Int'l Hod Carriers, Building , Etc., Local 7

National Labor Relations Board - Board Decisions

Feb 6, 1962

135 N.L.R.B. 865 (N.L.R.B. 1962)

INT'L HOD CARRIERS, BUILDING, ETC., LOCAL 7 865
International Hod Carriers , Building and Common Laborers
Union of America , Local 7, AFL-CIO and Harris Ford Backus
and Yonkers Contracting Co., Inc., Party to the Contract. Case
No. 3-CB-483. February 6, 1962
- DECISION AND ORDER
On July 26, 1961, Trial Examiner Samuel Ross issued his Inter-
mediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain of the un-
fair labor practices alleged in the complaint and recommending that
it cease and desist therefrom and take certain affirmative action, as
set forth in the Intermediate Report attached hereto. The Trial
Examiner also found that the Respondent had not engaged in certain
other unfair labor practices also alleged in the complaint, and recom-
mended that these particular allegations be dismissed. Thereafter,
only the Respondent filed exceptions to the 'Intermediate Report and
a supporting brief.
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
Intermediate Report, the exceptions and brief, and the entire record
in this case, and hereby adopts the Trial, Examiner's evidentiary
findings, but not his conclusions or recommendations, as indicated
herein.'
We do not agree with the Trial Examiner that the Respondent
violated Section 8(b)(2) and (1) (A) of 'the Act by effectively, re-
questing the .Company.•to promote employee Burrows, to the job
vacancy in question , rather than hire applicant Backus. . The Trial
Examiner predicated his conclusion of a violation upon a finding that
it was unlawful per se for the Respondent to make the request, since
compliance would necessarily encourage membership in the Respond-,
ent and adherence to its policies as a condition for securing
employment., ,
The record indicates that the Company desired to begin drilling
operations, and requested Respondent's job steward, Clune, to fur-
nish men who could perform this type of -work. Clune recommended
Burrows. - At the same time, the Company also arranged with Backus,
1 No exceptions were filed to the Trial Examiner's finding that there was no exclusive
hiring arrangement, understanding , and/or practice between Respondent and the Company.
Furthermore, as noted by the Trial Examiner, even assuming that such an exclusive hiring
arrangement or practice existed, there is no evidence in the record that such an arrange-
ment or practice required discrimination against nonunion applicants for employment
See Local 357, International Brotherhood of Teamsters, etc. v. NLRB. (Los Angeles-
Seattle Motor Express ), 365 U.S. 667
135 NLRB No 88.
634449- 62-vol 135 --56
S66 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
-who had just transferred his membership back to Respondent, to
report for work when drilling operations began. The, Company
-,therefore found that it had two employees competing for one job.
:Steward Clune, upon learning of this, requested that Backus not be
-hired, since Burrows was already working for the Company and was
part of the brush crew which was about to be laid off. The Company,
accordingly, did not retain Backus a
The question, therefore, is whether it was unlawful for the Re-
,spondent to request the Company to prefer an employee, such as Bur-
rows, who was part of a crew which was about to be laid off, over an
,outside applicant, such as Backus. We think the answer is clear. It
is a union's' function to attempt to obtain benefits for the employees
,it represents. Here the Respondent was performing that function
by inducing the employer to fill desirable new jobs from within the
-working force rather than by hiring from outside. Although this
might encourage union membership, it would be the type of encour-
agement the Supreme Court was referring to when it stated in Local
.357, International Brotherhood of Teamsters, etc. v. N.L.R.B. ,(365
-,U.S. 667, 675-676) : "The truth is that the union is a service agency
,that probably encourages membership whenever it does its job well."
Finding a violation in this case would penalize the Respondent for
,attempting to preserve job opportunities for the unit employees it
represented. Such a finding would mean that a union could not at-
-tempt to improve general working conditions for the employees in
the unit if, by such an attempt, a job applicant might be tem-
porarily injured. The Respondent here prevailed upon the Company
;not,to hire an outside applicant, who was also a union member, when
a present employee was about to be laid off. Clearly, this was an
attempt by the Respondent to perform its'obligation of representing-
the' employees: 'W'e find that- such action' in this case does not involve
+unlawful 'encourag'ement of union membership within the meaning
of Section 8(a) (3) or 8(b) (2) of the Act. Cf. Local 357, Teamsters,
supra.
