K. M. & M. Construction Co.

National Labor Relations Board - Board Decisions

May 22, 1958

120 N.L.R.B. 1062 (N.L.R.B. 1958)

1062 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
[The Board ordered that a hearing be held before a Trial Examiner,
to be designated by the Chief Trial Examiner, for the purposes of
determining the validity of objections (1), (2), and (3), and to de-
termine the circumstances of the Employer's conduct during the 3-
week period preceding the election. Such Trial Examiner shall serve
upon the parties a report containing resolutions of credibility of
witnesses, findings of fact, and recommendations to the Board as to
the disposition of such objections. Within ten (10) days from the
date of issuance of the report, either party may file with the Board
in Washington, D. C., an original and six copies of exceptions, serve
a copy upon each of the other parties, and file a copy with the Regional
Director. If no exceptions are filed, the Board will adopt the recom-
mendations of the Trial Examiner.]
[The Board ordered the above-entitled proceeding referred to the
Regional Director for the purpose of arranging a hearing.]
Joe K. Miller, d/b/a K . M. & M. Construction Co.' and David S.
Davis and Locals 318, 318A and 318B , International Union of
Operating Engineers, AFL-CIO,2 Party to the Contract
Locals 318 , 318A and 318B, International Union of Operating
Engineers , AFL-CIO, and its business representative , Stanley
Medley and David S. Davis and Joe K . Miller, d/b/a K. M. & M.
Construction Co., Party to the Contract . Cases Nos. 14-CA-1561
and 14-CB-417. May 2 ,1998
DECISION AND ORDER
On October 30, 1957, Trial Examiner Robert E. Mullin issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondents had engaged in and were engaging in certain unfair
labor practices and recommending that they cease and desist therefrom
and take certain affirmative action, as set forth in the copy of the
Intermediate Report attached hereto. Thereafter, Respondent Union
filed exceptions to the Intermediate Report and a supporting brief.'
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Chairman Leedom and Members Rodgers and
Jenkins].
i Referred to herein as the Respondent Employer.
8 These Respondents are referred to collectively as Respondent Union.
a As Respondent Employer filed no exceptions to the finding that it violated Sec-
tion 8 ( a) (1) and (3) of the Act, we shall adopt the findings without comment except as
otherwise stated herein.
120 NLRB No. 140.
K. M. & M. CONSTRUCTION CO. 1063
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed."
The rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and brief, and the entire record in this
case, and adopts the Trial Examiner's findings and conclusions only
to the extent that they are consistent with the findings and conclu-
sions set forth below.
1. We find, in agreement with the Trial Examiner, that the asser-
tion of jurisdiction in this case is warranted. However, in so finding,
we deem it sufficient to rely solely upon the fact that in the year pre-
ceding the issuance of the complaint dated June 11, 1957, Respondent
Employer contracted for and performed services outside the State of
Tennessee in an amount exceeding $50,000. Jonesboro Grain Drying
Cooperative, 110 NLRB 481.5
2. We agree with the Trial Examiner that Respondent Employer
violated Section 8 (a) (3) and (1) and Respondent Union violated
Sections 8 (b) (2) and (1) (A) of the Act by entering into a union-
security agreement which failed to provide for the 30-day statutory
grace period afforded new employees and we adopt his reasoning and
findings on this issue.
3. The Trial Examiner found that the contract between Respond-
ents contained a discriminatory hiring or referral arrangement in
violation of Section 8 (a) (3) and (1) and 8 (b) (2) and (1) (A) of
the Act. While we agree with his conclusion, we do not herein adopt,
his reasoning but rely upon our recent decision in Mountain Pacific
Chapter of The Associated General Contractors, Inc., etc., 119 NLRB
883, and the rationale therein. That case laid down three criteria
which, if met fully and in to to, would save such an exclusive arrange-
ment from the interdiction of the Act. Though the clause in question
in the instant case met 1 of the 3 criteria-the reservation to the em-
ployer of the right of rejection of any person referred by the Union-
it failed to meet the other 2 criteria. It therefore did not meet all of
the criteria required and, is ipso facto invalid and in violation of the
Act. We so find.
A We agree with the Trial Examiner that though there may have been a technical error
in allowing the General Counsel to examine former Superintendent Huggins of Respondent
Employer , as an adverse witness under Rule 43 (b) of the Federal Rules of Civil Pro-
cedure no prejudicial error resulted. We note that no objection was made at the time of
the ruling that Huggins, not being in the employ of Respondent Employer, could not
technically be an adverse witness under Rule 43 (b). O'Shea v Jewel Tea Co, 233 F.
2d 530, 534 (C. A. 7). A careful examination of the evidence of Huggins does not indi-
cate any prejudicial error resulted from the ruling . The exceptions of the Respondent
Union to the ruling have no merit and the ruling is affirmed.
6 We note that the Trial Examiner found that in May to June 1956 , Respondent
Employer performed services in Arkansas valued at $18,000. In a memorandum filed by
the General Counsel after the hearing , the General Counsel conceded this work was per-
formed in March and April of 1956. Accordingly in asserting jurisdiction herein we rely
solely upon the value of the services performed by Respondent Employer at Mound City,
Illinois , within the period between June 12, 1956, and June 11, 1957 , the date of the
issuance of complaint herein , said services being in the contract amount of $ 95,888.
1064 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4. We agree with the Trial Examiner for the reasons set forth in
the Intermediate Report that Respondent Employer on August 20,
1956, discriminatorily failed to hire. Davis, pursuant to the illegal
referral arrangement and that the Respondent Union thereby caused
the Employer to so discriminate. Mountain Pacific Chapter, etc.,
supra. We accordingly find that Respondents violated Section 8 (a)
(3) and (1) and 8 (b) (2) and (1) (A) of the Act.'
THE REMEDY
Having found that the Respondents, and each of them, 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.
It has been found that the Respondents discriminated against David
S. Davis. The Employer has completed the work contracted for and
is no longer engaged in business in the geographical area of Respond-
ent Union. Therefore no order requiring the Employer to hire Davis
is feasible or possible.
We have found that the discrimination against Davis commenced
August*20, 1956. Accordingly, we shall direct the Respondents to
jointly and severally make Davis whole. However, the record does
not specify the number of instances or the amounts of actual loss of
employment by Davis. Respondent Employer testified without con-
tradiction that a week before August 20, he arranged with the Union
for referral of employees to start the second or night shift scheduled
to commence August 20. An examination of the record shows that
of the eight employees hired on August 20, Underwood, Cozart,
Buchanan, and Lamer were hired directly without referral by the
Union. There were 4 classifications hired that day-3 bulldozer
operators, 3 scraper operators, a greaser, and a mechanic. We note
that the Employer had rented at this time for the increased operation,
3 large scrapers valued at $33,000 each and that the operators of these
received an increased hourly rate over other scraper operators. The
record does not show Davis ever had any experience as a bulldozer
operator, a greaser, or mechanic, or this type of scraper operator.
