International Hod Carriers, Local No. 1445

National Labor Relations Board - Board Decisions

Jan 20, 1960

126 N.L.R.B. 226 (N.L.R.B. 1960)

226 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that he may not discharge other shipping department employees The
shipping clerk was included in the unit previously found appropriate,
and it does not appear that his duties have changed since that time
As the record does not show that the shipping clerk has any super-
visory authority, we shall include him in the unit
The nurse The record shows that the Employer employs a nurse
who administers first aid and otherwise performs the usual duties of
her profession In conformity with our usual practice, we shall
exclude her from the unit ' because of her diverse interests
We find that the following employees at the Employer's Lafayette,
Louisiana, plant, constitute an appropriate unit for the purposes of
collective bargaining within the meaning of Section 9(b) of the Act
All production and maintenance employees, including the receiving
clerk, the shipping clerk, the production scheduling clerk, the material
controls clerk, the time clerks, inventory clerks, stockers, expediters,
the utility man, truckdrivers, inspectors, and leadmen, but excluding
the chief inspector, the nurse, office clerical employees, guards, and
supervisors as defined in the Act
[Text of Direction of Election omitted from publication.?
3 The Battey Department Stores Go, 120 NLRB 1239, 1242
International Hod Carriers, Building and Common Laborers'
Union of America, AFL-CIO, Local No. 1445, . and Its Agent
John Haney and Roy Lumpkins and Fenix & Scisson, Inc.,
Party to the Contract . Case No 9-CB--4490 January 20, 1900
DECISION AND ORDER
On June 29, 1959, Trial Examiner James A Shaw issued his Inter-
mediate, Report in the above-entitled proceeding, finding that the
Respondents had engaged in and were engaging in certain unfair
labor practices and recommending that they cease and desist there-
from and take certain affirmative action, as set forth in the copy of
the Intermediate Report attached hereto Thereafter, the Respond-
ents filed exceptions and a supporting brief
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers herein to a three-member panel [Members
Rodgers, Bean, 'and Fanning]
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed
The rulings are hereby affirmed The Board has considered the In-
termediate Report, the exceptions and brief, and the entire record in
126 NLRB No 34
INTERNATIONAL HOD CARRIERS, LOCAL NO. 1445 227
the case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner, with the following modifications
and additions.'
The complaint alleged that the Respondent's hiring arrangements
and practices violated Section 8(b) (1) (A) and (b) (2) by causing
Fenix & Scisson, Inc., Party to the Contract (referred to hereafter
as the Company), to hire exclusively through the Respondent Local
only employees who are members of or who obtained clearance from
the Local; that the parties maintained and enforced a collective-
bargaining agreement with such illegal conditions; and that, pursuant
thereto, the Respondents attempted to cause and did cause the Com-
pany to refuse employment to the Charging Party, Roy Lmnpkins,
because he was not a member of the Respondent Local.
We summarize the facts: In the fall of 1957 the Company obtained
a contract for the construction of underground storage facilities for
liquid petroleum gas. The project work did not get under way until
about May 1958. Before beginning work on the project, Company
Project Manager Bakke contacted Respondent Local Agent John
Haney, and arranged a meeting for Company President Scisson. In
December 1957 the three men met together, and in January 1958
Bakke and Haney met again to discuss the labor supply and hiring
policies.
At the first meeting, Company President Scisson asked Haney for
a copy of the labor agreement applicable to the industry in the area
and agreed to abide by it. Thereafter, the Company and the Respond-
ent Local agreed to an addendum dated April 9, 1958, pertaining to
wage rates and also reciting that "all other conditions of the Heavy
& Highway Agreement shall apply to this job." The written con-
tract contained the following pertinent provisions :
PART 1.
HEAVY CONSTRUCTION
ARTICLE I.
WHEREAS, the parties desire to stablize employment, pro-
mote harmonious relationships and provide a medium whereby
the Employer and Union cooperate each with the other, and for
the purpose of eliminating jurisdictional work stoppages.
NOW, THEREFORE, the Employers and the Unions, acting
by their duly authorized agents, agree as follows :
' We note and correct typographical errors respecting the dates when union and com-
pany officials met to discuss hiring policies The record shows that the meetings occurred
in December 1957 and January 1938. We correct any dates at variance with these in the
Intermediate Report.
We do not adopt a finding of the Trial Examiner, unnecessary to the ultimate findings
in the case, that refers to labor conditions in the various States (Intermediate Report
at p. 241).
228 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ARTICLE II. UNION SHOP
(a) The Employer agrees to operate projects under a Union
Shop subject to the provisions of the Labor-Management Rela-
tions Act of 1947, as amended. In the event the present Labor-
Management Relations Act of 1947 is repealed or amended so that
a closed shop may be legal, the parties agree to meet forthwith for
the purpose of negotiating with respect to the following provi-
sions: The Employer agrees to hire only members of the Union
sent from the Union Office; the Employer shall call the Union
Office 24 hours in advance for all employees coming under the
jurisdiction of the Union. When the Union does not furnish suffi-
cient Union men when called for same, the Employer shall have
the right to use any other men available, provided that men so,
employed shall be replaced by members of the Union when such
members are available.
(b) Before construction is begun and during the progress of
the work the Employer agrees to notify the Business Repre-
sentative of the Unions, and said Business Representative may
recommend employees who are experienced and efficient in the,
operations of the machines to be used on the project.
(c) When the Business Representative of the Union is unable
to recommend a sufficient number of competent employees, the,
Employer shall have the right to employ other available em-
ployees, provided those persons so employed shall comply with
the provisions of the Labor-Management Relations Act of 1947
with regards to Union Membership.
ARTICLE III. KEY PERSONNEL
Since this Agreement is State-wide in scope, the Employer
shall have the right to take with him from one job to another
key personnel and operators of specialized equipment without
restriction, subject, of course, to the provisions of Article I and
Article II of Part 1.
Thus, article II(b) in particular provides that "before construction
is begun and during the progress of the work" the Employer will
notify the Local business representative of its need for employees and
the latter "may recommend" experienced employees. Significantly,
as set out in article II(c), when the business representative is "unable
to recommend a sufficient number of competent employees," the em-
ployer has "the right to employ other available employees. . . ." As
to skilled employees, referred to in article III, the Employer has the
right to take such key personnel from one job to another "without
restriction," but that right is "subject, of course," to the provisions of
articles I and II.
