International Union of Operating Engineers

National Labor Relations Board - Board Decisions

Aug 15, 1955

113 N.L.R.B. 655 (N.L.R.B. 1955)

INTERNATIONAL UNION OF OPERATING ENGINEERS 6555
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICE UPON COMMERCE
Certain of the activities of the Respondents set forth in section III, above, oc-
curring in connection with the operations of the Respondent 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 commerce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondents have engaged in certain unfair labor prac-
tices, the Trial Examiner will recommend that they cease and desist therefrom and
take certain affirmative action necessary to effectuate the policies of the Act.
It has been "found that the Respondents have entered into and maintained agree-
ments containing seniority provisions violative of Section 8 (a) (1) and (3) and
8 (b) (1) (A) and (2) of the Act. Accordingly it will be recommended that the
Respondents cease giving effect to the unlawful seniority provisions of their agree-
ments and refrain in the future from executing agreements containing such unlawful
seniority provisions. It will not be recommended that the Respondents cease
giving effect to both current agreements, nor that the Respondent Company withdraw
and withhold recognition from the Respondent Union.
Upon the basis of the foregoing findings of fact, and upon the entire record in
the case, the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. The Respondent Union is a labor organization within the meaning of Section Z
(5) of the Act.
2. By entering into and maintaining agreements containing clauses delegating
to the Respondent Union authority to settle controversies relating to- seniority the
Respondent Company has engaged in and is engaging in unfair labor practices
within the meaning of Section 8 (a) (1) and (3) of the Act, and the Respondent
Union has engaged in and is engaging in unfair labor practices within the meaning
of Section 8 (b) (1) (A) and (2) of the Act.
3. The unfair labor practices found herein are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
4. The Respondents have not engaged in unfair labor practices within the mean-
ing of the Act with respect to Ivan Hazel.
[Recommendations omitted from publication.]
International Union of Operating Engineers , Local No. 12, AFL
and Robert A. Holderby
International Union of Operating Engineers, Local No. 12, AFL
and Frederick R. Hummel
International Union of Operating Engineers, Local No. 12, AFL
and Hoyt Covert. Cases Nos. %9,1-CB-564, 21-CB-536, and 21-CR-
586. August 15,1955
DECISION AND ORDER
STATEMENT OF THE CASE
Upon charges filed by Frederick R. Hummel, Robert A. Holderby,
and Hoyt Covert, on November 16, 1953, February 15, 1954, and
April 8, 1954, respectively, the General Counsel of the National Labor
Relations Board, herein called the General Counsel, by the Regional
113 NLRB No. 67.
656 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Director for the Twenty-first Region (Los Angeles, California), is-
sued a complaint dated June 1, 1954, and an amendment thereto, dated
August 11, 1954, against International Union of Operating Engineers,
Local No. 12, AFL, herein called the Respondent, the Union, or
Local 12, alleging that the Respondent had engaged in and was en-
gaging in unfair labor practices affecting commerce within the mean-
ing of Section 8 (b) (1) (A) and (2) and Section 2 (6) and (7) of
the National Labor Relations Act, as amended, herein called the Act.
Copies of the charges, the consolidated complaint, and amendment
thereto, together with notice of hearing, were duly served upon the
Respondent and the Charging Parties.
The amended complaint alleged in substance that the Respondent
had violated Section 8 (b) (1) (A) and (2) of the Act by, the follow-
ing conduct: (1) Refusing to refer Robert A..EIolderby to a job with
any employer-member of Associated General Contractors, Southern
California Chapter; (2) operating its job dispatch system in a dis-
criminatory manner by (a) giving preference in referrals to its mem-
bers, (b) requiring nonmembers dispatched to jobs to pay work-permit
fees of $2.50 per week, and (c) requiring nonmembers to pay a sub-
stantial -part of the union initiation fee and advance dues at the time
of their first dispatch to a job; and (3) attempting to cause an em-
ployer, United Concrete Pipe Corporation, to discriminate against
Hoyt Covert, one of its employees, in violation of Section 8 (a) (3) of
the Act. On June 18 and September 7, 1954, the Respondent filed
answers to the consolidated complaint and to the amended complaint,
respectively, denying all the principal allegations.