Moreover the greaser and mechanic were hired directly by the em-
ployer. However, the record does show Davis had some experience
as a motor grader or motor patrol operator and 1 individual in each
of these 2 classifications was hired on October 8 and 9, 1956. There-
fore, on the state of the record, we are unable to determine for which
job Davis could have and would have qualified absent the discrimina-
ewe note that the Trial Examiner was in error when he found that all 29 engineers
hired for the Mound City, job were referred by the Union except 4 individuals. In addi-
tion to the four mentioned by the Trial Examiner, the record shows that the Employer
directly hired Charles Harris,, J. C Roberts, Elmer Koen, and Norman Cozart. In addi-
tion, Norman Burress was not a member of the Union and the record is silent on the
inception of his employment , though it was uncontradicted that no permit men were
allowed on the job. Accordingly , the Trial Examiner 's finding hereon is hereby corrected.
K. M. & M. CONSTRUCTION CO. 1065
tion. Accordingly, we leave to the compliance stage the question as
to whether there were openings on August 20, and subsequent thereto,
capable of being filled by Davis and the amount of back pay due him.
We shall also order the Respondents to notify Davis that they have
no objection to his employment in the event Respondent Employer
should in the future resume operations in the geographical area of
Respondent Union. Back pay shall be computed in accordance with
the formula stated in F. W. Woolworth Company, 90 NLRB 289.
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 :
1. Respondent Joe K. Miller, d/b/a K. M. & M. Construction Co.,
his agents, successors, and assigns, shall :
(a) Cease and desist from: - -
(1) Entering into, performing, maintaining, or otherwise giving
effect to provisions of any agreement with Respondent Union which
unlawfully condition the-hire of applicants for employment or reten-
tion of employees in employment, by such employer upon clearance
or approval by Respondent Union, except as, authorized by the pro-
viso to Section 8 (a) (3) of the Act. -
(2) Entering into, performing, maintaining or otherwise giving
effect -to any union-security provisions in any agreement with Re-
spondent Union unless such union-security provisions are in conform-
ity with the proviso to Section 8 (a), (3) of the Act.
(3) In any like or related manner encouraging membership in
Respondent Union or in any -other labor organization or otherwise
interfering with, restraining, or, coercing employees in the exercise
of rights guaranteed in Section 7 of the Act, except to the extent
that such rights may be affected by an agreement requiring member-
ship in a labor organization as a condition of employment, as au-
thorized 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 with Respondent Union make whole
David S. Davis for any loss of pay suffered as a result of the discrimi-
nation against him as provided in the section herein entitled, "The
Remedy."
(2) Preserve and make available to the Board or its agents upon
request, for examination and copying, all payroll records, social-
security payment records, timecards, personnel records and reports,
and all other records necessary to analyze the amount of back pay due
under the terms of this Order.
1066 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(3) Post at any construction site he may have within the geo-
graphical jurisdiction of Respondent Union, including all places
where notices to employees or prospective employees are customarily
posted, copies of the notice attached hereto marked "Appendix A."'
-Copies of said notice, to be furnished by the Regional Director for the
Fourteenth Region, shall, after being signed by Respondent Employer
or his authorized representative, be posted immediately upon receipt
thereof and maintained for 60 consecutive days thereafter. Reason-
able steps shall be taken by the Respondent Employer to insure that
said notices are not altered, defaced, or covered by any other material.
(4) Notify David S. Davis and Respondent Union, in writing,
that he has no objection to the employment of Davis or to the employ-
ment of any other employees who are not members of Respondent
Union or who have not been referred by it for employment.
(5) Notify the Regional Director for the Fourteenth Region, in
writing, within ten (10) days from the date of this Order, what steps
he has taken to comply herewith.
2. Respondents Locals 318, 318A and 318B, International Union
of Operating Engineers, AFL-CIO, their officers, representatives,
agents, and assigns, and Stanley Medley, their business representative,
his representatives and agents, shall :
(a) Cease and desist from:
(1) Entering into, performing, maintaining, or otherwise giving
effect to provisions of any agreement with Respondent Employer
which unlawfully condition the hire of applicants for employment or
retention of employees in employment by such employer upon clear-
ance or approval by them except as authorized by the proviso to
Section 8 (a) (3) of the Act.
(2) Entering into, performing, maintaining, or otherwise giving
effect to any union-security provisions in any agreement with Respond-
ent Employer unless such union-security provisions are in conformity
with the proviso to Section 8 (a) (3) of the Act.
(3) Causing or attempting to cause the Respondent Employer, his
agents, successors, or assigns to refuse employment to qualified appli-
cants or to discriminate in any other manner against his employees
in regard to hire or tenure of employment, except to the extent per-
mitted under Section 8 (a) (3) of the Act.
(4) In any like or related manner restraining or coercing the
employees of the Respondent Employer or applicants for employment
in the right to engage in, or refrain from engaging in, any or all of
the activities guaranteed by Section 7 of the Act, except to the extent
that such right may be affected by an agreement requiring member-
7 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."
K. M. & M. CONSTRUCTION CO. 1067
:ship in a labor organization, in conformity with 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 with Respondent Employer make whole
David S. Davis for any loss of pay suffered by reason of the dis-
,crimination against him in the manner set forth in the section herein
entitled "The Remedy," except this section shall not apply to Respond-
ent Medley as an individual.
(2) Notify David S. Davis and the Respondent Employer, in writ-
ing, that they have no objection to the employment of any employees
who are not members of the Union or who have not been referred
by it to Respondent Employer for employment.
(3) Post at a conspicuous place at their business office in Harris-
burg, Illinois, copies of the notice attached hereto marked "Appendix
B." I Copies of said notice, to be furnished by the Regional Director
for the Fourteenth Region, shall, after being duly signed by an official
representative of Respondent Union, and by Respondent Medley, be
posted by them immediately upon receipt thereof and be maintained
by them for 60 consecutive days thereafter. Reasonable steps shall
be taken by Respondents to insure that said notices are not altered,
defaced, or covered by any other material.
(4) Notify the Regional Director for the Fourteenth Region, in
writing, within ten (10) days from the date of this Order what steps
they have taken to comply herewith.
8 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."
APPENDIX A
NOTICE TO ALL EMPLOYEES AND APPLICANTS 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, I hereby notify you that :
I WILL NOT enter into, perform, maintain, or otherwise give
effect to the provisions of any agreement with Locals 318, 318A
and 318B, International Union of Operating Engineers,
AFL-CIO, which unlawfully condition the hire of applicants
for employment or their retention in my employment, upon
clearance or approval by the aforementioned labor organizations
or by Stanley Medley, their business representative, except as
authorized by Section 8 (a) (3) of the Act.
I WILL NOT enter into, perform, maintain, or otherwise give
effect to any provisions in any agreement with the aforementioned
1068 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
labor organizations requiring membership in such labor organi-
zation as a condition of employment unless such union-security
provisions are in conformity with the proviso to Section 8 (a) (3)
of the Act.
I WILL NOT in any like or related manner encourage membership
in the aforementioned labor organizations, or in any other labor
organization or otherwise interfere with, restrain, or coerce my
employees in the exercise of the rights guaranteed them in
Section 7 of the Act, except to the extent that such rights may
be affected by an agreement requiring membership in a labor
organization as a condition- of employment as authorized by
Section 8 (a) (3) of the Act.
I WILL make whole David S. Davis for any loss of pay suffered
as a result of the discrimination against him.
