Joint Council of Teamsters No. 37 and Local No. 501

National Labor Relations Board - Board Decisions

Dec 18, 1958

122 N.L.R.B. 514 (N.L.R.B. 1958)

514 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Local 911, International Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, AFL-CIO, is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. By causing an employer to discriminate against James Keener and Gideon
Parker in violation of Section 8(a)(3) of the Act, Respondent has engaged in
unfair labor practices within the meaning of Section 8(b) (2) of the Act.
4. By the foregoing conduct, Respondent has restrained and coerced employees
in the exercise of the rights guaranteed in Section 7 of the Act, thereby engaging
in unfair labor practices within the meaning of Section 8 (b) (1) (A) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
APPENDIX A
NOTICE TO ALL EMPLOYEES OF NED PUTNAM AND WAND CORPORATION AND TO
ALL MEMBERS OF LOCAL 911, INTERNATIONAL BROTHERHOOD OF TEAMSTERS,
CHAUFFEURS , WAREHOUSEMEN AND HELPERS OF AMERICA , AFL-CIO
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board , and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify you that:
WE WILL NOT cause or attempt to cause Wand Corporation or any other
employer whose operations affect commerce to discriminate against any em-
ployee in violation of Section 8(a)(3) of the Act.
WE WILL NOT restrain or coerce employees in the right to refrain from
engaging in the exercise of the rights guaranteed by Section 7 of the Act,
except to the extent that such right may be affected by an agreement executed
in conformity with Section 8 (a)(3) of the Act.
WE WILL make whole James Keener and Gideon Parker for any loss of
pay suffered as a result of the discrimination against them.
LOCAL 911, INTERNATIONAL BROTHERHOOD OF
TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN
AND HELPERS OF AMERICA, AFL-CIO,
Labor Organization.
Dated------------------- BY-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof, and must not be
altered , defaced , or covered by any other material.
Joint Council of Teamsters No. 37 and Local No. 501, each
affiliated with International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen, and Helpers of America and Warren Z.
Payne and Locals Nos. 162, 58 , 900, 569, 324, 321, 962, 911, 883,
57, 689, each affiliated with Joint Council No . 37 and Inter-
national Brotherhood of Teamsters , Chauffeurs , Warehouse-
men, and Helpers of America , and Portland Home Builders
Association , Inc., Parties to the Contract. Case No. 36-CB-141.
December 18, 1958
DECISION AND ORDER
On October 7, 1957, Trial Examiner James R. Hemingway issued
his Intermediate Report in the above-entitled proceeding finding
122 NLRB No. 72.
JOINT COUNCIL OF TEAMSTERS NO. 37 AND LOCAL NO. 501 515
that the Respondents had engaged in and were engaging in certain
unfair labor practices and recommending that they cease and desist
therefrom and take certain affirmative action, as set forth in the
copy of the Intermediate Report attached hereto. The Trial Ex-
aminer also found that the Respondents had not engaged in certain
other unfair labor practices and recommended that the complaint
be dismissed with respect thereto. Thereafter, the General Counsel
and the Respondents filed exceptions to the Intermediate Report
and supporting briefs.
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the
Intermediate Report, the exceptions and briefs, and the entire record
in the case,' and hereby adopts the findings, conclusions, and recom-
mendations2 of the Trial Examiner with the following addition.
The collective-bargaining contract between the Respondents and
the Portland Chapter of Associated General Contractors of Amer-
ica, Inc. (Heavy and Highway Chapter) contains a hiring-hall
clause. In the recent Mountain Pacific case,3 the Board declared
that such a provision is unlawful unless it explicitly provides that:
(1) Selection of applicants for referral to jobs shall be on
a nondiscriminatory basis and shall not be based on, or in any
way affected by, union membership, bylaws, rules, regulations,
constitutional provisions, or any other aspect or obligation of
union membership, policies, or requirements.
(2) The employer retains the right to reject any job applicant
referred by the union.
(3) The parties to the agreement post in places where notices
to employees and applicants for employment are customarily
posted, all provisions relating to the functioning of the hiring
arrangement, .. .
The hiring clause in question does not contain the foregoing safe-
guards, which the Board deems necessary to rebut the inference
that the hiring hall encourages membership in the Union. Ac-
cordingly, we find that by entering into and maintaining in effect
the hiring provisions of their collective-bargaining contract, and by
their hiring practice pursuant thereto, the Respondent Unions vio-
lated Section 8(b) (2) and (1) (A) of the Act.
i Respondents ' request for oral argument is denied because the record, exceptions, and
the briefs adequately represent the issues and the positions of the parties.
2 The complaint alleged that the Respondents violated Section 8 ( b) (2) and (1) (A) of
the Act with respect to the Charging Party, Warren Z. Payne. The Trial Examiner found
no violation and recommended dismissal of the complaint with respect to Payne. As no
exceptions were taken to this finding and recommendation we adopt them pro forma.
3 Mountain Pacific Chapter of The Associated General Contractors , Inc., et al., 119
NLRB 883, 897.
516 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
THE REMEDY
Having found that the Respondents have violated the Act, we
shall order that they cease and desist therefrom and take certain
affirmative action in order to effectuate the policies of the Act.
By the illegal union-security and hiring-hall provisions in their
contract with the Portland Chapter of Associated General Con-
tractors of America, Inc. (Heavy and Highway Chapter) and by
their unlawful hiring practices pursuant thereto the Respondents
have in effect maintained a closed shop. Thereby they have in-
evitably coerced employees and applicants for employment to pay
union initiation fees and dues. We believe it would not effectuate the
policies of the Act to permit the retention of these union initiation
fees, dues, and all other moneys which have been unlawfully ex-
acted from employees of J. A. Jones Construction Company and
Charles H. Tompkins Company, a joint venture, doing business as
Jones-Tompkins (Swift Creek Dam project), the Company herein
involved. As part of the remedy, therefore, we shall order the
Respondents jointly and severally to refund to the employees of
Jones-Tompkins the initiation fees, dues, and all other moneys
unlawfully exacted from them as the price for their employment,
the period of liability for reimbursement to begin 6 months prior
to the filing and service of the charges herein and extending to all
such moneys thereafter collected.4
ORDER
Upon the entire record in this case, and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondents, Joint Council
of Teamsters No. 37, and Local No. 501, each affiliated with Inter-
national Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, their officers, representatives, and agents, shall:
a. Cease and desist from :
(1) Performing, maintaining, or otherwise giving effect to pro-
visions of any agreement with Portland Chapter of Associated
General Contractors of America, Inc. (Heavy and Highway Chap-
ter), or with any other employer within the meaning of the Act,
which unlawfully condition the hire of applicants for employment,
or the retention of employees in employment with any employer,
upon clearance or approval by the Respondent Unions, except as
authorized by the proviso to Section 8(a) (3) of the Act.
4 See United Association of Journeymen & Apprentices of the Plumbing & Pipefitting
Industry of the United States and Canada , Local 231 , AFL-CIO ( J. S. Brown-E. T. Olds,
Plumbing & Heating Corporation), 115 NLRB 594; Los Angeles-Seattle Motor Express
Incorporated, 121 NLRB 1629.
JOINT COUNCIL OF TEAMSTERS NO. 37 AND LOCAL NO. 501 517
(2) Performing, maintaining, or otherwise giving effect to pro-
visions of any agreement with Portland Chapter of the Associated
General Contractors of America, Inc. (Heavy and Highway Chap-
ter), or any other employer within the meaning of the Act, which
require employees to wear the work buttons of their local unions,
permit employers to requisition only union workmen through the
State and Federal Employment Service, permit the Respondent
Unions to discipline its members by removal from the job for
violation of the Respondents' constitution, bylaws, and working
rules, and require all except one employee in each departmental
storeroom or warehouse to belong to the Respondent Unions.
(3) Engaging in the practice, while administering the terms of
any agreement or arrangement for an exclusive hiring hall, of giving
preferential dispatches to members of Local No. 501 over nonunion
applicants or applicants who are members of other labor organ-
izations.
(4) Causing or attempting to cause Portland Chapter of Asso-
ciated General Contractors of America, Inc. (Heavy and Highway
Chapter), or any other employer within the meaning of the Act,
to discriminate against any employees or applicants for employment
in violation of Section 8 (a) (3) of the Act.
(5) In any like or related manner restraining or coercing em-
ployees in the exercise of the rights guaranteed in Section 7 of the
Act, except as permitted by Section 8(a.) (3) of the Act.
b. Take the following affirmative action, which the Board finds
will effectuate the policies of the Act :
(1) Jointly and severally reimburse all employees of J. A. Jones
Construction Company and Charles E. Tompkins Company, a joint
venture doing business as Jones-Tompkins (Swift Creek Dam
project) for moneys illegally exacted from them in the manner and
to the extent set forth in the section herein entitled "The Remedy."
(2) Post at their business offices and meeting halls, in conspicu-
ous places, including all places where notices to members or ap-
plicants for employment are customarily posted, copies of the notice
attached hereto marked "Appendix A."5 Copies of said notice to be
furnished by the Regional Director for the Nineteenth Region, shall,
after being duly signed by representatives of the Respondent Unions,
be posted by them immediately upon receipt thereof and main-
tained by them for sixty (60) consecutive days thereafter. Rea-
sonable steps shall be taken by them to insure that said notices
are not altered, defaced, or covered by any other material.
6 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."
