within or
without thelcrafts over which the Union claims jurisdiction , historically or otherwise. As to
back pay, the undersigned will recommend that the Respondent Union make Frank H. Donlon,
Jr., whole for any loss of pay he may have suffered as a result of its discrimination against
him by causing the Employer , Babcock & Wilcox Co., to deny him employment on the Univer-
sity of Pennsylvania job in the city of Philadelphia, Pennsylvania , on June 18 , 1951, to the
date of that job's completion on or about October 6, 1951 , less his net earnings 14 during
l4Crossett Lumber Company, 8 NLRB 440
354 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
said period. ib Now as regards the period after October 6, 1951, to the date uncertain in
March 1952 when Donlon secured employment with the Employer herein, Babcock & Wilcox Co.,
at a job it was engaged in for the Philadelphia Electric Company at Beech and Palmer Streets
in the city of Philadelphia, Pennsylvania, without any objection or interference of any kind
from either of the Respondents herein. Since the record shows that on or about an uncertain
date in the latter part of October 1951, Donlon went to the business office of the Respondent
Union and at that time engaged in an argument with Respondent John A. Kennedy, the upshot
of which was that Donlon requested that his name be withdrawn from consideration for any
jobs that the Respondent might lawfully recommend him for employment with employers with
whom the Respondent may have had lawful contractual arrangements, and thus by so doing
made it impossible for either of the Respondents to lawfully recommend him for employment
within the craft, and in the absence of any showing in the record that he attempted to seek
employment at his trade within the geographical jurisdiction of the Respondent Union, the
undersigned is of the opinion that under such circumstances no recommendation for back pay
for said period is warranted. The undersigned takes this position because he feels that to
recommend back pay for this period would be in the nature of a penalty and, in the long run,
would not effectuate the policies of the Act, particularly since any power the Board has to
recommend back pay for employees discriminated against by either employers or unions
stems from its inherent power to "effectuate" the policy of the Act. Since Donlon was at the
time of his argument with Respondent Kennedy a member in good standing in the Respondent
Union, it would seem that the correction of any evils that existed in the conduct of the Union's
affairs should come from its membership through democratic processes, and not by way of
penalties imposed by the Board or other agencies of Government. For precisely this same
reason the undersigned will not recommend that the Respondent Kennedy, the Union's business
agent, be held personally liable for a proportional share of the back pay recommended above.
Moreover, the undersigned does not interpret the Act to mean that a business agent of a union
can be jointly liable with the union for liability for back pay. As the undersigned sees it they
are not separate entities under the Act, but one and the same, the business agent being nothing
more than the voice of the union or, legalistically speaking , its "creature" insofar as finan-
cial liability is concerned. Though they might be civilly liable for a tort action under certain
circumstances, such analogy is not pertinent or controlling here. True, the record clearly
shows that Respondent Kennedy was responsible for the denial of employment to Donlon by the
Employer, but the Act as the undersigned sees it does not authorize the Board to direct the
agent of a labor organization to reimburse an employee for back pay lost as a result of dis-
criminatory action against him. Section 10 (c) provides that in the Board's remedial order,
it may require back pay of an "employer or labor organization." No reference is made to an
agent of a labor organization, although Section 8 (b) specifically prohibits the commission of
unfair labor practices by labor organizations and their agents . In view of the specific limita-
tions imposed separately upon "a labor organization" and its "agents" by Section 8 (b), and
the definition of a labor organization in Section 2 (5) of the Act, it may not be assumed that
Congress intended the term "labor organization" as used in Section 10 (c) to include its
"agents ." The coupling of the words "labor organization" and "agents" in Section 8 (b) by
specific use of the terms and the ommission of "agents" from the relevant provision of Sec-
tion 10 (c) evidences a statutory design to limit the obligation for back pay to employers and
unions . The undersigned will accordingly not recommend that Respondent Kennedy reimburse
Donlon for wage losses resulting from the discrimination against him.
Upon the basis of the foregoing findings of fact and upon the entire record in the case, the
undersigned makes the following:
CONCLUSIONS OF LAW
1, The operations of Babcock & Wilcox Co. constitute trade, traffic, and commerce among
the several States within the meaning of Section 2 (6) and (7) of the Act.
2. Local 13, International Brotherhood of Boilermakers , Iron Ship Builders, and Helpers
of America, AFL, is a labor organization within the meaning of Section 2 (5) of the Act, and
John A. Kennedy is its business agent.
3. By causing the Employer, Babcock & Wilcox Co., to discriminate in regard to the hire
and tenure of employment of Frank H. Donlon, Jr., in violation of Section 8 (a) (3) of the Act,
the Respondent Union and Respondent John A. Kennedy have engaged in and are engaging in
unf*r 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
15 F. W. Woolworth Company, 90 NLRB 289.
NATIONAL ASSOCIATION OF BROADCAST ENGINEERS 355
guaranteed in Section 7 of the Act, the Respondent Union and Respondent John A. Kennedy 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 commerce
within the meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication.]
NATIONAL ASSOCIATION OF BROADCAST ENGINEERS AND
TECHNICIANS, C.I.O., HOLLYWOOD CHAPTER and NA-
TIONAL BROADCASTING COMPANY, INC. Case No. 21-
CD-31. June 4, 1953
DECISION AND DETERMINATION OF DISPUTE
This proceeding arises under Section 10 (k) of the Act, which
provides that "whenever it is charged that any person has en-
gaged in an unfair labor practice within the meaning of para-
graph (4) (d) of section 8 (b), the Board is empowered and
directed to hear and determine the dispute out of which such
unfair labor practice shall have arisen, . . . "
On October 29, 1952, National Broadcasting Company, Inc.,
herein called NBC, filed with the Regional Director for the
Twenty-first Region a charge against National Association of
Broadcast Engineers and Technicians, C.I.O., Hollywood Chap-
ter,' herein called NABET, alleging that it had engaged in
and was engaging in certain activities proscribed by Section
8 (b) (4) (D) of the amended Act. It was alleged, in substance,
that NABET had induced and encouraged employees of NBC to
engage in a strike or a concerted refusal to work in the course
of their employment with an object of forcing or requiring NBC
to assign particular work to employees who are members of
NABET rather than to employees who are members of Inter-
national Alliance of Theatrical Stage Employees and Moving
Picture Machine Operators of the United States and Canada,
A. F. of L., Local 33, herein called IATSE.
Pursuant to Sections 102.71 and 102.72 of the Board's Rules
and Regulations, the Regional Director investigated the charge
and provided for an appropriate hearing upon due notice to all
the parties. Thereafter, a hearing was held before Louis S.
Penfield, hearing officer, on February 24-26, 1953. The
hearing officer permitted IATSE to intervene on the basis of
its claim to jurisdiction over the work tasks involved herein
and its contract with NBC. All parties appeared at the hearing
and were afforded full opportunity to be heard, to examine
and cross-examine witnesses, and to adduce evidence bearing
on the issues. The rulings of the hearing officer made at the
hearing are free from prejudicial error and are hereby af-
firmed.2 All parties were afforded an opportunity to argue
t The name of Respondent Union appears as amended at the hearing.
2 At the conclusion of NBC's presentation of its case on direct, NABET moved to dismiss
the notice of charge. The hearing officer referred the motion to the Board. For the reasons
stated hereinafter, the motion is denied.
105 NLRB No. 59.