J. J. Hagerty, Inc.

National Labor Relations Board - Board Decisions

Oct 31, 1962

139 N.L.R.B. 633 (N.L.R.B. 1962)

J. J. HAGERTY, INC. 633
which remains uncontroverted,10 without even attempting to distin-
guish or overrule the cases relied upon by the Regional Director, my
colleagues have found that a unit confined to the employees of the Cal-
houn operation is appropriate. I cannot agree.
In agreement with the Regional Director, I find that the unit sought
by the Petitioner is inappropriate, and as, in any event, the Regional
Director's decision was not "clearly erroneous"-the applicable review
standard in this case "-I would dismiss the petition.
MEMBER LEEDOM took no part in the consideration of the above De-
cision on Review and Direction of Election.
10 The machinery of all of the plants is owned by Bell ; the purchasing of all major
materials is done at Dalton, in Bell's name ; all the plants share materials without regard
to where they are stored ; the manufacturing operations of all the plants are determined
and contiolled by the same committee ; orders may be filled by any of the plants, without
regard to where or with whom they are placed ; operations are determined by the com-
mittee in such a manner as to equalize employment between the various plants ; Items
manufactured at one plant may be shipped to another plant for finishing , are there com-
bined with items manufactured in other plants , and may be stored at , or shipped from,
any of the warehouses ; both companies use the same trucks ; both companies have the
same officers and the same selling agent, all moneys received are payable to Bell which
furnishes both companies with sufficient money for expenses ; all invoicing for both com-
panies is done at Dalton , engineering for all plants is directed by the same personnel,
located at Dalton ; both companies have a common auditor ; the designers of both com-
panies work together ; all patterns for both companies are made in Dixie Belle 's pattern-
making machine in Calhoun , one machine shop services all plants ; there is some inter-
change of equipment , a single research chenust services all plants ; a uniform labor rela-
tions policy for all plants is established by a single committee , and is administered by a
single person , the personnel director , who is an employee of Belcraft , but who is respon-
sible for the labor relations of both companies ; the same company magazine is distributed
to, and caries news of , the employees of both companies , all plants have identical train-
ing programs ; there are a total of 68 job classifications, of which 48 are common to both
companies ; all employees have the same insurance benefits and are covered under a single
insurance policy , seniority is transferrable to either company ; the personnel director
establishes uniform hiring standards for all plants ; applicants for employment may be
interviewed by one company for employment with the other ; a uniform wage scale is in
effect at all plants ; there is a constant interchange of employees between the two com-
panies; all payrolls and W-2 forms are prepared in, and all paychecks are issued from,
the Dalton office ; both companies use common office machinery ; and surveys of operations,
including time and motion studies , cover all plants without regard to corporate lines
11 See the Board's Rules and Regulations and Statements of Procedure , Series 8, as
amended, Section 102 67(c)
J. J. Hagerty, Inc. and Peter Batalias
Nassau and Suffolk Contractors' Association , Inc. and Garrett
Nagle and Employer-Members of Nassau and Suffolk Con-
tractors' Association, Inc., Listed in Appendix A, Parties in
Interest
J. J. Hagerty, Inc. and Thomas Eichacker
John C. Peterson Construction Co. and William Herbert Wilkens
Nassau and Suffolk Contractors ' Association Inc. and its Em-
ployer-Members Listed in Appendix "A"; Welfare Fund of
Local 138, International Union of Operating Engineers, AFL-
139 NLRB No. 40.
634 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CIO, and Trustees William C. DeKoning, Girard Douglas, John
Gunning , Verner Sofield, John Buchanan , Edwin Regnell, Jr.,
Paul Roche and Herman Switzer and Robert Christensen and
Local 138, International Union of Operating Engineers, AFL-
CIO; Building Trades Employers Association of Long Island,
Inc., and its Employer-Members Listed in Appendix "B,"
Parties in Interest
Local 138, International Union of Operating Engineers, AFL-
CIO and Peter Batalias, Garrett Nagle, Thomas Eic hhacker, and
William Herbert Wilkens and Nassau and Suffolk Contractors'
Association, Inc. and its Employer-Members Listed in Appendix
A, and Building Trades Employers Association of Long Island,
Inc. and it's Employer-Members Listed do Appendix B, Parties
in Interest
Loyal 138, International Union of Operating Engineers, AFL-
CIO and Robert Christensen and Nassau and Suffolk Contrac-
tors' Association, nc., and its En•ployer-Members Listed in
Appendix "A"; and Building Trades Employers Association of
Long Island, nc., and its Employer-Members Listed i n Appen-
dix "B," Parties in Interest
Local 138, International Union of Operating Engineers, AFL-
CIO; and Welfare Fund of Local 138, International Union of
Operating Engineers, AFL-CIO, and Its Trustees William C.
DeKoning, Girard Douglas, John Gunning, Verner Sofield,
John Buc anan, Edwin Regneil, Jr., Paul Roche and Herman
Switzer and Robert Christensen. and Nassau and Suffolk Con-
tractors' Assoc'a.1on, Inc., and its Employer-Members Listed in
Appendix "A" and Building Trades Employers Association of
Long Island , Inc., and its Employer-Members Listed in Appen-
dix "B," Parties in Interest . Cases Nos. 2-CA-6301, 2-CA-630.,
2-CA-6323, 2-CA-6376, 2-CA-7474, 2-CB-.483, 2-CB-2424,
2-CB-P3440, £-CB-2472, 2-CB-2931, and P2-CB-29448. October 31,
1962
DECISION AND ORDER
On November 16, 1961, Trial Examiner Ralph Winkler issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondents had engaged in and were engaging in certain unfair labor
practices and recommending that they cease and desist therefrom and
take affirmative action, as set forth in the attached Intermediate
Report. He also found that certain Respondents had not engaged
in unfair labor practices alleged in the complaint and recommended
J. J. HAGERTY, INC. 635
that such allegations be dismissed. Thereafter, the Respondents, the
General Counsel, and the Charging Party filed exceptions to the Inter-
mediate Report and briefs in support thereof.
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record in
this case, and hereby adopts the Trial Examiner's findings, conclu-
sions, and recommendations with the additions and modifications
noted hereafter.
This is the fourth of a series of Board cases 1 involving, inter alia,
Local 138 of the International Union of Operating Engineers, here-
inafter called the Union, and a group of individuals, largely union
members, known as a reform group. The present controversy con-
cerns alleged unfair labor practices occurring subsequent to June 1958,
and involves allegations of violations of the Act with respect to :
contract clauses contained in contracts between the Respondent Union
and the Building Trades Employers Association of Long Island, Inc.
(BTEA), and other unaffiliated individual employers; the operation
of the exclusive hiring and referral system and permit fees charged
for its use; the layoff or refusal to refer five individuals 2 for employ-
ment; and the operation of a jointly administered welfare fund.
1. With respect to these contracts, we agree with the Trial Examiner
that the clause 3 which provides that an employer will, upon notice
from the Union, discharge any employee in violation of union rules,
is discriminatory. Similarly, we find that the contract clauses giving
preferential treatment to union members in regard to physical exami-
nations, shifts, and payment of wages are likewise discriminatory;
and that, by being party to agreements containing such clauses, the
Union has violated Section 8(b) (1) (A) of the Act .4
1Nassau and Suffolk Contractors' Association, Inc, and its members, 118 NLRB 174,
enfd by a consent decree issued by the Second Circuit , dated May 12, 1958 ; A. Cestone
Company, 118 NLRB 669, enfd 254 F . 2d 958 ( CA. 2); Local 138, International Union
of Operating Engineers , AFL-CIO and Thomas If. Eichacker , an Individual ( Nassau and
Suffolk Contractors ' Association , Inc., and its members ), 123 NLRB 1393 , enfd. In part,
293 F. 2d 187 (C.A. 2).
2 Peter Batalias, Garrett Nagle, Thomas Eichacker , William Wilkens, and Robert
Christensen.
s Both the 1959 and 1960 BTEA contracts contained clauses stating : "In case any
employee becomes ineligible under the rules of the Union and the employer is notified,
then the said employer shall promptly discharge such employee " The contracts also
contained union -security clauses Since the Union's contracts with some 200 other
unaffiliated employers were identical with the BTEA contracts , our findings apply to all
such contracts.
4 Neither the BTEA nor unaffiliated individual employers are named as Respondents
herein The Respondent Union has no contract with the other employer association in-
volved here , the Nassau and Suffolk Contractors ' Association, Inc. (hereafter Nassau),
and admittedly makes no distinction in its handling of job referrals to employers with
whom it has contracts and employer -members of Nassau with whom no contract exists.
636 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Like the Trial Examiner, we also find that the Respondent Union
operated a discriminatory hiring and referral system. This discrim-
ination is evidenced by the preference in referral given to union mem-
bers over nonmembers,' the referral seniority given union members in
accordance with their longevity in the Union,' and the testimony by
Union Secretary Sofield that in practice, individuals who were more
than 90 days' delinquent in payment of dues or permit fees lost refer-
ral seniority. Even if such individuals were subsequently restored to
good standing, their referral seniority began as of the date of their re-
instatement in the financial good graces of the Union. Accordingly,
we find that the Respondent Union, having exclusive hiring hall agree-
ments with BTEA and unaffiliated employers, operated a discrimina-
tory hiring and referral system and thereby discriminated against
applicants for employment in violation of Section 8(b) (1) (A) and
(2) of the Act.
The Trial Examiner also found that a $10 monthly permit or service
fee charged to nonmembers of the local Union for the privilege of
utilizing a discriminatory referral system, was in itself discriminatory.
He also concluded that a fee equal to union dues was unlawful absent
any evidence that such fee was reasonably related to the cost of op-
erating the hiring and referral system. Because the exclusive hiring
and referral system was discriminatorily operated, the Respondent
could not lawfully exact a fee for its use.' It is for this reason that we
5 While Sofield, the Respondent Union's secretary, at one point testified that as between
union men and permit men, he chose the one oldest in seniority, i e , in accordance with
the date the individual was initiated in the Union or began payments as a permit man,
we credit, as the Trial Examiner obviously did, Sofield's earlier testimony that he re-
ferred union members before nonmembers In any event, the referral seniority of both
union men and permit men was equated with financial good standing in the Union and
was not based on nondiscriminatory standards
6 At page 585 of the record, the Trial Examiner interrogated Union Secretary Sofield
as follows :
Q. When he [a union or permit man] got in good standing again , he would take
seniority as of the date he became a member in good standing?
