Intl. Assn. of Bridge & Iron Workers

National Labor Relations Board - Board Decisions

Mar 21, 1969

175 N.L.R.B. 3 (N.L.R.B. 1969)

INTL. ASSN. OF BRIDGE & IRON WORKERS 3
International Association of Bridge , Structural &
Ornamental Iron Workers, Local 751, AFL-CIO
(Northern Steel , Inc.) and Elmer A. Augustin
International Association of Bridge, Structural &
Ornamental Iron Workers, Local 751, AFL-CIO
and Melvin Keppel . Cases 19-CB-1289 and
19-CB-1303
March 21, 1969
DECISION AND ORDER
By CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND JENKINS
On December 9, 1968, Trial Examiner Howard
Myers issued his Decision in the above-entitled case,
finding that the Respondent had engaged in and was
engaging in certain unfair labor practices within the
meaning of the National Labor Relations Act, as
amended, and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision.
Thereafter, the General Counsel filed exceptions to
the Trial Examiner's Decision and a supporting
brief.
Pursuant to the provisions of Section 3(b) of the
Act, the National Labor Relations Board has
delegated its powers in connection with this case to
a three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and brief, and
the entire record in this case, and hereby adopts the
findings,' conclusions,' and recommendations' of the
Trial Examiner with the corrections noted below.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
'In the absence of exceptions by Respondent , the Board adopts the Trial
Examiner 's findings that Respondent violated Section 8(b)(2) and
8(b)(1)(A) of the Act pro forma
'For purposes of clarity, we hereby delete paragraphs 3 and 4 of the
Trial Examiner' s Conclusions of Law and substitute the following
3. By causing the Employer to discriminate against the Charging Parties,
Elmer A. Augustin and Melvin Keppel , in violation of Section 8(aX3),
Respondent engaged in and is engaging in unfair labor practices within
the meaning of Section 8(b)(2) of the Act.
4. By maintaining in effect an agreement containing an exclusive hiring
hall provision granting preference in referral to its members and
members of its sister locals over non-member employees or applicants
for employment, Respondent has engaged in, and is engaging in, unfair
labor practices within the meaning of Section 8(b)(2)
'The General Counsel 's sole exception to the Trial Examiner 's Decision
relates to the Trial Examiners ' failure to include in the Recommended
Order language which would specify the period of time during which the
discriminatees are entitled to backpay as a result of Respondent 's unlawful
conduct Finding merit in this exception , we hereby modify the Trial
Examiner's Recommended Order so that the period of discrimination shall
be defined as running from the date of discharge , December 19 , 1967, to
the date or dates Elmer A Augustin and Melvin Keppel would have been
terminated in the normal course of business
Relations Board hereby orders that the Respondent,
International Association of Bridge, Structural &
Ornamental Iron Workers, Local 751, AFL-CIO,
Anchorage, Alaska, its officers, agents, and
representatives, shall:
1. Cease and desist from:
(a) Executing, maintaining, performing, or
enforcing any exclusive hiring hall agreement,
understanding or practice with Northern Steel, Inc.,
or with any other employer, which grants preference
in job referral to its members or members of its
sister locals over nonmember employees or
applicants for employment.
(b) Causing or attempting to cause Northern
Steel, Inc., or any other employer, to discriminate
against employees or prospective employees in
violation of Section 8(a)(3) of the Act.
(c) In any other manner restraining or coercing
employees or prospective employees of Northern
Steel, Inc., or any other employer, in the exercise of
their rights guaranteed in Section 7 of the Act,
except to the extent that such rights may be affected
by an agreement requiring membership in a labor
organization as a condition of employment as
authorized by Section 8(a)(3) of the Act.
2. Take the following affirmative action which the
Board finds is necessary to effectuate the policies of
the Act:
(a) Make whole Elmer A. Augustin and Melvin
Keppel for any loss of earnings suffered by them as
a result of Respondent's discrimination by payment
to them of a sum of money equal to the amount
each would have earned as wages from the date of
discharge, December 19, 1967, to the date or dates
each would have been terminated in the normal
course of business less their net earnings during the
period of discrimination. Loss of earnings and
interest thereon at the rate of 6 percent per annum
shall be computed and paid in accordance with and
in the manner set forth in F. W. Woolworth
Company, 90 NLRB 289, and Isis Plumbing &
Heating Co., 138 NLRB 716.