Pursuant to notice, a consolidated hearing was held in Los Angeles,
California, on' October 18 and 19, 1954, before Thomas S. Nilson, the
Trial Examiner duly designated by the Chief Trial Examiner. The
General Counsel and the Respondent were represented and partici-
pated in the hearing. All parties were afforded full opportunity to
be heard, to examine and cross-examine witnesses, and to introduce
evidence bearing on the issues.
At the close of the hearing, the parties argued orally before the
Trial Examiner and subsequently filed briefs with him. During the
course of the hearing, the Trial Examiner made rulings on motions
and on the admissibility of evidence. The Board has reviewed the
rulings of the Trial Examiner and finds that no prejudicial error was
committed. The rulings are hereby affirmed.
On December 14, 1954, the Trial Examiner issued his Intermediate
Report, copies of which were duly served upon the parties. In the
Intermediate Report the Trial Examiner found that the Respondent
had not engaged in any unfair labor practices within the meaning of
Section 8 (b) (1) (A) and (2) of the Act, and recommended that the
complaint be dismissed in its entirety. I
INTERNATIONAL UNION OF OPERATING ENGINEERS 657
• Thereafter, the General Counsel filed exceptions to the Intermedi-
ate Report 1 and a supporting brief. The Respondent filed a brief in
support of the Intermediate Report.
The Board has considered all the exceptions and, to the extent indi-
cated hereinafter, finds them to have merit. Upon the entire record in
the case, the Board makes the following : •
FINDINGS OF FACT
1. THE BUSINESS OF THE ASSOCIATED GENERAL CONTRACTORS
The General Counsel and the Respondent stipulated at the hearing
that the testimony in Case No. 21-CB-548, Local 1400, United Broth-
erhood of Carpenters and Joiners of America, AFL, with respect to
the business of Associated General Contractors, referred to herein as
AGC, be considered a part of'the record in the instant case. The testi-
mony indicates that in 1953 and 1954, AGC members did several mil-
lion dollars worth of construction work at a Marine training base at
Twentynine Palms, California, and at an Air Force base near Las
Vegas, Nevada.
We find that AGC is engaged in commerce within the meaning of
the Act and that it will effectuate the policies of the Act to assert juris-
diction herein.2
II. THE LABOR ORGANIZATION INVOLVED
International Union of Operating Engineers, Local No. 12, AFL,
is- a labor organization admitting to membership employees of mem-
bers of Associated General Contractors.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The bargaining agreement
For many years, the Respondent together with other construction
trade unions have been parties to collective-bargaining agreements
with AGC. At all times material herein, the bargaining contract be-
tween these par Lies contained the following hiring provisions :
II.
A. That the Contractors hereby recognize the Unions who are
signatory hereto as the sole and exclusive collective bargaining
representative of all employees of the Contractors signatory
hereto over whom the Unions have jurisdiction, as such jurisdic-
tion is defined by the Building and Construction Trades Depart-
1 The General Counsel did not except to the Trial Examiner 's recommendation that the
complaint be dismissed insofar as it applied to Hummel and Covert . The Board therefore
adopts these recommendations without passing on the merits.
2 Maytag Aircraft Corp , 110 NLRB 594.
658 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ment of the American Federation of Labor as of the date of this
Agreement. . . .
That subject to this'understanding the Contractors shall have
entire freedom of selectivity in hiring and may discharge any
employee for any cause which he may deem sufficient, provided
there shall be no discrimination on the part of the Contractors
against an employee, nor shall any such employee be discharged
by reason of any Union activity not interfering with the proper
performance of this work.