518 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(3) Mail signed copies of Appendix A to the Regional Director
for the Nineteenth Region for posting at the offices of Portland
Chapter of Associated General Contractors of America, Inc. (Heavy
and Highway Chapter), and its members companies, the companies;
willing, for sixty (60) consecutive days in places where notices to,
employees are customarily posted. Copies of the notice to be
furnished by the Regional Director for the Nineteenth Region,.
shall be returned forthwith to the Regional Director after they
have been signed by official representatives of the Respondent Unions
for such posting.
(4) Notify the Regional Director for the Nineteenth Region in
writing, within ten (10) days from the date of this Order, what
steps they have taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be, and it hereby is,
dismissed, insofar as it alleged that the Respondent Unions caused
Jones-Tompkins to discriminate against Warren Z. Payne in viola-
tion of Section 8(b) (2) and (1) (A) of the Act.
APPENDIX A
NOTICE TO ALL MEMBERS OF JOINT COUNCIL OF TEAMSTERS No. 37
AND LOCAL No. 501, EACH AFFILIATED WITII INTERNATIONAL
BROTHERHOOD OF TEAMSTER, CHAUFFEURS , WAREHOUSEMEN AND,
HELPERS OF AMERICA , AND TO ALL EMPLOYEES AND APPLICANT&
FOR EMPLOYMENT
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 our members and all
employees and applicants for employment that:
WE WILL NOT perform, maintain, or otherwise give effect to
provisions of any agreement with Portland Chapter of Asso-
ciated General Contractors of America, Inc. (Heavy and High-
way Chapter), or with any other employer within the meaning
of the Act, which unlawfully condition the hire of applicants
for employment, or the retention of employees in employment
with any employer, upon clearance or approval by any labor
organization, except as authorized by Section 8(a) (3) of the Act.
WE WILL NOT perform, maintain, or otherwise give effect to
the provisions of any agreement with Portland Chapter of
Associated General Contractors of America, Inc. (Heavy and
Highway Chapter), or any other employer within the meaning
of the Act, which require employees to wear the work buttons
of their local unions, permit employers to requisition only union
workmen through the State and Federal Employment Service,
JOINT COUNCIL OF TEAMSTERS NO. 37 AND LOCAL NO. 501 519
permit us to discipline our members by removal from the job
for violation of our constitution, bylaws, and working rules, and
require all except one employee in each department storeroom or
warehouse to belong to our organizations.
WE WILL NOT engage in the practice, while administering the
terms of any agreement or arrangement for an exclusive hiring
hall, of giving preferential dispatches to members of Local
No. 501 over nonunion applicants or applicants who are members
of other labor organizations.
WE WILL NOT cause or attempt to cause Portland Chapter of
Associated General Contractors of America, Inc. (Heavy and
Highway Chapter) or any other employer within the meaning
of the Act to discriminate against any employees or applicants
for employment in violation of Section 8(a) (3) of the Act.
WE WILL NOT in any like or related manner restrain or coerce
employees in the exercise of the rights guaranteed in Section 7
of the Act except in the manner permitted in Section 8(a) (3)
of the Act.
WE WILL reimburse the employees of J. A. Jones Construction
Company and Charles H. Tompkins Company, a joint venture
d/b/a Jones-Tompkins (Swift Creek Dam Project) for initia-
tion fees, dues, and all other moneys which they were illegally
required to pay to Local No. 501, affiliated with International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, as a result of the unlawful union-security
and hiring-hall provisions in our contract with Portland Chapter
of Associated General Contractors of America, Inc. (Heavy
and Highway Chapter) and the unlawful hiring practices pur-
suant thereto.
JOINT COUNCIL OF TEAMSTERS No. 37 AFFILI-
ATED WITH THE INTERNATIONAL BROTHER-
HOOD OF TEAMSTERS, CHAUFFEURS, WARE-
HOUSEMEN AND HELPERS OF AMERICA,
Union.
Dated---------------- By-------------------------------------
(Representative ) (Title)
LOCAL No. 501, INTERNATIONAL BROTHERHOOD
OF TEAMSTERS, CHAUFFEURS, WAREHOUSE-
MEN AND HELPERS OF AMERICA, AFL-CIO,
Labor Organization.
Dated---------------- By-------------------------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof,
and. must not be altered, defaced, or covered by any other material.
520 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
This case was initiated by a charge filed on November 8, 1956, and an amended
charge filed on February 5, 1957, by Warren Z. Payne, an individual, charging
violations of Section 8(b)(1)(A) and (2) of the Act. The complaint, duly issued
on June 25, 1957, originally was a consolidated complaint naming as parties Port-
land Chapter, Associated General Contractors of America, Inc. (Heavy and High-
way Chapter), and J. A. Jones Construction Company and Charles H. Tompkins
Company, a joint venture doing business as Jones-Tompkins, in addition to Joint
Council of Teamsters No. 37 and Local No. 501 (each affiliated with International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America,
AFL-CIO), herein jointly called the Respondents, but separately called Joint Coun-
cil 37 and Local 501. However, the CA complaint was severed at the opening of
the hearing and the case proceeded solely on the charges filed in the CB case.
In substance the complaint alleges that the Respondents entered into a certain
agreement with the Portland Chapter, Associated General Contractors of America,
Inc., herein called AGC, and J. A. Jones Construction Company and Charles H.
Tompkins Company, a joint venture doing business as Jones-Tompkins, containing
illegal provisions and maintained such agreement in effect, following practices in
observance of the terms of contract, and that on or about November 7, 1956, the
Respondents caused Jones-Tompkins to discriminate against Warren Z. Payne in
violation of Section 8(b)(1)(A) and (2) of the National Labor Relations Act, 61
Stat. 136, herein called the Act. An answer was filed on July 15, 1957, on behalf
of certain labor organizations who were not made respondents but who were named
as parties to the contract. By motion granted at the hearing, this answer was
permitted to stand as an answer for the Respondents as well.
After admitting and denying certain allegations of the complaint, the Respond-
ents' answer alleged that: prior to November 5, 1956, representatives of the Re-
spondents and the employers involved entered into an agreement at a prejob con-
ference by which the parties agreed that experienced employees of Guy F. Atkinson
Company, which had just completed a contract at the Swift Dam in the State of
Washington, should be preferentially dispatched to employers herein known as
Jones-Tompkins, who were just commencing work as successors to the said Atkin-
son Company; because of this agreement, Warren Z. Payne was denied employ-
ment by Jones-Tompkins and was not dispatched by Respondent Local 501 on
November 7, 1956, because employees of said Atkinson Company on the project
were then waiting for employment with Jones-Tompkins; Payne was dispatched by
Respondent Local 501 to said Atkinson Company on another project on or about
November 27, 1956, and continued in the employ of said Atkinson Company until
the latter part of December 1956; he was again dispatched to said Atkinson on
another project on January 18, 1957, and continued in this employment until March
26, 1957; and on March 28, 1957, in response to a requisition from Jones-Tompkins
the Respondent Local 501 dispatched Payne to said Jones-Tompkins at a time when
all the former Atkinson employees available for dispatch had been reemployed.
Pursuant to notice, a hearing was held before the Trial Examiner between July
23 and 26, both inclusive, at Portland, Oregon. At the opening of the hearing,
the General Counsel introduced into evidence a settlement stipulation entered into
on July 22, 1957, by the parties to the CA case and then moved for a severance of
that case. This motion was granted over opposition of the Respondents in the
CB case, and the latter, upon request, were given time to file a direct appeal to
the Board of the ruling. The hearing then proceeded by consent of the Respond-
ents pending receipt of ruling by the Board. On July 25, 1957, the Board denied
permission to the Respondents to appeal from the ruling severing the cases, with-
out prejudice, however, to their right to raise such issue in exceptions and briefs
subsequently filed with the Board. During the hearing, the Respondents made a
motion to strike the testimony of Warren Payne because, at one point, he refused
to answer a question on cross-examination which had not been objected to. I took
the motion under advisement. Later, Payne did answer the question and subjected
himself to all proper questions on cross-examination. I failed thereafter to rule
on the motion during the hearing. Having considered the matter, I now deny the
motion. At the close of the hearing the parties requested time in which to file
briefs with the Trial Examiner and such time was granted and later was extended
to September 16, 1957. On the latter date such briefs were received and have been
considered.
JOINT COUNCIL OF TEAMSTERS NO. 37 AND LOCAL NO. 501 521
Upon the entire record in the case, and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYERS INVOLVED
A. AGC
Portland Chapter, Associated General Contractors of America (Heavy and High-
way Chapter), and Portland Chapter Associated General Contractors of America,
Building Division, both herein called AGC, are associations of employers engaged
in construction work as contractors having their principal places of business in Ore-
gon and Southwestern Washington. Employer members of AGC, by virtue of their
membership therein, designated and authorized AGC as their agent to negotiate
collective-bargaining agreements with labor organizations formed among employees
in the building trades. Such collective-bargaining agreements prescribe the wages,
hours, and working conditions which are observed by the employer members of
AGC. Among the employers that comprise the membership of AGC there are
individual local contractors who annually perform construction work valued in
excess of $100,000 for business enterprises that annually produce and ship goods
valued in excess of $100,000 or perform services valued in excess of $100,000,
which goods are delivered or services are performed at places outside the State in
which each said business enterprise is located. In addition there are individual
contractors who annually perform construction work valued in excess of $100,000
at locations outside the State in which they have their respective places of business.