(b) Immediately establish new lawful,
nondiscriminatory standards for the dispatching of
employees and applicants for employment to jobs
without regard to their membership or
nonmembership in the Union.
(c) Notify Elmer A. Augustin and Melvin Keppel,
in writing, that it has no objection to their working
for Northern Steel, Inc., or for any other employer.
(d) Notify Northern Steel, Inc., in writing, that it
has no objection to its hiring Elmer A. Augustin
and Melvin Keppel.
(e) Post at its business offices, including all places
where notices to members are customarily posted,
copies of the attached notice marked "Appendix.""
Copies of the notice marked "Appendix" on forms
'In the event that this Order is enforced by a decree of a United States
Court of Appeals , there shall be substituted for the words "a Decision and
Order" the words "a Decree of the United States Court of Appeals
Enforcing an Order."
175 NLRB No. 2
4 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
provided by the Director of Region 19, after being
duly signed by an official representative of
Respondent, shall be posted immediately upon
receipt thereof, and maintained by Respondent for
60 consecutive days thereafter, in conspicuous
places, including all places where Respondent
customarily posts notices to its members.
Reasonable steps shall be taken by Respondent to
insure that such notices are not altered, defaced, or
covered by any other material.
(f) Notify the Director for Region 19, in writing,
within 10 days from the date of this Order, what
steps Respondent has taken to comply herewith.
Dated By
(Representative) (Title)
This notice must remain posted for 60 consecutive days
from the date of posting, and must not be altered,
defaced, or covered by any other material.
If members have any question concerning this notice or
compliance with its provisions they may communicate
directly with the Board's Regional Office, Republic
Building, 10th Floor Third Avenue, Seattle, Washington
98101, Telephone 206-583-7473.
TRIAL EXAMINER'S DECISION
APPENDIX
NOTICE To ALL MEMBERS
Pursuant to the Decision and Order of the National
Labor Relations Board and in order to effectuate the
policies of the National Labor Relations Act, as amended,
we hereby notify our members that:
WE WILL NOT execute, maintain, perform, or enforce
any exclusive hiring hall agreement, understanding, or
practice with Northern Steel, Inc., or any other
employer, which discriminates in any unlawful manner
against any employee or applicant for employment
seeking dispatch to jobs through our hiring hall.
WE WILL NOT cause or attempt to cause Northern
Steel, Inc., or any other employer, to discriminate
against employees or prospective employees in violation
of Section 8(a)(3) of the Act.
WE WILL NOT in any other manner restrain or coerce
any employees or prospective employees of Northern
Steel, Inc., or any other employer in the exercise of
rights guaranteed in Section 7 of the National Labor
Relations Act, except to the extent that those 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.
WE WILL immediately establish new lawful
nondiscriminatory standards for the dispatching of
employees or applicants for employment seeking
dispatch to jobs through our hiring hall without regard
to their membership or nonmembership in our Union.
WE WILL make whole Elmer A. Augustin and
Melvin Keppel for any loss of earnings they may have
suffered as a result of our discrimination against them
from the date of their discharge, December 19, 1967, to
the date or dates each would have been terminated by
Northern Steel, Inc., in the normal course of business.
WE WILL immediately notify Elmer A. Augustin and
Melvin Keppel, in writing, that we have no objections
to their working for Northern Steel, Inc., or for any
other employer.
WE WILL notify Northern Steel, Inc., in writing, that
we have no objection to Northern Steel, Inc., hiring
Elmer A. Augustin and Melvin Keppel.
INTERNATIONAL
ASSOCIATION OF BRIDGE,
STRUCTURAL &
ORNAMENTAL IRON
WORKERS, LOCAL 751,
AFL-CIO
(Labor Organization)
STATEMENT OF THE CASE
HOWARD MYERS, Trial Examiner: This consolidated,
proceeding, with the General Counsel of the National
Labor Relations Board (herein called the General Counsel'
and the Board) and International Association of Bridge,
Structural & Ornamental Iron Workers, Local 751,
AFL-CIO (herein called Respondent or the Union) being
represented by counsel came on to be heard before the
duly designated Trial Examiner, on August 27 and 28,
1968, at Anchorage, Alaska, upon a consolidated
complaint, as amended at the hearing, dated July 31,
1968, and issued by the General Counsel for and on behalf
of the Board, through the then Acting Regional Director
for Region 19 (Seattle, Washington), and Respondent's
answer to said consolidated complaint.'