Our dissenting colleague says that we are reversing the Trial
Examiner's credibility resolutions and findings of fact. We are doing
no such thing. Like the Trial Examiner, we find that Backus was
a member of the Respondent on August 3, 1960. Also like the Trial
Examiner, we find that the Respondent on that date insisted that the
Company assign the available vacancy to old-time employee Burrows,
who was about to be laid off for lack of work, rather than to Backus,
-who had just applied to the Company for employment. Again like
the Trial Examiner, we do not credit Clune's asserted reason (that he
2 It should be noted that without any specific requests by Backus, 5 days after this in-
cident occurred, the Respondent at Steward Clune's suggestion referred Backus to an-
.other job
INT'L HOD CARRIERS, BUILDING, ETC., LOCAL 7 867
had instructions from the Company's general superintendent to trans-
fer "good men" from the brush gang) for objecting to the Company's
employment of Backus, even though this was confirmed by the com-
pany superintendent. But this absence of credible evidence concern-
ing the alleged 'instructions does not constitute affirmative evidence of
an unlawful reason for the Respondent's action. Rather, the entire
record satisfies us that the Respondent, in representing the employees
already in the unit fully and fairly with respect to their opportunities
for continued employment, was opposed to Backus because his em-
ployment would have resulted in his getting ahead of and in effect
"bumping" these regular employees.
In view of the foregoing, we find that the Respondent did not cause
or attempt to cause the Company to discriminate against Backus in
violation of Section 8(a) (3) of the Act. We shall accordingly dis-
miss the complaint in this matter in its entirety.
[The Board dismissed the complaint.]
MEMBER RODGERS, dissenting :
My colleagues are here reversing the Trial Examiner's findings of
fact; his credibility resolutions,, and- his conclusion that the Respond-
ent Union violated Section 8(b) (2) of the Act by causing the Em-
ployer to refuse to hire Backus. I would affirm the Trial Examiner's
findings and conclusions.
The facts, as found by the Trial Examiner, are as follows: On
July 28, 1960, the Employer's head mechanic recommended Backus
.as a capable driller. The Employer's superintendent agreed to hire
Backus, instructing Backus to report to work August 3. On August 1,
the ` superintendent asked' Local' 7, the Respondent Union, to- supply
two men. On August 3, when Backus reported to work, Respondent's
on-the-job steward objected to Backus being hired, stating that he,
the steward, could not hire Backus because he did not know Backus.
Backus, a former member of Respondent, who had worked outside
Respondent's territory since 1956, produced'a'Local 7 card, indicating
that he had transferred his membership into Local 7 the day before.
The `steward nevertheless persisted 'in his objection to the hiring of
Backus on the ground that he had men who had been waiting-2-weeks
to go to work. The steward later told Backu's that he, the steward,
would have hired Backus if Backus had applied for his job through
the Union, instead of going directly to the Employer.3
The superintendent refused to allow Backus to go to work, and later
told the head mechanic that Backus could not be hired unless he was
13 As no exceptions ,were filed-to the Trial Examiner's finding that , there * was no exclu- .
siye'hiring agreement, arrangement, or practice between-the Employer and the Respond-
ent, I would adopt this finding, pro forma. ' Moreover, I cannot agree to the gratuitous
comment by my colleagues that assuming the parties had an exclusive'hiring arrangement,
it, was nondiscriminatory,. In view of the manner in which the discrimination 'against'
Backus was_efected. ! • , , '
.'
868 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
straight with the Union. The superintendent testified that but for
the steward's objection, 'Backus would have been put to work on
August 3.
As a predicate for the reversal of the Trial Examiner, my col-
leagues are reversing one of his credibility resolutions, and are treat-
ing the case as one in which the union steward interceded on behalf
of a present employee who was competing with a nonemployee appli-
cant for one job. It is true that the steward testified that he had ob-
jected to the hiring of Backus only because he wished to effect the
transfer of an employee, Burrows, who was already working on the
"brush gang," and who might otherwise have been laid off. But the
Trial Examiner specifically discredited this testimony by the steward.
And, aside from the question of reversing a credibility finding without
having observed the witnesses' demeanor,' the facts support the Trial
Examiner's credibility. resolution. For the record shows that there
were jobs enough for Burrows and Backus, and others as well, a cir-
cumstance which renders the steward's explanation patently incred-
ible. Thus, on the very day that the superintendent revoked his
previous agreement to hire Backus, the superintendent not only put
Burrows to work as a driller, but also hired two other men referred
by the, Union, one of whom was a driller named Emericli. And, there-
after, within the month of August, the Employer hired two additional
drillers. In view of the number of men hired by the Employer after
Backus was rejected, I find no significance in the fact that the Union
later referred Backus to one job which lasted 8 days.
I would find, in agreement with the Trial Examiner, that the Re-
spondent Union caused the Employer to discriminate against Backus
because he was from an out-of-town local union, only recently trans-
ferred, and because Respondent's steward desired that the members
of the Respondent, who were known to the steward, should have pref-
erence in employment. This is not, as my colleagues say, a union's
encouraging membership by doing its job well-it is rather a union's
encouraging membership by doing its job in a prohibited manner.
