Local 148

National Labor Relations Board - Board Decisions

Dec 28, 1955

114 N.L.R.B. 1494 (N.L.R.B. 1955)

1494 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Local 148, Truck Drivers and Warehousemen 's Union, affiliated
with International Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America , AFL-CIO i and Harold
N. Evans. Cases Nos. 19-CC-73 and 19-CB-346. December 28,
1955
DECISION AND ORDER
On August 15, 1955, Trial Examiner James R. Hemingway issued
his Intermediate Report in the above-entitled proceeding, finding
that the Respondent had engaged in and was engaging in certain un-
fair labor practices and recommending that it cease and desist there-
from and take certain affirmative action, as set forth in the copy of
the Intermediate Report attached hereto. He also found that the Re-
spondent had not engaged in certain other unfair labor practices al-
leged in the complaint' Thereafter, the Respondent and the General
Counsel filed exceptions to the Intermediate Report and supporting
briefs.
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record in the
case and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner, with the exceptions and modifications 3
noted 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 extent of the out-of-State
services performed by Harry Griffin, doing business as Harry Griffin
Trucking, herein called Griffin .4
2. We agree with the Trial Examiner's finding to the effect that the
Respondent violated Section 8 (b) (2) and 8 (b) (1) (A) of the Act
by following the unlawful practice, fully described in the Intermedi-
ate Report, of requiring applicants for employment as truckdrivers
to obtain clearance from it as a condition of employment' and by its
efforts to induce Griffin to subscribe to this unlawful hiring practice,
thereby attempting to cause Griffin to discriminate against employees
in violation of the Act.'
1 The AFL and CIO having merged subsequent to the hearing in this proceeding, we are
amending the identification of the affiliation of the Union accordingly.
S As no exceptions were taken to the Trial Examiner's finding that the Respondent did
not violate Section 8 (b) (4) (A) of the Act, as alleged in the complaint , we shall adopt
that finding without comment.
8 Contrary to the Trial Examiner, the record does not show that Donald Drake' s opera-
tions in Wenatchee, Washington, in 1953 were covered by the AGC 1950 contract, as
amended in 1953 to provide for health-welfare payments.
• Jonesboro Grain Drying Cooperative , 110 NLRB 481.
5 As found by the Trial Examiner, job referrals are made by the Respondent on a dis-
criminatory basis. No exception was filed to this finding of the Trial Examiner.
e In view of this finding and the scope of our Order herein, we find it unnecessary to
decide whether , as the Trial Examiner found, the Respondent independently violated
114 NLRB No. 235.
LOCAL 148- 1495
3. The Trial Examiner found that the Respondent caused Griffin
to discriminate against 11 of his keymen named in the complaint, as
amended, in violation of Sections 8 (b)-'(2) and 8 (b) (1) (A) of the
Act. The Respondent excepts to this finding. We find merit in the
exceptions,
The Trial Examiner's ultimate conclusion on this aspect of the case
is based upon his- subsidiary findings that the Respondent refused to
clear Griffin's key employees and thereby caused Griffin to abandon
his contract with Drake-Fuller, all of which resulted in loss of em=
ployment to the employees in question. We would agree with the
Trial Examiner here if, for example, the record showed that, pursuant
to an illegal hiring practice between the Respondent and Griffin such
as existed between the Respondent and other employers, employees
were denied clearance by the Respondent and consequently suffered a
loss of employment with Griffin or that Griffin, although not a party
to any illegal hiring practice, chose to abandon his contract with
Drake-Fuller, thereby depriving his employees of further employ-
ment, rather than operate with employees whose employment was
objected to by the Respondent. But such evidence is not to be found
in the record. Instead, the record shows that Griffin was not a party
to any illegal hiring practice and that, acting through his foreman,
Shipp, he was willing that his key employees work without clearance
from the Respondent and, together with Lile, a representative of
Drake-Fuller, sought to persuade them to work without such clearance.
It was only after these requests to' work without clearance were re-
jected by the employees for the reason that they did not wish to
jeopardize their status with the Respondent' and Griffin unsuccess-
fully attempted to obtain the clearance without which his key em=
ployees would not work, that Griffin abandoned his contract with
Drake-Fuller. On these facts, it is plain that, were Griffin before us
at this time charged with unlawful discrimination against the com-
plainants in question, a finding would have to be made that he in no
way discriminated against any of them during the period covered by
the complaint. It therefore must be found that the Respondent did
not cause Griffin to discriminate against those employees, in violation
of Section 8 (b) (2) and 8 (b) (1) (A) of the Acts Accordingly,
we shall dismiss those allegations of the complaint .9
Section 8 (b) (1) (A) of the Act by the conduct of Leininger , its business representative,
at the Columbia Sand and Gravel site on November 19, 1954.