All my employees and prospective employees are free to become,
to remain, or to refrain from becoming or remaining, members of the
above-named unions or any other labor organization except to the
extent that this right may be affected by an agreement in conformity
with Section 8 (a) (3) of the Act.
JOE K. MILLER D/B/A K. M. & M.
CONSTRUCTION CO.,
Employer.
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.
APPENDIX B
NOTICE TO ALL MEMBERS OF LOCALS 318, 318A AND 318B , INTERNA-
TIONAL UNION OF OPERATING ENGINEERS , AFL-CIO AND TO ALL
EMPLOYEES OF, AND APPLICANTS FOR, EMPLOYMENT WITH JOE K.
MILLER , D/B/A. K. M. & M. CONSTRUCTION CO.
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, we hereby notify you that :
WE WILL NOT enter into , perform, maintain , or otherwise give
effect to the provisions of any agreement with Joe K. Miller,
d'/b/a K. M. & M . Construction Co. which unlawfully condition
the hire of applicants for employment or retention of employees
in employment by such employer , upon clearance or approval by
us, except as authorized by Section 8 (a) (3) of the Act.
WE WILL NOT enter into , perform, maintain , or otherwise give
effect to any union -security provisions of any agreement with
K. M. & M. CONSTRUCTION CO. 1069
such employer unless such union-security provisions are in con-
formity with Section 8 (a) (3) of the Act.
WE WILL NOT cause or attempt to cause such employer to refuse
employment to qualified applicants or to discriminate in any
other manner against his employees in regard to the hire or tenure
of employment, except to the extent permitted under Section 8
(a) (3) of the Act.
WE WILL NOT in any like or related manner restrain or coerce
employees of the above-named employer or applicants for em-
ployment, in the right to engage in, or refrain from engaging in,
any or all of the activities guaranteed by Section 7 of the Act,
except to the extent that such right may be affected by an agree-
ment requiring membership in a labor organization in conformity
with Section 8 (a) (3) of the Act.
WE, the above-named labor organizations, WILL make whole
David S. Davis for any loss of pay suffered as a result of the
discrimination against him.
LOCALS 318, 318A AND 318B, INTERNA-
TIONAL UNION OF OPERATING ENGI-
NEERS, AFL-CIO,
Labor Organization.
Dated---------------- By-------------------------------------
(Representative ) (Title)
STANLEY MEDLEY , BUSINESS REPRESENTA-
TIVE, LocALs 318, 318A AND 318B, IN-
TERNATIONAL UNION OF OPERATING EN-
GINEERS , AFL-CIO,
Individual.
Dated---------------- By-------------------------------------
(STANLEY MEDLEY)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
This proceeding , brought under Section 10 (b) of the National Labor Relations
Act, as amended , 61 Stat. 136 (herein called the Act), was heard in St . Louis,
Missouri, on July 23 and 24, 1957, pursuant to an order of consolidation and due
notice to all parties . The complaint in Case No. 14-CA-1561 alleged, in substance,
that, since about July 16, 1956, Joe K . Miller, d/b/a K. M. & M. Construction Co.,
in violation of Section 8 (a) (1) and (3) of the Act , (1) enforced an- unlawful
union-security contract with Local 318,2 (2) maintained in effect an understanding
and practice requiring membership in, and clearance, approval , or referral by, Local
318 as a condition of employment ; and (3 ) refused to hire David S . Davis because
he was not a member in good standing of the Union and had not been cleared,
approved , or referred to the Employer by Local 318. The complaint in Case No.
I Referred to herein as the Respondent Employer , or as K. M & M.
9 Locals 318 , 318A, and 318B are referred to collectively as Local 318 , or the Union.
1070 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
14-CB-417 alleged that Local 318 and Mr. Stanley Medley, in violation of Section
8 (b) (1) (A) and (2) of the Act, (1) maintained and enforced illegal union-
security provisions in the aforesaid contract and (2) caused the Employer to refuse-
to hire Davis. In its answer, the Employer conceded certain facts with respect to,
its business operations but denied the commission of any unfair labor practices.
The Union and Medley, in their answer, conceded the execution of the agreement
in question, but denied all other allegations in the complaint that they had violated
the Act.
The General Counsel, the Employer, and Local 318 and Medley, were represented
at the hearing by their attorneys. Full opportunity to be heard, to examine and
cross-examine witnesses, and to introduce all evidence pertinent to the issues was
afforded all parties. At the conclusion of the hearing, counsel for Local 318 and
Medley moved to strike various paragraphs of the complaint in Case No. 14-CB-417.
That motion is now denied. Counsel for the latter parties also moved that the
complaint be dismissed (1) for lack of jurisdiction and (2) for failure of proof.
These latter motions were taken under advisement; they are disposed of as appears
hereinafter in this Report. Subsequent to the hearing unusually able and compre-
hensive briefs were filed by the General Counsel and by counsel for Local 318 and
Medley.
Upon the entire record in the case, and from my observation of the demeanor
of the witnesses, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT EMPLOYER
Joe K. Miller, an individual doing business under the trade name and style of
K. M. & M. Construction Co., at all times material herein, was engaged in fulfilling
contracts involving the moving and placement of earth and rockfill. In his answer
the Employer averred that he maintained his principal office at his home in Ridgely,
Tennessee. In May to June 1956 he was engaged for 45 days on a project in
Arkansas for which he received $18,000. From July 1956 to May 1957 he was
engaged in an earth-moving project at Mound City, Illinois. This involved enlarging
and strengthening a section of the levee along the Ohio River in connection with a
flood control program for which the Corps of Engineers, United States Army, was
responsible. The Corps of Engineers awarded a prime contract totalling $123,060
for this work to the Ford Construction Company of Dyersburg, Tennessee. The'
latter subcontracted all the work under this contract to the Respondent Employer.
K..M. & M. began work on the levee about July 5, 1956. The job was not officially
finished until May 27, 1957. However, it was substantially complete by December
17, 1956, except for approximately 2 weeks' labor that was performed sporadically
and as the weather permitted between December 17 and May 27. Upon com-
mencement of the levee project the Employer shipped some of his heavy equipment,
valued at about $25,000, from Caruthersville, Missouri, to the site at Mound City,
Illinois. In October 1956 he rented several heavy scrapers from Euclid Sales of
Memphis, Tennessee. After using these scrapers on the levee project for about 3
weeks he returned them to the Memphis outlet for the Euclid Company. On about
May 30, 1957, Miller moved his equipment to Vicksburg, Mississippi. Shortly
before the hearing, Miller himself accepted employment in the latter city as an
engineer for the Ford Construction Company. There is no evidence, however, that
by reason of this last employment Mr. Miller has no further plans for doing business
as the K. M. & M. Construction Co. At the hearing he gave his occupation as
"contractor, Ridgely, Tennessee," 3 and testified that immediately after World War
II, he and two partners named Kendall and McKee had formed the K. M., & M.
Construction Company as a partnership, but that shortly thereafter when the part-
nership was dissolved he acquired the company and changed the name to "Joe K.