Also among the members there are individual contractors who annually perform
services for the Government of the United States relating directly to the national
defense valued in excess of $100,000. The value of construction in each of the
categories mentioned above performed annually by the constituent members of
AGC, exceeds $10,000,000. AGC in negotiating and executing the agreements
adopted on behalf of its members is conceded to be an agent of said employer mem-
bers and therefore is an employer within the meaning of Section 2(2) of the Act.
Jurisdiction of the Board is not contested.
B. Jones-Tompkins
J. A. Jones Construction Company, a North Carolina corporation, and Charles
H. Tompkins Company, a District of Columbia corporation, are engaged in a joint
venture doing business as Jones-Tompkins in the performance of a construction
contract in Washington, performance of which was commenced about November 7,
1956, and which is expected to be in performance for about 1 year. The con-
struction contract is valued in excess of $18,000,000. This contract involves work
in construction of the Swift Creek Dam near Cougar, Washington, for the Pacific
Power & Light Company. Since about October 22, 1956, Jones-Tompkins has been
a member of AGC and has concededly come under the terms of the AGC contract.
II. THE LABOR ORGANIZATION INVOLVED
Joint Council 37 has its office in Portland, Oregon, and is comprised of local
unions operating in Oregon and in Southwestern Washington which are affiliated
with International Brotherhood of Teamsters, Chauffeurs, Warehousemen, and Help-
ers of America, AFL-CIO. One of such affiliated locals is Respondent Local 501,
which has its principal office in Vancouver, Washington. Joint Council 37 and its
constituent local unions, including Local 501, function as the collective-bargaining
representative of certain employees in the construction industry respecting their
wages, hours, and working conditions, and are labor organizations within the mean-
ing of Section 2(5) of the Act.
Additional local unions which are affiliated with the said Joint Council and which
are parties to the contract involved but are not respondents herein, are Locals Nos.
162, 58, 900, 569, 324, 321, 962, 911, 883, 57, and 689.
III. THE UNFAIR LABOR PRACTICES
A. The contract provisions
AGC on behalf of itself and its members and Joint Council 37, together with
certain other parties previously mentioned, are signatories to a collective-bargaining
agreement dated February 14, 1955, effective on January 1, 1955, for a period of
3 years. Both Jones-Tompkins and Local 501 are bound by the terms thereof.
With one exception hereinafter mentioned, this agreement has been continued in
522 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
effect at all times since its execution . Among other provisions , this agreement con-
tains the following:
ARTICLE V
Hiring of Men
SECTION 1.(a) The hiring of workmen and the discharging of employees
upon the request of the Union shall be in accordance with the Labor Man-
agement Relations Act of 1947 , as amended.
(b) There shall be no discrimination by the Contractor or the Union in the
hiring or discharging of workmen which would be in conflict with or violation
of any State or Federal laws, and any requirements as to membership or non-
membership in any Union shall be in accordance with the Labor Management
Relations Act of 1947, as amended.
(c) The Contractor will notify the Union of his need for workmen at least
forty-eight (48) hours before the workmen are needed on the job, if possible.
The Union will furnish an adequate supply of workmen at the classifications
and rates , and under the terms specified herein, when and as requested by the
Contractor if such workmen are available.
SEC. 2. In the event the Union shall qualify and procure necessary author-
ity as required by Section 8(a)(3) of the National Labor Relations Act, as
amended, then upon such qualification and procurement of authority , the fol-
lowing provisions shall become effective:
All workmen employed by the Contractor to perform work within the prop-
erly determined craft jurisdiction of the respective Union, shall become mem-
bers of the Union after the 31st day , or immediately thereafter , following the
beginning of their respective employment , and shall thereafter maintain mem-
bership in good standing in the Union as a condition of employment. The
removal and replacement of any workmon [sic] upon prior written notice to the
contractor shall not interrupt or interfere with the progress of the work.
SEC. 3. In the event the Labor Management Relations Act of 1947, as
amended, should be further amended or repealed to the extent that subsequent
laws and governmental regulations would permit , the foregoing Sections 1 and
2 shall become inoperative and the following two paragraphs (a) and (b) shall
be substituted therefore [sic]:
(a) All men hired for work covered by this Agreement shall be members of
a Local Union signatory to this Agreement , affiliated with the International
and who remain affiliated with the Building and Construction Trades Depart-
ment of the American Federation of Labor, and shall be cleared through the
state employment service, except when hired under the following circumstances:
(b) If, after the Contractor has placed orders for men with the Union and
said Union shall fail to supply competent men within forty-eight (48) hours of
the filing of such application orally or otherwise, the Contractor shall be free
to hire the necessary workers where and when he chooses without regard to
Union membership , provided however, that such non-union men employed by
the Contractor shall apply for membership in the Union when solicited by the
representative of the Union . If such non -union employee refuses to join the
Union, or for reasons of ineligibility be rejected by the Union , the Contractor
agrees not to keep such non-union men on the work longer than necessary to
complete a shift, provided , however, that either the Contractor or the Union
have available competent workman or workmen to replace the non-union man
or men in question without interrupting the progress of the work.
SEC. 4. (a) This Agreement shall not apply to men hired or employed as
general superintendents, superintendents , general foremen, master mechanics,
timekeepers , clerks, messenger boys, watchmen , guards, confidential employees
or as office help generally, or their transportation.
(b) When hired as apprentices they shall be hired through the Union under
the rules governing apprenticeship by the Local Union having jurisdiction over
the work.'
SEC. 5. The Contractor shall have the right to interview men on the job
prior to their employment and shall be the judge of their competency. When
applicants dispatched by the Union are judged by the Contractor to be in-
competent for the work to be performed , the Contractor shall so advise the
Union . The Contractor shall have entire freedom of selectivity in hiring and
.1
This subsection is ambiguous. It appears to refer to those mentioned in subsec-
tion ( a), but it appears unlikely that such persons would be hired as apprentices.
Probably this should be read : "When apprentices are hired , they shall be hired . . ." etc.
JOINT COUNCIL OF TEAMSTERS NO. 37 AND LOCAL NO. 501 523
discharging. Men ordered by the Contractor who are judged competent by the
Contractor, but who are not put to work shall be compensated to the extent
of the reporting time of two (2) hours pay at the regular straight time rate
plus transportation to and from the job. All employees shall be requisitioned
through the Union having jurisdiction over the work; provided however, that
the Contractor shall have the right to requisition all Union workmen through
the State and Federal Employment Service, when the contract so specifies.
Note: For provisions governing regular Reporting Pay and Minimum Pay, see
Article X.
SEC. 6. Subject to any provisions of this Agreement , or any Conference
Board decisions , which might in any way affect the work jurisdiction of a
Craft Union signatory hereto, the Contractor agrees that he will cooperate
with said Union to maintain the work jurisdiction as established by the Build-
ing and Construction Trades Department of the American Federation of Labor.
ARTICLE VI
Union Membership and Dues
The Union assumes all obligations for the continued membership of its mem-
bers and the collection of their dues , and the Union shall retain the right to
discipline its members at all times , even unto removal from the job for viola-
tion of the Constitution, By-Laws, and Working Rules, provided, however,
there shall be no stoppages of work while removal and replacement of men
of like qualifications and satisfactory to the Contractor are being affected.
The provisions of Article VI regarding removal of members from the job,
shall be inoperative to the extent they may be prohibited by law.
ARTICLE XIII
Strikes and Lockouts Barred
Any violation by the Union of the preceding paragraph [no strike clause]
shall be sufficient cause and justification for the Contractor to hire any em-
ployees from any source without any restriction whatsoever, without the Con-
tractor being deemed in violation of this Agreement.
ARTICLE XIV
Posting
The Contractor agreed to post a complete copy of this Agreement on his
work and the Union will post a sign of the American Federation of Labor.
Workmen will be expected at all times to wear the work button of their
Local Union prominently displayed on their persons.
In addition to the foregoing provisions, under Schedule "A," Wage Scales-1956
& 1957, there are found these provisions:
The Contractor shall be allowed one (1) man for each shift in each designated
storeroom or warehouse who may be classified by the Contractor as a confi-
dential employee and who shall not be required to belong to the Union. All
other employees who actually handle materials or parts in such storerooms or
warehouses shall belong to the Union.
OWNER DRIVERS ALL TYPES OF TRUCKS
The owner of a truck may drive one shift of not over eight (8) hours per
day, he shall be or become a member of the Union; provided, that if a truck
is owned by more than one (1 ) person, only one (1 ) of the owners may drive
one (1) shift of eight (8) hours in a day. The owner-driver shall be paid the
Union scale for labor as designated for the type and size of truck, and for any
additional shifts per day the owner will employ Union drivers.
Certain of the foregoing provisions appear on their face to be illegal. Depending
on the manner in which the provisions of the contract are carried out, certain of
them potentially contain elements of illegality. These will be dealt with separately.
In general , the tone of the agreement appears to set the stage for closed-shop
conditions.
524 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Respondents apparently concede the illegality of only one provision-article
VI above quoted-but with respect to that provision the Respondents contend that
it was rescinded on April 9, 1956, more than 6 months before the filing of the
charge, and has not relevance here. There was introduced in evidence by the Re-
spondents a photostatic copy of a carbon copy of a letter reading as follows:
Mr. MARK HOLMES, Representative
Joint Council of Teamsters No. 37,
1020 N.E. Third Avenue,
Portland, Oregon.
APRIL 9, 1956.
DEAR MR. HOLMES: It has come to our attention that the following provi-
sion contained in Article VI of our 1955-1956-1957 Agreement is in violation
of the law. Therefore, it is our intention to consider it as no longer being of
further force and effect.