According to the credited testimony, the oral agreement that came
out of the parties' meetings was in the same vein : that the Company
INTERNATIONAL HOD CARRIERS, LOCAL NO. 1445 229
would hire unskilled employees through the Respondent Union; and,
as to skilled laborers, the Company could secure them from outside
the area with the understanding that it would clear the men through
the local. Project Manager Bakke testified that this was the practice.
The local supplied the unskilled job applicant with a slip "introduc-
ing" him and signed by the business representative. As Bakke ex-
plained, "We told [job applicants] . . . we weren't hiring at the job-
.site, that we secured them through Mr. Haney's union." Even the
.skilled employee, not referred directly by the local but secured by the
Company, was required to obtain the slip from the local introducing
him. This use of the slips was discontinued in August 1958, after the
charges were filed, but the requirement of referral through the local
continued without this aspect of it.
The practice is well illustrated in the case of the Charging Party,
Lumpkins, who was denied employment for lack of a local referral.
Lumpkins was not a member of the Respondent Local. He was a
member of another local affiliated with the same International union
When Lumpkins applied to Bakke for a job on May 5 and 7, 1958,
Bakke told him that it was necessary to have a referral from Local
Agent Haney. But when Lumpkins asked Haney for a referral on
those dates, as well as on a third occasion about a week later, Haney
refused, saying that many area men were out of work. And, at first,
Haney declined to transfer Lumpkins into the local. On May 13,
according to Lumpkins, Haney said he could accept Lumpkins' trans-
fer card, but the transfer would be of no use. Lumpkins' transfer into
the local was accomplished sometime later in May, after Lumpkins
had complained to the International. But it was only after Lumpkins
filed unfair labor practice charges with the Board that Haney tele-
phoned Bakke to put Lumpkins to work.
1. We find that the Respondents maintained in a discriminatory
manner an exclusive hiring arrangement and practice requiring Fenix
& Scisson, Inc., to hire only employees referred directly by the Re-
spondent Local or who obtained clearance for hiring from the local.
Article II(a) in the written ageement purports to defer operation of
a closed-shop hiring system until it becomes legal. The remainder of
article II, however, provides for exclusive hiring through the Union.
The record evidence shows that the parties have been following a
practice of requiring referral or clearance through the local and giv-
ing preference in employment to local members, although such prac-
tices are unlawful under Section 8(b) (2) and (1) (A) of the Act.2
2. We also find, apart from any practice thereunder, that the ex-
clusive hiring agreement violated Section 8 (b) (2) and (1) (A) under
2 Sheet Metal Workers International Association, Local Union No. 99 (Dohrmann
Hotel Supply Company), 120 NLRB 1366. Accordingly, we do not find it necessary to
pass upon the legality of article 11(a) per se.
230 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Mountain Pacific doctrine.3 Such an agreement, giving a union
complete and unfettered control over hiring, tends to encourage union
membership in violation of the Act. It enables the union to cause the
employer to violate Section 8(a) (3). Cases before us have revealed
that such arrangements operate to give preference to union members.
Indeed, we note that fact (without relying on it) in this very case,
where the agreement operated in such a way as to favor local members
and so deny Lumpkins a job. Moreover, we hold that the only ex-
clusive hiring agreement allowed by statute is one where the parties
have taken certain steps, as enumerated in the Mountain Pacific case
(and set out in the Intermediate Report), to disabuse employees of any
fear that the union will prefer members to nonmembers. Such steps
were not taken here.
3. We further find, in agreement with the Trial Examiner, that the
Respondents violated Section 8(b) (2) and (1) (A) by causing the
Company to withhold employment from the Charging Party, Roy
Lumpkins, because he was not a member of the Respondent Local and
had no job referral from it.
4. Our order requiring reimbursement to Roy Lumpkins for loss of
pay, and to other employees and applicants for employment, of initia-
tion fees, dues, and other moneys will be limited to the Respondent
Union.4
The Respondent Union's liability for reimbursement shall include
the period beginning 6 months prior to the filing and service of the
charge herein and shall extend to all such moneys thereafter collected.-'
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondents, International
Hod Carriers, Building and Common Laborers' Union of America,
AFL-CIO, Local Union No. 1445, and its agent, John Haney, their
agents, officers, representatives, successors, and assigns, shall :
1. Cease and desist from :
(a) Maintaining, performing, or enforcing any agreement, under-
standing, or practice with Fenix & Scisson, Inc., or any other employer
over whom the Board will assert jurisdiction, which requires member-
ship in or clearance or referral from the Respondent Union as a con-
dition of employment except as authorized in Section 8(a) (3) of
s Mountain Pacific Chapter of the Associated General Contractors , Inc., et at, 119
NLRB 883.
4 See Local 420, United Association of Journeymen and Apprentices of the Plumbing,
etc, AFL (J J. White, Inc ), 111 NLRB 1126, 1127-1128.
5N.L.R.B. v. Broderick Wood Products Company, 261 F. 2d 548 (CA. 10), enfg.
118 NLRB 38.
INTERNATIONAL HOD CARRIERS, LOCAL NO. 1445 231
the Act, as modified by the Labor-Management Reporting and Dis-
closure Act of 1959.
(b) Causing or attempting to cause Fenix & Scisson, Inc., or any
other employer over whom the Board will assert jurisdiction, to re-
fuse employment to Roy Lumpkins or any other applicant for employ-
ment because he is not a member of or has not secured clearance or
approval from, the Respondent Union, in violation of Section
8 (a) (3) of the Act, as modified by the Labor-Management Reporting
and Disclosure Act of 1959.
(c) In any other manner restraining or coercing employees of,
or applicants for employment with, Fenix &, Scisson, Inc., in the exer-
cise 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 in Section 8(a) (3) of the Act, as modified by the Labor-
Management Reporting and Disclosure Act of 1959.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Reimburse all employees of Fenix & Scisson, Inc., for all
moneys illegally exacted from them in the manner and to the extent
set forth in the section of the Intermediate Report entitled "The
Remedy."
(b) Make whole Roy Lumpkins for any loss of pay he may have
suffered as the result of the discrimination against him in the manner
set forth in the section of the Intermediate Report entitled "The
Remedy."
(c) Preserve and, upon request, make available to the Board or
its agents, for examination and copying, all membership, dues, permit,
and other records necessary to compute the moneys illegally exacted
from employees of said Party to the Contract.