It is the intention of the parties that all workmen covered
hereby shall be or become forthwith upon employment and re-
main continuously, members in good standing of the International
.Unions signatory hereto through their affiliated Local Unions
having work and area jurisdiction and on whose behalf this
Agreement is executed, as a condition of employment, and that
this provision shall become operative without further notice or
amendment whenever amendments to or judicial interpretations
of the Labor-Management Relations Act of 1947 remove the in-
hibitions against the application of this paragraph now existing
under the present wording and judicial interpretations of that
Act.
It is agreed that all workmen covered hereby shall be or be-
come, not more than thirty (30) days after employment and re-
main continuously, members in good standing of the Interna-
tional Unions signatory hereto through their affiliated Local
Unions having work and area jurisdiction and on whose behalf
this Agreement is executed, and shall remain available for work
as a condition of employment.
B. That in the employment of workmen for all work covered
by this Agreement in the territory above described, the following
provisions, subject to the conditions of Article II-A, above, shall
govern :
1. That the Local Unions shall establish and maintain open
and nondiscriminatory employment lists for employment of work-
men in the work and area jurisdiction of each respective Local
Union of each particular trade.
That the Contractors shall first call upon the respective Local
Unions having work and area jurisdiction, or their Agents, for
such men as they may from time to time need, and the respective
Local Unions, or their Agents, shall immediately furnish to the
Contractors the required number of qualified and competent
workmen and skilled mechanics of the classifications needed by
the Contractors.
That the respective Local Unions, or their Agents, will furnish
each such required competent workmen or skilled mechanic en-
INTERNATIONAL UNION OF OPERATING ENGINEERS 659
tered on their lists, to the Contractors by use of a written re-
ferral and will furnish such workmen or skilled mechanics from
the respective Local Unions' listing in the following manner:
(a) Workmen who have been recently laid off or terminated
in that respective Local Union's work and area jurisdiction by
the Contractors now desiring to re-employ the same workmen in
that same area provided they are available for employment.
(b) Workmen who have been employed by Contractors in the
respective Local Union's work and area jurisdiction within the
multiple-employer unit during the previous ten (10) years, and
who are available for employment.
(c) Workmen whose names are entered on the list of the re-
spective Local Union having work and area jurisdiction and who
are available for employment.
That workmen employed by the Contractors for a period of
thirty (30) days continuously or accumulatively within the mul-
tiple-employer unit and procured in accordance with II, B-1,
(c), above or procured from other sources by the Contractors
themselves, shall become members of the appropriate craft Union
signatory hereto immediately, upon terms and qualifications not
more burdensome than those applicable at such times to other
applicants to such Union.
B. Operation of Local 12's dispatch system
Based upon this agreement, Local 12 operated a job referral or dis-
patch system for supplying the requirements of AGC members for op-
erating engineers and allied classifications. Telephone calls from
these employers were made to the union office for workmen qualified
to operate specific types of equipment. The Respondent maintained
two referral lists. The first was headed "Members" and included all
members 'of Local 12 who had reported that they were seeking work.
According to the testimony of McNeel, an official of Local 12, there
was no distinction in this group between those Local 12 members who
-had and those who had not previously worked for employers who
were part' of the AGC unit. The second group was entitled "Ap-
plicants and Others" and included members of other locals of Interna-
tional Union of Operating Engineers who had transferred into the
geographical area of Local 12 as well as any nonunion workman who
applied at the dispatch office for work within the Local's jurisdiction.
When` an,employer requested a workman with particular qualifica-
tions, an employee in the office of Local 12 would first examine the
"Members" list for a qualified individual. If that list did not con-
tain an individual with the proper qualifications, the clerk would then
660 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
resort to the "Applicants and Others" list. An individual dispatched
from the latter list was required to pay a work-permit fee of at least
$2 per week.'
Under the union-security provision of the bargaining agreement,
individuals newly hired in the multiemployer unit had 30 days within
which to join Local 12, although as we have noted in footnote 3, the
constitution of the International Union prohibits any of its locals from
issuing a work permit to anyone who has not already applied for mem-
bership. Moreover, the practice of Local 12 conformed to the require-
ments of the International's constitution. McNeel testified that it was
the practice for applicants for employment to apply for membership
at the time of their first referral, although on occasion an applicant
might be dispatched to a job without paying any part of the initiation
fee which was due when a membership application was submitted.