.. and the Union shall retain the right to discipline its members at all
times, even unto removal from the job for violation of the Constitution,
By-Laws and Work Rules...."
Your cooperation in concurring with the contents of this letter in writing,
we feel will be of benefit in eliminating further action being taken by the
N.L.R.B.2
Very truly yours,
AHH:jj
cc: Portland Chapter, Bldg. Div., AGC
Portland Home Builders Assn., Inc.
PORTLAND CHAPTER,
ASSOCIATED GENERAL CONTRACTORS,
A. H. HARDING, Manager.
Mr. Hugh L. Barzee, Legal Counsel
Holmes, the addressee of the letter, testified that after receipt of the letter, he tele-
phoned to the writer of the letter and said that "we had no intention of working
any such rule as was implied there because it was contrary to law, and that we
would straighten it out in our next negotiations. We would delete it from the
contract."
The note at the foot of the letter suggests that copies were sent to the parties
there shown, but there is no evidence that they were in fact sent. Furthermore, for
all that appears, neither the constituent locals of Joint Counsel 37 nor the mem-
bers of AGC were notified of the rescission of article VI of the contract. From
Holmes' testimony it would appear that the contract was to remain without change
(although article VI was not given effect) until the end of 1957 when a new con-
tract would be negotiated; so article VI has never been effectively deleted from the
current contract. Counsel for the Respondents must have appreciated the fact that
the illegality had not been effectively remedied by the foregoing letter and telephone
conversation, for, at the hearing, he offered, on behalf of the Respondents, to post
the "usual notices" to the effect that "that language is ineffective and of no account."
This offer I deem insufficient to effectuate the policies of the Act. The general
language in the last paragraph of article VI, above quoted (purporting to make "the
provisions . . . regarding removal of members from the job ... inoperative to the
extent they may be prohibited by law") does not remove the coercive effect of such
provision which is not limited in operation to businesses not affecting interstate
commerce.3 It may be argued that the language here differs from that in the Shuck
case in that the contract language in that case was to be deemed operative until
"held" illegal, whereas, by the contract at hand, the provisions were made "inopera-
tive to the extent they may be prohibited by law." This language could embrace
present illegality without reference to judicial ruling as well as illegality pronounced
after the contract was made. But to the extent that the language was intended to
exclude operations affecting interstate commerce, it is too vague and indefinite; and
insofar as it purports to make the language inoperative in cases of existing, but
unpronounced illegality, it is a poor choice of language to thrust upon laymen who
S The addressee of the letter testified that he had received the original of the exhibit
but he did not testify as to when he had received It. That the year-date of the letter
might be an error and that the letter may actually have been written in April 1957 is
suggested by the last paragraph of the letter.
BN.L.R.B. v. E. F. Shuck Construction Co., Inc., 243 F. 2d 519 (C.A. 9) and cases
there cited.
JOINT COUNCIL OF TEAMSTERS NO. 37 AND LOCAL NO. 501 525
cannot be expected to know when the language would, and when it would not be
operative . Such language is ineffective to avoid illegality in the contract .4 Con-
tracts which fail to specify situations to which illegal language is not to apply, when
entrusted to administration and enforcement by those unversed in the law, cannot
be expected to be confined in operation within legal limits. Coming as it does in
a separate article from article V, the illegal language of article VI is not clearly
limited by the language of article V, section 1, but even if a court might construe
it to be so limited, it is unlikely that a layman would know the provisions of the
Act and, as a saving clause , the language in article V is no more effective than that
in Article VI. I find, therefore, that wholly apart from enforcement or nonenforce-
ment of article VI, the presence of the language in the contract and the failure
properly to give notice of deletion produce a coercive effect contrary to the pro-
visions of Section 8(b)(1)(A) of the Act.5 However, in the absence of any evi-
dence that within the 6-month period before the filing of the charge the Respondents
sought to enforce the provisions of article VI of the contract, I make no finding
that the Respondents by maintaining article VI undeleted in the contract, violated
Section 8(b)(2) of the Act.6
Counsel for the General Counsel, at the hearing, called attention to certain lan-
guage in the preamble to the 1955-57 contract reading as follows:
The terns and conditions of the Labor Agreement between the Portland Chap-
ter, the Associated General Contractors of America, Inc. and the Joint Council
of Teamsters No. 37, originally represented by the Allied Heavy Construction
and Highway Crafts, executed in the year 1938 and subsequently adopted and
extended during the years thereafter to date, are hereby adopted and further
extended for the years of 1955, 1956 and 1957, as a separate agreement be-
tween the parties mentioned in the paragraphs above subject to the addition of
clarifying language and changes in classifications and wage rates as described in
the schedules attached hereto for the year 1955.
The suggestion is that closed-shop provisions for the 1938 contract were perpetuated
by this language in the current contract without specific mention of the closed shop.
It is conceded that before the Act, the Respondent Joint Council 37 had a closed-
shop contract . No copy of the 1938 contract could be found, however, to ascer-
tain the language or to deduce the reason for inclusion of the quoted language in
the current agreement, and no one seemed to have any clear recollection of the
reason for inclusion of such language . I am not satisfied that such reasons as were
suggested at the hearing were the correct ones. It appears likely that the language
of the preamble was, for years , copied into succeeding contracts and that it was
so copied into the current contract with no thought of the reason therefor or the
effect thereof . However, even if at one time the purpose of such language in the
preamble was to perpetuate the closed-shop provisions of the 1938 contract, I con-
clude that this would not be the legal effect with respect to the current contract
because the closed -shop provisions of earlier contracts would be inconsistent with
the current contract provisions of article V for a union shop, quoted above, and, as
the later expression of intention , the language of the latter would override any
former inconsistent provisions . Furthermore , the current contract contains a clause
expressly stating that it supersedes any existing agreement between the parties with
respect to any work covered by the current agreement. Counsel for the General
Counsel does not appear to have followed up this implied contention of illegality
in his brief, and I presume it to be dropped . In any event , I doubt that parties
to the contract or employees would necessarily interpret the preamble as calling for
a closed shop. I find such language, therefore, to be superfluous verbiage, of no
force or effect.
Other apparent carry-overs from the old closed-shop contract are less excusable.
Article XIV requires all workmen, apparently without respect to membership or the
31-day period provided for in article V, section 2, to wear union buttons. There
is no evidence of enforcement of this provision within the 31-day period provided
for acquiring membership , but, again , its presence in the contract without limiting
it to employees who work for employers not engaged in commerce within the mean-
ing of Section 2(6) and (7) of the Act and without limitation as to time when mem-
bership is required under article V, section 2, of the contract , to the extent that
the language has been maintained in the contract within a period of 6 months prior
to the filing of the charge, restrains and coerces employees in the exercise of the
4 See Jandel Furs, 100 NLRB 1390.
5Bell Aircraft Corporation, 105 NLRB 755.
6 Port Chester Electrical Construction Corporation , 97 NLRB 354.
526 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
rights guaranteed in Section 7 of the Act and constitutes a violation of Section
8(b)(1)(A) of the Act.7
The extracts quoted above, from schedule "A" wage scales-1956 and 1957, at-
tached to the contract and made a part thereof by article VIII, contain language
which requires certain employees to be union members, apparently without any
grace period. In my opinion this language is not rendered innocuous by the fact
that article V, section 1(a) of the contract provides that the hiring of workmen "shall
be in accordance with the Labor Management Relations Act of 1947, as amended."
It is not to be expected that employees or prospective employees reading the copy
of the contract posted in accordance with article XIV of the contract would know
enough about the law to interpret the language of schedule "A" as requiring mem-
bership in "the Union" only after 30 days from the date of hire. I find, therefore,
that without regard to how these provisions are enforced, the language restrains
and coerces employees in violation of Section 8(b)(1)(A) of the Act and attempts to
cause employers to discriminate against employees in violation of Section 8(a)(3)
of the Act, thus violating Section 8(b)(2) of the Act.
The current contract requires contractors to requisition all employees "through the
Union having jurisdiction of the work," thus providing for an exclusive hiring hall.
The only major exception to this (as the contract stands, with article V, section 3
inoperative) is the right of the contractor "to requisition all Union workmen through
the State and Federal Employment Service, where the contract [i.e., the public con-
tract] so specifies," and to hire independently if the union is unable to furnish work-
men within 48 hours after requisition. As no exception is made with respect to
nonunion workmen, they presumably could not be requisitioned through the said
employment service but would have to be requisitioned, if at all, through the union
having jurisdiction of the work. Thus, this clause also violates the same sections
of the Act to the extent that, in operations affecting commerce within the meaning
of the Act, employers are permitted to requisition through employment services
only union members. Provisions regarding the employer's "freedom of selectivity"
of employees will be discussed below.
Article V, section 2, provides for a union shop "in the event the Union shall
qualify and procure necessary authority as required by Section 8(a)(3) of the Na-
tional Labor Relations Act, as amended. . . Compliance with the requirements
of the Act is not questioned by the General Counsel. Nor did counsel raise any
question of illegality because of the fact that the contract does not, on its face,
provide any grace period following the making of the contract, although 31 days'
grace is given from date of hire.
B. Administration of the hiring-hall agreement
In the operation of its hiring hall, Local 501 maintains a number of records.