(d) Post at its offices, copies of the notice attached hereto marked
"Appendix." 6 Copies of said notice, to be furnished by the Regional
Director for the Ninth Region, shall, after being duly signed by Re-
spondent Union's representative and by John Haney, be posted im-
mediately upon receipt thereof and be maintained by it for 60 con-
secutive days thereafter, in conspicuous places, including all places
where notices to members are customarily posted. Reasonable steps
shall be taken by the Respondent Union to insure that said notices are
not altered, defaced, or covered by any other material.
(e) Mail to the Regional Director copies of the notice attached
hereto marked "Appendix," for posting, by Fenix & Scisson, Inc.,
Party to the Contract willing, likewise for 60 days, in places where
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 "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order."
"232 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
notices to employees are customarily posted. Copies of said notice,
to be furnished by the Regional Director for the Ninth Region, shall,
after being duly signed by the Respondent Union's representative
and John Haney, be forthwith returned to said Regional Director
for such posting.
(f) Notify the Regional Director for the Ninth Region, in writing,
within 10 days from the date of this Order, what steps they have
taken to comply herewith.
APPENDIX
NOTICE TO ALL MEMBERS OF INTERNATIONAL HOD CARRIERS. BUILDING
AND COMMON LABORERS' UNION OF AMERICA. AFL-CIO, LOCAL No.
1445 AND TO ALL EMPLOYEES OF, AND APPLICANTS FOR EMPLOYMENT
WITH, FENIX & SCISSON, INC.
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify you that :
WE WILL NOT maintain, perform, or enforce any agreement,
understanding, or practice with Fenix & Scisson, Inc., or any
other employer over which the Board will assert jurisdiction,
which requires membership in or clearance or referral from our
labor organization as a condition of employment except as author-
ized in Section 8(a) (3) of the Act, as modified by the Labor-
Management Reporting and Disclosure Act of 1959.
WE WILL NOT cause or attempt to cause Fenix & Scisson, Inc.,
or any other employer over which the Board will assert jurisdic-
tion, to refuse employment to Roy Lumpkins or any other appli-
cant for employment because he is not a member of, or has not
secured clearance or approval from, our organization in violation
of Section 8(a) (3) of the Act, as modified by the Labor-Manage-
ment Reporting and Disclosure Act of 1959.
WE WILL NOT in any other manner restrain or coerce employees
or applicants for employment in the exercise of the rights guar-
anteed 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
in Section 8 (a) (3) of the Act, as modified by the Labor-
Management Reporting and Disclosure Act of 1959.
WE WILL reimburse all employees of Fenix & Scisson, Inc.,
for the initiation fees, dues, permit fees, assessments, and other
moneys they were required to pay our Union as the result of the
illegal hiring agreements, understanding, and practices with the
aforementioned Company.
INTERNATIONAL HOD CARRIERS, LOCAL NO. 1445 233
WE wiLL make whole Roy Lumpkins for any loss of pay suf-
fered as a result of the discrimination against him.
INTERNATIONAL HOD CARRIERS, BUILDING
AND COMMON LABORERS' UNION OF
AMERICA, AFL-CIO, LOCAL No. 1445,
Labor Organization.
Dated---------------- By-------------------------------------
(Representative) (Title)
JOHN HANEY, AGENT, INTERNATIONAL
HOD 'CARRIERS, BUILDING AND COMMON
LABORERS' UNION OF AMERICA, AFL-
CIO, LOCAL No. 1445,
Individual.
Dated---------------- By-------------------------------------
(JOHN HANEY)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
Upon a charge and amended charges filed by Roy Lumpkins , an individual , herein
referred to as Lumpkins , the General Counsel of the National Labor Relations
Board , herein respectively called the General 'Counsel and the Board , by the Regional
Director of the Ninth Region ( Cincinnati, Ohio), issued a complaint and notice of
hearing, dated December 30, 1958, alleging therein that international Hod Carriers,
Building and Common Laborers ' Union of America , AFL-CIO, Local No. 1445,
and its agent , John Haney, herein referred to as either the Respondents , the Union,
or Haney, have engaged in unfair labor practices within the meaning of Section
8(b) (1) (A) and (2 ) of the National Labor Relations Act, as amended , 61 Stat. 136,
herein called the Act.
A copy of the charges and notice of hearing were duly served upon the Respondent
Union, Haney, Fenix & Scisson, and the Charging Party, Lumpkins.
On or about January 12 , 1959, the Respondents filed their answer to the com-
plaint in which they admitted certain jurisdictional matters, alleged they were without
knowledge as to the allegations concerning commerce , and specifically denied the
commission of any of the alleged unfair labor practices
The complaint alleged in substance that: ( 1) At all times material herein the
Respondent Union and Fenix & Scisson , Inc., herein referred to as Fenix , have main-
tained and enforced and are maintaining and enforcing closed-shop preferential hiring
conditions of employment whereby Fenix is caused to and does hire exclusively,
through the Respondent Union 's hiring hall , only employees who are members of or
are approved by the Respondent Union for employment by Fenix; ( 2) at all times
material herein have maintained and enforced and are maintaining and enforcing a
collective-bargaining agreement covering the wages , hours, and other conditions of
the employees of Fenix which provides for the illegal hiring procedures described
above; on or about May 5, 1958, and at all times thereafter , pursuant to said closed-
shop preferential hiring conditions of employment, so established, maintained, and
enforced , the Respondent Union , by and through the Respondent agent, Haney,
attempted to cause and caused Fenix to refuse employment to Roy Lumpkins , because
he was not a member of Respondent Union and because Respondent Union refused
to clear him for employment by Fenix; ( 3) at all times material herein , pursuant
to the aforesaid agreement and/or the illegal hiring practice above alleged, the
Respondent Union has regularly collected from and is collecting from all of the
employees of Fenix, dues and initiation fees, nonmembership dues, assessments and
work permit fees , "the exact amounts of which said collections are unknown to the
234 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Regional Director"; and that by the acts and conduct alleged above the Respondents
have engaged in unfair labor practices "affecting commerce" as defined in Section
8(b) (1) (A) and (2) and Section 2(6) and (7) of the Act.
Pursuant to due notice, a hearing was held on February 25 and 26, 1959, at Ports-
mouth, Ohio, before the duly designated Trial Examiner. The General Counsel,
the Respondents, and Fenix were represented by counsel. Full opportunity to be
heard, to examine and cross-examine witnesses, to introduce pertinent evidence, to
argue orally at the conclusion of the taking of the evidence, and to file briefs was
afforded all parties. Only the General Counsel's representative chose to argue orally
before the Trial Examiner. Briefs were received from the General Counsel and the
Respondents on or about April 3, 1959. They have been carefully considered by the
Trial Examiner.