C. Robert A. Holderby
Holderby obtained referrals through Local 12 beginning in Septem-
ber 1951. In January 1953, he was suspended from membership for
dues delinquency, but was reinstated 2 months later upon payment of
all the fees and dues for which he was liable. In June 1953, the execu-
tive board of Local 12 expelled him from the Local by rejecting his-
previous application for reinstatement, and returned to him all the
initiation fees, dues, and permit fees which he had ever paid to Local
12. Between January 1953, when he was first suspended, and June-
1953, when he was finally expelled, Holderby continued to be regularly
dispatched to jobs, but immediately upon his expulsion his name was
removed from the "Members" out-of-work register and placed at the-
top of the "Applicants and Others" list. Thereafter, for approxi-
mately 12 months he was never sent out on a job although on 1 or 2'
occasions the dispatcher attempted to notify him of a possible referral.
On June 3, 1954, 2 days after the issuance of the complaint he was
offered 2 jobs on the same day and continued to be dispatched fairly-
regularly until shortly before the hearing, when again no jobs were-
made available to him.
For about 4 months during this period, Holderby was employed as-
a truck salesman working on commission. He testified that during
the entire period in which he was not being referred to jobs by Local
12, he was available for work as an operating engineer, and had at--
tempted to obtain construction jobs through personal applications to•
B Article xV , section 3 ( e) of the International Union's constitution requires each local
,which permits applicants for membership to work under a contract with, or under con-
trol of, the local to charge minimum weekly permit dues of $2 of each hoisting or portable-
engineer or apprentice Section 3 ( h) provides that no temporary permit for work shall
be issued to anyone who is not either a member of the International or an applicant for
membership therein The Trial Examiner found that the Respondent charged $2 50 per
week for a work permit The Respondent did not except to this finding
INTERNATIONAL UNION OF OPERATING ENGINEERS 661
contractors. At no time was he successful in obtaining work within
Local 12's jurisdiction directly from contractors.
D. Conclusions
1. The complaint does not allege that the hiring arrangement agreed
to by AGC and Local 12 is invalid, and the General Counsel limited
his case to attacking as discriminatory only certain practices followed
in the operation of that system.4 The General Counsel's failure to
allege that the agreement was itself illegal, precludes the Board from
making any finding on that point.
But apart from the question of the agreement's validity under Sec-
tion 8 (a) (3), we nevertheless find that, in the following particulars,
the dispatch system was not being administered by AGC 8 and Local
12 in accordance with its terms.
(a) Under the contract dispatch procedure, a qualified individual
who had worked in the AGC unit within the previous 10 years was
entitled to referral preference over others, including members of Local
12 and applicants for membership. In practice, however, union mem-
bers were given job preference regardless of whether they had ever
worked in the AGC unit. Moreover, Holderby's name was removed
from the preferred "Members" list after he was expelled from Local
12 despite his right to preference as a former worker within the AGC
unit.