MEMBER LEEDOM took no part in the consideration of the above
Decision an&Order.
*Standard Dry Wall Products , Inc., 91 NLRB 544, enfd 188 F. 2d 362 (C.A •3)
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon a charge of unfair labor practices duly filed against the Respondent , Inter-
national Hod Carriers , Building and Common Laborers Union of America , Local 7,
AFL-CIO (herein called Local 7 or the Union ); the General Counsel of the National
Labor Relations Board issued a complaint dated January 20, 1961 , alleging that
Local 7 had engaged in and is . engamng 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, 73 Stat . 519), herein called the Act. In substance the complaint
alleges that on August 3, 1960 , Local 7 attempted to cause and did cause Yonkers
INT'L HOD CARRIERS, BUILDING, ETC., LOCAL 7 869
Contracting Co., Inc. (herein called the Company), to discriminatorily refuse em-
ployment to the Charging Party, Harris Ford Backus, in violation of Section 8(a) (3)
of the Act, for reasons other than his failure to tender dues and initiation fees
uniformly required for acquiring and retaining membership in the Union, and that
in July and August 1960, Respondent and the Company entered into, and maintained
in effect, an oral agreement, arrangement, or practice, which provided that all em-
ployees of and applicants for employment with the Company be members of
Respondent and be cleared, approved, or referred by Respondent as a condition of
employment. The complaint further alleged that such oral agreement failed to
incorporate the protective provisions which the Board, in Mountain Pacific Chapter
of the Associated General Contractors, Inc., et al., 119 NLRB 883, required for
hiring hall arrangements to be lawful. Respondent filed an answer denying the
substantive allegations of the complaint and the commission of unfair labor practices.
Pursuant to due notice, a hearing was held before Samuel Ross, the duly designated
Trial Examiner, in Binghamton, New York, on February 28 and March 1 and 2,
1961. All parties, including the Company as party to the contract, were represented
at the hearing by counsel and were afforded full opportunity to be heard, to introduce
evidence, to examine and cross-examine witnesses, to present oral arguments, and to
file briefs. I have carefully considered the briefs filed by all of the parties.
Upon the entire record of the case, and from my observation of the witnesses and
their demeanor, I make the following:
FINDINGS OF FACT
I. COMMERCE
The Company, a New York corporation whose principal office is located in
Yonkers, New York, is engaged in the business of road construction. Since May
1960, Yonkers has been engaged in the construction of a diversionary' highway at
Cannonsville, New York, for the Board of Water Supply, State of New York, the
contract price of which is $3,400,000. The Company is also engaged in the con-
struction of roads in the State of New Jersey, the value of which is approximately
$11,000,000. The Company admits that it annually performs road construction
services valued in excess of $50,000 outside the State of New York. Accordingly,
I find that the Company is engaged in interstate commerce within the meaning of
the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Respondent admits that it is a labor organization within the meaning of
Section 2 (5) of the Act.
III. THE UNFAIR LABOR PRACTICES
In April 1960, the Company was awarded a contract to construct a Class 7M
rural road for the Board of Water Supply, State of New York, near Cannonsville,
New York. Completion of the contract is expected by June 1, 1962. In preparation
for staffing the job, in May 1960 1 the Company executed a collective-bargaining
agreement with Respondent recognizing the latter as the exclusive representative of
all its employees in the laborer classification. The agreement contains a union-
security clause requiring membership in Respondent "immediately following the 7th
day" of employment but contains no provisions in respect to hiring. Before the
execution of the said collective-bargaining agreement, there had been a meeting
in May between Arthus E. Ellison, the Company's construction manager, and Peter
Pavlisak, Respondent's business representative.2 According to Ellison, the discus-
sion with Pavlisak at this meeting was only about wage rates. In respect to staffing
the job, Ellison testified that he told Pavlisak, "we would prefer to use Union laborers
if they were available," and that he asked Pavlisak whether "there were qualified
men in the area." Pavlisak replied that he had some qualified men, and Ellison
requested Pavlisak to refer them to the Company. Ellison denied that there was
any agreement or understanding between the Company and Respondent in regard
to the manner in which the job would be staffed by the Company. Pavlisak similarly
denied that there was any agreement between the Union and the Company that all
laborers had to be hired through the union office.
The General Counsel does not contend that the written collective-bargaining
agreement between Respondent and the Company is "violative of the Act." Instead,
he asserts that there was a "tacit understanding between the parties that union
' Unless otherwise noted, all dates herein refer to the year 1960.
2 Representatives of the Teamsters and Operating Engineers also attended this meeting
870 DECISIONS OF NATIONAL LABOR RELATIONS BOARD'
approval , or clearance , was required before laborers and drillers could obtain
employment." 3
The General Counsel relies on the foregoing as well as the following evidence
to establish the existence of an unlawful understanding and/or practice between
Respondent and the Company in respect to staffing the job.