On or about April 1, 1959,1 the Trial Examiner received a motion and request to
correct the official transcript from counsel for the Respondents. The Trial Ex-
aminer has given his request due consideration. The motion is hereby granted and
the transcript corrected accordingly.
Upon the entire record in the case, and from his observation of the witnesses,
the Trial Examiner makes the following:
FINDINGS OF FACT
1. THE EMPLOYER'S BUSINESS OPERATIONS
The record shows that Fenix & Scisson, Inc., is an Oklahoma corporation having
its principal office and place of business at Tulsa, Oklahoma. It is engaged as a
contractor in the building and construction industry, primarily the construction of
underground storage facilities. The total amount of its projects during the year
1958 was approximately $5,000,000, and was performed in nine States . The value
of the project involved herein, at South Shore, Kentucky, was in excess of $1,000,000.
The Respondents conceded at the hearing herein stipulated that Fenix is engaged in
commerce within the meaning of the Act.
From all of the foregoing the Trial Examiner finds that Fenix & Scisson, Inc.,
the Employer herein, is engaged in commerce within the meaning of the Act.
II. THE RESPONDENT LABOR ORGANIZATION INVOLVED
International Hod Carriers, Building and Common Laborers' Union of America,
AFL-CIO, Local No. 1445, is a labor organization within the meaning of Section
2(5) of the Act, and Respondent John Haney is and was at all times material herein
its agent within the purview of Section 8(b) of the Act.
III. THE UNFAIR LABOR PRACTICES
As indicated above, Fenix is engaged in the construction business. From what
the Trial Examiner gleans from the record, it specialized in the construction of
underground storage facilities for inflammable and explosive materials. This is
evidenced by the job that we are concerned with herein which was for the Columbia
Hydrocarbon Corporation for the purpose of storing liquid petroleum gas. The
record shows that it had engaged in this sort of work for quite some time, and in
the course and conduct of its activities had constructed such facilities in at least
nine States. The situs of the job with which we are concerned herein was South
Shore, Kentucky, which is about 26 miles from Ashland, Kentucky?
The record indicates that Fenix entered into its contract with Columbia Hydro-
carbon Corporation to construct the above facilities sometime in the fall of 1957.
In the latter part of December 1957, Sidney E. Scisson, president of the corporation,
visited the jobsite. One of the purposes of his visit was to check the employment
situation. Pursuant thereto he instructed George B. Bakke, who was placed in
charge of the job, to arrange a meeting with Respondent John Haney, business agent
for the Respondent Union. Bakke did so and the parties met at Fenix's office at
the jobsite in the latter part of December 1957. What transpired at this meeting will
be discussed below.
Before we get into the issues herein, the Trial Examiner desires to point out
that, as he sees it, the record herein is most confusing, and requires careful resolu-
'The Trial Examiner was conducting a hearing In New Haven, Connecticut, when the
motion arrived in Washington, D C
2 The record shows that the job situs was at times referred to as Siloam, Kentucky
INTERNATIONAL HOD CARRIERS, LOCAL NO. 1445 235
lion of the credibility of the witnesses who testified at the hearing. This is always
a troublesome and thankless task. Even so, such issues must be resolved. This the
Trial Examiner shall do in the light of the record considered as a whole and let the
chips fall where they may.
Present at the meeting referred to above were the following : Scisson , Bakke, and
Respondent Haney. As indicated above, one of the purposes of the meeting was
to discuss the labor supply in the area. Fenix as well as others engaged in the
construction industry made a practice of contacting unions representing employees
engaged in the industry whenever they moved into a new territory, primarily because
they had learned from experience that it was a practical means of solving their labor
problems.
At the meeting the parties discussed the work that was to be done by Fenix,
wages, classifications of jobs, the type of workers needed to perform the different
jobs, and the hiring thereof. The upshot of the meeting was that Haney gave
Scisson a copy of the "agreement between Heavy Highway and Road Building Con-
tractors and/or Association and .. ." the Respondent Union, and other labor
organizations concerned with the construction industry. Scisson told Haney that
before signing the agreement he wanted to take it back to Tulsa, Oklahoma, and
study it, which he did. Thereafter Scisson signed the agreement and sent it to
Bakke, superintendent in charge of the job at South Port , Kentucky , and instructed
him to deliver it to Haney . Pertinent excerpts from the "Agreement" in question
follow below:
PART 1.
HEAVY CONSTRUCTION
ARTICLE I.
WHEREAS, the parties desire to stabilize employment , promote harmonious
relationships and provide a medium whereby the Employer and Union coop-
erate each with the other , and for the purpose of eliminating jurisdictional work
stoppages.
NOW, THEREFORE, the Employers and the Unions, acting by their duly
authorized agents, agree as follows:
ARTICLE II. UNION SHOP
(a) The Employer agrees to operate projects under a Union Shop subject
,to the provisions of the Labor-Management Relations Act of 1947, as amended.
In the event the present Labor-Management Relations Act of 1947 is repealed
or amended so that a closed shop may be legal, the parties agree to meet forth-
with for the purpose of negotiating with respect to the following provisions:
The Employer agrees to hire only members of the Union sent from the Union
,Office; the Employer shall call the Union Office 24 hours in advance for all
employees coming under the jurisdiction of the Union. When the Union does
not furnish sufficient Union men when called for same, the Employer shall
have the right to use any other men available, provided that men so employed
shall be replaced by members of the Union when such members are available.
(b) Before construction is begun and during the progress of the work the
Employer agrees to notify the Business Representative of the Union , and said
Business Representative may recommend employees who are experienced and
efficient in the operations of the machines to be used on the project.
(c) When the Business Representative of the Union is unable to recommend
a sufficient number of competent employees, the Employer shall have the right
to employ other available employees, provided those persons so employed shall
comply with the provisions of the Labor-Management Relations Act of 1947
with regards to Union Membership.
On or about April 9, 1958, the parties signed the following "Addendum" to the
"Agreement." It is to be noted that ". . . all other conditions of the Heavy &
Highway Agreement shall apply to this job."
The record shows that at the December 1958 meeting, which has been discussed
above, Scisson and Respondent Haney agreed that Fenix "would hire laborers
locally through Mr. Haney's union .' 13 It was also agreed that Fenix would be
permitted to bring certain key employees into the "area" and put them to work on
the project. As the Trial Examiner sees it , they were old employees of Fenix and
skilled in underground work. For the most part these particular employees were
8 Quotes from Bakke's credible testimony.
236 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
from the "Joplin area ." 4 The status of these particular employees insofar as the
Respondent Union is concerned will be discussed below.