A. That's right.
Q. Regardless of how [long] he worked before in the industry 7
A. That's right. That goes for members who take withdrawal cards and come,
back They start all over again Suspended members who have been accepted start
all over again. They might have been in for 20 years.
Q The seniority is dependent on the membership?
A. When they are in good standing in the Local.
7Houston Maritime Association , Inc, and Master Stevedore Association of Texas, 136
NLRB 1222
Chairman McCulloch joins in finding the exaction of the permit fees to be unlawful
in this case, although he deemed the evidence in Houston Maritime insufficient to support
the majority's finding that the "percentage" payments involved there were discriminatory
or otherwise unlawful. In the present case, unlike Houston Maritime, the nonmembers
who registered at the Union's hiring hall for work were required to pay a flat fee of $10
per month-which was the same amount as the members' monthly dues-even though
such nonmembers were assigned to the bottom of the referral list. It is also true here,
unlike Houston Maritime, that 20 percent of the $10 monthly fee paid by the nonmember
registrants was remitted to the Union's parent International and, therefore, was demon-
strably unrelated to the costs incurred by the local Union in operating the hiring and
J. J. HAGERTY, INC. 637
find the charging of the permit fee unlawful and we find it unneces-
sary to consider or adopt the Trial Examiner's additional reason for
holding such fee unlawful .s
2. We also agree with the Examiner that Batalias, Nagle, Eichacker,
and Christensen were discriminatorily denied referral by the Re-
spondent Union in violation of Section 8(b) (1) (A) and (2), and that
this Respondent further violated Section 8(b) (1) (A) by threatening
not to refer Nagle, Christensen, and Wilkens .9 Contrary to the Trial
Examiner, we do not find that the Union caused Peterson Construc-
tion Company to discharge Batalias in December 1958. At the hear-
ing, the General Counsel repeatedly asserted that he was not alleging
that this discharge was caused by the Union. Accordingly, we do not
find any violation by the Union with respect to this incident. How-
ever, as did the Trial Examiner, we find that Peterson violated Sec-
tion 8(a) (3) and (1) of the Act by removing Batalias from the Green-
port job and thereafter failing to rehire him because Batalias was not
a member in good standing or had not been referred by the Union.
3. For the reasons stated by the Trial Examiner, we agree that the
Respondent Union and its agents, Respondent welfare fund and
its trustees, violated Section 8(b) (1) (A) and (2) of the Act by their
discriminatory operation of the welfare fund. We similarly find that
the Respondent Nassau and its agents, the Respondent welfare fund
and its trustees, violated Section 8 (a) (1) , (2), and (3) in this re-
gard.10 Our findings as to the welfare fund and its trustees are based
on the fact that in the administration of the fund, the trustees were
agents of the employer Associations, Nassau and BTEA, and the
Union. The General Counsel alleged and the Trial Examiner found
that the welfare fund, as a separate entity apart from any agency
status, also violated Section 8(a) (1) and (3) and Section 8(b) (1) (A)
and (2) of the Act. In view of our findings as to the agency relation-
ship, we find it unnecessary to consider whether the fund, as a separate
entity, violated the Act.
referral system or policing its contracts . See Galveston Maritime Association, Inc., et al.,
1$9 NLRB 332, and compare Loral 825, Internattoinal Union of Operating Engineers,
AFT CIO (H John Homan Company ), 137 NLRB 1043.
8 Like the Trial Examiner, Members Rodgers and Leedom would also find the permit fee
discriminatory where the permit fee was equal to union dues absent evidence that such
fee was reasonably related to the cost of the hiring and referral system. The burden of
proving that such fee is reasonably related to the cost of the hiring and referral system
is on the Union where a fee equal to union dues is charged , since union members receive
other benefits as the result of membership , including the right to participate and vote in
union affairs Moreover, $2 of the monthly permit fee was remitted to the International
Union Cf H John Homan Company, supra
e We are in agreement with the Trial Examiner that the preponderance of evidence does
not support the allegation that Wilkens was discriminatorily refused referral , particularly
in view of the fact that during April 1959, when lie was allegedly discriminated against,
he received approximately nine job referrals from the Union
is With respect to the denial of welfare fund benefits to Christensen , we affirm the Trial
Examiner 's finding that such denial was discriminatory for the reasons enunciated in the
Intermediate Report
638 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
THE REMEDY
Since the issuance of our decision in the original Nassau case,
supra, Local 138 of the Operating Engineers has been repeatedly a
respondent in this forum. Despite past Board orders and enforce-
ment decrees of the Second Circuit Court of Appeals, this Union
and its officers, since 1957 and continuing intermittently until the
date of the hearing herein, have, inter alia, operated a discriminatory
hiring and referral system and have discriminated in job referrals
against these same individuals in the reform group.
The Board's past remedial orders have apparently proved ineffec-
tive, and in view of the repeated and similar nature of the violations,
we deem it necessary and proper to invoke special remedial measures
to obtain a twofold objective, i.e., to insure that the Respondent
Union operates a nondiscriminatory hiring and referral system, and
that the individuals herein are not discriminated against in the fu-
ture. To achieve this objective, we shall:
(1) Direct the Respondent Union, in conjunction with the Re-
gional Director of the Board and subject to his supervision and ap-
proval, to set up a nondiscriminatory hiring and referral system.ll
If agreeable to employers with whom the Union has contracts, the
Union may incorporate such system into existing collective-bargaining
agreements.
(2) Direct the Respondent Union to keep permanent records 12
of its hiring and referral operation, and such other records as the
Regional Director deems necessary to fulfill his obligations pursuant
to this Order.
(3) Direct the Respondent Union to submit to the Regional Di-
rector quarterly reports about the employment of Peter Batalias,
Thomas Eichacker, Garrett Nagle, Robert Christensen, and William
Wilkens, indicating the date and number of job applications made
to the Union, the actual number and date of union job referrals, and
the length of such employment during the period in question. Such
quarterly reports will be due 10 days after the close of the first full
calendar quarter, subsequent to this Decision and Order. The obli-
gation to submit such quarterly reports will cease after four such
quarterly reports have been made.
(4) Direct the Respondent Union to make available to the Re-
gional Director or his agents upon their request, at all reasonable
times during the period beginning with the date of this Decision
"For example , under a nondiscriminatory system, records should be maintained indi-
cating the date and time of employer requests for workers , and should include the type
of qualifications requested . Out-of -work or availability lists should be maintained, indi-
cating the date and time an individual requested a referral and the Jobs for which he is
qualified . Seniority in referral should be based on nondiscriminatory standards.
12 By "permanent" we mean that such records should be maintained and retained for a
minimum period of 3 years.
J. J. HAGERTY, INC. 639
and Order and ending 1 year after a hiring and referral system ap-
proved by the Regional Director has been put into effect, any records
relating in any way to the hiring and referral system.
(5) Direct that the Regional Director, at his discretion, conduct spot
checks of Respondent Union's hiring and referral system during
the above period.
(6) Direct the Regional Director if he finds evidence of violations
of past court decrees, to initiate requests for civil and criminal con-
tempt proceedings against the appropriate parties.
We also expressly reserve the right to modify the provisions of
this Decision and Order if made necessary by a change in conditions
in the future, and to make such supplements hereto as may hereafter
become necessary in order to define or clarify their application to
a set of circumstances not now apparent.
Since we have found that the permit or service fee was discrimi-
natory in these circumstances, we shall order the Respondent Union
to reimburse all individual nonmembers for fees they were required
to pay as a condition of referral and/or employment, beginning with
the payments made in June 1958, and continuing to date.
As to the individual discriminatees, Batalias, Eichacker, Nagle, and
Christensen, the Respondent Union shall make them whole for any
loss of pay they suffered as a result of the discrimination against
them. As to Batalias, however, Respondent Peterson shall make him
whole for any loss of pay he incurred as the result of his discrimina-
tory transfer and subsequent layoff in December 1958, until such
time as he would have been laid off the Greenport job for nondiscrim-
inatory reasons. In 1959, the Respondent Union denied Batalias
any job referrals because of his reform group activities and caused
Peterson not to reemploy him at Greenport when that job reopened.
The Respondent Union and Peterson shall, jointly and severally,
with the Respondent Union primarily liable'13 make Batalias whole
for any loss of pay suffered for his failure to be reemployed at the
Greenport job. For the Union's refusal to refer him thereafter, the
Union shall be solely liable.
As to Christensen, the Respondent Union and Respondent Nassau
shall direct their agents, acting as trustees of the fund, to pay Chris-
tensen from the fund, the welfare benefits he was denied because of
the discriminatory operation of the referral system.
In accordance with the policy recently adopted by the Board '14 We
shall include an allowance for interest on all moneys due herein in-
cluding those moneys for backpay, permit fees, and welfare fund
'-'See N.L.R .B. v. Local 138 , International Union of Operating Engineers , AFL-OIO,
et al ( Nassau & Suffolk Contractors ' Assn. ) 293 F. 2d 187, 199 ( C.A. 2).
14 Isis Plumbing & Heating Co ., 138 NLRB 716; Seafarers International Union of
North America, (beat Lakes District , AFL-CIO,138 NLRB 1142.
640 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
benefits.15 Such interest is to be computed at the rate of 6 percent
per annum on the basis of separate calendar quarters with the inter-
est to begin running as of the last day of the calendar quarter for
moneys exacted or due in that calendar quarter until compliance
with the Order is achieved.
The General Counsel also contends that the individual discriminatees
who were union members should be reimbursed for all dues and fees
paid to the Union.16 However, we note that they were long-standing
union members who were initially attempting reforms within the
Union. We conclude, therefore, that they were not coerced or re-
strained into maintaining their union membership. Consequently, we
think an order reimbursing them for dues and fees is inappropriate.17
ORDER
Upon the entire record in these cases, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National
Labor Relations Board hereby orders that :
A. Respondent Union, Local 138, International Union of Op-
erating Engineers, AFL-CIO, its officers, agents, representatives,
successors , and assigns, shall:
1. Cease and desist from :
(a) Maintaining and enforcing any collective-bargaining agree-
ment with the Building Trades Employers Association of Long Is-
land, Inc., and its members, or any other employer over whom the
Board would assert jurisdiction which provides for the discharge of
employees who violate union rules or which grants preferential treat:
ment to union members in such matters as physical examinations, pay-
ment of wages, and shifts.