What it calls the "qualifications" of members (a term that I infer is used in the
sense of ability to operate a certain type or certain types of vehicles and does not
imply a particular degree of skill, a kind of information that the dispatcher would
not be likely to possess) it keeps on file cards. When anyone other than a member,
whether a member of a sister local or a member of no related union, seeks em-
ployment through Local 501, it first interviews him. In this interview, a record of
which is usually kept in a notebook file, Local 501 may learn something about the
man's union membership,8 his qualifications, his preferences as to job, hours, and
the like .9 At this interview, which is conducted by the dispatcher, the job hunter
is told to "check back" at least once a week. No effort is made after this interview
to refer the job hunter to a job before he comes in again to sign the open roster
or, if he is out of town, before he checks back by telephoning in or writing a letter
or card. The open roster is available for anyone to sign when he appears in person,
whether or not he is a member. This list is used principally to fill day-to-day jobs
(particularly with the transfer companies) although it may be used also to select men
for lengthier jobs. A third list (besides the register and open roster) is a list of
7 Cf. Graber Dlannfacturing Company, Inc., 111 NLRB 167; Safeway Stores, Incorpo-
rated, 110 NLRB 1718 ; N.L.R.B . v. Republic Aviation Corporation , 324 U . S. 793.
8 The witness Donald L . Lowery testified that on May 22 , 1957 , he asked for employ-
ment on Swift Creek Dam and that the dispatcher asked him if he was a member of
Local 501.
D The failure of Local 501 to make a record of the first visit of Warren Payne, whose
case is hereinafter related , raises a doubt as to whether •or not such a record is kept
before the job hunter expresses an interest in transferring his membership from another
local, but the matter was not explored and I make no finding that any exception existed.
JOINT COUNCIL OF TEAMSTERS NO. 37 AND LOCAL NO. 501 527.
those who telephone or write to Local 501 regarding a job. This will be called the
telephone list.
When an employer calls in for a man or men, the dispatcher selects the requisite
number from those on either the telephone list or the roster, gives them dispatch
slips, and enters their names in another notebook record, tabulated by names of
employers, under the name of the proper employer.
On what are called by Local 501 the larger jobs, employees are expected to join
within 30 days (the contract provides for 31 days) after the date of hire. On the
smaller jobs, Local 501 does not seek enforcement of the union-shop clause for
60 days after date of hire and apparently does not always require employees to be
requisitioned through its office.
The exclusive hiring-hall provision appears to be enforced, at least on the larger
jobs, with rare exceptions. Article V, section 5, of the contract requires the con-
tractor to requisition men through the union having jurisdiction of the work. If
men are dispatched whom the contractor determines to be incompetent, the contract
permits him to reject or discharge such men. But replacements therefor, as I read
the contract, are again required to be procured by requisition to the union in-
volved. Although the contract provides that "the Contractor shall have entire
freedom of selectivity in hiring and discharge," this 'appears to mean only that the
contractor may reject or discharge as he pleases. It does not mean that he can
get his men from any source other than the union having jurisdiction of the work.
The only exception allowed by the contract is in the event of a violation of article
XIII (no-strike clause) above quoted, when a contractor may "hire any employees
from any source without any restriction whatsoever. Eunice Kindler, dis-
patcher for Local 501, testified that a number of men had been brought to the
Swift Creek Dam project by Jones-Tompkins within a short time before the hear-
ing, suggesting that an exclusive hiring hall was not practiced. Since these cases
occurred after the complaint was issued, if not after settlement was reached in the
CA case, it is impossible to tell whether or not such practice would have been
followed earlier . It is doubtful that it would , for as late as March 4, 1957 (as
evidenced by a Respondent's exhibit) the project superintendent for Jones-Tompkins
issued a notice to all superintendents and foremen stating, in part , "It has been
brought to my attention that unemployed workmen are making statements that
they have been told by our supervision they will be able to go to work on the
next order. [I infer that this means order for men placed with Local 501 or unions
of other crafts.] There are to be no promises of work made to anyone under any
circumstance . . . Do not request workmen by name.... . An earlier memoran-
dum, to which the last one refers, directs that men be requisitioned by craft only.
But even though some 12 or 16 employees of Jones-Tompkins were recently
brought on the job from outside the jurisdiction of Local 501, Jones-Tompkins
continued to send Local 501 (and the latter expected ) a confirmation requisition
on which would be listed either by Jones-Tompkins or, more usually, by an agent
of Local 501, the names of the men put on the job. Kindler testified that she
thought all twelve men whose names were shown on Requisition No. 51 had be-
come members of Local 501 by transfer. Earlier exceptions to supplying local men
on the Jones-Tompkins job involved men who brought special equipment from
another location where Jones-Tompkins had worked. Two such men were employed
in January 1957. One, Harry Bluejacket, applied for transfer to Local 501 the
day before he went on the job. The other, Rudolph Lundin, applied for transfer
of his membership to Local 501 on January 17, a week after he was employed.
Donald Orcutt, paymaster for Jones-Tompkins, who did some hiring for that em-
ployer, testified that he had instructions that teamsters were to come from Local
501 and that Local 501 was to select the men who were to be dispatched. This
was also in accordance with an agreement reached at a prejob conference that
men should be requisitioned by number wanted and not by name. Orcutt also
testified that when men arrive with equipment, they are expected to make arrange-
ments with Local 501 and be in good standing.
Kindler testified that companies within the last 2 years had brought men in,
particularly on the gas line, but, asked whether or not in such instances the em-
ployers had sent in a requisition or confirmation , Kindler answered , "No, not on
the small jobs." Kindler was not informed as to whether or not the gas-line con-
tractors came in on a national agreement and she had no knowledge of any other
arrangements that might have been made. The evidence is not sufficient to prove
nonenforcement of the hiring hall agreement.
As stated before, the General Counsel does not attack the validity of the union-
shop clause of the contract nor question the propriety of it with reference to Jones-
Tompkins , and as the union -shop provision is severable from the provisions here-
tofore found illegal, it is not affected by the findings as to them. But the General
528 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Counsel does contend that the practices of Local 501 under the exclusive hiring-
hall provisions of the contract give rise to favoritism toward its own members and
that Local 501 does thereby cause or attempt to cause employers to discriminate
in regard to the hire of their employees. Kindler testified that assignments of
work are made from the open roster or telephone list in the order of signing up,
although she was not willing to say that there had not been exceptions made. She
also testified that those out of work longest were given preferences in alignments.
If the latter means those who have been out of work longest but who have not
been on the open roster or telephone list longest, this, in itself, would be an excep-
tion, but I believe that she meant those who had been longest on the out-of-work
list. Local 501 concedes that it does give preference to its own members,1° and
it seems to justify this practice, first, on the ground that the dispatcher is better
acquainted with the qualifications of its members and, second, that Local 501
attempts to service residents within its territory (local people) before residents of
other areas who could be serviced by local unions in the area in which they live.
With respect to the first reason, it may be said that the contract does not make
the local union a guarantor of competence. "Qualifications," as the word is used,
merely means being a truckdriver experienced in the operation of specific types of
equipment, The contract leaves the determination of competence to the em-
ployer.ll When an applicant for a job who is not a member of Local 501 is inter-
viewed by the dispatcher, the latter has ample opportunity to determine the types
of vehicles with which the applicant has had experience. A record is kept of
such interviews, so Local 501 cannot say that it does not have equal knowledge
of the qualifications of nonmembers who apply for jobs. Kindler testified that she
would not always take an applicant's word for what he could do or what experi-
ence he had. In this respect she was going even farther than the employers did
because there is evidence that they would have hired men such as Warren Payne
after he stated his own experience and qualifications. Kindler was not required
by the hiring-hall agreement to go this far and I am convinced that she did so
only in order to give preference to members of Local 501. With respect to the
second explanation-residence-it may be said that the Act specifies the extent to
which conditions may be attached to employment, and residence is not a statutory
basis for discrimination.12 Furthermore, here it appears to be closely tied to
membership and I believe the latter to be the controlling factor. Admittedly,
therefore, Local 501 has attached discriminatory conditions of employment prece-
dent to dispatch, and since the contract requires the requisition of employees
through the local union, Local 501 can and does attach a condition of membership
to dispatch of job seekers so long as members are qualified and available for
the job.
I infer that the term "nonmembers" as used in reference to dispatch after all
qualified and available members are dispatched, refers primarily to members of
sister locals, for Local 501 exhibited a tendency not to consider for any employ-
ment an applicant who is a member of no affiliated union . Donald Lowery testi-
fied that on May 22, 1957, he spoke with the dispatcher for Local 501 (Eunice
Kindler) asking for an application to "sign up" for work on the Swift Creek Dam.
Kindler asked if he was a member of Local 501. Lowery told her that he was
not, that he had belonged to Local 58 but that he did not get a withdrawal card
when he went into military service in '1952. Kindler told him that he would have
to be reinstated either in Local 501 or in Local 58 and that it was better that he
be reinstated in his own local and then transfer to Local 501. Then, too, Kindler
11 Counsel for the Respondents in his brief argues that the admission of Eunice Kindler,
the dispatcher, and of Reginald Mikesell, secretary-treasurer, who is the chief officer of
Local 501, that favoritism would be shown a member over a nonmember, qualifications
being equal, was a theoretical matter not supported by any evidence that the situation
had ever arisen. I do not put the same interpretation on the testimony as does counsel.
For example, Milcesell testified that it was the practice of Local 501 in cases of equal
ability and availability to send out the member if the employer had not specifically re-
quested the nonmember, and Kindler testified that she did so but attempted to justify it.
Specific instances of a regular practice are not required to establish the practice where it
admittedly exists.