A. The Union 's causation of the denial of employment to Harris Ford Backus
The Company commenced the work of clearing brush from the right-of-way in
May. On August 3, the Company started rock drilling and blasting, an operation
under the supervision of Stanley Dearstyne , the Company 's rock superintendent. On
July 28 , several days before rock drilling began, Harris Ford Backus, the alleged
discriminatee , visited the Company's jobsite at Cannonsville , New York, to seek em-
ployment as a driller . Backus had been a member of Respondent in 1956 , but had
transferred to Local 17 of the Laborers in Newburgh , New York, in the fall of 1957.
At the jobsite, Backus met the Company's head mechanic , John H . McClendon, who
is in charge of maintenance of equipment and machinery . Backus, a friend of
McClendon , asked the latter to recommend him to the appropriate supervisor for
a job as a driller. In compliance with Backus ' request, McClendon introduced him
to Dearstyne . McClendon told Dearstyne that Backus "was a good rock driller"
and "would make a good man for him." Dearstyne told Backus to return on Au-
gust 3 and he would try him out "on the first drill." On August 2, Backus went to
Respondent 's office and transferred his union membership back to Respondent.
On August 3, about 6 : 45 a.m ., Backus returned to the Company 's jobsite as
instructed by Dearstyne . When the latter arrived in a truck , Backus and Martin
Clune, Respondent's job steward, walked over to the truck. Dearstyne said to
Clime, "I need one driller and one chuck tender ." Clime replied , "I thought you
needed two drillers ." Dearstyne said , "I did but I have one here now," and pointed
to Backus . Clune retorted , "I can't hire him. I don't know him." Backus then
interjected that he had a Local 7 book , and Clune replied, "I have had men waiting
around here for two weeks waiting to go to work." Dearstyne and Clune then left.
Backus remained at the jobsite. About a half hour later, Dearstyne came over to
Backus and said, "I am sorry I can't hire you . I cannot fight City Hall." Still later
that morning, Clune told Backus that he would have given him employment if
Backus had not gone over his head to Dearstyne and McClendon . That afternoon
Dearstyne told McClendon that he had been unable to hire Backus "because he was
not straightened out with the Union ," and Dearstyne also said, he "had to do the hir-
ing through the Union ." Several days later, Backus asked Dearstyne whether he was
going to hire any more drillers. Dearstyne replied that he was going to, but did not
know when , and added that , Backus "would have to get straightened out with Local
7" before he could be hired .4
Dearstyne 's testimony in respect to the manner in which Backus applied for but
was denied employment by him was not substantially different from that of Backus 5
Dearstyne admitted that but for the intervention of Union Steward Clime , he would
have hired Backus as a driller on August 3. Dearstyne testified that on Monday,
August 1, he had asked Clime to refer to him "two good men ," and that on August 3,
he hired the two men referred by Clune,6 and also Edgar Burrows, a man who worked
in the brush gang, on Clune's insistence that Burrows' transfer took precedence over
the hiring of Backus . Dearstyne denied that there was any agreement or understand-
ing which required union referral , clearance , or approval of men hired by the Com-
pany. Yet, he admitted that he knew nothing of Burrows or his ability before that
morning, nor of any company policy requiring him to accept the transfer of Burrows
from the brush crew. When asked to explain his reason for acceding to Clune in
respect to not hiring Backus, Dearstyne testified,
I just didn't want to start trouble at the beginning of the job . I didn't
want to, have trouble with anybody, so I just dropped the issue there. I figured
he ['Union Steward Clune]' had a legal right to transfer men from the brush
8 General Counsel's brief, p 7.
4 The foregoing findings are based on the credited testimony of Backus and McClendon
5In many respects, Dearstyne was an evasive witness woo gave self-contradictory and
implausible testimony as a consequence of which, I permitted the General Counsel to
examine him as a "hostile" witness under Rule 43(b) of the Federal Rules of Civil Pro-
cedure. For the same reasons which prompted that ruling, I do not credit Dearstyne's.
testimony regarding the August 3 incident in those respects in which it differs from that
of Backus , whose testimony I regard as reliable.
6 Arliss Emerich , a driller, and Charles Stanton, a chuck tender.
INT'L HOD CARRIERS, BUILDING, ETC., LOCAL 7 871
crew to the drill crew . . . I wasn't going to stand there and argue with
him . . . so I just walked out.
However, Dearstyne was unable to explain what "legal right," Clime, a rank-and-file
common laborer, had "to transfer men."