Miller d/b/a K. M. & M. Construction Co." According to Mr. Miller, he has been
doing business under that firm name for about 9 years. From his testimony, it is
8In its brief the Respondent Union states that after initiating the Mound City project,
Miller established his permanent residence in Illinois on or about July 15, 1956 The
record, however, does not support this assertion. The transcript reference to Miller's
testimony cited in the brief for Local 318, as well as the balance of that testimony, indi-
cates that Miller came to Mound City on about that date and remained there only while
the major portion of the construction work was in progress. This is likewise apparent
from the testimony of Ernest B. Huggins, the superintendent for K. M. & M According
to the latter, when testifying as to Miller's presence at the Mound City site, "he [Miller]
was in and out from before the job started until it was all finished. . . -. 11
K. M. & M. CONSTRUCTION CO. 1071
apparent that although at the time of the hearing Mr. Miller was working as a salaried
engineer with the Ford Construction Company, and had no current contract work to
perform, he has every intention of continuing in business under his firm name when-
ever an opportunity to do so arises.
The complaint, dated June 11, 1957, alleged that in the preceding 12 months
the Employer had performed services outside the State of Tennessee for which he
received in excess of $150,000. This latter figure was not proved. On the basis of
the foregoing findings, however, the total was in excess of $100,000. Accordingly,
I find that the Employer was, at all times material herein, engaged in commerce within
the meaning of the Act. Local 148, Truck Drivers and Warehousemen's Union, etc.,
114 NLRB 1494, 1500; Columbia-Southern Chemical Corporation, 110 NLRB 206,
207. Moreover, in view of the fact that levee construction on the Ohio River in
itself involved an essential link in the channels of interstate commerce, I find that
the operations of the Employer on the Mound City project affected commerce within
the meaning of the Act. Morse Brothers, Harrisburg Sand and Gravel Co. et al.,
118 NLRB 1312; Madison County Construction Co., 115 NLRB 701; Vowel! Con-
struction Company, 117 NLRB 490; White Uvalde Mines, 117 NLRB 1126. For
these reasons, I find that it will effectuate the policies of the Act for the Board to
assert jurisdiction in the cases involved in this proceeding.
II. THE LABOR ORGANIZATION INVOLVED
Local 318 is a labor organization within the meaning of the Act. The Respondent
Union conceded that Stanley Medley is an officer, business representative, and agent
of Local 318.
III. THE UNFAIR LABOR PRACTICES
A. Introduction
Early in July the Employer began operations at the Mound City levee. Ernest
B. Huggins, the superintendent, hired 2 laborers to clear the area, and for approxi-
mately 2 weeks thereafter no others were employed. Sometime during this period
Mr. Miller and Mr. Huggins met with Mr. Stanley Medley, business representative
for Local 318,4 to discuss the availability of skilled labor in the area. Huggins
testified that on this occasion Miller asked Medley whether there would be any
objection if K. M. & M. employed 1 or 2 men who had worked for him on other
projects. According to Huggins, Medley disapproved on the ground that Local
318 had more members out of work than at anytime in 10 years and that he had
men available who would be as competent as any Miller might bring from Tennes-
see. On cross-examination, Mr. Miller conceded that during the course of this
meeting he told Medley that he would order all engineers needed on the job from
the Union.
On about July 16, the Employer and Local 318 executed a collective-bargaining
agreement. At that time Miller had returned to Tennessee. In his absence Huggins
signed the contract on the Employer's behalf. The provisions of that contract
relevant to the matters in issue herein are as follows:
ARTICLE III
Union Shop Conditions
1. In hiring new or additional employees, the . . . [Employer] .
agree[s] to hire engineers whose names shall be submitted upon request by the
business representative of said Union, subject to their qualifications in training,
experience and efficiency. The [Employer] shall be the judge of the employees
it selects, and agrees that . . [it] will not discriminate against any individuals
because of his membership in the Union.
2. It is agreed that the Steward on the job or the business representative of
the Union shall within twenty-four hours submit the names of its qualified
engineers, or to have the same appear in person to apply for work, after the
request in Section 1, above, has been made. It is agreed that after expiration
of said twenty-four hours notice, if no engineer has reported, the Contractor
may proceed in the best possible manner to fill said place with any other
qualified individual, subject to the provisions of Article II of this Agreement.
3. The Contractor agrees to retain only such Engineers in its employ who
' The precise date of this meeting was not fixed by any of the participants. Medley
testified that it occurred sometime in June, Miller that it was in either June or July, and
Huggins that it was in July.
1072 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
maintain membership in the Union in good standing, subject to provisions of
Labor Management Relation Act of 1947, as amended. In the event any
employee or employees do not acquire membership or retain membership
in good standing as herein provided, and in conformity with the statutory
provisions referred to, the Contractor upon receipt of written notice from the
Union served by registered mail, specifying names of employees who have
failed to maintain membership in good standing in the Union and setting forth
the reasons constituting the failure to remain in good standing, shall terminate
the services of such employees, and shall not permit such employees to remain
at work, unless and until such employees acquire membership in Union in
good standing, subject to the provisions of the Labor Management Relation
Act of 1947, as amended... .
At the time the contract was signed the Employer had no operating engineers in
his employ. The first to be hired was Ray Kerley,5 who came to work on July 19.
Thereafter, Kerley also served as the union steward. Local 318 contends that it
was not until about mid-August that Kerley received this appointment. Medley
testified that he never designated a steward on a job until approximately 50 percent
of the required number of engineers had been hired and that as a result it was not
until about August 15 or 20 that he so designated Kerley. On the other hand
Huggins testified that sometime in July and before the job started, Medley informed
him that Kerley would be the steward. Medley conceded that he had had such a
conversation with Huggins. The latter further testified that in his experience it was
general practice for the Operating Engineers to send out their 'steward as the first
man on a job. Moreover, after Kerley was hired Huggins dealt with him as the
Union's on-the-job representative.e This was not surprising in view of his earlier
conversation with Medley, the fact that the collective-bargaining agreement provided
that a steward would be named for the job, and the fact that, as Medley testified, in
the absence of a steward, the functions of such an agent would have to be performed
by officials of the Union from their headquarters in Harrisburg, Illinois, some 70
miles away. Medley did not testify that any notification was sent to the Employer
in mid-August that Kerley would thereafter be the steward and no documentary
evidence was offered to support his assertion that Kerley was not designated as a
steward until that time. Kerley himself did not testify. From the foregoing evi-
dence it is my conclusion, and I find, that Kerley was authorized by Medley to act
as the steward for Local 318 from the time he was hired on July 19 and that the
Union represented him as such to the Employer then and for approximately 2 months
thereafter.? As a steward Kerley was an agent of the Respondent Union throughout
this period .8
During the last week in July, K. M. & M. hired six additional operating engineers.
On August 20, when a second shift was started, another eight were employed.
Several others were hired in September and October and one was hired in November.
A total of 29 were employed during the course of these months. Mr. Miller testified
that none of these individuals had ever been in his employment previously, and that
most of them worked a total of approximately 3 weeks. According to Miller, all of
the 29 engineers hired for the job were referred by the Union with the exception of
4 individuals. These last were Doyle B. Dover, John Lamer, Samuel Underwood,
and John Buchanan. Miller testified that he hired Dover for 1 or 2 days to run
a farm tractor and that he hired Lamer one evening when Lamer came to the job
site in the company of another employee, one Elmer Koen, who announced that he
was going to quit that night. According to Miller; he kept Lamer on the payroll for
about a week and then discharged him. There was no testimony as to the length of
time that either Underwood or Buchanan worked for the Employer.