(b) Maintaining any practice or enforcing any agreement, under-
standing, or practice with the Building Trades Employers Associa-
tion of Long Island, Inc., and its members, or with any other
employer over whom the Board would assert jurisdiction, which un-
lawfully gives members of the local Union preference in job referrals
11 For the seasons stated in their dissenting opinion in Isis Plumbing & Heating Co., 138
NLRB 716, Membei s Rodgers and Leedom are convinced that the award of interest for
permit fees or welfare fund benefits , like the attachment of interest to backpay , exceeds
the Board 's remedial authority . While adhering to such view , for purposes of this decision
they are acceding to the majority Board policy of granting interest on moneys due.
18 The Geneial Counsel also requested a remedy requiring that the Union no longer be
recognized as a bargaining representative until a Board -conducted election be held. In
view of other remedial ordered herein, we deem such a remedy unnecessary
17 Members Rodgers and Leedom would require the Respondent Union to reimburse the
union members who were found to be disciiminatees for all dues and fees dating flour
December 1958, when the Union published in its monthly newspaper , various referral
rules including a statement that "financial good standing in the Union . . . shall be re-
quired as a condition of dispatch to a job " From that date , they would find that the
discriminatees were coerced into retaining their union membership as a condition of
referral.
J. J. HAGERTY, INC. 641
or conditions referral or referral seniority upon good standing in the
Union as either a member of the local Union or as a permit man.
(c) Discriminating against Batalias, Eichacker, Nagle, and Christ-
ensen with respect to job referrals.
(d) Theatening to discriminate against Nagle, Christensen, and
Wilkens with respect to job referrals.
(e) In any other manner restraining or coercing employees or ap-
plicants for employment in the exercise of rights guaranteed in Sec-
tion 7 of the Act, except to the extent that the rights of employees
may be affected by an agreement requiring membership in a labor
organization as a condition of employment as authorized in Section
8 (a) (3) of the Act, as amended.
2. Take the following affirmative action which the Board finds neces-
sary to effectuate the purposes of the Act :
(a) In conjunction with the Regional Director for the Second
Region and subject to his approval, set up a nondiscriminatory hiring
and referral system.
(b) Keep permanent records of its hiring and referral operation
and such other records as the Regional Director deems necessary
to administer a nondiscriminatory hiring and referral system or to ful-
fill his obligations pursuant to this Decision and Order.
(c) Upon request of the Regional Director of the Board or his
agents, make available for inspection, at all reasonable times, for a
period beginning with the date of this Decision and Order to 1 year
after a hiring and referral system approved by the Regional Director
has been put into effect, any records relating in any way to the hiring
and referral system.
(d) Submit four quarterly reports to the Regional Director, due
10 days after the close of the calendar quarter subsequent to the is-
suance of this Decision and Order, about the employment of Batalias,
Eichacker, Nagle, Christensen, and Wilkens. Such reports shall in-
clude the date and number of job applications made to the Union, the
date and number of actual job referrals by the Union, and the length
of such employment during such quarter.
(e) Make whole Garrett Nagle, Thomas Eichacker, and Robert
Christensen for any loss of pay suffered by them as a result of the
discrimination against them. Jointly and severally with Peterson
Construction Company, with the Respondent Union primarily liable,
make whole Peter Batalias for any loss of pay suffered by him as a
result of their discrimination against him. Such backpay will be with
interest at the rate of 6 percent per annum, as set forth in "The
Remedy" section of this Decision and Order.
(f) Reimburse all individual nonmembers for permit or service
fees unlawfully exacted from them as a condition of referral or em-
642 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployment with interest thereon at 6 percent per annum as set forth in
"The Remedy" section of this Decision and Order.
(g) Preserve and, upon request, make available to the Board or its
agents, for examination and copying, all membership, dues, permit,
referrals, welfare fund, and all other records necessary to compute
the amounts of moneys due under this Order.
(h) Notify, in writing, the Building Trades Employers Associa-
tion of Long Island, Inc., and each of its members, and Peterson Con-
struction Company, and all other employers over whom the Board
would assert jurisdiction and with whom it has any agreement or
arrangement, that it has no objection to their hiring Peter Batalias,
Thomas Eichacker, Garrett Nagle, Robert Christensen, or any other
adherent of the reform group.
(i) Post at its offices, copies of the attached notice marked "Ap-
pendix A." 18 Copies of this notice, to be furnished by the Regional
Director for the Second Region, shall, after being duly signed by
William DeKoning, Verner Sofield, and Edward Revere, be posted
immediately upon receipt thereof, and be maintained for 1 year, in
conspicuous places, and at all other places where notices to members
are customarily posted. Reasonable steps shall be taken to insure that
said notices are not altered, defaced, or covered by any other material.
(j) Post at the same places and under the same conditions as set
forth in (i) above, as soon as they are forwarded by the Regional
Director, copies of attached notice marked "Appendix B." 19
(k) Mail to the Regional Director for the Second Region signed
copies of "Appendix A" for posting by Peterson Construction Com-
pany, by Nassau and Suffolk Contractors' Association and its mem-
bers, and for posting by the Building Trades Employers Association
and its members, if they are willing. Copies of said notice, to be
furnished by the Regional Director, shall, after being duly signed
by William DeKoning, Verner Sofield, and Edward Revere, be forth-
with returned to the Regional Director for such posting.
(1) Publish in the "Local 138 News" at 3-month intervals for a
period of 1 year subsequent to the issuance of this Decision and Order
a copy of Appendix A attached hereto and distribute such editions
to all its members and to all nonmembers who on the date of this
Decision and Order are paying permit or service fees to the Union.
(m) Notify the Regional Director, in writing, within 10 days
from the date of this Order, what steps the Respondent has taken to
comply herewith.
19 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 "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order."
19 See footnote 18, supra.
J. J. HAGERTY, INC. 643
B. Respondent Union, Local 138, International Union of Operating
Engineers, AFL-CIO, and its officers, representatives, successors,
assigns, and agents, including the welfare fund of Local 138 and its
trustees, William C. DeKoning, Girard Douglas, John Gunning,
Verner Sofield, John Buchanan, Edwin Regnell, Jr., Paul Roche,,
and Herman Switzer, shall:
1. Cease and desist from :
(a) Administering the welfare fund so as to condition the payment
of benefits to individuals in good financial standing in the Union
either as a member of the local or as a permit man.
(b) In any like or related manner restraining or coercing em-
ployees in the exercise of rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action which the Board finds
necessary to effectuate the purposes of the Act : Jointly, with Respond-
ent Nassau and Suffolk Contractors' Association, Inc., direct the wel-
fare fund to make whole Robert Christensen for any welfare fund
benefits unlawfully denied him, with interest thereon at 6 percent per
annum, as set forth in "The Remedy" section of the Decision and
Order.
C. Respondent Nassau and Suffolk Contractors' Association, Inc.,
and its employer members and their officers, representatives, succes-
sors, assigns, and agents, including the welfare fund of Local 138,
International Union of Operating Engineers, AFL-CIO, and its
trustees, William DeKoning, Girard Douglas, John Gunning, Verner
Sofield, John Buchanan, Edwin Regnell, Jr., Paul Roche, and Herman
Switzer, shall :
1. Cease and desist from :
(a) Administering the welfare fund so as to condition the payment
of benefits to individuals in good financial standing in the Union
either as a member of the local Union or as a permit man.
(b) Administering the welfare fund as noted in (a) above, and
thereby giving financial aid and support to the Respondent Union.
(c) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of rights guaranteed in Section 7
of the Act.
2. Take the following affirmative action which the Board find&
necessary to effectuate the purposes of the Act :
(a) Nassau-Suffolk, jointly with the Respondent Union, direct the
welfare fund to make whole Robert Christensen for the benefits un-
lawfully denied him with interest thereon at 6 percent per annum
as set forth in "The Remedy" section of this Decision and Order.
(b) Post at their offices and at all their working sites within the
territorial jurisdiction of Respondent Union, copies of the attached
672010-63-vol. 139-42
644 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
notice marked "Appendix B." Copies of said notice, to be furnished
by the Regional Director for the Second Region, shall, after being
duly signed by the respective representatives of Nassau-Suffolk and
Peterson Construction Company, be posted immediately upon recipt
thereof, and be maintained for at least 60 consecutive days there-
after, in conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall be taken
by each Respondent to insure that said notices are not altered, de-
faced, or covered by any other material.
(c) Post at the same places and under the same conditions as set
forth in (b) above, and as soon as they are forwarded by the Regional
Director, copies of Respondent Union's attached notice marked
"Appendix A."
(d) Notify the Regional Director for the Second Region, in writ-
ing, within 10 days from the date of this Order, what steps the Re-
spondent has taken to comply herewith.
D. Respondent John C. Peterson Construction Company, its offi-
cers, agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Encouraging membership in the Respondent Union or in any
other labor organization by transferring, discharging, or refusing
to hire employees because they were not cleared or approved by Re-
spondent Union, or in any other manner discriminating in regard
to hire or tenure of employment or any term or condition of employ-
ment, except to the extent permitted by the proviso to Section 8 (a) (3)
of the Act, as modified by the Labor-Management Reporting and
Disclosure Act of 1959.
(b) In any other manner interfering with, restraining, or coercing
employees in the exercise of rights guaranteed in Section 7 of the
Act, except to the extent that such rights may be affected by an agree-
ment requiring membership in a labor organization as a condition
of employment as authorized in Section 8(a) (3) of the Act, as
amended.
2. Take the following affirmative action which the Board finds
necessary to effectuate the purposes of the Act:
(a) Make whole Peter Batalias for any loss of pay suffered as a
result of his discriminatory transfer from the Greenport job, and
jointly and severally with the Respondent Union, with the Respond-
ent Union primarily liable, make whole Peter Batalias for his failure
to be reemployed at the Greenport job in 1959, together with interest
at 6 percent per annum, as set forth in "The Remedy" section of this
Decision and Order.