(b) Under the agreement, a nonunion workman dispatched by
Local 12 was not required to join the Union until after 30 days of con-
tinuous or accumulated employment within the AGC unit. It was the
practice, however, for nonunion prospective employees to apply for
union membership immediately upon their first dispatch. The Re-
spondent contends that this was voluntary on the part of each pro-
spective employee, and that discrimination against nonunion em-
ployees or prospective employees cannot be presumed as long as there
was no compulsion by the Union to require them to apply for mem-
bership immediately. We believe that in fact nonunion employees
could not exercise a free choice between applying for union mem-
bership immediately or after the first 30 days of employment. Job
A The Trial Examiner expressed bewilderment as to the General Counsel 's theory of the
case, although the complaint , the presentation of the case , and the brief to the Trial Ex-
aminer make it clear that the General Counsel considered as violative only the practices
discussed below, and not the agreement itself. Despite his stated inability to understand
the basis for the action , the Trial Examiner discussed the practices used by Local 12 in
its dispatch procedure . His failure to find any violation on the Respondent 's part is not,
therefore, due to any deficiency in the General Counsel's case
6 Although AGC is not a respondent, we believe that its delegation to Local 12 to operate
the dispatch system did not relieve it of a responsibility to insist that the Union fulfill its
contractual obligation of maintaining nondiscriminatory hiring lists . AGC is not, of
course, a necessary party respondent to a complaint alleging a violation of Section 8 (b)
(2) Radio Officers' Union of the Commercial Telegraphers' Union, AFL, 347 U. S 17,
enfg 93 NLRB 1523 1527 National Union of Marine Cooks and Stewards. 92 NLRB 877,
662 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
applicants were aware that their only chance of obtaining employment
with AGC employers was through Local 12's dispatching office. To
say, as the Respondent does, that all job applicants voluntarily applied
for membership immediately, is to ignore the practical situation in
which such applicants were placed. Realistically, they were in no posi-
tion to stand on their statutory right of refusing to submit an applica-
tion for membership in the Union for at least 30 days. The fact that
prospective employees were, on occasion, dispatched before they had
paid any part of their initiation fee is corroboration that immediate
application in the Union was obligatory, since only applicants were
required to pay initiation fees. Nor does any relaxation by Local 12
of its usual practice of requiring some part of the initiation fee im-
mediately excuse the violation of denying to job applicants the 30-
day grace period given them by the statute. Moreover, we have no
reason to believe that Local 12 did not abide by section 3 (h) of ar-
ticle XV of the International's constitution which prohibits a local
union from issuing a temporary work permit to anyone who is not
either a member of the International or an applicant for membership.
(c) The contract makes no provision for the payment of work-
permit fees by nonunion applicants for employment. In practice,
nonunion applicants using the Respondent's dispatch system were re-
quired to pay at least $2 per week for the right to work for AGC
members, whereas union members were not required to pay such a
fee. The Respondent neither contended nor proved that this special
charge levied upon nonunion applicants was in any way related to
the cost of operating the dispatch system for the benefit of such
employees.
By the aforesaid practices, the Respondent caused the Employers
to discriminate against nonunion applicants for employment to the
advantage of union members.
2. The General Counsel contends that, after expelling Robert Hold-
erby from membership, the Respondent denied him further job re-
ferrals in violation of Section 8 (b) (2) and (1) (A) of the Act.
The Respondent does not deny that it removed Holderby's name from
the preferred "Members" list when it expelled him from the Union,
but it argues that the General Counsel has not proved that there were
jobs available to which Holderby would have been referred but for
the removal of his name from the "Members" list. In answer to this
contention, the General Counsel asserts that the mere removal of
Holderby's name from the contractual preferred list because he had
lost his union membership was a violation of the Act, and that the
extent to which Holderby actually suffered loss of employment as a
result of the removal is a matter for determination at the compliance
stage of the proceeding.
INTERNATIONAL UNION OF OPERATING ENGINEERS 663
We agree with the General Counsel. It is clear that, for the pur-
poses of job referral, Local 12 refused to consider Holderby on an
equal basis with individuals who were entitled to preference under
the AGC agreement, simply because he was no longer a member of
Local 12. "This denial of equal access to the available jobs was in it-
self and without more a restrictive imposition in violation of the
Act." 6 Because of the casual and occasional nature of the jobs to
which Holderby had been referred before his expulsion and because
of the practice of preferring union members, we are unable to deter-
mine now to what extent Holderby was injured by the unlawful sys-
tem of preferences. This is, however, a matter which can properly
be settled in the compliance stage of the proceeding.