8 This name is also spelled "Curley" and "Kerly" In various portions of the transcript.
e Huggins testified as follows with respect to the method the Employer used to hire
men : ". . . the first man that came down there was the steward on the job, which was
Ray Kerley. He was the first man on the job, naturally, and on any union job you first
confer with your steward when you need another operator. He called the business agent
the instructions and they sent whatever men you ask for . . . we were supposed to let
them know 24 hours ahead of time and they sent the men, the operators in for the job."
7 Medley testified that Kerley served as a steward until about September 20. This
testimony was undenied.
8 The collective-bargaining agreement, article III, paragraph 4, provided that ". . . the
duties of the steward are to see that membership of the employees in the Union is kept in
accordance with the terms of this Agreement, and to perform the other duties usual and
customary to such Union officials . . . ." [Italics supplied.]
K. M. & M. CONSTRUCTION CO. 1073
B. Davis' efforts to obtain employment
David S . Davis, the Charging Party herein , had several years' experience in the
operation of earth-moving equipment and had worked under Huggins in 1954, when
the latter had been superintendent for another contractor . Late in May or early in
June 1957 , he met Huggins in Mound City and discussed the employment prospects
on the levee work that was about to begin . Huggins himself had not yet been hired
by Miller and was in no position then to make any commitments . However, he
suggested to Davis that the latter keep in touch with him and that he would endeavor
to help Davis in any way he could .9 In the latter part of July , Davis went to the
job site to contact Huggins. The first person whom he met was Kerley. Davis and
Kerley were mutual friends, they had worked on other jobs together and during those
periods of employment Kerley had been steward for the Operating Engineers. On
this occasion Davis asked where he could find Huggins . Kerley told him where the
superintendent could be found . During the course of their conversation Kerley
stated that "he guessed he would be the steward "and asked Davis "How are you
fixed ." When the latter told him that he needed a job, Kerley replied , "I know you
have lost your Teamsters ' card but I might be able to do something for you when the
job gets going . I don ' t know whether we will use any permit men or not, but if
there is a permit man on the job you will be the first one ." A few minutes thereafter
Davis talked with Huggins . According to Davis, the superintendent told him, "I
don't know how we can fix you up but you can go to work , if you clear with Mr.
Medley." Huggins told him that Medley was expected on the job site within a day
or two and suggested that Davis contact the business agent then . At this point
Davis told him of his conversations with Kerley a few minutes earlier . Huggins
then said "I will see what we can fix up for you," and asked that Davis return within
3 or 4 days. The testimony of the superintendent was not in conflict with the fore-
going. According to Huggins , when Davis inquired about the employment outlook,
"I told him I thought the work was going to be done with scrapers which would be
handled by the Operating Engineers , which he knew , if it would have been Euclid 10
it would have been handled by the Teamsters , and that all our men would come
through the Operating Engineers and that Mr . Medley had said that Ray Kerley
would be our steward down there on that job and I advised him to contact Ray Kerley
and Mr. Miller in regards to employment."
A few days later , Davis met Huggins again , this time in the contractor 's office on
the levee. According to Davis, at this meeting the superintendent told him that
when he had asked Medley whether Davis could report for work the business agent
stated that he would "refer enough card men to furnish the job." Davis testified that
Huggins promised that he would find a job for him within a few days, notwithstand-
ing this attitude on Medley's part , when K . M. & M. added a second shift . Although
Huggins testified that he could not recall this conversation he did not deny any of
the foregoing testimony by Davis in any respect . In view of the fact that Davis'
testimony in this regard was credible and uncontradicted I find that he had a con-
versation with Huggins on this occasion substantially as he related it.
Sometime before the inauguration of the night shift on August 20, Huggins,
Medley, and Kerley were together at a tavern in Mound City. Huggins testified
that during the course of their meeting Kerley related a conversation he had with
Davis in which Davis had asked about a job and in which Kerley had told Davis
that since there were more "card men" out of work than they could place, the
latter would have to go to work before any permit men. Huggins further testified
that during this conversation Davis was mentioned "in regard to employment pro-
vided they needed a man . . . and Mr . Medley said that they had too many card
men out of work for permit men to work, or that he had already lined up men
for the job...." 11
9 The foregoing findings, based on Davis' testimony, were not contradicted or denied
by Huggins.
10 This was a'reference to the kind of earth-moving equipment employed. Among the
types used on jobs where Davis had worked under Huggins had been one -known as a
"bottom dump Euclid" which Davis had operated at various times.
11 Mr. Medley conceded that he had had a conversation with Kerley at the time and
place fixed by Huggins and that Huggins was present. He denied that he mentioned
Davis' name and stated that neither had Kerley "to my knowledge." Medley, however,
was a very reluctant witness on this incident and summed up his unwillingness to testify
in this connection by stating "The conversation was strictly between myself and Kerley
for the Union ; whether it pertained to that project or not was neither here nor there."
The Respondent Union did not call Kerley as a witness . In view of Medley's obvious
483142-59-vol. 120-69
1074 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Shortly before the second shift began, Davis returned to the levee where he met
both Huggins and Mr. Miller. According to Davis, he opened the conversation by
asking when the night 'shift would start work. Huggins told him that it would be
within a day or two. Davis testified that when he then asked whether he could
go to work, Huggins replied that he had discussed the matter with Medley and
that the latter said that he would riot permit Davis to work. According to Davis,
Huggins then introduced him to Mr. Miller with the explanation that Davis had
worked for him before and that he [Huggins] had been trying to get him on the
job. Davis testified that Miller then suggested that he could probably find work
for him in Louisiana but that "it is so rough down here that I don't think we can
put you to work." 12 Huggins testified only briefly as to' this meeting. Apart from
stating that Davis asked him if he had spoken to Kerley, rather than to Medley,
about Davis' employment, Huggins' testimony was not in conflict with that of the
Charging Party as to this conversation. Moreover, Huggins testified that during
the discussion that day he informed Davis that Kerley had told him with respect to
the job prospects of the former that the Union had more "card men" than it could
place.
In addition to the foregoing, the record likewise contains the testimony of one
Roy Tyler, a man who also had worked under Huggins on other construction
projects. Tyler was a resident of Mound City and lived within a short distance
of the Employer's office on the levee. He testified that on one occasion during
this period he was on the levee when Huggins engaged him in conversation and
stated that Davis had been to the K. M. & M. office seeking employment. According
to Tyler, after Huggins stated that he wanted to put Davis on the job the superin-
tendent went on to say, "I could use him if he could clear through the union, but
I don't know if he could because there are some men out of work at the present
time " Tyler appeared to be a completely frank and honest witness throughout
his appearance on the stand. Counsel for neither Respondent endeavored to cross-
examine him and his testimony was neither contradicted nor denied. I, therefore,
find him a credible witness and accept his testimony as true.
C. Conclusions with respect to the allegations as to the collective-bargaining
agreement
1. The effective date
Local 318 has maintained that the contract with Miller did not become effective
until July 30, 1956, when it was stamped with a notice of "conditional approval" by
the International president of the Operating Engineers. The preamble of the
agreement describes the contracting parties as the "Contractor" and "Local 318."