' The employees were members of other Teamster locals.
8 As the Board has heretofore held, the General Counsel, in order to establish a labor
organization's liability for a violation of Section 8 (b) (2) in causing employer discrimina-
tion, "must prove that the labor organization `caused' the emnlover to engage in conduct
which if the employer were before the Board-would be found violative of section 8
(a) (3)" Newspaper and Mail Deliverers ' Union of New York and Vicinity , 93 NLRB
419, enfd. 194 P. 2d 698 (C. A. 7). See also International Union, United Automobile,
Aircraft and Agricultural Implement Workers of America , CTO, 92 NLRB 968.
9 Cf. Local No . 63, United Brotherhood of Carpenters and Joiners of America. AFL,
106 NLRB 231.
In view of this finding, we need not decide whether the Trial Examiner erred in grant-
ing the General Counsel 's motion to amend the complaint by adding the name of William
1496 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 Respondent, Local 148, Truck
Drivers and Warehousemen's Union, affiliated with International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers
of America, AFL-CIO, its officers, representatives, agents, successors,
and assigns, shall :
1. Cease and desist from :
(a) Maintaining or engaging in a practice which requires em-
ployees or applicants for employment to obtain job clearance from its
organization as a condition of employment, including the practice of
favoring its own members in work referrals and of refusing to clear
for employment individuals requested by employers unless such em-
ployees would otherwise be cleared for employment, except to the ex-
tent permitted under the proviso to Section 8 (a) (3) of the Act.
(b) Causing or attempting to cause Harry Griffin, doing business
as Harry Griffin Trucking, or any other employer over whom the
Board would assert jurisdiction, to discriminate against any employees
in violation of Section 8 (a) (3) of the Act.
(c) Restraining or coercing employees of Harry Griffin, doing busi-
ness as Harry Griffin Trucking, or of any other employer over whom
the Board would assert jurisdiction, in the exercise of the rights
guaranteed in Section 7 of the Act, except to the extent that such
rights may be affected by an agreement made in accordance with the
provisions of Section 8 (a) (3) of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Post in conspicuous places in its business offices and all places
where notices to members are customarily posted, copies of the notice
'attached hereto marked "Anpendix." 10 Copies of said notice, to be
furnished by the Regional Director for the Nineteenth Region, shall;
after being duly signed by the Respondent's representative, be posted
by the Respondent immediately upon receipt thereof and maintained
by it for a period of sixty (60) consecutive days thereafter. Reason-
able steps shall be taken by the Respondent to insuie that said notices
,are not altered. defaced, or covered by any other material..
(h) Notify the R(^mional Director for the Nineteenth Region, in
writinlr; within ten (10) days from the date of this, Order, as to what
steps it has taken to comply herewith.
P' Gattia as a comnlainant . It atsn follows that neither complainants Walter lisle nor
'Miles Hale is entitled to an r,nfnir labor practice finding in his favor , even if one of, them
was present at the nninn hall on November 19. 1954 , as the General Counsel contends "in
his ereentinna to the Trial Examiner 's finding that the Hales were not the victims of
d1se'iminatinn in this case
10Tn the event that this order is enforced by a decree of a United Stales Cmirt of
Appeals, there shall be siibatitntad for the words "Pnrauant to a Decision and Order" the
'words "Pursuant ' to a Decree of the United States Court of Appeals , Enforcing an Order."
LOCAL 148 1497
IT IS FURTHER ORDERED that the complaint, insofar as it alleges viola-
tions of the Act different from those found in this Decision and Order,
be, .and it hereby is, dismissed.
MEMBERS MURDOCK and BEAN took no part in the consideration of
the above Decision and Order.
APPENDIX
NOTICE TO ALL MEMBERS OF LOCAL 148, TRUCK DRIVERS AND WARE-
HOUSEMEN'S UNION, AFFILIATED WITH INTERNATIONAL BROTHERHOOD
OF TEAMSTERS , CHAUFFEURS , WAREHOUSEMEN AND HELPERS OF
AMERICA, AFL-CIO, AND 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, as amended, we hereby notify you that :
WE WILL NOT maintain or engage in a practice which requires
employees or applicants for employment to obtain job clearance
from us as a condition of employment, nor will we favor members
of our organization in making referrals to jobs or refuse to clear
specific individuals requested by employers unless such employees
are otherwise eligible for clearance, except to the extent permitted
under the proviso to Section 8 (a) (3) of the Act.