11 Article V, sec. 5 : "The Contractor shall have the right to interview men on the job
prior to their employment and shall be the judge of their competency . . . The con-
tract also gives the employer the right to refuse to hire anyone referred to him in addi-
tion to the privilege of discharging men already hired.
12 United Brotherhood of Carpenters and Joiners of America, Local No. 1281 (J. C.
2Toespflug Company), 109 NLRB 874.
JOINT COUNCIL OF TEAMSTERS NO. 37 AND LOCAL NO. 501 529
said , he would have to have a job in the area of Local 58 before his transfer
came through.13 Lowery signed the open roster at Local 501 on May 22, 1957,
but had not been dispatched prior to the date of his testimony at the hearing.
On the entire record, I find that, by using its exclusive hiring hall to give its own
members preference to jobs over nonmembers, including members of affiliated
locals, Local 501 has restrained and coerced employees in the rights guaranteed
in Section 7 of the Act and continues so to do, in violation of Section 8(b)(1)(A)
of the Act.
C. Causing discrimination as to Payne
1. Arrangement of Local 501 with Jones-Tompkins
Jones-Tompkins arrived to begin its work on Swift Creek Dam just as the Guy
F. Atkinson Company, hereinafter called Atkinson, was concluding its performance
there. The Jones-Tompkins' work was actually a continuation of the work that
had been done by Atkinson. Approximately 30 members of Local 501 engaged
in work on cofferdams for Atkinson, exclusive of men working in tunnels driving
what are known as "dumptors" or "dumpies," were about to be terminated. Atkin-
son concluded work on Friday, November 2, 1956, and Jones-Tompkins was to
begin on Monday, November 5. However, Donald P. Orcutt, paymaster for Jones-
Tompkins, arrived at the dam site on or about October 29 and for the first week
of operations, it was his function to requisition employees as needed.
On the afternoon of November 2, 1956, a prejob conference was held at the
AGC office in Portland, Oregon. This was attended by representatives of Jones-
Tompkins, the Scheff Company (subcontractors on the tunnel), Joint Council 37,
Local 501, and various other unions, including Operating Engineers and Laborers.
Testimony on behalf of the Respondents indicated that at this meeting, Paul Swan-
son, vice president of the J. A. Jones Construction Company, on behalf of Jones-
Tompkins agreed to take over the 30 Atkinson employees (exclusive of the dumpy
drivers), 6 of them immediately, the rest by requisition as more equipment arrived.
Requisitions were agreed to be by number of men desired and not by name.
Because some of the testimony appeared conflicting and because there is some
reason to believe that Jones-Tompkins did not promptly notify its hiring agents
of this agreement, I am not thoroughly satisfied that the record accurately reflects
the nature or terms of this agreement, but counsel for the General Counsel appar-
ently conceded the existence of an agreement by which Jones-Tompkins was to
hire the thirty former Atkinson employees before any others were employed. For
the purposes of this report, therefore, I shall treat this to be the fact. Counsel
for the General Counsel also stated his position to be that such agreement was
not illegal . This being so, I accept that position for the purposes of this case.
The General Counsel also conceded at the conclusion of the hearing that Local
501, in carrying out the agreement and dispatching former Atkinson employees,
did not violate the Act. He further appears to concede that when former Atkin-
son employees, once employed and then laid off by Jones-Tompkins, were later
accorded priority for redispatch to Jones-Tompkins by Local 501, no violation of
the Act took place, even though this may have resulted in preference to members
of Local 501. With respect to any employees of Jones-Tompkins, including War-
ren Payne, the General Counsel contends (abandoning the date of November 7,
1956, alleged in the complaint) that the contract was first illegally applied by
Local 501 on March 4, 1957. In other words, I take it, he is conceding that
Local 501 did not engage in its admitted practice of granting preference in dis-
patch to its own members in such a manner as to amount to causing or attempt-
ing to cause Jones-Tompkins to discriminate against Payne or any other employee
in violation of the Act before March 4, 1957. Despite these concessions, I believe
that, for background purposes, a chronology of events beginning with late October
1956 will assist in understanding later events.
2. Chronology of events relating to Payne14
Warren Payne joined Local 58, a party to the previously described contract, at
Longview, Washington, in 1950. Later, as he worked in different locations within
13 This suggests that, as in the case of transfers, membership would not be accepted
until the applicant for membership had procured a job.
14 Counsel for the Respondents attacked Payne's credibility as a witness . Both from
my observation of him and because other witnesses and evidence tended to corroborate
him, I find him to be a credible witness, even if at times mistaken in minor details. In
the latter respect, he was no worse than most of the other witnesses.
505395-59-vol. 12 2-3 5
530 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the jurisdiction of Joint Council 37, he transferred his membership to various
locals. While a member of Local 58 , Payne worked on the Yale Dam in south-
west Washington as a Euclid truckdriver . Local 58 and Local 501 had joint juris-
diction of the work there , alternating in filling requisitions for men , and, as a
consequence , Payne was personally known to Kindler, the dispatcher for Local
501, as a qualified Euclid driver . In the late summer of 1956 , while a member
of Local 321 at Bend , Oregon , Payne worked on the Pelton Dam near Madras,
Oregon . When he was laid off there, he worked for a time in Madras for a
freight line . Then , learning that a job was going to open up at The Dalles,
Oregon, Payne telephoned Kindler early in October 1956 and told her that he had
heard that Atkinson had placed an order for 10 Euclid drivers at The Dalles. He
asked her if that was true and asked what his chances were of going to work.
Kindler replied that they did have a call for Euclid drivers but that she thought
she had enough of her own local men to fill the order . She said , however, that
he could call back at 2 p.m. At 2 p.m. the same day, Payne again telephoned
Kindler and the latter told him that she had filled the order with her own men.
On October 22, Payne paid his dues to the Bend local, drove to Vancouver,
Washington , and on October 23 went to the office of Local 501 to apply for a
transfer . There, Payne was interviewed by Kindler 's assistant , Marie Johnson, and
he gave her his name, address , and telephone number. This interview was re-
corded in the record known as the register , where he was described as a Euclid
operator . 15 At this interview , Payne explained that he planned to return to live
in the vicinity of Cougar , Washington , where he had lived for many years and
where his parents then lived , and he requested transfer to Local 501. The girl
who was interviewing him then summoned Kindler. Kindler started to take the
necessary information from Payne , but then told him that there was no work, that
Local 501 had a large number of men out of work and that there was no use
accepting his transfer because there was nothing there for him to do. It is con-
ceded by Local 501 that, unless the applicant for transfer insists, Local 501 will
not accept the transfer until the applicant has procured a job in the area or has
been dispatched to a job by Local 501. Following Kindler's declination to accept
the transfer, Payne did not attempt to complete his application for transfer or
insist on the transfer . Before he left, Kindler told him that he should check back
at least once a week and that he could either sign the open roster or telephone
in or write a letter or card. Payne came to the office of Local 501 on October 29
and signed the open roster . At this time , he asked Kindler if there was any work,
and she said that there were still a lot of men out of work.
About November 1, Payne moved from Longview to Cougar and visited the
Swift Creek Dam site. At this time Jones-Tompkins had just begun to move in
equipment . Payne spoke to Swanson , vice president of the Jones Company, told
him he was a Euclid driver and was looking for work , and asked if he might leave
his name. Swanson told him he could write his name on a slip and if they could
use him they would let him know. They never did. Payne went to the job site
practically every day until November 7. Meanwhile , on November 5, operations
started with the six men taken over from Atkinson. The Atkinson strawboss con-
tinued on the job for Jones-Tompkins , and he had selected six men to work at
the opening of operations by Jones-Tompkins before the prejob conference was
held. On November 6 Payne again spoke to Kindler , who told him that they
would not hire outside men until they got their own men back to work.
Shortly before noon on November 7, Payne went to the Jones-Tompkins job
and spoke to Donald Orcutt, paymaster for Jones -Tompkins , who did some hiring
the first week of operations . Orcutt apparently had learned that Payne was a
Euclid driver and told him he understood that they were going to hire some men
that day and to talk to Richard Fegert , the general foreman. Payne told Fegert
that he had worked for Jones-Tompkins at the Palisades Dam. Fegert told Payne
that he would give him a job and that he should go back to the office, where
Fegert would have Orcutt call the union hall for clearance . When Payne spoke
with Orcutt about this , Orcutt said that it was close to noon and the union hall
would be closed , so Payne should return about 1 o'clock and he would call then.
When Payne returned at 1 p.m ., Emil Olson, business representative of Local 501,
was speaking with Orcutt. After Olson left the office , Payne asked Orcutt if he
had got the clearance . Orcutt answered that Olson would not clear him. Olson
and Mikesell testified that after the prejob conference , when it was agreed that
'b A note inserted on the interview record said that Payne had registered 2 months
earlier but had not checked back since. No reference was made to his telephone call
early in October.
JOINT COUNCIL OF TEAMSTERS NO. 37 AND LOCAL NO. 501 531
Jones-Tompkins would take over the Atkinson men, the Atkinson men along with
a few others had held a meeting and decided that they wanted to continue with
Jones-Tompkins. Olson further testified that he was instructed to notify Jones-
Tompkins that the men could, and wanted to, continue. He testified that he told
Fegert this, but it does not appear when. In view of Fegert's offer to employ
Payne, it is questionable if he learned of the prejob agreement before noon on
November 7. And apparently the same was true of Orcutt, who knew of no such
agreement with Local 501 until Olson spoke with him on November 7. After
Orcutt had told Payne that he had not been cleared, Payne followed Olson and
asked him why he would not give him a clearance. According to Payne, Olson
said he could not give him a clearance because he still had men on the bench.