Article IX, which sets forth the term of the contract, provides that it "shall be in
full force and effect when ratified, signed and sealed by officers of both parties."
-[Italics supplied.] Nowhere in its provisions is there any suggestion that the
International is a "party." It is obvious, therefore, that the contention that the
agreement did not become effective until approved by the president of the Interna-
tional would have to rest on the assumption that the agreement incorporated the
requirements on contract approval set forth in the constitutions of Local 318 and
the International . There is no basis for such an assumption , however, for no term
in the collective-bargaining agreement incorporates any such document by reference.
Moreover, that the contract is complete in itself and is not to be construed in
conjunction with any other instrument is made even more apparent by article VI
which provides:
All understandings, agreements, and undertakings of the parties hereto, touch-
ing the subject matter hereof, are embodied herein, and none of the parties
shall be affected, during the existence of this Agreement, by any rules,
regulations or understandings, touching the subject matter of this Agreement,
whether oral or written, which are not expressly incorporated herein.
evasiveness with respect to this conversation and the fact that the Respondent Union did
not call Kerley or offer any explanation for not doing so (see AT L R B v. Ohio Calcium
Company, 133 F 2d 721, 727 (C A 6) ; U. S v Lowe, 234 F 2d 919, 923 (C A 3), cert.
denied 352 U S 838), it is my conclusion and I find, that Huggins' version of this meet-
ing. as set forth in the testimony related above, is the more accurate
12Mr Miller testified that he could not recall having talked with Davis but he con-
ceded that such a meeting may have occurred. He did recall having offered to help several
job applicants find work in Louisiana and conceded that Davis might have been one bf
them. ,
K. M. & M. CONSTRUCTION CO. 1075
Consequently, since there is no ground for the argument that the effective date of
the contract was conditioned upon approval or ratification by the International, I
find that the agreement was effective as of July 16, 1957, when it was executed by
K. M. & M. and the representatives of Local 318. Since at that time the Employer
had not hired any engineers, and, by the terms of the contract, had agreed to place
all orders for such employees with Local 318,13 the Respondent' Union was afforded
complete control over the hiring of employees by the Respondent Company. In
addition to the plain implications of this agreement, there is the testimony of Miller
that he promised Medley, prior to the time work began on the project, that he
would hire all his operators through the Respondent Union.
2. The union-security provisions
The General Counsel alleged that the contract between the Respondents violated
the Act because it contained a discriminatory referral provision and failed to accord
employees a 30-day grace period before requiring them to join the Union. This
was denied by the Respondents. To those issues we will now turn.
a. The exclusive referral provisions
Local 318 readily conceded that the contract established an exclusive referral
arrangement but contended that it was similar to the agreements which the Board
has held to be nondiscriminatory. The contract here in question gave the Union
the authority to recruit all the operating engineers needed by the Employer and
allowed the latter to procure workers from other sources only when the Union failed
to fulfill for 24 hours a request by the Employer for additional men. Whereas the
Board has upheld an exclusive referral agreement, it has done so on condition that
such a clause included a provision that the Union would not discriminate against
nonunion members in its referrals. National Union of Marine Cooks and Stewards,
etc., 90 NLRB 1099, 1101-1102; American President Lines, Ltd., 101 NLRB 1417,
1429-1430. See also Kaiser Gypsum Company, Inc., 118 NLRB 1576. Local 318
contends that the agreement meets this test and cites in support of this argument
article V, paragraph 6, of the contract. This contention is not well founded. The
section cited is entitled "Termination Clause" and plainly has no application to
employees coming to work at the Employer's Mound City project. Reference to
its terms reveals that it would be effective only to a second project by the Employer
in which the members of the Union are again hired, and has no relation to a "first"
project such as is involved in this proceeding.14 It is my conclusion that the General
Counsel is correct in construing this provision to have no application to the Mound
City project since the contract was entered into for that job and when that was com-
pleted the Employer did not begin work "upon another project." 'Consequently, I
find that the agreement lacks the type of nondiscriminatory referral clause found
permissible in the Board cases cited above. Accordingly, it is my conclusion, and
I find, that on this ground alone the Respondents violated Section 8 (a) (3) and
(1) and 8 (b) (2) and (1) (A) of theAct.15
1] Only in the event the Union was unable to supply the needed employees within 24 hours
after the order was placed, was the Employer free to secure employees from other sources.
14 Thus, article V, paragraph 6, reads as follows .
The hire and tenure of employees ieferred by the Union to the Contractor shall cease
upon completion of work by the Contractor on 'the project for which referral was
made Such term of tenure shall he effective for all employees referred by the
Union without regard to membership or non-membership in the Union Upon com-
mencement of work upon another project, the contractor shall again request the
Union to refer employees in accordance with Article III, paragraph 1, of this agree-
ment and such reteiral shall be made by the Union of competent employees without
regard to membership or non-membership in the Union [Italics supplied I
16 The Respondent Union moved to' strike those paragraphs in the complaint which
alleged the contract to be unlawful insofar as it required clearance, approval of referral
by Local 318 as a condition of employment by K Al & M. In support of this motion the
Respondent Union, while conceding the illegality of an agreement conditioning employ-
ment on "clearance" or "approval" of a union, urged that an agreement between a union
and a company for referral of employees is sanctioned by the Act. On the ground that
the pleadings alleged both lawful and unlawful actions in the alternative and recited both,
in the alternative, to be violative of the Act, Local 318 contends that the pleadings are
duplicitous and should be stricken., The Respondent Unioii, however, lifts made much too
broad an assumption in presuming that the Act permits any and all types of referral
1076 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The General Counsel also contends that an exclusive referral agreement such as
that involved here is per se unlawful, even in the absence of a showing that it was
discriminatorily enforced and even if it contained a clause purporting to make it
nondiscriminatory. There is merit to this argument.
It is now established that the parties to a collective-bargaining contract may not
grant a union the exclusive control over seniority controversies because this tends
to "encourage" membership in the organization so favored. N. L. R. B. v. Inter-
national Brotherhood of Teamsters, 225 F. 2d 343, 347 (C. A. 8), enforcing as
modified, Pacific Intermountain Express Company, 107 NLRB 837, 845. In view
of this holding as to seniority, which is only one aspect of the employment relation-
ship, it would seem to follow that to vest in a union the power to control the hiring
of new employees is a violation of the Act a fortiori. Here the Union was given
unilateral control over the hiring of employees for 24 hours after K. M. & M. made
a request for workmen. This authority over the hiring function at the threshold of
employment opportunity for job applicants plainly tended to "encourage" member-
ship in Local 318. For this reason, I must further find that by entering into a
contract which permitted a labor organization to determine who would work for
him in this manner, the Respondent Employer violated Section 8 (a) (3) and (1)
and the Respondent Union, in turn, violated Section 8 (b) (2) and (1) (A).16
b. The absence of a 30-day grace period in the contract
Article III, paragraph 3, of the agreement reads, in relevant part, as follows:
The contractor agrees to retain only such Engineers in its employ who maintain
membership in the Union in good standing, subject to provisions of the Labor
Management Relations Act of 1947, as amended... .