The consolidated complaint, as amended at the hearing,
based upon a charge (Case 19-CB-1289) duly filed on
January 5, 1968, by Elmer A. Augustin (herein called
Augustin) and upon a charge and an amended charge
(Case 19-CB-1303) duly filed by Melvin Keppel on March
28 and July 25, 1968, respectively, alleged that
Respondent violated Section 8(b)(1)(A) and (2) of the
National Labor Relations Act, as amended from time to
time, herein called the Act.
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 BUSINESS OPERATIONS OF THE COMPANIES
INVOLVED
Northern Steel, Inc. (herein called Northern Steel), the
employer of the charging parties in this proceeding at the
time of the complained-of incidents, is, and during all
times material was, engaged in the steel erection business
for various general contractors performing construction
work in the State of Alaska.
During 1967, Northern Steel performed construction
work for Kenai Steel Buildings, Inc., for which it was paid
$83,023.85.
This term specifically includes counsel for the General Counsel
appearing at the hearing.
'The same day the consolidated complaint was issued , July 31, 1968, the
aforementioned Acting Regional Director , by the authority vested in him
by Section 102.33 of the Board 's Rules and Regulations , Series 8, as
amended , issued an order consolidating , for the purpose of hearing, the
above-captioned cases.
'Including the brief filed by the General Counsel on October 7, 1968.
INTL. ASSN. OF BRIDGE & IRON WORKERS
Kenai Steel Buildings , Inc. (herein called Kenai Steel),
an Alaska corporation with its principal offices and place
of business at Kenai, Alaska, is, and during all times
material was, a franchise sales representative of Stran
Steel Corporation, located at Houston, Texas.
As such sales representative for the past 8 years,' Kenai
Steel sells preengineered steel building structures' to and
on occasion erect for, such firms as Standard Oil
Company of California, Shell Oil Company, Pan Am
Petroleum Company, and Texaco. In fact, practically all
the oil companies doing business within Kenai Steel's
franchise area are customers of Kenai Steel.
Approximately 95 percent of Kenai Steel's sales are to
companies engaged in the oil industry.
In addition to selling a building to, and on occasion
erecting a building for, its customers, Kenai Steel also
conducts a retail business; that is to say, to quote from
the credited testimony of Luicen A. Caro, Kenai Steel's
president, "if you came to me and wanted to purchase a
metal building I [would] have to sell you one according to
my franchise with Stran Steel."
During 1967, Kenai Steel, in the course and conduct of
its business , did a gross business of approximately
$800,000. During the same year, Kenai Steel's purchases
of preengineered material from Stran Steel exceeded,
including freight charges, $118,000. All the material
purchased by Kenai Steel during 1967, from Stran Steel
was shipped from the latter's Terra Haute, Indiana,
facilities either to Kanai Steel Alaskan facilities or
directly to Kenai Steel's customers' Alaskan places of
business or to their respective Alaskan jobsites.'
In cases where Kenai Steel contracts to erect buildings
for its customers it erects the buildings either with its own
employees or it engages subcontractors to do the work.
One of the subcontractors Kenai Steel hired during the
period here material was Northern Steel.
Respondent's answer denies, upon lack of "sufficient
information to form a belief of the truth or falsity" of the
allegations of the consolidated complaint that Northern
Steel " is an employer within the meaning of Section 2(2)
of the Act engaged in commerce within the meaning of
Section 2(6) and (7) of the Act."
The Board's statutory or legal jurisdiction clearly exists.
The Act specifically states that the statutory jurisdiction
of the Board extends to any person ". . . engaging in any
unfair labor practice . . . affecting commerce." In
determining whether a person's activities "affect
commerce," the courts have consistently held that "the
operation of the Act does not legally depend on any
particular volume of commerce being affected `more than
to which courts would apply the maxim de minimis.'