According to Olson he told Payne he was not at the office and could not clear
him. The inference from Olson's testimony is that he could not clear Payne with-
out checking the out-of-work lists to determine if he was in line to be dispatched.
Olson said nothing to Payne about a prejob agreement. Payne testified that he
told Olson that , if the other men (i.e., those who were on the bench ) wanted
work, they could get out and find a job and that Olson had replied that Local 501
did not allow solicitation of work. Payne further testified without direct denial.
that Olson had said if he gave him a clearance, ". . what would the rest of
the boys think? You don't belong to Local 501, so if I gave you a clearance
what would they say if they saw you working?" Payne then asked pointblank,
"Will you give me a clearance?" Olson replied that he was not giving him a
clearance. Payne returned to the Jones-Tompkins office, and Orcutt asked if he
had talked with Olson. Payne replied that he had, and Orcutt asked if it did any
good. Payne told him it had not. At this point, Fegert drove up and asked if
Payne had got a clearance, and Payne told him that Olson would not give him.
one. In a conversation that followed, Fegert suggested that Payne go to "thee
Labor Board" if he wanted to do something about it. On November 8, Payne
filed the charge that initiated this case.
On November 12, Payne was making inquiries for a job at J. N. and M. J.
Conley Company, a member of AGC and a party to its agreement, who were
engaged in crushing rock for use on the project. Payne spoke with a man whom,
he identified as Superintendent Hal Fackler, but Payne was probably mistaken
about the name, for Olson testified the superintendent' s name was Harold Gross.
and that he saw Payne speaking with Gross. In any event Payne was speaking
with the superintendent, and he asked if he could have a job driving a Euclid;
The superintendent told him he was going to call for some men in the morning,
and Payne asked, "What about me?" The superintendent asked him if he had'
had any experience. Payne said that he had, and the superintendent asked if
Payne belonged to the union. Payne replied that he did but not to Local 501.
The superintendent then told him that he would have to be cleared. At this point
Olson walked up. Payne and Olson gave slightly different accounts of the con-
versation, but both agreed that the superintendent asked Olson to give a clearance.
for Payne. According to Payne, Olson shook his head and said, "I'll tell you
about this boy, here. He has got me in court over an unfair labor law . . . I'm
not giving him no clearance to go to work." 16 According to Olson his reply was,
"I'm not going to enter into it. If you want to put him to work you put him
to work. I am not getting in this here because I have an unfair labor practice
charge against me, and I want no part of it. If you want to put him to work,.
that's fine as far as I am concerned. I'm not going to get in it." Whatever state-
ment Olson made , it is obvious that the superintendent did not hire Payne because
the latter did not have clearance. Olson left and returned to his truck. Payne
followed him and asked Olson why he would not clear him. Olson pointed to,
the superintendent and said, "There goes the superintendent over there. You talk
to him." On cross-examination, Payne testified that Olson added, "If he wants
to hire you, he'll stick his own neck out." Olson then drove off. This incident
is not alleged in the complaint , and is not contended by the General Counsel, to
be the basis for any remedy in the instant case.
Thereafter Payne kept in touch with Kindler and, on November 21, Kindler
wrote Payne a letter at Cougar, Washington, notifying him that Local 501 had
an opening for a "Euc Skinner" on The Dalles Dam for Tuesday, November 27,
and asked him to call or check in on Monday morning, November 26, to indicate
his position in the matter. On that Monday, Payne went to the Local 501 office,.
paid his transfer fees and dues for the Bend local, and Kindler accepted his appli-
19 Taken from Payne 's testimony on cross -examination which differed in minor details
from his testimony on direct.
532 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cation for transfer of membership . She then gave Payne a dispatch to Atkinson-
Ostrander at The Dalles.
Payne went to work on the job to which he had been dispatched on Novem-
ber 27 and was laid off on December 14. He contacted Kindler again on about
December 17. On December 27 he stopped at the hall and paid his dues, his
transfer having become effective on December 12. On January 18, 1957, Kindler
called Payne and notified him that he could return to The Dalles. Payne re-
turned but worked only for 2 hours because he was notified of his father's death.
The following day, however, the job was shut down, so he could not return to
work. He was not called back on the job again until January 31. Payne thought
that he had picked up another dispatch slip before returning on this occasion.
This job lasted until 2 a.m. on February 24. Upon completion of the work, Payne
drove to Longview, where he remained until February 28. Then he drove to
Vancouver, stopped in and paid his dues, and inquired about work.17 Kindler
told him there was nothing then.
On March 4, 1957, Payne again talked with Kindler. Kindler had no recollec-
tion of the conversation. A friend of Payne's, Donald Lowery, testified he was
with Payne on March 4 and overheard the conversation. As Lowery was with
Payne at the office of Local 501 on February 28 and March 20 also, and as both
Payne and Lowery were at first confused about dates and the occasion for stop-
ping at the Local 501 office,18 a question enters my mind as to whether the con-
versation related as taking place on March 4 may not actually have taken place
on March 20, but because Kindler's memory was vague, and because the subject
matter of the conversation was known by Kindler as early as March 4, I accept
the testimony of Payne and Lowery and find March 4 to be the date of the
following conversation. Payne asked Kindler what was going on, and Kindler
replied that almost all the old men were out (i.e., working), that Local 501 had
a call and it would not be long before she could dispatch him. She asked if he
would take a Mack or if he wanted to hold out for a Euclid. The pay scale
under the contract is by truck capacity and Euclids are larger than Macks and so
would normally bring a higher wage rate. Payne told her he would take any-
thing on four wheels. Kindler told him he might be called shortly. Payne signed
the roster on March 12 and again went to the hall on March 20. On the latter
date, Kindler reminded Payne that he had said he could handle Macks and said
that there was a possibility that there might be something going on "right away."
However, Kindler did not call him until March 28, when she dispatched him to
Jones-Tompkins as a Mack driver . Despite the contract rates, Jones-Tompkins
paid the same rate for Mack operators as for Euclids, and with the exception of
one man , it transferred Mack drivers from Macks to Euclids as the occasion
required.19
It is the contention of counsel for the General Counsel that Kindler could have
dispatched Payne to Jones-Tompkins on March 4 as a Mack driver but that instead
she dispatched others on a preferential basis and that this violated the Act. An
analysis of this contention requires a determination first of whether or not the
assumption of fact that Payne could have been dispatched on March 4 is war-
ranted. If it is found that he could have been, then, second, it must be ascer-
tained if the failure to dispatch Payne on that date tended to interfere with his
or any employee's rights as guaranteed in Section 7 of the Act, or caused any
employer to discriminate against Payne in violation of Section 8(a)(3) of the Act.
As previously set forth, following a period of employment, Payne signed the
roster of unemployed on February 28, 1957. Following a nondiscriminatory sys-
tem of dispatch, Local 501 would have dispatched job seekers in the order of their
listing on the roster and telephone lists, if qualified , regardless of union affiliation.
Apparently regardless of when employees signed up, Local 501 treated laid-off
employees as having a right to reemployment by the same employer in preference
to other job seekers. But this practice is not in itself contended by the General
Counsel to be a violation of the Act. In fact it coincided with the policy of
Jones-Tompkins, who indicated in January 1957 that it wished to reemploy those
17 Although Payne did not so testify, Kindler testified that he had telephoned about
work on February 25.
is Both at first testified that they had stopped at Local 501 on March 4 on their return
from a trip to Redding, California, in search for work. Later they corrected the date of
their trip to Redding to March 17, on return from which they stopped at the office of
Local 501, on March 20. They both were sure, however, that Lowery had been with
Payne on February 28 and March 4 when he went to the union hall.
19 The Macks were apparently used only when the Euclids were in need of repairs.
JOINT COUNCIL OF TEAMSTERS NO. 37 AND LOCAL NO. 501 533
previously laid off. Between February 28, when Payne signed for work, and
March 28, when he was dispatched, Kindler had dispatched a number of men to
jobs with Jones-Tompkins. Some of these men (about 12 of them) had been
previously employed and laid off by Jones-Tompkins. As to them, I assume, the
General Counsel raises no issue that their dispatch before Payne's was a violation
of the Act. However, between those dates, Local 501 also dispatched to Jones-
Tompkins 16 men who had not previously been employed by Jones-Tompkins.
Six of the sixteen were assigned to types of jobs other than Euclid or Mack drivers
and, therefore, they were not in competition with Payne, who presumably was not
qualified for such jobs. As to the remaining 10, the evidence is not completely
clear. Since the roster and telephone lists are not in evidence, I have no means
of determining when, if at all, such employees listed themselves as wanting jobs.
With the exception of one man, who clearly was not listed as a job seeker before
his dispatch, the others may have been listed and waiting for jobs longer than
Payne. Two had been waiting since January. There are bits of evidence from
which it may be suspected that some were dispatched on a basis other than length
of waiting time, but such suspicions are not evidence , and I do not believe the
evidence is sufficient to warrant an inference that such men were favored over
Payne because they were older members or because of some reason which could
not be justified under the Act. Kindler at one point testified that she thought that
the men who had been employed on the Swift Creek Dam project by Atkinson
as dumpy drivers had a right to preference in dispatch as Euclid drivers over those
who had not worked at the project at all, there is no indication that this belief
induced her to dispatch men out of the order in which they were signed up. The
dumpy drivers had been laid off on November 2, 1956, and the record does not
show whether or not they had been employed between that time and March 1957,
when one or more were dispatched to Jones-Tompkins as Euclid operators ahead
of Payne's dispatch as a Mack driver.