WE WILL NOT cause or attempt to cause Harry Griffin, doing
business as Harry Griffin Trucking, or any other employer over
whom the Board would assert jurisdiction, to discriminate against
any employees in violation of Section 8 (a) (3) of the Act.
WE WILL NOT restrain or coerce employees of Harry Griffin,
doing business as Harry Griffin Trucking, or of any other em-
ployer over whom the Board would assert jurisdiction, in the exer-
cise of the rights guaranteed in Section 7 of the Act, except to the
extent that such rights may be affected by an agreement made in
accordance with the provisions of Section 8 (a) (3) of the Act.
LOCAL 148, TRUCK DRIVERS AND WAREHOUSEMEN'S UNION,
AFFILIATED WITH INTERNATIONAL BROTHERHOOD OF TEAM-
STERS, 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 materials.
1498 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon charges filed on December 15, 1954, and amended charges filed on January
28, 1955, by Harold N. Evans, an individual, the General Counsel for the National
Labor Relations Board, pursuant to an order of consolidation, issued a consolidated
complaint against Local 148, Truck Drivers and Warehousemen's' Union, affiliated,
with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Help-
ers of America, AFL, herein called the Union, alleging that the Union had engaged
in and was engaging in unfair labor practices affecting commerce within the mean-
ing of Section 8 (b) (1) (A), (2), and (4) (A) and Section 2 (6) and (7) of the
National Labor Relations Act, as amended, herein called the Act. Copies of the
respective charges, the complaint, and the notice of hearing were duly served on the
parties.
With respect to the unfair labor practices the complaint, in substance, alleges that:
(1) The Union by an oral agreement or understanding with named employers at-
tempted to enforce and has enforced conditions of employment and created an estab-
lished practice whereunder employment is conditioned upon membership and stand-
ing in , and acceptability to, the Union; (2) from on or about June 15, 1954, and par-
ticularly from about November 19, 1954, and again from about November 23, 1954,
and thereafter until December 9, 1954, the Union, for the purpose of encouraging
membership in a labor organization, did, under the terms of the agreement and
practice previously mentioned, continuously refuse to dispatch, grant permits to, or
otherwise to clear for employment certain named employees, and caused certain
named employers to discharge or to fail and refuse to employ said employees be-
cause they were not acceptable to, or eligible for permits, dispatch, or clearance by,
the Union because they were not members of the Union, membership having been
denied for reasons other than failure to tender periodic dues and initiation fees; (3)
on or about November 19, 1954, the Union, for the purpose of restraining employees
in the exercise of rights guaranteed in Section 7 of the Act, threatened to blacklist
and/or to revoke the membership in the Union's parent organization of the employ-
ees previously named in the complaint in the event that any or all of said employees
should undertake to perform services for or to accept employment from certain
named employers without first having received permits from and/or having been
cleared by the Union and/or having been dispatched for such work under the terms
and agreement and practice described heretofore; and (4) about November 19, 1954,
the Union, for the purpose of preventing 3 named employers from doing business
with each other, induced and encouraged employees of I such employer, with whom
it had no primary labor dispute, to engage in a strike or a concerted refusal in the
course of their employment to process, transport, or otherwise to handle or work on
goods or to perform services for the latter employer and particularly to refuse to
load trucks operated by employees of the other 2 employers because the employees
of the latter 2 had not received permits and/or clearance from the Union and were
not dispatched to such employment by the Union under the terms of the agreement
and practice previously described.
The Respondent's answer, filed on June 9, 1955, affirmatively alleges that the
Union has operated a hiring hall on a rotation basis without regard to membership
in the Union or any other labor organization but denied that the Union operated
such hiring hall in any manner which violates the Act. It further alleges that on
November 19, 1954, the Union requested the employer named in the complaint to
stop loading trucks of another employer and that the first employer, after agreeing
not to load said trucks, directed that the Union's business agent contact and instruct
the employee loading such trucks to stop the loading thereof. Otherwise the answer
denies the unfair labor practices alleged.'