At the December meeting, which has been referred to above , Scisson orally
agreed with Respondent Haney to abide by the "Heavy" agreement and to hire all
local employees through the Respondent Union 's offices in Ashland , Kentucky.
Attention is called to the fact that this oral agreement was made before Scisson
actually signed the "Agreement ," which he later did and mailed it to Bakke with
instructions to give it to Respondent Haney.
Sometime in January 1959 , Bakke met with Respondent Haney at the latter's
office in Ashland , Kentucky. The purpose of the meeting was to discuss the hiring
of laborers and the status of the employees that Fenix expected to bring into the
area. From what the Trial Examiner gleans from the record , the parties agreed
that: ( 1) All employees hired locally , must clear through the Respondent Union's
Ashland , Kentucky, office and would be given a "referral " signed by Respondent
John Haney ; and (2 ) all employees brought into the area by Fenix would likewise
be required to "clear" through the Respondent Union , and in turn would be given a
"referral" slip to their respective jobs. In other words, all employees of Fenix
were required to join or be members of the Respondent Union Local 1445, before
they could go to work for Fenix.
The "referral" slip is set forth below:
Date - -----------------------------
To Fenix & Scisson
--------------------------------------------------------------
CONTRACTOR
--------------------------------------------------------------
LOCATION OF JOB
INTRODUCING (Name of employee)i (Social Security Number)
OCCUPATION ----------------------------
BUSINESS REPRESENTATIVE Haney's Signature.
The record indicates that Fenix started to hire through the Respondent Union
sometime in April 1958 . Thereafter the work progressed little by little until peak
employment was reached sometime in the early part of August 1958 . The under-
ground work was completed in December 1958, and the entire job sometime in
April 1959.5
As the Trial Examiner sees it, the Respondents contend that the "referral" slips
mentioned above were in fact "introduction" slips and that their purpose was merely
to introduce prospective employees to Fenix, who could either hire or reject them
when they called at the jobsite ; and that the actual hiring of employees was left
up to Fenix.
On the other hand , Bakke testified in substance that all employees were "hired"
through the Respondents , and that whenever an applicant for a job appeared at
the jobsite , he was referred to the Respondent Union 's offices in Ashland and
advised to contact Respondent Haney. He further testified that all employees on
the job from start to finish were either referred to Fenix by the Respondents or
"cleared" through them, such as the "skilled " employees which Fenix brought to the
jobsite. In other words , Bakke under the terms of the "Agreement" and/or the
oral understanding between Haney and Scisson hired only those individuals who were
referred to the job by Respondent Haney. The "system " so to speak, was by way
of the "referral" slips set forth above , at least until the Lumpkins affair "got into
the hopper" as Bakke called it in his testimony . He had reference to sometime in
August 1958 when the referral slips were discontinued , but according to his credible
testimony the "referral " hiring practice continued until the job was completed.
4 As the Trial Examiner sees it , Bakke was referring to Joplin , Missouri , primarily
because there are a number of zinc mines in that area
6The hearing herein was held in Portsmouth, Ohio , on February 25 and 26, 1959 As
the Trial Examiner interprets the record , the date of "April, 1959" as set forth in the
record must have referred to the date Fenix anticipated the completion of the job, and
he so finds
INTERNATIONAL HOD CARRIERS, LOCAL NO. 1445 237
From Bakke's credible testimony, and upon the record considered as a whole, the
Trial Examiner finds that under the agreement between Fenix and the Respondents
that Bakke would call Haney in Ashland when he needed workers and that Haney
would comply with his request and "refer" them to him at the jobsite. There is no
substantial evidence in this record that Bakke or anybody else on behalf of Fenix
ever refused to accept any worker referred to the job by the Respondents or hired
any employees at the jobsite without first clearing them through the Respondents'
offices in Ashland, Kentucky. How the system worked in actual practice follows
below in the Trial Examiner's disposition of the case as to the Charging Party
herein, Roy Lumpkins.
The record shows that Lumpkins, at all times material herein , lived in Lechter
County, Kentucky, about a half mile from the jobsite. Bakke also lived nearby.
Though he was not acquainted with Bakke he knew who he was and his connection
with the Fenix project. On the evening of May 3, 1958, he went over to see Bakke
and asked him for a job. He told him who he was and gave him a brief history
of his past employment, and in particular as regards his 18 years as a "safety-man"
in the coal mines. Bakke was very much interested in his experience and back-
ground. Bakke told him to come over to the jobsite on Monday morning, May 5,
and that they would discuss the matter further.
Lumpkins reported to Bakke on Monday morning, May 5, 1958, and asked him
if he was ready to put him to work. According to Lumpkins' credible testimony,
Bakke replied ". . . Yes, you go on up to Mr. Haney and if he will give you a referral
slip, I will give you a job, and be glad to put you to work with your experience."
He then left the jobsite and drove over to Ashland, with his son, Bobby Lumpkins.
Upon arrival at the Respondents' office, he first talked to Ann Chamberlain, Haney's
secretary, of whom more anon . He told her who he was and showed her his dues
book and a transfer card from Local No. 83, Portsmouth, Ohio, where he was a
member of the same International Union. At about this time Haney came out of
his office. He told Haney who he was and that he had a job with Fenix and asked
him to accept his transfer card from Local No. 83. Haney refused to accept his
card and told him he had 1,200 or 1,500 men out of work, and " . .. I can't accept
your card under any circumstances." 6
On May 7, 1958, Lumpkins went over to Bakke's home and told him that Haney
had refused to accept his transfer card from Local 83, and to "refer" him to the
"Fenix" job. Bakke told him he was "sorry" about it. After some further discussion
Lumpkins told Bakke he was going to take the matter up with the "International
Union" and that if that didn't work out he would see a "lawyer "
Lumpkins further testified that on May 13, 1958, he went back to see Haney.
His son, Bobby Lumpkins, drove him over to Ashland and went with him to the
Respondent Union's office, but stayed outside in a room adjacent to the office while
he went on in to see Haney. There was an opening in the wall between the two
rooms.
According to Lumpkins, he talked to Haney and again requested that he accept
his transfer card and refer him to the job Bakke had promised him. Haney told
him he would accept his transfer card but that "it wouldn't do him any good" be-
cause ". . . he had about 900 men out of work." As the Trial Examiner interprets
the record, both Haney and Lumpkins became a bit angry during the conversation
The upshot of the incident was that Lumpkins walked out of the office and told
Haney that he was going to "see a lawyer." 7
Haney denied Lumpkins' testimony as regards the May 13 incident in toto.