(b) Preserve and, upon request, make available to the Board and
its agents, for examination and copying all payroll records, social
security payment records, timecards, personnel records and reports,
J. J. HAGERTY , INC. 645
and all other records necessary to compute the backpay due Batalias.
(c) Post at its offices and at all their working sites within the
territorial jurisdiction of the Respondent Union, copies of the at-
tached notice marked "Appendix B." Copies of said notice, to be
furnished by the Regional Director for the Second Region, shall,
after being duly signed by the respective representatives of Nassau
and Suffolk and Peterson Construction Company, be posted immedi-
ately upon receipt thereof , and be maintained for at least 60 consecu-
tive days , in conspicuous places, including all places where notices
to employees are customarily posted. Reasonable steps shall be
taken by each Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(d) Post at the same places and under the same conditions as set
forth in (c) above, and as soon as they are forwarded by the Regional
Director, copies of Respondent Union's attached notice marked "Ap-
pendix A."
(e) Notify the Regional Director for the Second Region, in writ-
ing, within 10 days from the date of this Order, what steps the Re-
spondent has taken to comply herewith.
IT Is FURTHER ORDERED that the complaint herein be, and it hereby
is, dismissed insofar as it alleges that any Respondent engaged in
any unfair labor practices , except as found herein, in violation of
the Act,
MEMBER BROWN took no part in the consideration of the above
Decision and Order.
APPENDIX A
NOTICE To ALL MEMBERS OF LOCAL 138, INTERNATIONAL UNION Or
OPERATING ENGINEERS , AFL-CIO, AND TO ALL EMPLOYEES OF
MEMBERS OF BUILDING TRADES EMPLOYERS ASSOCIATION OF LONG
ISLAND, INC., AND NASSAU AND SUFFOLK CONTRACTORS' ASSOCIA-
TION, INC., AND TO EMPLOYEES OF JOHN C. PETERSON CONSTRUC-
TION COMPANY
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 maintain and enforce clauses in any collective-
bargaining agreement with the Building Trades Employers Asso-
ciation of Long Island, Inc., or any other employer over whom the
Board would assert jurisdiction that :
Provides for the discharge of employees who violate union
rules ;
Grants preferential treatment to union members in such
matters as physical examinations , payment of wages, and
shifts.
646 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT unlawfully give job referrals to union members
in preference to permit men or other individuals.
WE WILL NOT unlawfully condition referral or referral seniority,
upon an individual's being in good financial standing in the Union
either as a member of the local Union or as a permit man.
WE WILL NOT unlawfully discriminate in job referrals with re-
spect to Peter Batalias, Garrett Nagle, Robert Christensen, and
Thomas Eichacker.
WE WILL NOT threaten to discriminate against any of the above-
mentioned individuals or against William Wilkens or any other-
member of the "reform" group.
WE WILL NOT direct the welfare fund of Local 138, through our-
agents acting as trustees of the welfare fund, to condition the pay-
ment of benefits upon maintaining good financial standing in the
Union either as a member of the local Union or as a permit man.
WE WILL NOT in any other manner restrain or coerce employees
of, or applicants for, employment with members of the Building
Trades Employers Association, or any other employer over whom
the Board would assert jurisdiction, in the exercise of the rights
guaranteed in Section 7 of the Act, except to the extent permitted
by an agreement requiring membership in a labor organization as
a condition of employment as authorized in Section 8(a) (3) of
the Act, as modified by the Labor-Management Reporting and
Disclosure Act of 1959.
WE WILL, in conjunction with the Regional Director of the-
Board and his agents, and subject to his approval, set up a non-
discriminatory hiring and referral system.
WE WILL keep permanent records of our hiring and referral
operation and such other records as the Regional Director of the
Board deems necessary for the administration of a nondiscrim-
inatory hiring and referral system or which he deems necessary
to fulfill his obligations pursuant to the Board's order.
WE WILL submit four quarterly reports to the Regional Director-
of the Board about the employment of the aforementioned dis-
criminatees and William Wilkens.
WE WILL reimburse all employees or applicants for employment
for all permit or service fees paid by them as a condition of refer-
ral since June 1958, and continuing to date with interest thereon
at 6 percent.
WE WILL make whole Peter Batalias, Garrett Nagle, Robert
Christensen, and Thomas Eichacker, for any loss of pay suffered
as the result of the discrimination against them, with interest
thereon at 6 percent.
WE WILL, jointly with Nassau and Suffolk Contractors' Asso-
ciation, Inc., direct the welfare fund to make whole Robert Chris-
J. J. HAGERTY, INC. 647
tensen for the benefits unlawfully denied him, with interest there-
on at 6 percent.
WE WILL notify Building Trades Employers Association of
Long Island, Inc., and its members, and Peterson Construction
Company, that we have no objection to the employment of Peter
Batalias, Garrett Nagle, Robert Christensen, and Thomas
Eichacker, or any other adherent of the reform group.
LOCAL 138, INTERNATIONAL UNION OF
OPERATING ENGINEERS, AFL-CIO,
Labor Organization.
Dated---------------- By-------------------------------------
(WILLIAM C . DEI{ONINa, president of Local 138 and
trustee of welfare fund of Local 138)
Dated---------------- By-------------------------------------
(VERNER SoFIELD, secretary -treasurer of Local 138)
Dated---------------- By-------------------------------------
(EDWARD REVERE, dispatcher)
This notice must remain posted for 1 year from the date of posting,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board' s Regional
Office, 745 Fifth Avenue, New York City, New York, Telephone Num-
ber, Plaza 1-5500, if they have any questions concerning this notice
or compliance with its provisions.
APPENDIX B
NOTICE TO ALL EMPLOYEES OF MEMBERS OF BUILDING TRADES
EMPLOYERS ASSOCIATION OF LONG ISLAND , INC., AND NASSAU AND
SUFFOLK CONTRACTORS ' ASSOCIATION , INC., AND TO EMPLOYEES OF
JOHN C. PETERSON CONSTRUCTION CO. AND TO ALL MEMBERS OF LOCAL
138, INTERNATIONAL UNION OF OPERATING EXGINEERS , AFL-CIO
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 direct the welfare fund of Local 138, through our
agents , acting as trustees of the welfare fund , to condition the
payment of benefits upon maintaining good financial standing in
the Union either as a member of the Union or as a permit man.
WE WILL NOT give financial assistance to Local 138 by discrimi-
natorily conditioning welfare fund payments upon good financial
standing in the Union as a member of the local Union or as a
permit man.
Peterson Construction Company WILL NOT discriminatorily dis-
,charge or refuse to employ Peter Batalias or any other individual
648 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
because he has not been referred or granted clearance by Local
138 of the Operating Engineers or because he has engaged in other
protected concerted activities.
WE WILL NOT in any like or related manner interfere with, re-
strain , or coerce employees in the exercise of their rights guaran-
teed in Section 7 of the Act, except to the extent that such rights
may be affected by an agreement requiring membership in a labor
organization as a condition of employment as authorized in Section
8 (a) (3) of the Act, as modified by the Labor-Management Re-
porting and Disclosure Act of 1959.
WE WILL, jointly with Local 138, direct the welfare fund, to
make whole Robert Christensen for the welfare fund benefits un-
lawfully denied him with interest thereon at 6 percent.
Peterson Construction Company WILL make whole Peter Ba-
talias for any loss of pay he may have suffered resulting from
his discriminatory transfer from the Greenport job with interest
thereon at 6 percent.
Peterson Construction Company, jointly and severally with
Local 138, with Local 138 primarily liable, WILL make whole Peter
Batalias for the loss of pay he suffered as a result of the Union's
causing Peterson not to reemploy him on the Greenport job with
interest thereon at 6 percent.
NASSAU AND SUFFOLK CONTRACTORS' ASSOCIATION, INC.,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
JOHN C. PETERSON CONSTRUCTION CO.,
Employer.
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.
Employees may communicate directly with the Board's Regional
Office, 745 Fifth Avenue, New York City, New York, Telephone
Number, Plaza 1-5500, if they have any questions concerning this
notice or compliance with its provisions.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
This consolidated unfair labor practices proceeding was initiated by charges filed
by individuals and involves allegations by the General Counsel and denials by the
respective Respondents that Respondent Employers and the welfare fund trustees
have violated Section 8(a)(1), (2 ), and (3 ), ,and that Respondent Local Union 138
and its welfare trustees have violated Section 8(b)(1)(A ) and (2 ) of the National
Labor Relations Act, as amended , herein called the Act. All parties were rep-
J. J. HAGERTY, INC. 649
resented by counsel and participated in the hearing held in New York City before
Trial Examiner Ralph Winkler.
Upon the entire record in the case and my observation of the demeanor of all
witnesses , and upon consideration of briefs submitted , I make the following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF EMPLOYER PARTIES
Nassau and Suffolk Contractors' Association, Inc., herein called Nassau-Suffolk,
is an association of some 30 employers engaged in the building and construction busi-
ness in Nassau and Suffolk Counties, New York. One of Nassau-Suffolk's purposes is
to negotiate and administer collective-bargaining agreements for its members. Dur-
ing the past year, the employer members of Nassau-Suffolk made interstate pur-
chases exceeding $500,000, and two such members (Respondents J. J. Hagerty, Inc.,
and John C. Peterson Construction Co.) made interstate purchases exceeding $50,000.
Nassau-Suffolk and its members, including Hagerty and Peterson, are employers
engaged in commerce within Section 2(2), (6), and (7) of the Act.
Building Trades Association of Long Island, Inc., herein called B.T. Association,
is an association of approximately 115 employers engaged in the building and con-
struction industry in Long Island, New York; it negotiates and administers collective-
bargaining agreements for its members. During the past year, the employer mem-
bers of B T. Association made interstate purchases exceeding $500,000, and I find
that this Association and its members are employers engaged in commerce within
Section 2(2), (6), and (7) of the Act.
II. RESPONDENT LABOR ORGANIZATION INVOLVED
Local 138 , International Union of Operating Engineers , AFL-CIO, herein called
.the Union , is a labor organization within Section 2 ( 5) of the Act.