Respondent's Job Steward Clune admitted that on August 3 he had objected to
the hiring of Backus by Dearstyne. Clune asserted as the reason for his action, that
he was following previous instructions from William P. Colvard, the Company's
general superintendent, to transfer "good men" from the brush gang to the drill crew
when the brush work was finished. Colvard testified that he had so instructed Clime
in June. However, Colvard admitted that he did not know that Burrows was a driller,
and Clime admitted that he knew only that Burrows said he was a driller, since he,
had never seen Burrows do any drilling.' There was no testimony that Colvard
specifically instructed Clune to transfer Burrows. Moreover, no explanation was.
offered why Colvard's alleged general instructions or "policy" to transfer "good men"
from the brush gang were not given to the Company's supervisors rather than to.
Respondent's job steward.8 I therefore do not credit either Clune's or Colvard's.
testimony regarding the alleged transfer instructions, and I likewise do not credit
Clune's asserted reason for his objection to the hiring of Backus.
After August 3, Backus frequented the Company's jobsite seeking employment
but he was never hired although Dearstyne admittedly hired other drillers after
that date.9
B. Other evidence in respect to the alleged unlawful hiring arrangement
and/or practice
Head Mechanic McClendon credibly testified that during the first week of Septem-
ber, Respondent's Business Representative Pavlisak and Union Steward Clime
accused him of writing letters to the Board on behalf of Backus, told him to keep his
nose out of their business, and said "that they would do the hiring on the job." 10
Edwin C. Bonker, a member of Respondent, credibly testified that he applied for
employment by the Company as a common laborer, and was told by General Super-
intendent Colvard that "the Union done[sic] the hiring,"" and that thereafter, he-
applied to Union Steward Clune for a job. The latter told him "they didn't need
no men . they wasn't hiring." 12
Rock Superintendent Dearstyne testified that' all laborers, when hired by the Com-
pany, were either members of Local 7 or some other local of the Laborers Union.
Dearstyne also testified that he notified Union Steward Clime whenever a "man was
being hired" so that "he [Clune] could check his book. . . .. Dearstyne testified
that this was done after the man was hired, not pursuant to any agreement or under-
standing, but as a matter of courtesy.
The record also shows that not all employees hired by the Company were referred
by Respondent, but that some were persons who had worked on other company proj-
ects or were otherwise known to the Company's supervisors. These persons, on
hiring, transferred their membership from other Laborers' locals to Respondent. In
addition, Respondent' s Business Repesentative Pavlisak and Superintendent Colvard
testified that two nonunion college boys were hired by the Company to work on the
project during the summer of 1960
Pavlisak also testified that in 1959, he was advised by a Board agent that Respond-
ent's contracts contained illegal hiring provisions, and that he later deleted these
provisions from subsequent agreements negotiated by Respondent. Pavlisak was
7 Burrows did no drilling on the brush gang.
8 As aforestated, Dearstyne knew nothing of these instructions or "policy" at the time
he refused employment to Backus There was also no testimony that the foreman of the
brush gang was ever instructed regarding the Company's alleged policy to transfer men
as brush work finished.
9 Backus secured other temporary employment as a result of referral by Respondent.
The parties stipulated that Backus worked on this other job between August 8 and 16
10 McClendon was not certain as to whether it was Clune or Pavllsak who said the latter-
n Although Colvard denied that he ever so told any job applicant, I do not credit his
denial.
12 Clune did not deny the foregoing . Another job applicant, Raymond Fritz, testified
that he was referred for job information to Union Steward Clune by a clerk in the
Company's office, and that Clune told him "they were full" but would put him to work if
"they should need someone " I conclude that Fritz' testimony establishes only that
Clune was a better source of job availability information than the company clerk
872 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
unable to remember the nature of the illegal hiring provisions which were later
deleted, and his testimony in respect to the changes which were made in Respondent's
referral system did not reveal the nature of the illegality.
C. Analysis of the record and concluding findings
In respect to the denial of employment to Backus, the basic questions for determi-
nation are: whether in refusing employment to Backus, the Company, discriminated
against him; whether the discrimination was of a type which encourages membership
in a labor organization or adherence to its policies, and thus, a violation of Section
8(a),(3) of the Act; and whether the said discrimination was caused by Respondent,
and, therefore, a violation of Section 8(b) (2) and (1),(A) of the Act.
It is quite obvious that the record presents no real question regarding the Com-
pany's discrimination against Backus, in view of the uncontroverted evidence that
Dearstyne, although desirous of hiring Backus, nevertheless failed to do so only
because- of Clune's insistence that Burrows the employee in the brush gang, be
assigned to the job. I have hereinbefore found that the reason for Clune's objection
to Backus was that he had failed to apply for the job through the Union, and had
gone over Clune's head by applying directly to Dearstyne and McClendon. It is
therefore quite obvious that the refusal to employ Backus was based on his failure
to follow union protocol or policy. In The Radio Officers' Union of the Commercial
Telegraphers Union, AFL (A. H Bull Steamship Company) v. N.L.R. B.,13 a case
involving a similar factual situation, the Supreme Court said:
. . . encouragement of union membership is obviously a natural and foreseeable
consequence of any employer discrimination at the request of a union.