Although the foregoing contains no explicit provision for a 30-day grace period
for new employees or an "escape" clause for old employees, the Respondent Union
contends that the last phrase ". . subject to the provisions of the . Act" was
adequate to cure this apparent defect. In other words, so Local 318 argues, this
language is comparable to that found in some union-security clauses which the
Board has construed as denoting an agreement requiring the employees to belong
to the union as a condition of employment subject to the limitation that such
membership is not required before their completion of at least 30 days' employ-
ment. In its brief the Respondent Union cites Kimble Glass Division, Owens-Illinois
Glass Company, 96 NLRB 640, and American Seating Company, 98 NLRB 800,
to support this contention. Examination of these decisions, however, discloses that
they involved agreements which specifically provided a 30-day grace period for new
employees. On the other hand, in a recent case, the Board sustained the validity of
a contractual provision comparable to the one here in question. Thatcher Glass
Manufacturing Company, Inc., 117 NLRB 1724. In so doing, however, it relied
largely on the fact that the employer and union had a bargaining relationship over
a period of many years, had a well-established practice of allowing all new employees
a 30-day grace period and had no history of any discriminatory practice in applying
the union-security provisions of their agreements. All of these factors are lacking
in the present picture. Here, there was no prior bargaining relationship between the
parties. There was no evidence of any established "escape" or grace period for old
or new employees and, as found below, the union-security provisions were used to
exclude and discriminate against Davis, a prospective employee. Under these
circumstances and with that background, the absence of an explicit 30-day grace
period in the contract between the Respondents could operate only to restrain and
coerce the new employees and the applicants for employment. Accordingly, it is
my conclusion and I,find that the clause as it appears in article III of the agreement
agreements . The Act sanctions such agreements only when they have safeguarded the
rights of the nonmembers and are nondiscriminatory in application. Since, as found
above, that was not true of the union-security clause here in question, there was no
duplicity in the allegations of the General Counsel's complaint. Accordingly, the motion
to strike is hereby denied.
16 In its brief the Respondent Union argues that a conclusion such as that set out above
constitutes a departure from Board policy. However, insofar as this conclusion con-
stitutes a departure from Firestone Tire and Rubber Company, 93 NLRB 981, one of the
principal cases on which Local 318 relies to support the legality of the referral, provisions
here involved, the Union is in no position to argue that it was misled. The Board deci-
sion in Pacific Intermountain, overruling Firestone, was issued on January 14, 1954,
whereas the contractual provisions here in issue were not executed by the parties until
July 1956.
K. M. & M. CONSTRUCTION CO. 1077
fails to provide for the 30-day statutory grace period, that it is, therefore, unlawful
and that its existence constitutes a violation of Section 8 (a) (1) and (3) by the
Employer and of 8 (b) (1) (A) and (2) by the Union. Red Star Express Lines of
Auburn, Inc., v. N. L. R. B., 196 F. 2d 78, 80, 81 (C. A. 2); N. L. R. B. v. Gottfried
Baking Co., Inc., 210 F. 2d 772, 779-781 (C. A. 2); Nassau and Suffolk Con-
tractors' Association, Inc., 118 NLRB 174; City Window, Cleaning'Company, 114
NLRB 906, 907, 918; Ebasco Services, Incorporated, 107 NLRB 617, 618; Green
Bay Drop Forge Co., 97 NLRB 642, 643-644; Essex County and Vicinity District
Council of Carpenters, 95 NLRB 969, 985, 993-994.
D. Conclusions with respect to the allegations as to Davis
The facts found herein establish, and I find, that: (1) Davis made at least three
applications for employment with the Respondent Employer; (2) the latter hired
operating engineers after Davis applied for work; (3) Superintendent Huggins as-
sured Davis he would be hired if he could be cleared by Local 318;' (4) Job Steward
Kerley told Davis that he would refer Davis to the job if Davis could obtain a work
permit from the Respondent Union; (5) Business Agent Medley refused to clear
or refer Davis for the job because the latter was not a member and there were
"card men" (i. e., members) out of work; (6) Medley advised Kerley and Huggins
that this was his position; and (7) the Respondent Employer refused to hire Davis
solely because he could not obtain clearance or referral from the Respondent Union.
By this conduct Local 318 unlawfully caused K. M. & M. to discriminate against
Davis by refusing to hire him. A. Cestone Company, 118 NLRB 669.
The agreement between the Employer and the Union provided that the former
obtain all its operators from the latter, unless Local 318 was unable to provide such
employees within 24 hours after they were requested. Moreover, the evidence in
this record establishes that in adhering to this contract, the Union referred employees
on a discriminatory basis by according first opportunity to its "card men" or mem-
bers.17 By maintaining and enforcing this hiring agreement or practice, I find that
the Respondent Union and Medley violated Section 8 (b) (1) (A) and (2) and the
Respondent Company violated Section 8 (a) (3) and (1) of the Act. Mountain
Pacific Seattle, and Tacoma Chapters, Associated General Contractors of America,
Inc., et al., 117 NLRB 1319; Carty Heating Corporation, et al., 117 NLRB 1417. I
further find that, even apart from the contract in question, the hiring practices of the
Respondents were proscribed by the Act. The inability of Davis to find employment
with the Respondent Employer was plainly the proximate result of the discriminatory
referral and hiring arrangement between the Employer and Local 318. By such
conduct the Respondent Company violated Section 8 (a) (3) and (1) and the
Respondent Union and Medley violated Section 8 (b) (2) and (1) (A) of the Act.
Finally, it was a violation of Section 8 (a) (1) and (3) of the Act on the part of
Huggins and Miller when they indicated to Davis that he would not be hired because
of the disapproval manifested by Local 318.
One other matter awaits disposition. When the General Counsel announced at
the hearing that he was calling Ernest B. Huggins as a witness under Rule 43 (b) of
the Federal Rules of Civil Procedure, the Respondent Union objected on the ground
that Huggins did not come within the scope of the aforesaid rule. This objection was
overruled 18 and the General Counsel proceeded with his interrogation, during the
course of which he asked several leading questions. Thereafter, the Respondent
Union cross-examined Huggins at length, but the Respondent Employer did not ques-
11 This conclusion is unaffected by evidence in the record that the Employer hired
4 employees who allegedly were not referred by Local 318, and that 2 of these employees
were not members or applicants for membership in the Respondent Union. Even accept-
ing this evidence in the light most favorable to the Respondents it does not negate or
supersede the unlawful practice and the contractual provisions whereby the Employer
committed himself to hire only employees referred by the Respondent Union. Grove
Shepherd Wilson & Kruge , Inc., et al., 109 NLRB 209 , 211, 214 ; Nassau and Suffolk
County Contractors ' Association, Inc, etc., 118 NLRB 174.
Is The Respondent Union contended that Huggins was only a grade foreman with minor
supervisorial functions . Mr. Miller , however , testified that Huggins was classified as
superintendent on the job and as such was responsible for directing the work and the
employees of K. M. & M. so that the project would be completed in accordance with the
specifications and rules established by the Corps of Engineers . Huggins had the authority
to hire laborers but needed the prior approval of Mr. Miller to hire operating engineers.
As noted earlier, he signed the. collective-bargaining agreement with Local 318, on behalf
of K. M & M. He was, therefore , a supervisor within the meaning of the Act and a
responsible agent of -the Employer.