N.L.R.B. v. Fainblatt, 306 U.S. 601, 607; N.L.R.B. v.
Denver Building & Construction Trades Council, 341 U.S.
675, 684-685."'
While it is clear that no mathematical formula is
available for determining exactly what is and what is not
'Kenai Steel 's franchise "covers the Kenai Peninsular and Kodiak, with
the exception that [it] can sell buildings anywhere in the State other than
the Anchorage area "
'This consists of component parts of pre-engineered structural shapes
and sheets and miscellaneous accessories such as doors and windows used
in the erection of steel buildings as well as entire buildings
'All Kenai Steel 's 1967 sales, and all its 1967 services rendered by it in
the erection of buildings , were made within the State of Alaska
'In accord , N L R B v. New Madrid Manufacturing Co. 215 F.2d 908
(C A 8), NLRB v Stoller, 207 F 2d 305 (C A 9), cert denied 347 U S
919, Radio and Television Broadcast v. N L R B , 379 U S. 812
5
de minimis, it is, in fact, well settled that "de minimis" in
the law has always been taken to mean trifles - matters
of a few dollars or less." N.L.R.B v. Suburban Lumber
Co., 121 F.2d 829, 832 (C.A. 3), cert. denied 314 U.S.
693.'
Moreover, under the Act, the Board is given the
responsibility of ascertaining whether, in a particular
situation, certain proscribed activities would adversely
affect the free flow of interstate commerce. In this respect,
the Supreme Court "has consistently declared that in
passing the National Labor Relations Act, Congress
intended to and did vest in the Board the fullest
jurisdictional breadth constitutionally permissible under
the Commerce Clause." N.L.R.B. v. Reliance Fuel Oil
Corp., 371 U.S. 224, 226.'
When a work stoppage on the local level causes
cessation of an employer's activities, the importation of
goods from outside the state is ultimately impeded. Thus,
even though most of his activities are local in nature,
when the quantity of these imported goods exceeds de
minimis in total dollar value, the employer's business has
a direct effect on the flow of interestate commerce.i° In
fact, in Reliance Fuel, supra, the Supreme Court held
that an employer who did not have any direct interstate
business, nevertheless affected interstate commerce since
he was supplied by an employer who, in turn, purchased
products outside the state. There, as here, the fact that
Northern Steel does a substantial amount of business with
one who is directly in interstate commerce suffices to
establish statutory jurisdiction. "
In Idaho Electric Co., Inc , 157 NLRB 725,12 in a case
similar to the instant one,
The Respondent contends that it does not meet the
Board's discretionary standard for assertion of
jurisdiction. The record discloses that Respondent is
engaged in the selling and servicing of electrical
appliances and supplies and in contracting or
subcontracting electrical work at various construction
jobs. The Board has held that it will assert jurisdiction
over such combination retail-nonretail enterprises if the
employer's business meets the nonretail standard for
assertion of jurisdiction and the nonretail aspects of the
employer's operations are not de minimis (T. H.
Rogers Lumber Company, 117 NLRB 1732). During
the relevant period, the Respondent realized
$108,754.56 from its electrical work at construction
jobs, the nonretail portion of its operations; as found by
the Trial Examiner, it had indirect inflow valued in
excess of $50,000. Accordingly, we agree with the Trial
Examiner that it will effectuate the policies of the Act
to assert jurisdiction in this proceeding. Siemons
Mailing Service, 122 NLRB 81, 85.
'See also N L R.B. v. Aurora City Lines. Inc , 299 F 2d 229 (C A. 7),
N L R B v Stoller, supra
'See also Polish National Alliance v N L R B, 322 U S 643, N L R B
v Townsend, 185 F.2d 378 (C A 9), cert denied 341 U S 909
"See N L R B v Central Oklahoma Milk Producers Association, 285
F 2d 495 (C.A 10), N L R B v Denver Building & Construction Trades
Council, 341 U S 675
" In accord Greene County Farm Bureau Cooperative Ass'n v.