We find, accordingly, that the Respondent violated Section 8 (b)
(2) and 8 (b) (1) (A) of the Act by operating the dispatch system
authorized under its agreement with AGC so as to discriminate
against nonmembers of Local 12 in the following respects : By equat-
ing the preference in job referrals to which workmen in the AGC unit
within the past 10 years were entitled with membership in Local 12,
thereby giving preference in job referrals to the latter; by requiring
prospective nonunion employees to apply for membership in Local 12
immediately upon their first referral; and by imposing a permit fee on
nonunion employees when working in its jurisdiction within the AGC
unit? We also find that by removing Holderby's name from the
"Members" list because of his expulsion from the Union, thereby de-
nying him equal access to jobs, the Respondent further violated Sec-
tion 8 (b) (2) and (1) (A) of the Act.
0
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, oc-
curring in connection with the operations of Associated General Con-
tractors, Southern California Chapter, 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 the free flow of commerce.
V. THE REMEDY'
Having found that the Respondent operated its dispatch system in
a discriminatory manner by preferring its members in job referrals
over nonunion workmen or job applicants, thereby engaging in cer-
tain unfair labor practices within the meaning of Section 8 (b) (1)
°N. L R. B v. Local 803, International Brotherhood of Boilermakers , Iron Ship Build-
ers and Helpers of America, AFL, 218 F. 2d 299 (C. A. 3), enfg. 107 NLRB 1011.
'J. J. White, Inc, 111 NLRB 1126.
37 9288-56=v o1. 113-43
664 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(A) and (2) of the Act, we shall order the Respondent to cease and
desist therefrom and to take certain affirmative action designed to ef-
fectuate the policies of the Act.
We shall order the Respondent to make RobertA. Holderby whale,
for any loss of pay suffered by him as the result of its unlawful con-
duct, by payment to him of a sum of money equal to the amount he
would normally have earned as wages if his name had not been re-
moved from the fist of those entitled to job preference by their em-
ployment within the past 10 years in the AGC unit. In computing
the amount of back pay due Holderby, the customary formula of the
Board set forth in F. W. Woolworth Company, 90 NLRB 289, shall
be applied. As the Trial Examiner did not find that Local 12 dis-
criminated against Holderby, the period from the date of the Inter-
mediate,Report to the date of the Order herein shall, in accordance
with our usual practice, be excluded in computing the amount of back
pay due him.
Upon the basis of the foregoing findings of fact, and upon the en-
tire record in the case, the Board makes the following :
CONCLUSIONS OF LAW
1. Associated General Contractors, Southern California Chapter,
is engaged in commerce within the meaning of Section 2 (6) and (7)
of the Act.
2. International Union of Operating Engineers; Local No. 12, AFL,'
is a labor organization within the meaning of Section 2 (5) of the
Act.
3. By causing the aforementioned multiemployer Association to
discriminate against employees and prospective employees in viola-
tion of Section 8 (a) (3) of the Act, the Respondent has engaged in
and is engaging in unfair labor practices within the meaning of See
tion 8 (b) (2) of the Act.
4. By restraining and coercing employees and prospective em-,
ployees of the multiemployer Association herein involved in the exer-
cise of rights guaranteed in Section 7 of the At, the Respondent has;
engaged in and is engaging in unfair labor practices within the mean-
ing 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.
ORDER
Upon the entire record in this case, and pursuant to Section 10 (e)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent , International
INTERNATIONAL UNION OF OPERATING ENGINEERS 665
Union of Operating Engineers, Local No. 12, AFL, its officers, agents,,
successors, or assigns, shall :
1. Cease and desist from :
(a) Causing or attempting to cause employer-members of Associ-
ated ,General Contractors, Southern California Chapter, to discrimi-
nate against nonunion employees, including Robert A. Holderby, and
prospective employees by operating the dispatch system provided for,
in their collective-bargaining agreement, so as :
(1) To give preference in job referrals to its members.
(2) To require nonunion applicants for employment to apply for
membership in Local 12 immediately upon their first referral.,
(3) To impose work permit fees on nonunion employees who work
within its craft jurisdiction in the AGC unit.
(b) In, any like or related manner restraining or coercing em-
ployees or prospective employees of employer-members of Associate!