In referring to the Radio Officers' case, supra, the Board said in Turner Construction
Company, 110 NLRB 1860, 1862:
. discrimination by an employer against an employee (whether or not a
union member) because- he is not sponsored by a union suffices to establish a
violation of Section 8 (a) (3) of the Act.
Thus, by denying employment to Backus because of Clune's objection, and by later
conditioning Backus' employment on getting "straightened out" with the Union, which
is the equivalent of securing union approval, the Company not only discriminated
against Backus, but such discrimination necessarily encouraged Backus' member-
ship in and adherence to the Union's policies as a condition for securing employment.
I therefore conclude that such discrimination constituted a violation of Section
S(a) (3) of the Act by the Company.
We come then to the question of whether Respondent caused the discrimination
against Backus within the meaning of Section 8(b)(2) of the Act This involves a
determination of: (1) whether Clune's conduct in respect to the denial of employ-
ment to Backus "caused" the discrimination against him, and (2) whether Respond-
ent is responsible for Clune's conduct in this regard.
Considering the latter question first, Respondent contends, inter alia, that it is
not responsible for Clune's conduct in causing Backus to be denied employment by
the Company. Clune was appointed as the Union's job steward by Respondent's
Business Representative Pavlisak. His duties were to check the "books" of laborer
employees on the job to determine their dues status, and to notify delinquent mem-
bers to send in their dues to the Union. He was advised by Superintendent Dearstyne
of all new hires for the like purpose of "checking their books," and under the col-
lective agreement between Respondent and the Company, the initial presentation
and settlement of grievances was within his authority.14 As found above, Pavlisak
referred all job applicants to Clune, a clear indication that the latter was the Union's
representative on the job Similarly, Dearstyne's utilization of Clime as the source
of union referral of job applicants, and his denial of employment to Backus as a
consequence of Clune's objection, and because he wanted no trouble with the Union,
clearly indicates that Dearstyne also regarded Clune as the Union's agent on the job.
For all the foregoing reasons, I find that Clune was the agent of the Respondent on
the job, and I therefore reject Respondent's contention that it is not responsible for
Clune's conduct.15
The final question in respect to the Company's discriminatory refusal to employ
Backus is whether Respondent "caused" the discrimination within the meaning of
13347 U.S. 17, 52.
141n view of this provision in the contract , I do not credit Clune's testimony that lie
had no authority to settle grievances
is Brunswick-Balke-Collender Company, 131 NLRB 156
INT'L HOD CARRIERS, BUILDING, ETC., LOCAL 7 873
Section 8(b) (2) of the Act. Since, as hereinafter found, Clime's effective request
that Backus be refused employment occurred without the legal sanction of a lawful,
nondiscriminatory hiring hall contract, the "effective request . . . constitutes `cause'
within the meaning of Section 8(b)(2) of the Act." 16 Moreover, it is immaterial
that the discrimination against Backus was effected without threats.17 For all the
foregoing reasons, I find and conclude that Respondent caused the Company to dis-
criminate against Backus in violation of Section 8(a)(3) of the Act, and thereby
engaged in unfair labor practices within the meaning of Section 8(b) (2) of the Act.
Since the said conduct restrained and coerced Backus in the exercise of rights guar-
anteed by the Act, I find that Respondent thereby also engaged in unfair labor
practices within the meaning of Section 8(b) (1) (A) of the Act
We come then to the question of whether the evidence establishes the existence of
an unlawful understanding or arrangement between Respondent and the Company
in respect to the hiring only of laborers who are members of Respondent, and who
are "cleared, approved, or referred by Respondent." There is no direct testimony
of any such arrangement or understanding between Respondent and the Company.
In fact, the only direct testimony, that of the Company's Construction Superintendent
Ellison and Respondent's Business Representative Pavlisak, was that there was no
arrangement or understanding in respect to staffing the job Accordingly, any find-
ing that such an arrangement or understanding exists must depend on inference from
other testimony in the record.
In summary, the only evidence from which such an agreement or understanding
can be inferred, if at all, is as follows:
1. The Company preferred to use union laborers.
2. The Company requested Respondent to refer qualified laborers to it, and some,
but not all of the laborers hired by the Company, were referred by Respondent
3. All laborers hired by the Company, except for two immaterial exceptions,
college boys hired for summer jobs, were, or subsequent to hiring, became members
of Respondent.