NLRB , 317 F 2d 335 (CA D C ), N LRB v Ron Henning Logging
Co , 308 F 2d 548 (C.A. 9) Cf N L R B v C H Cross d/b/a Cross
Poultry Company 346 F .2d 165 (C A 4), N L R B v Baltimore Transit
Co , 140 F 2d 51 (C A 4), N L R B v El Paso- Ysleta Bus Line , 190 F 2d
261 (C.A 5)
"Affil, sub nom , N L R B v Idaho Electric Co, Inc, 382 F.2d 697
(C A 9)
6 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the basis of the foregoing facts and upon the
entire record in the case, it is found, in line with
established Board authority, that the companies here
involved are engaged in, and during all times material
were engaged in, business affecting commerce within the
meaning of Section 2(6) and (7) of the Act and that it will
effectuate the policies of the Act for the Board to assert
jurisdiction over this proceeding "
II. THE LABOR ORGANIZATION INVOLVED
Respondent is a labor organization admitting to
membership employees of Northern Steel.
III. THE UNFAIR LABOR PRACTICES
A. Prefatory Statement
Although Northern Steel was not a signatory to the
July 1, 1966-June 30, 1968, joint collective- bargaining
agreement by and between Respondent and Alaska Steel
Contractors and Erectors Association and the Alaska
Chapter of the Associated General Contractors of
America," or, at any time material herein, a member of
either of the contracting employer associations,
Respondent and Northern Steel each, nonetheless,
considered Northern Steel to be bound by the terms and
conditions of said agreement and so acted. In fact, at all
times material, Respondent, upon Northern Steel's
request, dispatched iron workers to Northern Steel's
various jobsites and, in turn, Northern Steel paid all its
ironworkers the wage scale and the so-called fringe
benefits called for in the aforesaid 1966-1968
collective-bargaining agreement. Northern Steel also paid
into Respondent's welfare and security fund the payments
required by said agreement.
With respect to hiring, the agreement, referred to
immediately above, provided (Article 111 A) as follows:
Section 1. Whenever the word workmen is used it
shall mean ironworkers who are dispatched by
[Respondent].
Section 2. Employers shall hire qualified workmen
by calling [Respondent]....
Section 3. It is mutually agreed that [Respondent]
will maintain lists of qualified workmen as follows.
List No. 1. This shall include all members of
Local 751 who are resident of Alaska
List No. 2. All members of outside erection locals.
List No. 3. All qualified workmen who make
application for employment.
Section 4. [Respondent] will maintain rosters in
accordance with Section 3. Employers may call
qualified workmen from these rosters in the following
order:
1. List No. 1 until exhausted
2. List No. 2 until exhausted.
3. List No. 3 until exhausted.
Section 5. "Employers" under this paragraph mean
(1) any Employer party to this agreement , (2) any
Employer who adopts or works under this agreement
and contributes to the health and security and pension
plan, and (3) any Employer who employs workmen
under the terms of this agreement and is a contributing
"See, for example, Hod Carriers' Building & General Laborers Union of
America, Local No 652 AFL-CIO, (Earl C Worley), 147 NLRB 380
"The agreement under attack in this proceeding
Employer within the meaning of the health and security
plan.
B The Pertinent Facts
The charging parties herein, Augustin and Keppel, were
dispatched to, and at the specific request of, Northern
Steel on October 11 and 19, 1968, respectively
Keppel, who has resided in Alaska from about 1950
until 1962 and then again from April 1966 to date, was a
Respondent member from almost its inception in 1953,
until he left Alaska in 1962.
During the 4-year period Keppel was absent from
Alaska he worked as an ironworker in California and was
a member of Local 378, Oakland, California, a sister local
of Respondent.
About two weeks after he had returned to Alaska in
1966, Keppel applied for reinstatement or for membership
in Respondent, but his efforts were unsuccessful even
though over a 2-year period he "attended meeting after
meeting" of Respondent's membership requesting
reinstatement or membership therein.
Augustin has resided in Alaska since 1947. In August
1967, he applied for membership in Respondent. At a
meeting, held on or about August 27, 1967, of
Respondent's Executive Board, Respondent's President,
Charley Brown, told Augustin, to quote from Augustin's
credited testimony, "We are maintaining our membership
at about three hundred members. So, in your case we'll
put you at the bottom of the list of people to be
considered for membership and you will probably be
considered in the early part of 1968 for membership in"
Respondent.