When the call came in for Mack drivers and Local 501 had none so listed, it
started making inquiries to locate some. The first three dispatched as Mack drivers
were Max Unholz, Edgar Adams, and William Fargo. Adams and Fargo had
been waiting for dispatch since the first of the year. Local 501 also explained
their dispatch on the ground that Jones-Tompkins, who was trying to get experi
-enced Mack drivers, had asked for Adams and Fargo by name because they had
worked for Jones-Tompkins on a previous job and had been known to be capable
of handling Mack trucks. Orcutt, the paymaster for Jones-Tompkins, did not know
of any such request, but in March 1957 he was not doing the hiring and would
not necessarily have known of the request. Max Unholz had not signed up for
work at all. He was a member who had been out on withdrawal, having a small
cement business of his own. Before he went into business for himself, he had
been known by Local 501 to be a Mack truck driver. When Jones-Tompkins first
called for Mack drivers, it told Olson that they did not want any indiscriminate
driver to be operating them, as they were expensive pieces of equipment and their
operation was different from the operation of Euclids.20 Therefore, they told
Olson, they wanted experienced Mack drivers. Max Unholz' brother worked for
Jones-Tompkins and he told Olson that his brother, Max, was an experienced Mack
driver. Olson suggested the name to Kindler who arranged to dispatch him. As
the evidence indicates that Max Unholz entered on duty on March 4, it is a fair
inference that arrangements had been made for his dispatch before Kindler was
informed, on March 4, that Payne was able and willing to drive a Mack truck.
Counsel for the General Counsel intimated that any experienced Euclid driver
could operate a Mack of the type used by Jones-Tompkins, thus suggesting that
Kindler should have expected Payne to be capable of driving a Mack. It is ap-
parent , however, that Jones-Tompkins did not regard every Euclid driver as com-
petent to operate their Mack trucks. Furthermore, I am satisfied that Kindler did
not, herself, entertain the belief that Euclid drivers were necessarily competent
Mack drivers. Also she believed that the rate of pay for operating Mack trucks
for Jones-Tompkins would be lower than for Euclid operators (as was usually the
case ) and, unless a driver at his interview indicated that he would accept what
apparently was a lower paid job than the one he signed up for, Kindler would be
justified in inferring that the driver wanted only the kind of job for which he
signed up. Until March 4, therefore, Kindler is not to be presumed to have be-
w The type of Mack trucks brought onto the job by Jones-Tompkins had 30 different
gear ratios in forward speeds as against 3 for the Euclids. These ratios were accom-
plished by combining five regular forward speeds with a three-speed Browning and an
over-and-under drive.
:534 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
-lieved that Payne could or would drive a Mack, and since I infer that Max Unholz
had already been dispatched before Kindler spoke with Payne on March 4, I find
no attempt on the part of Local 501 to discriminate against Payne on that date.
-Because I have no means of determining when the other men dispatched between
March 4 and March 28 had applied for work assignments, I must presume that
they all signed up before Payne did.21 The result is that Payne was dispatched
in accordance with routine and nondiscriminatory procedure, so far as members go.
I find no basis for inferring that Payne, a member of Local 501 since December
1956, was discriminated against, as between members, because of anything that
had happened in November 1956. If Olson had any personal feelings against
Payne, it does not convincingly appear that he influenced Kindler to discriminate
against Payne and Kindler exhibited no evidence of animus. On the contrary,
Kindler gave evidence of trying to be fair within the rules of procedure of Local
501 which she believed (mistakenly) to be the proper ones.
On all the evidence, therefore, I find that the Respondents have not restrained
or coerced Warren Payne in the exercise of the rights guaranteed in Section 7
of the Act and have not caused or attempted to cause Jones-Tompkins to dis-
criminate against him.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondents set forth in section III, above, occurring in
connection with the operations of employers described in section I, above, have a
close, intimate, and substantial relation to trade, traffic, and commerce among the
several States and tend to lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce.
V. THE REMEDY
As it has been found that the Respondents have engaged in certain unfair labor
practices, it will be recommended that they cease and desist therefrom and take
certain affirmative action designed to effectuate the policies of the Act.
Counsel for the General Counsel, in his briefs, proposes that the remedy should
include a recommended order for restitution of dues paid by all employees hired
by Jones-Tompkins "during the period of its operations litigated here," because of
the preferential dispatching practices of Local 501 under its exclusive hiring-hall
agreement, a remedy which was used by the Board in United Association of Journey-
.:men & Apprentices of Plumbing and Pipefitting Industry of the United States and
-Canada, Local 231, AFL-CIO (more briefly known as the Brown-Olds case), 115
NLRB 594. Even if applicable to the situation here, I do not believe that Joint
Council 37 would properly be embraceable in such an order. But I do not agree
that it is applicable here at all. In the Brown-Olds case, the illegal contract was
=a closed-shop contract which was illegal on its face and was, to the extent of
Brown-Olds employees, at least, if not others, enforced by the union . The contract
before us does contain certain provisions apparently requiring membership as an
immediate condition of employment not permissible under the Act, as has previ-
ously been found, but it is not shown that these provisions were enforced. The
union-shop provision, which was enforced, is conceded by counsel for the General
Counsel to be lawful. Furthermore, the agreement reached at the prejob confer-
ence by which the former Atkinson drivers were to be taken over by Jones-Tomp-
kins is likewise conceded to be legal. As to such employees, certainly, a Brown-
Olds remedy would not be appropriate. Except for those employees, who were
already members of Local 501 when Jones-Tompkins began its operations, the only
ones shown to have joined or applied for membership in Local 501 before the
dispatch were, at the time of application for job assignment, already members of
sister locals to which they had been paying dues. They were not required by
Local 501 to affiliate until the 31-day period provided for if the contract had
expired. Some did transfer their membership to Local 501 before that period had
expired, but there is no reason to infer that they were required to. Some trans-
^ Kindler testified that a man named Lloyd Hastings had been dispatched to Jones-
Tompkins as a Mack driver on March 15, 1957. Payne testified that he had never seen
Hastings operate a Mack truck on that job, implying that he had been dispatched as a
Euclid operator. As Hastings was employed for 12 or 13 days before Payne was employed
as a Mack driver on March 28, Hastings could meanwhile have driven a Mack truck and
then been transferred to a Euclid. But even if he had been dispatched as a Euclid
driver, it does not appear that lie had not been listed as waiting for work longer than
Payne.
SNELLSTROM LUMBER CO . 535
ferred their membership to Local 501 before being dispatched to a job. As to
these, the evidence does not exclude possible reasons for transfer other than belief
that it was necessary in order to receive favored treatment . For all that appears,
they may have transferred their membership because they had an intention of
making Vancouver, Washington , or environs , their permanent residence . It cannot
be said that , except to the extent required by the lawful union-shop provision, any
employee of Jones-Tompkins was actually coerced into becoming a member of
Local 501 . True , Lowery was told he would have to reinstate himself in order
to get a job , but he was never an employee of Jones-Tompkins and he never joined
or paid dues to Local 501 which could be ordered repaid . I conclude , therefore,
that this is not a case in _ which dues should be ordered repaid.
CONCLUSIONS OF LAW
1. AGC and members thereof, including Jones-Tompkins , are employers within
the meaning of Section 2(2) of the Act.
2. Members of AGC, including Jones-Tompkins , are engaged in commerce
within the meaning of Section 2 (6) and (7) of the Act.
3. Joint Council 37 and Local 501 are labor organizations within the meaning
of Section 2(5) of the Act.
4. By maintaining terms in their collective-bargaining agreement with AGC
which require nonmembers of Local 501 to wear union buttons and which attach
conditions to hire or tenure of employment of employees of members of AGC
other than those which are authorized in Section 8(a)(3) of the Act, the Respond-
ents have restrained and coerced employees in the exercise of the rights guaran-
teed in Section 7 of the Act and have thereby engaged in and are engaging in
unfair labor practices within the meaning of Section 8 (b) (1) (A) of the Act.
5. By maintaining certain terms in their agreement with AGC which require
members of AGC to employ members of Local 501 or other affiliated locals, the
Respondents have attempted to, and are attempting to, cause such employers to
discriminate in regard to hire and tenure of employment of their employees in
violation of Section 8(a)(3) of the Act, and the Respondents by such conduct
have engaged in and are engaging in unfair labor practices within the meaning of
Section 8 (b)(2) of the Act.
6. By utilizing its exclusive hiring hall to cause employers to give preference in
hiring to its members over members of sister locals and nonmembers , Respondent
Local 501 has engaged in and is engaging in unfair labor practices within the
meaning of Section 8 (b)(1)(A) and (2) of the Act.
7. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(16) and (7) of the Act.
8. The Respondents have not, in violation of Section 8(b)(2) of the Act, caused
or attempted to cause Jones-Tompkins to discriminate against Warren Payne in
violation of Section 8(a)(3) of the Act and have not, in violation of Section
8 (b) (1) (A) of the Act, restrained or coerced said Payne thereby.
[Recommendations omitted from publication.]
Snellstrom Lumber Co . and Donald R. Hedlind . Case No. 36-
December 18, 1958
DECISION AND ORDER
On April 14, 1958, Trial Examiner William E. Spencer issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices, and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the copy of the
Intermediate Report attached hereto. Thereafter, the Respondent
filed exceptions to the Intermediate Report and a supporting brief.
122 NLRB No. 55.