IH. THE UNFAIR LABOR PRACTICES
A. Preliminary discussion of issues
The parties have referred to several earlier cases involving Respondent Union
and Nassau-Suffolk, and a short statement of those cases may be helpful to an under-
standing of the instant matter.
The first such proceeding was Nassau and Suffolk Contractors' Association, Inc.
etc, 118 NLRB 174 (June 18, 1957). There the Board found, among other things,
that Nassau-Suffolk violated Section 8(a)(1), (2), and (3) and that the Union
violated Section 8(b)(1) and (2) by enforcing closed-shop conditions of employ-
ment. Peter Batalias was the Charging Party in the 1957 proceeding, and he and
other Charging Parties in the instant case testified against the Respondents in the
1957 case. The Court of Appeals for the Second Circuit entered a consent decree
enforcing the Board's order on May .12, 1958. This decree ordered, among other
things, that Nassau-Suffolk and its employer members: withdraw all recognition
from and otherwise cease recognizing the Union as bargaining representative of their
employees until the Union is certified by the Board; cease maintaining any agree-
ment, understanding, or practice requiring membership in or clearance by the
Union as a condition of employment, or otherwise giving employment preference to
union members; and cease in any other manner violating employees' rights guaranteed
in the Act. The decree also ordered Respondent Union to cease maintaining with
Nassau-Suffolk or any other employer any agreement, understanding, or practice
requiring membership in or clearance by the Union as a condition of employment
or otherwise giving employment preference to union members; and, in any like
or related manner, to cease violating employees' rights under the Act.
In the second-mentioned decision I issued on June 1, 1959, the Board found that
the Union and Nassau-Suffolk were parties to an unlawful arrangement and practice
requiring union membership, union referral, or a union permit as a condition of em-
ployment; that the Union was maintaining an exclusive hiring hall on the basis
of the same closed-shop provisions involved in the 1957 proceeding; and that such
hiring hall was otherwise unlawful in not satisfying the so-called Mountain Pacific
requirements 2 The Board also found, inter alia, that the Union unlawfully caused
discrimination against members of a so-called reform group within the Union (this
1123 NLRB 1393.
2Mountain Pacific Chapter of the Associated General Contractors , Inc, et at., 119
NLRB 883, 897.
C050 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
group includes the Charging Parties in the instant and also the first-mentioned case)
and also caused discrimination in the administration of the Union's welfare fund.
The Board again thus found 8(b)(1)(A) and (2) violations against the Union
and issued an order requiring the Union to refrain from the unfair labor practices
found, including threats of violence and loss of employment because of the afore-
mentioned "Reform" activities and the filing of unfair labor practice charges with
the Board, The Second Circuit issued a decision on July 25, 1961,3 (rehearing
denied August 17, 1961), holding in effect that the Union did not have a closed-shop
contract with Nassau-Suffolk, that the Mountain Pacific aspects of the case were
removed by Local 357, International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America (Los Angeles-Seattle Motor Express), 365 U.S.
4667; the court also held that the Union was "plainly the prime wrongdoer" and the
employers the innocent "victims" in the cases of individual discrimination and that
the Union should therefore be primarily liable for the resulting backpay due. The
court also sustained findings that the operation of the welfare fund unlawfully
discriminated against nonmembers.
The unfair labor practices under consideration in the two prior cases took place
during the period from 1954 through 1957. The present case deals with alleged
violations from June 1958 through the close of the hearing in October 1960. In the
context of the earlier proceedings, the present complaint alleges in part: that the
Union and Nassau-Suffolk have continued, and that the Union and B.T. Association
also are maintaining, exclusive hiring hall arrangements without complying with
the Mountain Pacific requirements and that they have otherwise required good union
standing as a condition of employment for union members and required nonmembers
to pay temporary dues, service fees, and referral and permit fees as a condition of
employment; 4 and that the Union unlawfully caused Nassau-Suffolk and B.T. As-
sociation to deny employment and other benefits to certain mentioned members of
the so-called reform group.
The Union and Nassau-Suffolk contend in effect that Nassau-Suffolk has not
recognized or dealt with the Union as collective-bargaining representative since entry
of the Second Circuit's decree restraining such recognition, and they further deny
all unfair labor practices respectively alleged against them. The Union also denies
the alleged violations which the complaint attributes to it vis-a-vis B.T. Association.
B.T. Association and its employer members are parties to this proceeding, but not as
Respondents.
13. The Union's hiring hall and exclusive hiring arrangements
The Union, for many years, has been operating a hiring hall which supplies a
considerable number of the engineering personnel employed in the construction
'business in Nassau and Suffolk Counties. In addition to whatever contracts or ar-
rangements the Union may have with Nassau-Suffolk and its approximately 30
employer members, the Union has exclusive hiring contracts and arrangements with
B.T. Association and its approximately 115 employer members and also with ap-
proximately 200 independent contractors doing business in Nassau and Suffolk
Counties. Postponing discussion of the various contracts and other arrangements
under consideration, I shall first set forth some material aspects of the Union's
hiring hall operation. While these noted items apply whenever the Union furnishes
engineers to employers, whether or not under contract, it should nevertheless be
kept in mind that these items become material here only where an exclusive hiring
contract or arrangement is in operation.
Since November 1958, the Union has required all individuals seeking job re-
ferrals from the Union to fill out and submit an out-of-work card to the Union.
These cards contain, among other matters, the date, if any, the individual was
initiated into the Union. Union Secretary Verner Sofield and Dispatcher Edward
Revere 5 under him are in charge of the union hiring hall. Sofield testified that he
dispatches men to jobs in the order of their admission date into the Union and
that he does not dispatch nonmembers until the roster of all unemployed and
otherwise available union members is exhausted. Sofield further testified that he
does not dispatch union members to jobs if such members are more than 90 days'
S Local 138, International Union of Operating Engineers , AFL-CIO, et al. ( Nassau &
Suffolk Contractors' Assn )., 293 F 2d 187
+I shall not further discuss the Mountain Pacific aspects of this case to the extent
affected by Local 357, International Brotherhood of Teamsters, Chauffeurs Warehousemen
and Helpers of America (Los Anpeies-Seattle Motor Express) v. NLR.B. 365 U S. 667.
8 Sofield is not entitled to belief on disputed matters, and Revere was not produced as
-a witness.
J. J. HAGERTY, INC. 651
delinquent in union dues payments and that he does not dispatch nonmembers
who are delinquent in payment of so-called permit or service fees. Seniority for
referral is therefore based on and equated to longevity as a union member and
applicants for referral have no standing at all in the hiring hall and hence are
not referred unless they maintain good financial standing with the Union, be it
as a member or as a nonmember on permit or a service-fee basis. To maintain
their financial good standing and their consequent eligibility for referral by the
union hall, nonmembers are required to pay a $10 monthly fee to the Union,
whether or not they are employed, and this is the same amount paid by members
as regular monthly dues to the Union. Of this $10 monthly payment, the Union
respectively remits $1.10 and $2 to its parent International for each member and
each nonmember, with the balance being retained in the Union's general fund.
C. The Union's exclusive hiring contracts with B.T. Association and independents
The Union, in November 1958, amended its then existing contracts with the
approximately 200 independent contractors and it entered into an identical contract
with B.T. Association in April 1959 effective from January 1959 until July 1960.
The Union and B.T. Association executed their current agreement in July 1960,
and this agreement is effective until 1963.
In addition to the usual economic provisions, the 1959 and 1960 agreements con-
tain exclusive hiring hall as well as union-shop provisions (30 days in the 1959
contract; 7 days in the 1960 one). Both contracts also provide, inter alia, that "In
case any employee becomes ineligible under the rules of the Union and the employer
is notified, then said employer shall promptly discharge such employee" (the union
constitution provides for member ineligibility for reasons other than nonpayment
of membership dues); "that no member of the Union shall be subject to a physical
examination in order to be employed"; that a "member of the Union" be paid his
accrued wages immediately upon termination of employment; and that "members
of the Union" are entitled to a change of shift at stated intervals.
D. The alleged exclusive hiring arrangement between the Union and Nassau-Suffolk
The General Counsel alleges that the Union and Nassau-Suffolk have by agree-
ment or understanding maintained the same exclusive hiring arrangement which
prevails between the Union and B.T. Association. Nassau-Suffolk and the Union
both deny this allegation and they contend in effect that they have had no relevant
collective-bargaining relationship since entry of the court's aforementioned decree
restraining such relationship until the Union be certified by the Board.
A substantial number of Nassau-Suffolk employer members produced their em-
ployment records and testified concerning their hiring practices. Without setting
forth the details of such testimony and documentation, and no matter what any
single employer's arrangement with the Union might be, I am satisfied and find
the record does not preponderantly establish that Nassau-Suffolk and the Union
had been maintaining an exclusive hiring hall agreement or arrangement as alleged
herein
E. Respondent welfare fund
As stated above, also named as Respondents here are the welfare fund of Re-
spondent Local 138 and its trustees. The General Counsel alleges that Respondent
Union and Nassau-Suffolk have respectively violated Section 8(b)(1)(A) and (2)
and 8(a)(1), (2), and (3) by operation of this welfare fund as their agent and
that the welfare fund and its trustees have themselves engaged in the same violations.
Welfare fund was organized in 1950 as a fiduciary in New York State pursuant to
a trust indenture agreement executed by officers of Respondent Union and representa-
tives of building and construction employers, including Respondent Nassau-Suffolk.
The welfare fund has its principal office in the same building in Farmingdale, New
York, where the Union's offices are located; and it is engaged there in purchasing,
providing, and maintaining life, health, accident, and related insurance policies and
benefits for employees whose employers have covering agreements and/or arrange-
ments with the Union. The present arrangement with the Union requires, in effect,
that employer members B.T Association, Respondent Nassau-Suffolk, and approxi-
mately 200 independent employers contribute to the welfare fund a sum of money
equal to 5 percent of their weekly payroll for operating engineers. The welfare fund
is a self-insurer and receives approximately $1 million annually from the employer
contributions; it disburses about one-quarter of a million dollars annually and in-
vests the remainder.