General Contractors, Southern California Chapter, in the exercise of
the rightsguaranteed by Section 7 of the Act, except to the extent tha'
such rights may be affected by an agreement requiring membership in
Local 12 as a condition of employment as authorized by Section S
(a) (3) of the Act.
2. Take the following affirmative action which the Board finds will'
effectuate the policies of the Act :
(a) Make whole Robert A. Holderby for any loss of -pay he may
have suffered as a result of the discrimination-against him, in the man-
ner set forth in section V, above, entitled "The Remedy."
• (b) Post in conspicuous places at the job dispatching offices of the
Respondent, and in all places where notices or communications to its
members or applicants for employment are customarily posted, copies
of the notice attached hereto and-marked "Appendix."" Copies of
said notice, to be furnished by the Regional Director for the Twenty-
first Region, shall, after being duly signed by the Respondent's rep-
resentative, be posted by the Respondent immediately upon receipt,
thereof and maintained by it for a period of sixty (60) consecutive
days thereafter. Reasonable steps shall be taken by Respondent to,
insure that said notices are not altered, defaced, or covered by any
other material.
(c) Mail to the Regional Director for the -Twenty-first Region:
signed copies of the notice attached hereto marked "Appendix," for
posting, the employers willing, at the job sites of employers who;
through riiembership' in the Associated General Contractors, Southern
California Chapter, obtain employees through Respondent's dispatch
system. Such notices are to be posted and maintained for a period of
sixty (60) consecutive days after receipt by the Employers. Copies
5 In the event that this Order is enforced by a decree of a United States Court of Appeals,
there shall he 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."
666 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the notices, to be furnished by the Regional Director for the Twenty-
first Region, shall, after being duly signed by an official representa-
tive of the Respondent, be forthwith returned to the Regional Di-
rector for posting.
(d) Notify the Regional Director for the Twenty-first Region in
writing, within ten (10) days from the date of this Order, what steps
the Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be, and it hereby is, dis-
missed insofar as it alleges a violation of Section 8 (b) (1) (A) or
8 (b)' (2) of the Act with respect to Frederick R. Hummel or Hoyt
Covert.
MEMBER MURDOCB:, dissenting: -
It seems to me that the majority has misconceived the nature of the
unfair labor practice to be determined in this case. No section of this
Act forbids discrimination by labor organizations. Employers alone
under Section 8 (a) (3) are forbidden to discriminate against their
employees to encourage or discourage union membership. Unions, on
the other hand, are forbidden under Section 8 (b) (2) to "cause or
attempt to cause" such discrimination by an employer. It is therefore
completely outside the applicable proscription of this section of the
Act to find, as the majority does, that the Respondent Union dis-
criminated "against nonmembers of Local 12." The fact that the Re-
spondent Union may have referred one employee-rather than another
to prospective employers is not sufficient, in my opinion, to prove that
the Union caused a particular employer to engage in an act of dis-
crimination. Indeed, the record in this case contains not the slightest
evidence that any employer took any action or was induced or re-
quested by the Union to take any action to the detriment of any em-
ployee. In this respect, at least, the Boilermakers case upon which the
majority relies is entirely inapposite. There the court found that the
"record is clear that because the complainants were delinquent in
union dues the employers refused to consider them on an equal basis
with union men in good standing who were applying for such extra
work as was available." 9 [Emphasis supplied.]
The General Counsel does not contest the legality of the agreement
between the Union and the Contractors' Association whereby the
Union agreed to refer applicants for employment to members of the
Association. If, however, this contract is legal there is no act by any
employer in this case which is even remotely related to discrimination
against any employee. But the majority finds, nevertheless, that the
Union caused the members of the Association to engage in acts of dis-
crimination against employees and prospective employees. I am un-
9 N. L. R. B. v. Local 803, International Brotherhood of Boilermakers, Iron Ship Builders
and Helpers of America, AFL, supra.