According to Haney, he did not see Lumpkins on that date and the only conversa-
tion he ever had with him was on May 5, 1958.
Ann Chamberlain, Haney's secretary, also denied that Lumpkins was in the office
on May 13, 1958. Her testimony in this regard was corroborated by Julia Beam,
who occupied a desk near hers in the same office.
On the other hand, Lumpkins' son, Bobby, testified that he went up to the Re-
spondents' office with his father on both May 5 and 13, 1958. He further testified
that while he did not hear any of the conversation between his father and Haney on
May 5, he did hear Haney tell his father that the local had 900 men out of work on
May 13, 1958.
From the foregoing it is obvious that a serious question concerning credibility
confronts the Trial Examiner. After long and careful consideration of the entire
record, the Trial Examiner credits Lumpkins' testimony that he called on Haney at
his office in Ashland, Kentucky, on May 13, 1958, and discredits that of Haney,
Quotes from Lumpkins' credible testimony.
7 Quotes from Lumpkins' credible testimony.
238 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Chamberlain, and Beam in this regard . Several factors have entered into his findings,
as to this issue. One of the principal factors was Haney's evasiveness while testify-
ing at the hearing herein , and his testimony as regards his conversations with Bakke
about Lumpkins In the course of his testimony , he testified that Bakke told him in
substance that he did not know Lumpkins and had never heard of him. Bakke,
however, testified in substance that he told Haney that while ahe did not know
Lumpkins personally , he did know who he was " like you know a neighbor down the
street ." As indicated above , Bakke impressed the Trial Examiner as a forthright
and honest witness Another factor that has carried considerable weight with the
Trial Examiner is the fact that on or about this very day, May 13, 1958 , Bakke re-
quested Haney to send him men to work on the Fenix job. This is evidenced Eby the
fact that four of the referral slips of individuals referred to the Fenix job are dated
May 13, 1958 .8 Of further significance is the fact that the reporting time set forth on
the slips was as follows: General Counsel's Exhibit No. 4-E, "Referral Slip" to Carl
Ray Griffith , "immediately"; General Counsel 's Exhibit No. 4-F , "Referral Slip" to
Everett Vanhoose , "4.30 p.m." ; General Counsel 's Exhibit No. 4-G, "Referral Slip"
to Ray Brumfield, "12 o'clock midnight "; and General Counsel's Exhibit No 4-H,
"Referral Slip" to Paul Howard , " immediately ." From the foregoing , the Trial
Examiner is convinced and finds that at the very time Lumpkins was in Haney's
office on May 13, 1958, Haney had received a request from Bakke to send workers
out to the "Fenix" job. To the Trial Examiner at least, this factor helps to explain
the testimony of Haney, Chamberlain , and Beam in regard to the May 13 incident,
and their denial of Lumpkins ' testimony in this regard Moreover , it must be borne
in mind that at this time , May 13, 1958 , Haney knew that Lumpkins wanted a "refer-
ral slip" to the "Fenix" job. This is evidenced by Haney 's admission that Lumpkins
told him that he had a job at "Fenix" in the course of their conversation on May 5,
1958, and that he told Lumpkins that if ". . . he gave you a job, he has a perfect
right to put you to work . He don't have to refer you to me. He does his hiring
on the job." 9
After the May 13 incident , Lumpkins wrote the International Union on May 16,
1958, about the treatment he had received from Respondent Haney as regards his
request for a referral to the Fenix job. On or about May 26 , Haney received the
following letter from A. P. Kistemaker , manager, Ohio regional office, Columbus,
Ohio:
COLUMBUS, OHIO, May 26, 1958.
Mr. JOHN HANEY,
Local Union #1445,
221 16th Street,
Ashland, Kentucky.
DEAR SIR AND BROTHER' Please be advised that the General Office is in receipt
of the attached communication, which is self explanatory.
I am sure you are familiar with the Constitution in regard to the acceptance
of a members traveling card and also the implications that arise from refusal to,
leave a man go to work if he has a job.
Please handle this accordingly.
With kind regards, I am
Fraternally yours,
A. P. KISTEMAKER,
Manager, Ohio Regional Office.
On May 29, 1958, Lumpkins went back to the Respondents' office in Ashland,
Kentucky. Haney was absent, but he did talk to Mrs. Chamberlain, his secretary.
At this time he transferred into the Respondent Local and paid 2 months' dues.
According to Lumpkins he told the bookkeeper, Ann Chamberlain, after he had
paid his dues and transferred into the Respondent Local, that ". . . I want to leave,
a message," then, "but 1 still got that job if he will give me the referral slip."
She said, "There is no use, he won't give you a job."
Mrs. Chamberlain denied that she made any such statement to Lumpkins. Here
again the Trial Examiner is confronted with an issue involving the credibility of
the witnesses who testified at the hearing herein. As indicated above, this is always
a distasteful and thankless task, but such questions must be decided one way or
the other. After careful consideration, the Trial Examiner is convinced and finds
that Mrs. Chamberlain made the remark attributed to her by Lumpkins. A compel-
ling factor in his determination in this regard is the fact that Lumpkins' complaint to,
8 See General Counsel's Exhibits Nos. 4-E, F, G, and H.
9 From Haney 's testimony on direct examination
INTERNATIONAL HOD CARRIERS, LOCAL NO. 1445 239
the International Union was by this time well-known to both Haney and Mrs.
Chamberlain. This is evidenced by the credible testimony of Bakke who testified
that he had been contacted by both Haney and Kistemaker after Lumpkins' letter
to the International Union dated May 19, 1958. Hence, it is reasonable to assume
that Lumpkins' criticism of his treatment by Respondent Haney was well-known
and understandingly resented by both Haney and others in the Respondent Local's
offices in Ashland, including Mrs. Chamberlain, while the remark in and of itself
conveys no animosity on the part of Mrs. Chamberlain towards Lumpkins personally,
nevertheless, to the Trial Examiner, it was a natural observation on her part when
considered in the light of the whole record.
On May 29, 1958, Lumpkins wrote another letter to the International Union and
informed it that he had transferred into the Respondent Local as previously re-
quested by Kistemaker. On June 4, 1958, he received the following letter from
Kistemaker:
JUNE 4, 1958.
Mr. Roy LUMPKINS,
South Shore,
Kentucky.