1078 DECISIONS' OF NATIONAL LABOR RELATIONS BOARD
tion him at all. In its brief, Local 318 contends that it was prejudiced by the afore-
said ruling on the ground that 43 (b) could have no application to Huggins since he
"was not charged by the General Counsel with commission of unfair labor practices
or any participation in any unfair labor practices." This argument, however, has
no support in the record. The complaint in Case No. 14-CA-1561 alleged (para-
graph XI (b)) that the Respondent Company violated the Act through the conduct
of Huggins in telling employees that they could not be hired unless cleared, approved,
or referred by Local 318 and, as found above, the record itself bore out the allegation
insofar as Davis, an applicant for employment was concerned. Huggins, therefore,
could be cross-examined by the General Counsel within the rule of N. L. R. B. v.
Surprise Candy Co., 162 F. 2d 256, 257 (C. A. 2).19 A further objection, not urged
at the hearing but raised for the first time in the brief for Respondent Union, is more
substantial. This was based on the fact that at the time of the hearing Huggins was
no longer in the employ of K. M. & M. "He could, therefore, not technically be
called and questioned as an adverse witness under 43 (b)." O'Shea v. Jewel Tea Co.,
233 F. 2d 530, 534-535 (C. A. 7). However, upon examining the transcript it is
my conclusion that the Respondent Union has not been prejudiced by the latitude
permitted the General Counsel in examining Huggins. The request of the Respond-
ent Union, made in its brief, that the testimony of Huggins be stricken in its entirety
is, therefore, denied. O'Shea v. Jewel Tea Co., supra.
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 the Company described in section I, above, have a
close, intimate, and substantial relations to trade, traffic, and commerce among the
several States, and tend to lead to labor disputes burdening and obstructing commerce
and the free flow of commerce.
V. THE REMEDY
Having found that the Respondents have violated the Act, I shall recommend that
they cease and desist therefrom and take certain affirmative action designed to
effectuate the policies of the Act. I shall thus recommend, among other things, that
the Respondent Employer and the Respondent Union, jointly and severally, make
David S. Davis whole for any loss of pay suffered by reason of the discrimination
against him, by payment to him of a sum of money equal to that which he normally
would have earned from August 20, 1956,20 until he would have been laid off, absent
unfair labor practices, less his net earnings during this period. Back pay shall be
computed in accordance with the formula set forth in F. W. Woolworth Company,
90 NLRB 289.
Having found that the Respondent Employer violated Section 8 (a) (3) and (1)
and that the Respondent Union and its agent Respondent Medley violated Section
8 (b) (2) and (1) (A) of the Act by executing, maintaining, and enforcing an
agreement containing unlawful union-security provisions I will recommend that the
Respondent Employer withdraw recognition from Local 318 as the representative
of his employees and that the Respondents cease giving effect to their agreement of
July 16, 1956, or to any modification, extension, supplement, or renewal thereof, or
any substitute therefor, unless and until the Respondent Union has been duly certified
by the Board.
The General Counsel also contends that the Respondent Employer and Local
318 should be required, jointly and severally, to reimburse all moneys, dues, fees,
or assessments collected by Respondent Union from those individuals employed by
K. M. & M. as operating engineers on the Mound City project during the 6-month
period preceding the filing of the charges herein up to the time they cease and
desist from maintaining and enforcing any unlawful union-security clause and
hiring practice such as found herein. In support of this position the General
Counsel cites Plumbers Local 231 Q. S. Brown-E. F. Olds Plumbing & Heating
Corporation), 115 NLRB 594; Hibbard Dowel Co., 113 NLRB 28; The Englander
1e In that case the court stated (Id. at 257) :
It was not an error to allow the Board's attorney to cross-examine the respondents,
or those of its supervisory employees who were charged with unfair labor practices,
even though the Board had called them.
21 This was the date when the second shift was added. Although there is evidence in
the record that Davis might have been employed even prior to that date, had there been
no opposition from Local 318, it is obvious, and I find, that the Employer planned to hire
him for the night shift until Medley manifested the determined opposition of Local 318 to
any such exception in the hiring practice.
GIBBS CORPORATION 1079
Company, Inc., 114 NLRB 1034; and Broderick Wood Products Company, 118
NLRB 38. In these cases the Board found it appropriate and necessary to order
reimbursement of union dues and initiation fees collected pursuant to an unlawful
union-security clause. It is also true that in all of those cases the employer enforced
a checkoff provision. On occasion, the Board has refused to order reinbursement
of union dues collected by an employer on behalf of an illegally assisted union.
Cf. Bowman Transportation, Inc., 112 NLRB 387, 388, enfd. as modified 237 F.
2d 585 (C. A., D. C.), cert. granted as to another point, 353 U. S. 999. However,
in this case, despite the absence of a checkoff arrangement, collection of dues and
other union obligations were facilitated by the illegal union-security provisions in
the contract. Consequently, here, as in Brown-Olds and related cases cited, supra,
the parties to the illegal agreement should be held equally responsible for expunging
the effect of their unfair labor practices. I, therefore, find that it will effectuate the
policies of the Act to order the Respondent Union and the Respondent Employer,
jointly and severally, to refund to employees on the Mound City project all moneys,
dues, fees, and assessments collected pursuant to the unlawful agreement of
July 16, 1957.
Upon the basis of the foregoing findings of fact, and upon the entire record in
the case, I make the following:
CONCLUSIONS OF LAW
1. The Respondent Employer is engaged in commerce within the meaning of the
Act.
2. The Respondent Union is a labor organization within the meaning of Section
2 (5) of the Act, and Stanley Medley is an agent of said Union.
3. By discriminating with respect to the hire and tenure of employees, thereby
encouraging membership in the Respondent Union, the Respondent Employer has
engaged in unfair labor practices within the meaning of Section 8 (a)_ (3) of the
Act.
4. By interfering with, restraining, and coercing its employees in the exercise
of the rights guaranteed by Section 7 of the Act, Respondent Employer has engaged
in unfair labor practices within the meaning of Section 8 (a) (1) of the Act.
5. By executing, maintaining, and enforcing a contract containing unlawful
union-security provisions, the Respondent Employer has violated Section 8 (a) (3)
of the Act and the Respondent Union and Respondent Medley by causing the
Employer to discriminate with respect to the hire and tenure of employees in viola-
tion of Section 8 (a) (3), have engaged in unfair labor practices within the
meaning of Section 8 (b) (2) of the Act.
6. By restraining and coercing employees in the exercise of the rights guaranteed
by Section 7 of the Act, the Respondent Union and Respondent Medley have
engaged in unfair labor practices within the meaning of Section 8 (b) (1) (A) of the
Act.
7. 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.]
Gibbs Corporation and Industrial Union of Marine and Shipbuild-
ing Workers of America, AFL-CIO and Independent Workers'
Union of Florida, Party to the Contract
Independent Workers' Union of Florida and Industrial Union of
Marine and Shipbuilding Workers of America, AFL-CIO and
Gibbs Corporation, Party to the Contract. Cases Nos. 12-CA-40
and 12-CB-14. May 22, 1958
DECISION AND ORDER
Upon charges duly filed on February 11, 1957, and June 3, 1957, by
Industrial Union of Marine and Shipbuilding Workers of America,
120 NLRB No. 149.