Welfare fund is administered by eight trustees, four appointed by the Union and
four by the employer, and the trust agreement provides that these trustees "shall
652 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
continue to serve at the pleasure of the party by whom he was designated." The
four trustees serving under such appointment by the union executive board are
William C. DeKoning , Verner Sofield, Girard Douglas , and John Gunning ; all are
union officials and members of the union executive board , DeKoning being union
president and Sofield the union secretary . Nassau-Suffolk appointed three of its offi-
cials ( John Buchanan , Edwin Regnell , Jr., and Herman Switzer ) as employer trus-
tees and B.T. Association designated the chairman of its board of governors (Paul
Roche ) as the fourth employer trustee.
In view of the substantial power and control over the tenure of the trustees and
also because of the official positions held by the respective trustees in the organiza-
tions by whom they were designated , I sustain the General Counsel 's contention that
the welfare fund and its trustees are agents of the Union , Nassau-Suffolk , and B.T.
Association in the administration of the welfare fund . By reason of its services for
the employer participants in the welfare fund , I also find as the General Counsel
contends , that welfare fund is itself engaged in commerce within the meaning of the
Act. Chain Service Restaurant, Luncheonette & Soda Fountain Employees, Local 11,
AFL-CIO, 132 NLRB 960.
The last amendment to the agreement and declaration of trust which was executed
by Respondent Union and Respondent Nassau-Suffolk in 1956 and is still in effect
provides that the purpose of the welfare fund is "to pay or provide ... accident
or health insurance for medical and surgical care and hospitalization for members
of the Union ... as the trustees may determine subject to such conditions as to
length of service in the industry , length of membership in the Union , and length
of payment by the employer of employer contributions ...." The current booklet
published by the welfare fund states the following eligibility requirements:
CONDITIONS OF COVERAGE-ARTICLE 1 , SECTION A , ELIGIBILITY
You are covered by Welfare Fund benefits if:
(1) you are a member in good standing of Local 138 , 138A , 138B , Interna-
tional Union of Operating Engineers, or
(2) not being a member of Local 138 , 138A , 138B , your service dues are
paid currently,
(3) if you have complied with the rules and regulations of the Welfare Fund
as defined herein, and
(4) if you have worked the minimum number of hours required as defined
herein for a contributing employer.
SECTION B
Good standing means the current monthly dues must be paid or the current
monthly service dues must be paid.
The record establishes that these rules are currently enforced and in effect.
F. Conclusions; hiring and other employment arrangements
Having exclusive hiring hall arrangements with B.T. Association and independent
employers, Respondent Union has operated such hiring hall so as to prefer union
members over nonmembers and also to further prefer members with greater union
seniority ; this arrangement also requires , in effect , that where membership is a
condition of employment , such membership must satisfy requirements other than
payment of dues and initiation fees. Respondent has thereby violated Section
8(b) (1) (A ) and (2 ) of the Act . Compounding this discriminatory treatment of
nonmembers as second-rate citizens of the hall, Respondent Union at the same time
requires nonmembers to pay monthly service or permit fees in amounts equal to
monthly membership dues. While a union may be permitted payment of reasonable
fees by those individuals using its referral facilities , it goes without saying that it
is a discriminatory condition of employment for a union under exclusive hiring
arrangements to require amounts equal to membership dues, absent any showing
of a reasonable relationship between such referral fees and the cost of operating
the hiring hall. Respondent Union has thereby further violated Section 8(b)(1)(A)
and (2 ) in the maintenance of its exclusive hiring hall arrangements with B.T.
Association and unaffiliated employers engaged in commerce within the Act.
The thrust of the above -mentioned preferences accorded union members and the
other mentioned discriminatory conditions carries over to the welfare fund. To
be eligible for benefits under the welfare plan, not only must employees satisfy
these aforementioned discriminatory conditions , but they also must have worked
a prescribed number of hours. The effect of giving referral preference to union
members is to give them greater opportunity for satisfying the minimum time quali-
J. J. HAGERTY, INC. 653
fication for welfare fund benefits. To the extent, therefore, that all such discrimina-
tory conditions prevail in the operation of the welfare fund, the Union also is violating
Section 8(b)(1)(A) and (2) of the Act. While not found to have an exclusive
hiring arrangement with the Union, Nassau-Suffolk is nevertheless a party to
maintaining and operating the welfare fund, and Nassau-Suffolk and its employer
members have accordingly violated Section 8(a)(1) and (3) of the Act by such
participation in discriminatory practices. I also find as the General Counsel further
alleges, that the welfare fund and its named trustees have accordingly been violating
Section 8 ( a)(1) and (3 ) and Section 8(b)(1)(A) and (2 ) of the Act.
It is hornbook law that union qualifications may be made a condition of em-
ployment only pursuant to a union-security contract lawful under Section 8(a)(3)
of the Act. Absent any claim by either Nassau-Suffolk or the Union (in fact they
assert there is no contract at all) that they have such lawful union-security arrange-
ment, the operation of the welfare fund is, in any event, discriminatory, inasmuch
as its benefits are available only to those individuals who maintain their standing
in the Union's hiring hall either as members or nonmembers.
Upon all the foregoing, I further find that Nassau-Suffolk and welfare fund and
its trustees have contributed support to the Union in violation of Section 8(a) (2)
.of the Act.
G. Individual cases of alleged discrimination
1. Garrett Nagle
Nagle has been employed as an operating engineer in Nassau and Suffolk Counties
since 1945, and has been a member of Respondent Union at all times during this
period. Nagle became one of the leading proponents of the aforementioned reform
group and he has also filed charges against Respondent Union in prior cases.6
Respondent Union consists of Locals 138, 138A, and 138B; 7 138 is comprised of
the so-called journeymen engineers, and 138A and 138B consists of apprentices
and firemen and oilers. Wage rates are generally higher for 138 jobs than for 138A
and B. In 1958, Respondent Union initiated separate seniority lists for 138 and 138A.
Nagle was a member of 138A since 1945, and he applied for admission to 138 in
1955; he was finally admitted to 138 in January 1960 after the filing of charges
in the present case. Admission to Local 138 requires approval of the union executive
board and Local 138 membership.
The General Counsel contends that the Union unlawfully refused to refer Nagle
from November 28, 1958, until March 5, 1959; that the Union unlawfully referred
Nagle only to lower-paying jobs since the latter date; and that Nassau-Suffolk, by
operation of the alleged exclusive hiring arrangement, has accordingly discriminated
against Nagle. Until the events under consideration here, the Union had referred
Nagle to engineer (as distinguished from the lower-paying) jobs, and the Union
makes no claim and there is no question concerning Nagle's competency to handle
engineer positions.
Upon being laid off for economic reasons on or about November 28, 1958, Nagle
called the union hiring hall and asked Dispatcher Revere for work Revere said no
work was available and that Nagle would not be permitted to retain any job Nagle
might get on his own. Revere also said that Nagle was on top of the referral list
but that the Union would only refer Nagle to lower-paying jobs under the work
classification of Local 138A. Revere and Union Secretary Sofield advised Nagle
to similar effect a few days later. On this latter occasion, Union President DeKoning
also told Nagle that there was no question as to Nagle's qualifications to handle 138
(as distinguished from 138A or B) jobs, but that the Union would not refer Nagle
to such employment. Nagle credibly testified, in part as follows, concerning this
conversation with DeKoning: 8
1 [Nagle] said, "you know I can do an engineer's work."
He [DeKoning] said, "There is no question of your qualifications, but you
are only an A-man."
6 See Local 138, International Union of Operating Engineers , AFL-CIO ( A. Cestone
Company). 118 NLRB 669, enfd 254 F. 2d 958 (C A 2), where the Board and court sus-
tained earlier charges that the Union caused discrimination against Nagle because of
Nagle's reform group activities.
9 See 118 NLRB 174, 207
8 On the basis of my demeanor observations and upon the record as a whole, I find that
DeKoning is unworthy of being credited on any disputed matter unless corroborated by a
credible witness.
654 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I said, "How do I get into the engineer 's class?"
"Well," he said to me, "if you stopped all this ... mess you have been causing
and all the trouble , running to the Senate , that goddam NLRB , to the radio
and television and the papers. What the hell have any of them done for you?
I am still here. I am the boss. I'm going to stay here as long as the Inter-
national is behind me."
I said, "Well, Bill, if I was to join you, what are you going to do for us?"
He said, "What do you want me to do?"
I said, "The least you could do is put the men back in the union who were
suspended."
He said, "Yes , I might let them come back in in a year or two."
I said, "What the hell are they supposed to do in the meantime?"
He said, "If you all sit back and shut up , everything will go all right. You
will have no trouble finding work. Otherwise , we'll keep you out of work as
long as we want."
Q. Are there any other statements you can recall being made by Mr. De-
Koning on that occasion?
A. The only thing is, when he told me there is nothing we can do, I said,
"There is plenty we can do. We can still go to the NLRB and fight our cases
there."
After this conversation the Union did not refer Nagle to any jobs until March
1959, although Nagle regularly filed out-of-work cards; and the jobs to which Nagle
was referred from March 1959 until January 1960 were of the lower -paying 138A,
not the higher-paying 138, variety.
In the context of the Union's exclusive hiring ball arrangements , set forth above,
the record establishes that, on the basis of Nagle's reform group activities , the Union
failed and refused to refer Nagle to higher-paid jobs with B .T. Association and un-
affiliated employers having exclusive hiring arrangements with the Union. The
Union thus violated Section 8(b)(1)(A) and (2 ), and it also violated Section
8(b) (1) (A ) by its threat of such discrimination unless Nagle gave up such activities.
This does not mean, of course, that a union may not have reasonable classifications
of referral in operating an exclusive hiring hall; it does mean that such classifications
may not be based upon or administered in accordance with discriminatory consid-
erations including placement on a preferred referral list subject to the approval of
the union executive board and the preferred group's (Local 138 ) membership.
2. Robert Christensen
The General Counsel alleges that since December 1959 the Union has unlawfully
refused to refer Christensen to employer members of Nassau-Suffolk and B.T.
Association and that employer members of Nassau-Suffolk thereupon unlawfully
denied employment to Christensen . This allegation against the Nassau -Suffolk
employers is predicated on the alleged exclusive hiring arrangement . But as such
arrangement with Nassau-Suffolk has not been established , as found above, the
complaint against Nassau-Suffolk accordingly must fall as it does as to Nagle in
this regard . The complaint further alleges that the Union and Nassau-Suffolk also
discriminated against Christensen by operation of the welfare fund.