4. The Company's general superintendent told a job applicant that the Union did
the hiring, and Respondent's Agent Pavlisak and Union Steward Clone made like
statements to Head Mechanic McClendon.
5. Respondent caused the Company to deny employment to Backus because he
was not referred by the Union
6. Respondent's agent Pavlisak admitted that in 1959, he was advised by a Board
agent that the hiring provisions of Respondent's contracts with other employers were
illegal, and he thereafter deleted them from subsequent contracts
I shall consider the foregoing testimony seriatini.
1. There is no evidence that the Company's preference for union laborers was
based on any request or demand from the Union. The violation charged against
Respondent is causing or attempting to cause an employer to discriminate against
employees in violation of Section 8(a)(3) of the Act. Absent evidence that the
Respondent caused the Company to adopt the said hiring policy, I can see no basis
for holding the Union responsible for the Company's preference for union labor,
even though such policy may contravene Section 8(a)(3) of the Act.18
2. The evidence that the Company requested Respondent to refer qualified laborers
to it, is obviously insufficient to establish the existence of a hiring arrangement with
the Union, especially where, as here, the Company did not rely upon Respondent as
the sole source of its laborers, but hired employees known to the Company's super-
visors by reason of their having worked on other company jobs. "It is not illegal
for an employer to rely upon a union to provide it with employees." 19
3. In view of the collective-bargaining agreement between Respondent and the
Company which contains a lawful union-security provision, the fact that all laborers
in the employ of the Company are members of Respondent cannot be equated either
with the hiring of only union members of their prior approval or clearance for
hiring by the Union.
to International Union of Operating Engineers, Little Rock Local 382-882A, AFL-CIO
(Armco Drainage & Metal Products, Inc ), 123 NLRB 1833, 1835
17 Sub Grade Engineering Company, 93 NLRB 406, enfd. 216 F 2d 161 (C A 8)
is Cf Del E. Webb Construction Company v N.L R B , 196 F 2d 841 (C A 8) ;
N L R B v. A. B. Swmerton, et at, d/b/a Swinerton and Walberg Company, 202 F. 2d
511 (C.A 9).
19 N L R.B. v. International Association of Heat and Frost Insulators, etc (Rhode
Island Covering Co.), 261 F. 2d 347, 350 (CA. 1)
874 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4. The statements of the Company's general superintendent and of the two union
agents, that the Union did the hiring on the job, is obviously capable of an inference
that there existed an arrangement for exclusive hiring by Respondent. However,
there is no evidence in the record that the Union in fact did any hiring, but at most,
only that it referred job applicants to the Company for hire. Moreover, the evidence
does not show that union referral was exclusively practiced, for as aforestated, there
were many cases in which the Company hired employees without such referral.
Under these circumstances, I am not persuaded that the aforestated loose statements
of the Company's and Respondent's officials are truly descriptive of the hiring prac-
tices on the job, and I therefore will not infer therefrom that the Union did the
hiring on the job.
5. My finding that Respondent caused the Company to discriminate against Backus
is undoubtedly the strongest evidence in the record from which the existence of a
hiring arrangement or understanding may be inferred. However, there are other
facts disclosed by the record which detract from that inference. Dearstyne, the
supervisor who submitted to Clune's objections to Backus, was a member of Re-
spondent, and thus, particularly subject to the Union's influence. Moreover, at the
time this incident occurred, Dearstyne had been a supervisor for only 1 month, and
he had never before had any hiring authority. In view of these circumstances, the
fact that one such supervisor succumbed to union influence in respect to one applicant
for employment, is not, in my opinion, sufficient to establish either a practice,
agreement, or understanding between the Company and the Union in respect to
control of hiring.
6. Finally, we come to the admission of Union Agent Pavlisak that in 1959, Re-
spondent's contracts with other employers contained illegal hiring provisions which
Respondent subsequently deleted upon the advice of a Board agent. The General
Counsel's brief suggests that because Pavlisak could not remember specifically what
was illegal in the former contracts and what changes Respondent made in its referral
practices to cure the illegality, it may be inferred that "the illegal hiring arrange-
ment was not in fact discontinued." 20 I regard this contention as without merit for
the following reasons: The burden of establishing that an unlawful hiring practice
or agreement existed was on General Counsel. The specific nature of the illegality
of the Respondent's former contracts was a matter susceptible of proof by the General
Counsel by the subpena of the documents involved. Respondent's agent, a layman,
obviously knew only what he was told by the Board agent, a conclusion on his part,
in the absence of the agreement itself. It would require the exercise of pure specu-
lation to assume that the illegality was based on an unlawful exclusive referral pro-
cedure, rather than, for example, the absence of Mountain Pacific safeguards?' I
refuse to indulge in such speculation. Moreover, since the record clearly shows that
the Company had never, before the instant job, had contractual relations with Re-
spondent,22 I can see no basis for inferring the continuance of an illegal hiring
arrangement which never previously existed, so fas as the Company is concerned.