Augustin's name was placed on Respondent's "List No.
3," he being in the category of "All other qualified
workmen who make application for employment.""
As noted above, Augustin and Keppel were dispatched
to Northern Steel by Respondent on October 11 and 19,
1967, respectively." Upon reporting for work, or shortly
thereafter, each of them was told by an official of
Northern Steel" that there was enough work for them
until Spring. On December 15, the complainants were put
on a job at Swanson River.
After Augustin and Keppel had been working on the
aforesaid Swanson River job for an hour or so, Frank
Stallard and Robert Boles, two Respondent members,
who were then working on a job about 200 feet's away,
came over to Augustin and Keppel. Boles, in the presence
of Stallard, told Augustin and Keppel, "We are policing
this job for the Union and you fellows are to get out of
here. You don't have any authority to be on this job."
Keppel replied, "Wait a minute. We are not leaving the
job. Northern Steel has the contract to put up this
building. There is the man (Mearkle) over there. We are
working for Northern Steel and I have a dispatch in my
pocket to work for Northern Steel. So we are not leaving
the job " Boles and Stallard then left the Northern Steel
job.
"Augustin ' s dispatch was on a "work permit" and from "List No 2",
he being a member of "an outside erection" local
''Poor to Augustin 's employment with Northern Steel in October 1967,
he had been dispatched to several jobs by Respondent Each dispatch,
however, was from "List No 3 "
"Meaning either Kenneth J Mearkle or Roy Augustin , the brother of
Elmer Augustin.
"The general contractor on this job was National Mechanical Stallard
was the foreman of the job and Boles the job steward.
INTL. ASSN. OF BRIDGE & IRON WORKERS 7
Upon leaving Augustin and Keppel, Boles and Stallard
immediately telephoned Respondent's Anchorage
headquarters and each of them spoke to James Robins,
Respondent's business manager. Stallard testif►ed19 that he
told Robins that the job on which Augustin and Keppel
were working was a Kenai Steel job and that he and Boles
could not "understand why two men from Northern Steel
were doing the work;" that Augustin and Keppel had told
him and Boles that they had been dispatched to Northern
Steel and were then working on a Northern Steel job; that
after completing their telephone conversations with
Robins, he and Boles returned to where Augustin and
Keppel were working; and that Boles, in his presence,
after again telling Augustin and Keppel to leave the job,
Boles "relayed [Robins'] message, and that is to pull off
the job until he got it straightened out."
Keppel testified that after Boles and Stallard left the
first time, he and Augustin returned to their respective
jobs; that about 45 minutes later Boles and Stallard
returned; and that the following transpired:
.Robert Boles sliding up the iron behind me. He
didn't call me down to the ground or anything like to
have a conversation Here he was up there in the air
pretty well put out. He said, "You don't need to believe
what I am saying, but if you don't, go over there to the
phone and call the Hall." He said, "here's what Jimmy
Robins told me. We are to get you off this job right
now. You fellows are to leave. Your dispatch is no
good. The dispatch you have for Northern Steel is no
good."
I said, "Well, I believe you." He was kind of taken
by surprise. I suppose he figured I was ready for battle.
I said, "If that is what he said, I guess we have to leave
the job. That is the way it is." He said, "Robins said
we are to get you off there right away."
I came to the ground and I said, "Why don't you
talk to Elmer Augustin? He is the steward on this job. I
am the foreman. Talk to him about it." He said, "No.
I am not going to talk to him. Jimmy said he shouldn't
even be on the job anyway. He is a permit man. His
permit has expired. He doesn't even consider him."
According to Augustin's credited and undenied
testimony, Boles, after the latter had finished his second
above-quoted December 15 conversation with Keppel,
came over to where he was working and said, "Elmer, you
can't work any more on this job. Your permit has
expired."' " Boles then left.
Upon the entire record in the case, coupled with the
fact that Augustin and Keppel impressed the undersigned
as being honest, forthright witnesses whereas Stallard did
not so impress him, it is found that Augustin's and
Keppel's versions as to what was said by Boles to
Augustin and Keppel on December 15, 1967, to be
substantially in accord with the facts.