DEAR SIR AND BROTHER: In reply to your letter of May 29, 1958, as a matter
of explanation you state that you transferred as instructed, please be advised
that that is one of the rights and privileges as a member of any of our local
unions. I do not quite understand the statement that you make when you say
that the business manager, John Haney, refused to permit you to work. I have
always been under the impression that Local 1445 when work is available for
members of that Local union, that those members are sent out on jobs when
they are requested by an employer. It also follows that on occasion employers
state to men applying for work that they will put them to work if they get a
permit from a local union, however, without an order from an employer it is
not possible for a local union to send a man to a job as the employer may not
require his services.
I would check into this matter further with Business Representative Haney
and inquire as to whether the Contractor has requested you for work on that
particular job.
With kind regards, I am
Fraternally yours,
A. P. KISTEMAKER,
Manager, Ohio Regional Office.
On July 8, 1958, Lumpkins filed his original charge with the Board in this
matter. Thereafter it was investigated by the Regional Office in Cincinnati, Ohio.
In the interim Haney on various occasions contacted Bakke as regards the "Lumpkins
affair." According to Bakke's credible testimony, he told Haney in one of their
conversations, ". . . that if Mr Lumpkins could get the Union to send him down
I would be happy to have him." An excerpt from his credible testimony in this
regard follows below:
Q. Now, did you at any time receive a phone call from Mr. John Haney,
one of the Respondents in this case, pertaining to Mr. Lumpkins?
A. Yes, several.
Q. Yes.
Directing your attention particularly to the early part of May-Can you tell
us when that first phone call was, the first call from Haney about Lumpkins9
A About Mr. Lumpkins?
Q. Yes.
A. It was-All I can do-It was after Lumpkins asked me for a job, and
it was in that same period. They asked-I was asked had I given him a job.
Q. You were asked by Mr. Haney?
A By Mr. Haney.
Q. Yes.
A. Had I given him a job, and I said no-
Q. Oh.
A. -and he wanted to know what I told him, and I told him that what I
had-that if Mr. Lumpkins could get the union to send him down, I would
be happy to have him.
Q After you made your requests to the union for a man or men, is that
correct?
A. No, that is an addition. The exact words that I said to Mr. Lumpkin
where that if-
240 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Q. We are talking about your conversation with Haney now.
A. That's what I told you.
Q. I will ask you, sir, if you did not tell Mr. Haney that you did not
know anybody by the name of Lumpkins, and that you did not hire anybody by
the name of Lumpkins, remember saying that?
A. I can't say whether I said, "I don't know anybody by the name of Mr.
Lumpkins," I did say that I did not hire anybody by the name of Lumpkins.
Q. You don't deny, then, that you could have made these statements, that you
didn't know Mr. Lumpkins?
Mr. REYNOLDS: That's an argumenting question, Your Honor.
TRIAL ExAMINER: Correct. Sustain the objection.
Mr. SEGAL: All right, let me go on.
On August 18, 1959, Lumpkins was hired by Fenix under the following
circumstances.
The record shows that on or about August 6, 1958, that Lumpkins filed his second
amended charge against the Respondents. Thereafter on or about August 15, 1958,
Haney called Bakke on the telephone and told him that Lumpkins had filed charges
with the Board and asked him if he could put him to work. Bakke told him that he
could. On Sunday night, August 17, 1958, Lumpkins' wife was at Bakke's home
as a "baby-sitter." While she was there, Mrs. Bakke told her to tell her husband
that he was to report for work immediately. She relayed the message to Lumpkins.
At the time he was working in Portsmouth, Ohio, and was unable to report to work
immediately. He went to Bakke and informed him that he could not report until
Monday morning, August 18, 1958. This was satisfactory to Bakke, and Lumpkins
went to work for Fenix on the above date.
The record shows that at all times material herein the "Fenix" job was inspected
or "policed" once a week by either Haney or one of his assistants. In further
enforcement of the Respondent Union's contractual arrangements with Fenix, one
of its members acted as "shop steward" at the jobsite, and presumably kept Re-
spondent Haney fully informed as regards conditions at the jobsite.
Conclusions
To begin with, the Trial Examiner finds that the written agreement between
Fenix and the Respondent Union (pertinent excerpts from which have been set forth
above), was illegal on its face in that it provides inter alia that Felix "was required
to hire exclusively through the Respondent Local only employees who are members
thereof." In addition, the Trial Examiner finds that the oral arrangement and/or
understanding between Fenix's president, Sidney E. Scisson, and Respondent Haney,
entered into at their meeting in December 1957, to the effect that all employees hired
by Fenix at the Siloam, Kentucky, job for the Columbia Hydrocarbon Company
would be hired exclusively through the Respondent Union, was likewise violative
of the Act. The Trial Examiner's reasoning in this regard is predicated upon the
following.
The record shows, and the Trial Examiner has found above, that all employees
at the Fenix job were required to be members of Respondent Local No. 1445.
There is no evidence in the record that the Respondent Union and Fenix adhered
to the proviso in Section 8(a) (3) of the Act, either in their written agreement or in
the oral understanding and/or arrangement between Respondent Haney and Presi-
dent Scisson at their meeting in December 1957. How their "agreement" worked in
actual practice is amply demonstrated by the treatment accorded the Charging Party
herein, Roy Lumpkins, which has been set forth in detail above.
A most persuasive factor in the Trial Examiner's findings as regards the Lumpkins
affair is the uncontradicted and undenied testimony of Bakke as regards the cir-
cumstances under which Lumpkins was finally given a job by Fenix on August 18,
1958. In the considered opinion of the Trial Examiner, the fact that Fenix hired
Lumpkins on that date as a result of Respondent Haney's telephone call to Bakke
a few days before, in which he requested that Lumpkins be placed on the payroll,
amply demonstrates the Respondents' illegal hiring practices.
The Trial Examiner further finds that at no time material herein did the Respond-
ents comply with the Board's holding in the Mountain Pacific case.10 There is no
substantial evidence in this record that the Respondents engaged in conduct under
10 Mountain Pacific Chapter of the Associated General Contractors, Inc., et at., 119
NLRB 883, 893
INTERNATIONAL HOD CARRIERS, LOCAL NO. 1445 241
its written agreement and/or understanding with Fenix that meets the Board's
requirements as set forth in the Mountain Pacific case. There the Board said it-
... would find an agreement to be nondiscriminatory on its face, only if the
agreement explicitly provided that:
(1) Selection of applicants for referral to jobs shall be on a nondiscriminatory
basis and shall not be based on, or in any way affected by, union membership,
bylaws, rules, regulations, constitutional provisions, or any other aspect or
obligation of union membership, policies, or requii ements.