Christensen began working as an operating engineer in Nassau and Suffolk Coun-
ties in 1952 . He was a permit man and paid weekly permit fees to Respondent
Union from 1952 to 1957 ; Respondent Union referred Christensen to regular engineer
jobs during this period. Christensen became allied with the aforementioned reform
group in July 1957, and in April 1959 Christensen and two other supporters of this
group ( William Wilkens and Thomas Eichacker ) went to Washington and com-
plained to counsel for Respondent Union's International about their failure to
obtain referrals from Respondent Union. Christensen was referred to a job later
that month , and Sofield told Christensen at the time that Christensen would have to
pay a $10 monthly referral fee in order to work. Christensen paid such fees in
May and July 1959.
Christensen has not paid any referral fees to Respondent Union since July 1959
and he was not referred to any jobs by the Union from July 20. 1959 , until at least
September 15, 1960. Christensen filed out-of -work cards in July and September
1959 and on nine occasions during the period from February to August 1960.9
Disnatch Clerk Revere told Christensen in February 1960 that it would do no good
to file out -of-work cards until Christensen paid $ 80 in delinquent permit fees. In
June 1960 , on an occasion when Christensen was seeking employment at the hiring
0 Christensen obtained some employment on his own during this period.
J. J. HAGERTY, INC. 655
hall, Sofield told Christensen that he would get no work until he paid the mentioned
fees and on a similar occasion the next month Sofield ordered Christensen out of
the hiring hall in obscene language and said that "there is no work for the likes of
you."
Christensen applied for certain benefits under the welfare fund in February 1960.
The welfare fund clerk advised Christensen at the time that Christensen's records
"are very vague" in that he was "delinquent $80 in permit fees and referral fees."
Dispatcher Revere was present on this occasion and, holding Christensen's out-of-
work card, Revere said the card "isn't going to do you any good ... without the $80."
The welfare fund requires, for the mentioned benefits, that the beneficiary have
worked 600 hours during a prescribed period, which Christensen apparently had not
done. It is recalled, however, that permit men were not referred to jobs until the
regular union membership list was exhausted.io
Again, in the context of the aforementioned exclusive hiring hall arrangements
with B.T. Association and nonaffiliated employers, the Union had no right under this
Act to require Christensen to pay fees for the privilege of working under the afore-
mentioned referral disability of a permit man. The requirement of fees in such cir-
cumstances is unlawful and the amount of fees was itself discriminatory, and I find
that the Union failed and refused to refer Christensen during the stated period for not
complying with such unlawful requirements.
As also set forth above, the welfare fund was unlawful in its discrimination against
permit men in that, among other things, it worked to the disadvantage of permit men
in requiring a certain number of hours to qualify for benefits thereunder. I further
find, therefore, that the welfare fund and its trustees, as agents of the Nassau-Suffolk
and the Union, violated Section 8(a)(1) and (3) and Section 8(b)(1) (A) and (2)
in discriminatorily depriving Christensen of benefits under the welfare fund and that
the welfare fund and its trustees accordingly also have engaged in the same
violations.
3. Thomas Eichacker
The General Counsel contends that Respondent Union unlawfully refused to refer
Eichacker and that Nassau-Suffolk, under the alleged agreement, thereupon unlaw-
fully refused to hire Eichacker. Here, too, for reasons already mentioned, Nassau-
Suffolk's alleged violation falls insofar as it is premised on an exclusive hiring agree-
ment with the Union.
Eichacker has been employed as an operating engineer for more than 20 years and
has been a member of Respondent Union since 1939. Eichacker became actively
associated in reform group affairs in 1954. Respondent Union did not refer
Eichacker to any jobs from December 10, 1958, until April 27, 1959; the Union re-
ferred Eichacker to a 1-day job on April 27, 1959, to a 2-day job on May 20, 1959,
to four different jobs between May 22 and July 29, 1959, and to no further jobs be-
tween July 29 and October 1959. Although Sofield testified in effect that he did not
refer Eichacker in April 1959 because Eichacker did not have out-of-work cards on
file, the credible testimony establishes that Eichacker did file such cards during ma-
terial periods, and Sofield also otherwise failed to explain why numerous other indi-
viduals were employed during such periods even though they had less seniority than
Eichacker under the Union's own seniority system.
I conclude that Eichacker's reform group activities motivated the Union in refusing
and failing to refer Eichacker during material periods. And I accordingly conclude
that such conduct violated Section 8(b)(1)(A) and (2) to the extent that it affected
7ichacker's job opportunities with B T. Association and unaffiliated employers with
whom the Union had exclusive hiring arrangements.
4. William Wilkens
The complaint alleges that Respondent Union has unlawfully refused to refer
Wilkens to Nassau-Suffolk and B.T. Association since in or about November 1958
and that Nassau-Suffolk has unlawfully denied employment and B.T. Association
also has denied employment to Wilkens pursuant to the aforementioned exclusive
hire contract and arrangement. As in Christensen's case, this similar allegation
against Nassau-Suffolk is unsupported because of the failure to prove the exclusive
hire agreement and/or arrangement.
Wilkens became a member of Respondent Union in 1946 and has worked at his
trade in Nassau and Suffolk Counties for 14 years. Wilkens is a prominent reform
group adherent; he filed charges in prior Board proceedings and has compl-iined to
10 Sofield testified that he did not refer Christensen during material periods because of
Zits relative seniority
656 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent Union's International and testified before the McClellan Senate Rackets.
Committee concerning the DeKoning administration of Respondent Union.
Union Secretary Sofield told Wilkens in December 1958 that Wilkens would have
to go through the union hiring hall in order to obtain employment and that he would
not be able to retain any job he obtained himself. Later that same month Sofield
and Dispatch Clerk Revere in effect also told Wilkens that Wilkens would never again
get a job.
The Union referred Wilkens to several jobs of short duration in April 1959. The
gravamen of the General Counsel's complaint is that the Union did not refer Wilkens
on April 21 and 22, 1959, although Wilkens had out-of-work cards on file on both
dates. The General Counsel refers in this connection to the Union's so-called,
referral book and he contends that this book indicates that at least 14 men were re-
ferred to jobs on those dates even though they had less seniority than Wilkens under
the Union's own referral system. While not free from doubt, I am unable to find a
preponderance of evidence to establish that Respondent Union unlawfully failed or
refused to refer Wilkens to employer members of B.T. Association or to other em-
ployers under exclusive hire arrangements with the Union.
5. Peter Batalias
The General Counsel alleges that Respondent Peterson (member of Nassau-
Suffolk) unlawfully laid off Batalias in December 1958, that the Union thereafter
refused to refer Batalias for employment to employer members of Nassau-Suffolk
or Building Trades, and that such employer members have accordingly failed to re-
employ Batalias Batalias has been an operating engineer since 1938; he worked in
Nassau and Suffolk Counties as a Respondent Union permit man from 1946, and
he became a union member in 1952. Batalias, since 1954, has been a leading spokes-
man for the so-called reform group whose activities are described in the two earlier
proceedings (118 NLRB 174, 123 NLRB 1393), and he testified against the present
DeKoning administration of the Union before various congressional committees,
including the McClellan Senate Rackets Committee.
Batalias was regularly employed on a permanent basis by Respondent Peterson
from 1954 to 1958. In July 1958 Peterson's Superintendent Anthony Constantino
and Peterson's Master Mechanic Louis Wilkins 11 assigned Batalias to a project in
Greenport, Long Island; this project was a joint venture of Peterson and Respondent
Hagerty (also a member of Nassau-Suffolk). Wilkins advised Batalias on Novem-
ber 28, 1958, that Constantino had reassigned Batalias to an Idlewild project and
Wilkins also informed Batalias that the Union had informed Peterson that Batalias
was suspended for nonpayment of dues and was therefore ineligible to continue at
Greenport. The next day, November 29, Wilkins informed Batalias that the Union
was trying to devise some "gimmick" for removing Batalias from the job and
Wilkins also told Batalias that Constantino had directed that Batalias report to Peter-
son's yard on December 1.
When Batalias reported to Peterson's yard on December 1, Constantino told
Batalias that be (Batalias) had been removed from the Greenport job because of his
suspension from the Union for nonpayment of dues and Constantino further in-
formed Batalias that Constantino would pay off Batalias after permitting Batalias
to work a day or two in New Hyde Park. The same day John C. Peterson told
Batalias that the Union was putting pressure on Peterson to get rid of the reform
group 12 and that after January 1, 1959, Peterson would have to get clearance from
Respondent Union before hiring any of the reform group.
The Hyde Park project shut down and Batalias was let go on December 8, 1958.
The Greenport job also closed down for the winter on or about December 22; it
reopened thereafter and continued at least until July 1959. Peterson's payroll records
indicate that 4 of Peterson' s engineers were laid off before Batalias' termination on
December 8 and that 12 others were let go between December 8 and 19.
According to his practice of prepaying union dues, Batalias mailed the Union
in July 1958 a check covering his union dues for the 6-month period ending 1958.
Batalias never received a canceled check and the Union's records carry the nota-
tion that he was suspended from union membership on November 28, 1958. He
was not 'advised of such action at the time. This November 28 date, it is recalled,
was the same day Batalias was removed from ,the Greenport project. On December 3,
1958, Batalias discussed the matter with Union Secretary Sofield, who is in charge
"Wilkins , as master mechanic , was the union-shop steward and also was an employer
supervisor who hired engineering personnel.
12 Until at least December 1958, Peterson had a number of the reform groups in its
employ
J. J. HAGERTY, INC. 657
of the union hiring hall, and Batalias submitted an out-of-work card to Sofield on
December 10. Sofield advised Batalias on this latter occasion that Batahas would
have to be reinstated by the union executive board before Sofield would refer
Batalias to any jobs.
Batalias filed another out-of-work card with the Union on or about December 17,
1958, on which occasion Respondent DeKoning refused to discuss Batahas' sus-
pension with Batalias. That same day Batalias asked Sofield how Batalias would be
reinstated and get work if Sofield would not inform him when he could appear be-
fore the union executive committee. Sofield replied, "That's your headache.
As far as we are concerned, you are never going to get any work out of this union."