Although the foregoing evidence is not free from suspicion that some understanding
or arrrangement may have existed between Respondent and the Company in respect
to hiring laborers, I cannot base a finding of violation of the Act on suspicion alone.
Accordingly, for all the foregoing reasons, I conclude that the General Counsel has
failed to prove by a preponderance of the credible evidence on the record as a whole
that an exclusive hiring arrangement, understanding, and/or practice existed between
Respondent and the Company.
Moreover, even assuming that such an exclusive hiring arrangement or practice
existed, there is no evidence in the record as to its terms, and none that such under-
standing or practice required discrimination against nonunion sponsored applicants
for employment. The theory of the complaint was that the arrangement or practice
was unlawful because of the absence of the protective provisions which the Board,
in Mountain Pacific, supra, held were necessary, in exclusive hiring hall cases, to
counteract the encouragement of membership in a labor organization, which such a
hiring arrangement or practice necessarily produces. Since the hearing in this case,
the Supreme Court has concluded that the Board cannot base a violation of Sec-
20 General Counsel's brief, p. 9
2' Mountain Pacific Chapter of the Associated General Contractors, Inc, et al, 119
NLRB 883
22 The Company's construction job in the Cannonsville, New York, area, was its first
within the Respondent's geographical jurisdiction.
INT'L HOD CARRIERS, BUILDING, ETC., LOCAL 7 875
tion 8(b)(2) of the Act in exclusive hiring hall cases merely upon the absence of
Mountain Pacific safeguards 23 The only evidence in the instant case that the arrange-
ment or understanding, if one in fact existed, permitted discrimination by Respond-
ent, is Respondent 's causation of the discrimination against Backus . For the same
reasons stated above for not finding the existence of an exclusive hiring arrangement
on the basis of a single act of discrimination, I am impelled to find that the evidence
is insufficient to establish that such arrangement, if it existed, permitted discrimination
by Respondent.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in con-
nection with the operations of the Company set forth in section 1, 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 commerce and the free flow
of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in unfair labor practices in vio-
lation of Section 8(b)(2) and (1) (A) of the Act, it will be recommended that it
cease and desist therefrom and take certain affirmative action designed to effectuate
the policies and purposes of the Act.
It having been found that Respondent caused the Company discriminatorily to
refuse to hire Harris Ford Backus on August 3, 1960, it will be recommended that the
cRespondent cease and desist therefrom and notify the Company and Harris Ford
Backus, in writing, that it has no objection to the employment of Backus . It will
be further recommended that the Respondent make Backus whole for any loss of
earnings he may have suffered by reason of the discrimination against him, by the
payment of a sum of money equal to that which he would normally have earned from
the date of the discrimination to a date 5 days after the giving of the aforesaid
notice, or the date of completion by the Company of drilling operations at Cannons-
ville, whichever shall first occur , less his net earnings during said period. Backpay
shall be computed on a quarterly basis in a manner consistent with the policy estab-
lished by the Board in F. W. Woolworth Company, 90 NLRB 289.
In view of the nature of the unfair labor practices committed , the commission of
similar and other unfair labor practices reasonably may be anticipated . I shall
therefore recommend that the Respondent be ordered to cease and desist from in any
manner infringing upon the rights guaranteed to employees under the provision of
the Act.
Upon the basis of the foregoing findings of fact , and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. International Hod Carriers , Building and Common Laborers Union of America,
Local 7, AFL-CIO, is a labor organization within the meaning of Section 2(5) of
the Act.
2. By causing the Company to discriminate against Harris Ford Backus within
the meaning of Section 8(a)(3) of the Act, the Respondent has engaged in and is
engaging in unfair labor practices within the meaning of Section 8(b) (2) of the Act.
3. By the aforesaid conduct , the Respondent has also restrained and coerced em-
ployees in the exercise of rights guaranteed in Section 7 of the Act, and thereby has
engaged in and is engaging in unfair labor practices within the meaning of Sec-
tion 8 (b)(1)(A) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
5. The General Counsel has failed to establish by the preponderance of the record
considered as a whole that there existed between the Respondent and the Company,
an unlawful agreement in respect to hiring laborer employees.
[Recommendations omitted from publication.]
2 Local 557 , International Brotherhood of Teamsters, etc (Los Angeles -Seattle Motor
Empress ) v. NL.R.B., 365 U.S . 667. See also G. A. Rafel & Co., 131 NLRB 1191, and
Sterling Precision Corp., Instrument Division, 131 NLRB 1229, In which the Board has
followed the Supreme Court's holding.