INTERNATIONAL UNION OF OPERATING ENGINEERS 667
able to determine from a reading of the majority' s decision the basis
of their conclusion that the referral practice of the Union, unauthor-
ized under the terms of its contract with the Association, constitutes
discrimination by members of the Association against employee ap-
plicants generally and Holderby in particular . If the majority is
holding implicitly that the Union was acting as an agent of the Asso-
ciation, in discriminating among applicants in violation of Section 8
(a) (3), there is , in my opinion , no warrant for such a finding in this
case . The only authorization extended to the Union by the Associa-
tion was to refer applicants for employment in accordance with the
terms of the contract which, as indicated above, is not alleged to be
an unlawful agreement . Certainly, there is nothing in the common
law rules of agency making members of the Association liable, as
principals , for unauthorized acts of the Union, particularly where, as
here, those acts are found to be in violation of a Federal statute.
I believe the majority has misread the language of Section 8 (b)
(2). The statute clearly establishes that discrimination by an em-
ployer is a prerequisite to a finding of unlawful causation under Sec-
tion 8 (b) (2). In the instant case the majority's decision , in effect,
converts discrimination by a union into discrimination by an employer.
In my opinion , this goes beyond the literal language of Section 8 (b)
( 2) and the intent of Congress in its enactment.
For these reasons I dissent.
MEMBER LEEDOM took no part in the consideration of the above De-
cision and Order.
APPENDIX
NOTICE TO ALL MEMBERS OF INTERNATIONAL UNION OF OPERATING EN-
GINEERS, LOCAL No. 12, AFL AND TO ALL EMPLOYEES AND PROSPECTIVE
EMPLOYEES OF EMPLOYER-MEMBERS OF ASSOCIATED GENERAL CON-
TRACTORS , SOUTHERN CALIFORNIA CHAPTER
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 you that :
WE WILL NOT cause or attempt to cause employer -members of
Associated General Contractors, Southern California Chapter, to
discriminate against nonunion employees , including Robert A.
Holderby , and prospective employees by operating the dispatch
system provided for in our collective -bargaining agreement, so
as:
( 1) To "give preference in job referrals to our members.
(2) To require nonunion applicants for employment to apply
for membership ' in Local 12 immediately upon their first referral.
668 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(3) To impose work permit fees on nonunion employees who
work within our craft jurisdiction in the AGC unit.
WE WILL NOT in any like or related manner restrain or coerce
employees or prospective employees of employer-members of As-
sociated General Contractors, Southern California Chapter, in the
exercise of the rights guaranteed by Section 7 of the Act, except
to the extent that such rights may be affected by an agreement re-
quiring membership in Local 12 as a condition of employment as
authorized by Section 8 (a) (3) of the Act.
WE WILL make Robert A. Holderby whole for any loss of pay
he may have suffered as a result of the discrimintion against him.
INTERNATIONAL UNION OF OPERATING ENGINEERS,
LOCAL No. 12, AFL, -
Labor Organization.'
Dated---------------- By---------------------------------- ---
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
;and must not be altered , defaced, or covered by any other material.
Moore-McCormack Lines, Inc. and American Federation of Labor-
International Longshoremen 's Association
International Longshoremen 's Association, Independent, and
-International Longshoremen 's Association, Independent, Local
No. 895 and American Federation of Labor-International Long-
shoremen's Association
Moore-McCormack Lines, Inc. and International Brotherhood of
Longshoremen, AFL
International Longshoremen 's Association, Independent, and
Local 895, International Longshoremen 's Association, Inde-
pendent and International Brotherhood of Longshoremen,
AFL. Cases Nos. 2=CA-3639, 2-CB-1128, 2-CA-3942, and 2-CB-
1302. August 15,1955
DECISION AND ORDER
On February 18, 1955, Trial Examiner Thomas N. Kessel issued his
-Intermediate Report in this proceeding, finding that the Respondents
had engaged in and were engaging in certain unfair labor practices
and recommending that they cease and desist therefrom and take cer-
tain affirmative action, as set forth in the copy of the Intermediate Re-
port attached hereto., The Trial Examiner also- found that the Re-
spondents had not engaged' in certain other 'alleged unfair "labor
113 NLRB No. 75.