Batalias filed out-of-work cards monthly until July 1959, and either Sofield or
Revere (dispatch clerk at the hiring hall) told him each time that he would get no
work because of his suspension. Batalias also sought employment during this
period from Peterson's Superintendent Constantino and Hagerty's Supervisor McGilly
and both men told him that union clearance was necessary before they could hire
him.
The Union referred Batalias to but one job during the period from December
1958 until July 1959; that job lasted only 1 day and the referral was made after
Batalias had complained to the McClellan Committee and to the Union's Inter-
national. Sofield refused Batalias' offer on that occasion to pay the aforementioned
$10 service fee.13
In August 1959, Batalias enlisted in the Army because of his inability to obtain
work. On his discharge in April 1960, he filed an out-of-work card, only to be ad-
vised by Revere that he had lost all seniority in the hiring hall because of his sus-
pension. Batalias continued to file out-of-work cards, and has not received any fur-
ther employment through the Union.
Sofield testified in effect that he had not referred Batalias during material times
here because Batalias had lost his union standing. And when DeKoning was asked
why Batalias had not been referred, DeKoning replied, "That's very questionable.
I couldn't give you the answer."
Mindful of the testimony, much of it varying and inconsistent, concerning Peter-
son's purported reasons for removing Batalias from the Greenport job, I am satisfied
and find that the Union caused Peterson to remove Batalias because of Batalias'
suspension from the Union, there being no lawful union-security contract in effect,
and that the Union caused Peterson not to reemploy Batalias at Greenport when that
job reopened. I find that Batalias did pay his union dues through December 1958,
and that the Respondent Union suspended Batalias because of his reform group
activities and not for dues delinquency. The Union deprived Batalias of his standing
in the hiring hall and it violated Section 8(b) (1) (A) and (2) by refusing and failing
to refer him to B.T. Association and unaffiliated employers having exclusive hiring
arrangements with the Union at all material times here. I find that Peterson violated
Section 8(a)(1) and (3) respecting Batalias at Greenport and that the Union also
has violated Section 8(b)(1)(A) and (2) by causing Peterson not to rehire Batalias
because of his reform group activities.
IV. THE REMEDY
The Board and the Second Circuit Court of Appeals have sustained violations
against the Union under the same sections of the Act as are involved in this case,
and an outstanding court decree would, I presume, apply to the violations found in
this proceeding. Considering the Union's case history before the Board I shall
recommend at the outset that the Board retain continuing jurisdiction over this case
and I further recommend that the Board consider invoking the court's contempt
powers should the Union persist in its unfair labor practices.
The record discloses an exclusive hiring hall predicated and administered upon
flagrantly unlawful bases and the appropriate relief in this situation is to set aside
all hiring hall contracts and arrangements of the Union and to direct the Union
for a period of at least 1 year not to enter into or perform any exclusive hiring con-
tract or arrangement with B.T. Association or with any other employer engaged in
commerce within the Act. I deem a period of 1 year the minimum appropriate pe-
riod for dissipating the effects of the Union's longtime and unlawful hiring hall
arrangements. As there appears to be no other union in the picture to represent
employees covered by the Union's collective-bargaining agreements, I do not desire
to prejudice them by also recommending the ordinarily appropriate order of directing
the Union, until it be certified by the Board, not to maintain or enter into any other
13 Batallas was finally permitted to appear before the union executive committee in
July 1959 Ile advised the committee on that occasion that he did not desire reinstatement.
658 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
contract or arrangement wherein it is accorded recognition as bargaining representa-
tive. However, I shall recommend setting aside all union-security provisions of the
Union's contracts and arrangements and that it be directed not to maintain or
enter into any such union-security agreement or arrangement for a period of at least
1 year. I shall also recommend that the Union, Nassau-Suffolk, welfare fund, and
welfare fund trustees cease administering the welfare fund to grant or withhold
benefits upon considerations of membership or financial or other standing in Re-
spondent Union or its hiring hall or upon other unlawfully disparate classifications.
Nonmembers of the Union have had to maintain their described standing in the
union hiring hall as a condition of referral and therefore as a condition of employ-
aient with B.T. Association and other employers with whom Respondent Union has
exclusive referral agreements. But, as indicated above, this only gave the nonmem-
bers a second rate status in the hall and consequent disabilities under the welfare
fund. While it would be administratively impossible to restore to all nonmembers
he jobs and wages and other benefits they lost as a result of this unlawful hiring
hall system, it is possible to ascertain the amounts each has paid as service or permit
fees. The requirement of a service or permit fee as a condition of employment under
the aforedescribed circumstances is clearly unlawful, and I shall recommend that the
Union be required to make whole all employees or applicants by reimbursing the
amount of service or permit or any other fees each has paid as a nonmember from
the date 6 months before service of the initial charge filed against the Union in this
case. It may be claimed that, as Nassau-Suffolk did not have an exclusive hiring
arrangement with the Union, nonmembers working or who have worked for
Nassau-Suffolk should not be similarly reimbursed. However the Union did not main-
-in separate referral lists for Nassau-Suffolk and B.T. Association and the Nassau-
Suffolk employees also had to maintain the same fees in order to qualify for welfare
fund benefits. I accordingly find that all nonmembers suffered discrimination and
that the permit or service fee has been unlawfully exacted of them as a condition of
employment, at all times since June 18, 1958, which is 6 months before service
of the initial charge herein.
I shall also recommend that the Union and Peterson make whole Batalias for
discriminatory losses incurred on the Greenport job, with Respondent Union primarily
liable,14 and that Respondent Union also make whole Batalias, Christensen, Eichacker,
and Nagle for not referring them to B.T. Association and other employers engaged
in commerce with whom the Union has exclusive hiring arrangements and/or for
otherwise failing to refer Nagle to "138" as distinguished from "138A" jobs. All
backpay computations are to be determined in accordance with F. W. Woolworth
Company, 90 NLRB 289. I shall also recommend, also with Respondent Union
primarily liable, that Respondent Union, Respondent welfare fund, and Respondent
Nassau-Suffolk also make whole Christensen by paying him the amount of welfare
fund benefits unlawfully denied him.
I shall also recommend that Respondent Union be required to publish in Local
138- News the notice herein set forth and also to post and maintain such notice
for 1 year.
CONCLUSIONS OF LAW
1. Nassau-Suffolk and its employer members, including Peterson and Hagerty, are
engaged in commerce within Section 2(6) and (7) of the Act.
2. Building Trades Association and its employer members are engaged in com-
merce within Section 2(6) and (7) of the Act.
3. Welfare fund and trustees DeKoning, Sofield, Douglas, Gunning. Buchanan,
Regnell, Roche, and Switzer are agents for Nassau-Suffolk, Building Trades Associa-
tion, and Respondent Union, and welfare fund is itself engaged in commerce within
the meaning of the Act.
4. Respondent Union is a labor organization within Section 2(5) of the Act.
5. Nassau-Suffolk and welfare fund and its trustees have violated Section 8(a) (1),
(2), and (3) by administering welfare fund to deny benefits to employees, and
specifically to Christensen, on the basis of membership and/or financial standing in
Respondent Union.
6. Peterson violated Section 8(a)(1) and (3) of the Act by removing and there-
after failing to rehire Batalias at the Greenport job because Batalias was not a mem-
ber in good standing in Respondent Union.
7. Respondent Union and welfare fund and its trustees have viol,-tad Section
8(b) (1) (A) and (2) by administering welfare fund to deny benefits to employees,
11 See N L R B. v. Local 138 , International Union of Operating Engineers , AFL-CIO, et
at (Nassau & SuffolL Contractors' Assn.), 293 F 2d 187, 199 (C.A. 2).
INT'L ASSN. OF HEAT AND FROST INSULATORS, ETC. 659
and specifically Christensen , on the basis of membership and/or financial standing
in Respondent Union.
8. Respondent Union has violated Section 8(b)(1)(A ) and (2 ) by the following
additional conduct:
(a) Maintaining with B.T. Association land unaffiliated employers in commerce
within the Act, an exclusive hiring hall arrangement which : provides for conditions
of union security other than dues and initiation fees, thus exceeding the limits per-
mitted by Section 8(a) (3); prefers union members over nonmembers ; prefers union
members with greater union seniority ; requires an unlawful amount of service or
permit fees from nonmembers ; and which was otherwise administered on the basis of
unlawfully disparate classifications.
(b) Refusing , on the basis of reform group activities , to refer Nagle to higher-
paying jobs with B.T. Association and unaffiliated employers in commerce with
whom it has exclusive hiring -arrangements.
(c) Refusing ; on the basis of union standing , to refer Christensen and Eichacker
to jobs with B.T. Association and unaffiliated employers with whom it has exclusive
hiring arrangements.
(d) Causing Peterson , on the basis of union and/or reform group considerations,
to lay off and not recall Batalias on the Greenport job and refusing to refer Batalias
to B.T . Association and unaffiliated employers in commerce with whom it has ex-
clusivehiring arrangements.
9. Respondent Union further violated Section 8 (:b) (4) (A) by threatening not to
refer Nagle , Christensen , and Wilkens to any employer including B.T. Association
and unaffiliated employers in commerce with whom it has exclusive hiring arrange-
ments, for reasons of union membership and/or reform group activities.
10. The foregoing unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and ( 7) of the Act.
[Recommendations omitted from publication.]
International Association of Heat and Frost Insulators and As-
bestos Workers and Local 125, International Association of
Heat and Frost Insulators and Asbestos Workers and Insul-
Coustic Corporation . Case No. 10-CC-486. October 31, 1962
DECISION AND ORDER
On April 3, 1962, Trial Examiner Stanley Gilbert issued his Inter-
mediate Report in the above-entitled proceeding, finding that the
Respondents had engaged in and were engaging in certain unfair
labor practices and recommending that they cease and desist there-
'from and take certain affirmative action, as set forth in the attached
Intermediate Report. Thereafter,. the Respondents 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 Inter-
mediate Report, the exceptions and briefs, and the entire record in
the case, and hereby adopts the findings, conclusions, and recommen-
dations of the Trial Examiner, except insofar as they are inconsistent
with our Decision herein.
1. The Respondents except to the Trial Examiner's findings on the
ground, inter alia, that their sole objective was to obtain adherence
139 NLRB No. 51.
672010-63-vol . 139-43