After Boles had left Augustin and Keppel the second
time on December 15,21 they picked up their tools, left the
Swanson River job, and returned to Northern Steel's
Kenai headquarters, a distance of about 45 miles.
On December 16, or on the following day, Mearkle and
Roy Augustin met, pursuant to prior arrangements, with
"Boles did not testify
"As a matter of fact, Augustin ' s work permit had not expired. It was
paid up through December 31, 1967 . Each month that Augustin was
working for Northern Steel he had to pay Respondent a $35 work permit
fee
The record is not clear whether or not Stallard returned to the
Northern Steel job with Boles after their telephone conversations with
Robins
Robins and other Respondent officials, at Respondent's
Anchorage headquarters. There, Robins, Respondent's
spokesman at this meeting, told Roy Augustin and
Mearkle that Elmer Augustin and Keppel must be taken
off all Northern Steel jobs and replaced by men then out
of work and whose names appear on "List No. 1." This
finding is not only buttressed by the following Robins'
testimony, given on direct examination as a Respondent
witness:
Q. What was the substance of that meeting, what
happened in that meeting?
A. Several items. One was discussing the men going
from one job to another. It was also discussed about
the running down of conditions of our bylaws of our
contract, of transferring the men from one contractor
to another. Of the contractors themselves doing the
work and taking the place of ironworkers when there
were a lot of ironworkers out of work at this time.
Q. At that time did you request that Mr. Augustin
or Mr. Keppel be terminated from their employment?
A. I don't know.
TRIAL EXAMINER. What?
THE WITNESS I don't know. I don't remember. I
have talked to them so many times that I can't tell you
word for word what I did say. But I know the
generalities of what we talked about It was Mr. Keppel
and Mr. Augustin who were doing the work of
ironworkers and working shorthanded when we had a
bunch of men out of work
but by the following testimony of Roy Augustin given on
direct examination as a Respondent witness:
Q Did any union agent, after the meeting that you
had at the Iron Workers Local, contact you and request
the discharge of Mr. Keppel and Mr Augustin?
A. No, they never, but at the meeting itself we told
the business agent and the area steward and all present
that we didn't feel that we were the ones that would
have to tell these peoples: that they were laid off, but,
to comply with this request, they said that the area
steward would, in turn, inform these two gentlemen
that they were laid off, and so we left it at that. But as
time went on and we realized that our, the one job that
was going at the time other than this miscellaneous
pickup work was filled with two men from the No. 1
list, we could no longer use these guys, so we just had
to, well, just kind of dwindle off to no man's land, and
they kept coming back hoping this thing would come
back and they could resume their employment, but as
far as I could see, one day we just said, "Well, guys, I
don't know what to tell you, but you might just as well
go home."
Q. Did you say that to them?
A Yes, I did.
C Concluding Findings
Upon the entire record in the case, as epitomized
above, the undersigned finds (1) that Elmer Augustin and
Melvin Keppel ceased to be employed by Respondent on
December 19, 1967, (2) that on the aforesaid date, and for
a considerable time thereafter, Northern Steel had plenty
of work for Augustin and Keppel, (3) that Northern Steel
considered Augustin and Keppel capable and qualified
ironworkers; (4) that had it not been for the insistence of
Respondent that Northern Steel replace Augustin and
Keppel by members of Respondent who were out of work
"Meaning Elmer Augustin and Keppel
8 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and whose names appeared on "List No. 1", Northern
Steel would not have discharged Augustin and/or Keppel;
and (5) Respondent forced Northern Steel to replace
Augustin and Keppel by members of Respondent who
were unemployed and whose names appeared on "List
No. I" within a few days after Augustin and Keppel
ceased being employed by Northern Steel. By engaging in
such activities Respondent violated Section 8(b)(2) of the
Act since in giving preferential job assignments to its
members to the detriment of nonmembers clearly indicates
to the latter that membership in Respondent is
prerequisite to preferential consideration for job referrals."