(2) The employer retains the right to reject any job applicant referred by the
union.
(3) The parties to the agreement post in places where notices to employees
and applicants for employment are customarily posted all provisions relating
to the functioning of the hiring arrangement, including the safeguards that we
deem essential to the legality of an exclusive hiring agreement.
The Trial Examiner is not unmindful of the fact that the written agreement
between the Respondent Union and Fenix expired by its own terms July 1, 1958, and
that there is no substantial evidence that Fenix signed the 1958-60 agreement."
Even so, the record clearly shows, and the Trial Examiner has so found above that
the oral agreement and/or understanding between Fenix and Respondent Haney,
acting for the Respondent Union, still prevailed at all times material herein.
In passing, the Trial Examiner desires to point out that he is not unmindful of
the position of Respondent Haney in his role of business agent for the Respondent
Local 1445. It is a matter of common and notorious knowledge that there are a
host of unemployed workers in the Tri-State area of Kentucky, West Virginia, and
Ohio, and that Ashland, Kentucky, is located in the geographical center thereof.
This would explain his attitude towards Lumpkins when he asked to "travel-in"
to Local 1445, from Local 83, on May 5, 1958, and to be immediately "referred"
to the Fenix job. To the Trial Examiner at least, this fact explains, but does not
excuse nor condone, his testimony in this regard at the hearing herein.
From all of the foregoing, the Trial Examiner finds that: (1) At all times material
herein, the Respondent Union and Fenix have maintained and enforced and are
maintaining and enforcing closed-shop preferential hiring conditions of employment
whereby Fenix is caused to and does hire exclusively through the Respondent Union's
hiring hall, only employees who are members of or are approved by the Respondent
Union for employment by Fenix; (2) at all times material herein, the Respondent
Union and Fenix have maintained and enforced and are maintaining and enforcing
a collective-bargaining agreement covering the wages, hours, and other conditions of
the employees of Fenix which provides for the illegal hiring procedures described
and found above; (3) on or about May 5, 1958, and at all times thereafter, pursuant
to said closed-shop preferential hiring conditions of employment, so established,
maintained, and enforced, the Respondent Union, by and through its agent Respond-
ent John Haney, attempted to cause and caused Fenix to refuse employment to Roy
Lumpkins, because he was not a member of Respondent Union Local 1445 and
because Respondent Union Local 1445 refused to clear him for employment by
Fenix; 12 and (4) by the acts and conduct described above, the Respondents have
engaged in unfair labor practices "affecting commerce" as defined in Section 8(b)
(1)^(A) and (2) and Section 2(6) and (7) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondents set forth in section III, above, occurring in
connection with the operations of the Company 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 com-
merce and the free flow thereof.
V. THE REMEDY
In order to remedy the unfair labor practices found, the Trial Examiner shall
recommend that the Respondents cease and desist therefrom and take certain affirm-
ative action designed to effectuate the policies of the Act. The General Counsel has
n See Respondents' Exhibit No. 1.
12 See, supra, in re Roy Lumpkins' employment by Fenix on August 18, 1958, at the
request of Respondent John Haney.
554461-60-vol. 126-17
242 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
requested application of the Brown-Olds 13 remedy to expunge the effect of the'
illegal closed-shop conditions of employment. By enforcing closed-shop conditions
of employment, the Respondents have inevitably coerced employees to pay the dues,
fees, and assessments necessary to achieve and retain membership in the Respondent
Union or to receive a permit or clearance for them to work within the Union's
jurisdiction. In order to adequately remedy the unfair labor practices found, and
to encourage compliance with the Act in the future, the Respondents should be
required to reimburse employees of the Company, that is Fenix, for any dues, fees,
assessments, or other moneys that were unlawfully exacted from them as a condi-
tion of obtaining or retaining employment with the Company. Accordingly, the
Trial Examiner shall recommend that the Respondents refund to all employees
of the Company the initiation fees, assessments, dues, and other moneys paid by
them as the price of their employment. The liability of the Respondents for reim-
bursement should include the period beginning 6 months prior to the filing and
service of the charges herein and shall extend to all such moneys thereafter collected.
Roy Lumpkins, against whom the Respondents caused the Company, i.e., Fenix, to
discriminate, as found, should be made whole by the Respondents for his resulting
pay losses suffered as a result of the discrimination against him, in accordance with
the formula in F. W. Woolworth Company, 90 NLRB 289. It appears from the
record that prior to the hearing, the Respondent Union through its agent, Respondent
John Haney, advised the Company, i.e., Fenix, that they had no further objections
to its hiring Roy Lumpkins, which it did on or about August 18, 1958. It will be
left to the compliance stage of these proceedings to establish the dates when such
notification and actual hiring of Lumpkins by the Company were effective.
Upon the basis of the above findings of fact, and upon the entire record in the
case, the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. The Company, i.e., Fenix, is engaged in commerce within the meaning of the
Act.
2. The Respondent Union is a labor organization within the meaning of the Act,
and at all times material herein, Respondent John Haney was its agent.
3. By causing the Company to discriminate against Roy Lumpkins in violation
of Section 8(a)(3) of the Act, thereby also restraining and coercing employees in
the exercise of their rights under Section 7 of the Act, the Respondents have engaged
in unfair labor practices within the meaning of Section 8(b) (2) and 8(b) (1) (A) of
the Act.
4. By maintaining and enforcing an understanding or practice wherein member-
ship in or clearance from the Respondents is required as a condition of employment
and by requiring employees or applicants for employment to pay dues or other
moneys to the Respondent in order to obtain and retain employment, the Respondent
has violated Section 8(b)(1)(A) and (2) 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.
[Recommendations omitted from publication.]
13 United Association of Journeymen it Apprentices of Plumbing it Pipe Fitting Industry
(J. S. Brown-E. F Olds Plumbing it Heating Corporation), 115 NLRB 594, 597-602
Custom -Pak, Inc. and International Union, Allied Industrial
Workers of America, AFL-CIO. Case No. 9-CA-1653. Janu-
ary 20, 1960
DECISION AND ORDER
On September 25, 1959, Trial Examiner Charles W. Schneider
issued his Intermediate Report in the above-entitled proceeding, find-
ing that the Respondent had engaged in and was engaging in certain
unfair labor practices and recommending that it cease and desist
126 NLRB No. 33.