The Trial Examiner further finds that the hiring
provisions of the contract under attack herein have the
effect of restraining employees in their right to refrain
from assisting unions or from engaging in union activities
for applicants for employment who were required to use
the services of Respondent's hiring hall were deprived of
job referrals where preference was given to members of
Respondent or sister locals of Respondent. Conduct which
has the effect of adversely affecting or threatening
employment opportunities traditionally has been regarded
as constituting "restraint and coercion" within the
meaning of Section 8(b)(l)(A).24 And where, as here, such
restraint is brought to bear in connection with the Section
7 rights to refrain from supporting union policies or
joining a union, or encouraging union activities, the
violation is spelled out.25
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section III,
above, occuring in connection with the operations of the
companies here involved as described in section I, above,
have a close, intimate, and substantial relation to trade,
traffic, and commerce among the several States and such
of them as has been found to constitute unfair labor
practices, tend to lead to labor disputes burdening
commerce and obstructing commerce and the free flow of
commerce.
V. THE REMEDY
Having found that Respondent has engaged in, and is
engaging in, unfair labor practices violative of Section
8(b)(2) and Section 8(b)(1)(A) of the Act, it is
recommended that it be ordered to cease and desist from
(1) discriminating against nonmember applicants for
dispatch, or against other individuals using its hiring hall
seeking employment, by giving preference of dispatch to
its members or to the members of its sister locals, (2)
causing or attempting to cause, Northern Steel, members
of the Alaska Steel Contractors and Erectors Association,
members of the Alaska Chapter, Associated General
Contractors of America, or any other employer, to
discriminate against employees or applicants for
employment in violation of Section 8(a)(3) of the Act; and
(3) in any other manner restraining or coercing employees
or applicants for employment in the exercise of the rights
guaranteed in Section 7 of the Act
It is further recommended that Respondent be ordered
to establish new lawful nondiscriminatory standards by
which employees or applicants for employment are
dispatched to jobs from Respondent's hiring hall.
It is also recommended that Respondent be ordered to
make Elmer Augustin and Melvin Keppel whole for any
loss of earnings they may have suffered as a result of
Respondent's discrimination against them by payment to
each of them of a sum of money equal to the amount he
normally would have earned as wages, less his net
earnings during the period of the discrimination. Loss of
earnings and interest thereon at the rate of 6 percent per
annum to be computed and paid in accordance with and
in the manner set forth in F W. Woolworth Company, 90
NLRB 289, and Isis Plumbing & Heating Co, 138
NLRB 716
Upon the basis of the foregoing findings of fact and
upon the record as a whole, the Trial Examiner makes the
following
CONCLUSIONS OF LAW
1. Northern Steel is, and at all times material was, an
employer engaged in commerce or in a business affecting
commerce within the meaning of Section 2(6) and (7) of
the Act
2. Respondent is a labor organization within the
meaning of Section 2(5) of the Act
3. By discriminating in regard to the hire and tenure of
employment or the terms and conditions of employment
of Elmer Augustin and Melvin Keppel, Respondent has
engaged in, and is engaging in, unfair labor practices
within the meaning of Section 8(b)(2) of the Act.
4 By giving preference to its members and/or members
of its sister locals over nonmember employees or nonunion
applicants seeking dispatch to jobs, Respondent has
engaged in, and is engaging in, unfair labor practices
within the meaning of Section 8(b)(2).
5. By causing, or attempting to cause, Northern Steel
and other employers to discriminate against employees or
applicants for employment in violation of Section 8(a)(3),
Respondent has engaged in, and is engaging in, unfair
labor practices within the meaning of Section 8(b)(1)(A)
of the Act.
6 The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
[Recommended order omitted from publication.]
"See, for example, Houston Maritime Association , Inc, 122 NLRB 692,
modified 139 NLRB 352, enfd in part 329 F 2d 259 (C A D C ), The
Great Atlantic and Pacific Tea Company, 117 NLRB 1542, and cases cited
therein, N L R B v Shuck, 243 F 2d 519 (C A 9), N L R B v Sterling
Furniture Co. 202 F 2d 41 (C.A, 9)
"See, for example , Capital Service, Inc v N L R B , 204 F 2d 848
(C A 9)
"N L R B v Reed, 206 F 2d 184 (C A 9), N L R B v Local 1423,
Carpenters' Union, 238 F 2d 832 (C A 5)