Pursuant to notice a hearing was conducted at Ephrata, Washington, on May 26
and 27 and at Los Angeles, California, on June 23, 1955, before the duly designated
Trial Examiner. The General Counsel and the Union were represented by counsel
at the Ephrata hearing but the Union's attorney failed to appear at the Los Angeles
bearing although it had ample notice thereof. At the opening of the hearing, coun-
sel for the General Counsel made a motion for judgment on the pleadings on the
ground that the Respondent had filed no answer to the complaint as required by the
1 The answer Is sworn to by an attorney for the Union, but it does not contain the
power of attorney called for by Section 102 21 of the Board's Rules and Regulations. I
have no doubt, however, that the attorney was authorized to make the answer on behalf
of the Union and do not reject it for such reason.
}
LOCAL 148 1499
Board's Rules and Regulations. The motion was denied. The Trial Examiner re-
quired the Respondent orally to state which allegations of the complaint were ad-.
mitted or denied, and granted permission to the Respondent to file a sworn answer
during the hearing. Thereafter the General Counsel moved to amend one para-
graph of the complaint by insertion of a date. The motion was granted. At the re-
quest of the parties a date was set for the filing of briefs. At the request of the
Union the date for filing of briefs was extended to July 16. On that date briefs
were filed by both parties.
Before the commencement of the hearing in Ephrata, the parties had stipulated
to the taking of the testimony of a witness for the General Counsel by deposition
in Los Angeles, on June 23, 1955, and, upon application by counsel for the General
Counsel, the Regional Director issued. an order to take such testimony by deposition
at that time. At the hearing in Ephrata the Trial Examiner expressed his inten-
tion to take the testimony of said witness himself in open hearing if possible, and at
the conclusion of the other evidence at Ephrata on May 27, he continued the hearing
without delay. On June 10, 1955, the Trial Examiner issued an order rescinding
the order of the Regional Director for the taking of the deposition of said witness
and ordered that the hearing be continued in Los Angeles at the time and place
originally set for the taking of the deposition. Subsequently, the original time was
postponed 1 hour for the convenience of counsel for the Union. One hour before
the time so scheduled for the hearing, the Trial Examiner, in Los Angeles, received
a telegraphic request from the Union for a continuance. This request was denied, but
counsel for the Union was informed that if, after reading the transcript of the testi-
mony of the witness in Los Angeles, he felt that further proceedings were necessary,
a motion to reopen the hearing would be entertained. On July 14, 1955, the General
Counsel filed a motion with the Trial Examiner to amend the complaint by adding
the name of William P. Gattis to the series of names in paragraph numbered VII of
the complaint. The Trial Examiner issued a notice to the Union to show cause why
the motion should not be granted. On July 22 the Union filed an opposition to the
motion on the ground that the motion was untimely and on July 25 the General
Counsel filed a statement in support of the motion. On July 29 the motion was
granted.
Upon the entire record in the case, and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT
1. THE EMPLOYERS AND COMMERCE FACTS
Donald M. Drake Company, hereinafter called Drake Co., an Oregon corpora-
tion with an office in Portland, Oregon, is engaged in business as a general con-
tractor. During the year 1954, Drake Co. entered into six joint venture agreements
with George A. Fuller Company, herein called Fuller, a contractor having an office
in Los Angeles, California, for construction work at Larson Air Force Base, near
Moses Lake, Washington. For this work, the joint venture, which will herein be
called Drake-Fuller, had construction contracts with both the United States Army
Corps of Engineers and the Boeing Airplane Company, the latter being a prime
contractor with the United States Air Force. The two contracts with Boeing were
called B52 preflight facilities, Bid Package Nos. 5 and 6. Bid Package No. 5,
a contract for paving airplane taxiways and for construction of service and shop
buildings and other facilities, had a value of approximately $5,500,000, and Bid
Package No 6 had a value of $1,600,000. In the performance of Bid Package No.
5, Drake-Fuller purchased fabricated materials, such as structural steel pipe and
conduit, which came directly or indirectly from States other than the State of Wash-
ington and which had a value of not less than $2,000,000.
In connection with Bid Package No. 5, Drake-Fuller on November 15, 1954,
entered into a contract with Harry Griffin, doing business as Harry Griffin Trucking,
herein called Griffin, for hauling dry batch materials and concrete aggregate for use
in paving construction. The Griffin contract had a dollar value of between $50,000
and $60,000. Under this contract, Griffin was to haul the concrete aggregates from
the Columbia Sand and Gravel Plant, herein called Columbia, to the Drake-Fuller
batch plant at Larson Air Force Base about 3 miles distant.
In the operation of his business in 1954, Griffin did trucking for Gavins Point
Dam, a Federal pioject at Yankton, South Dakota, under a contract for the sum of
$139,000, the work on which had continued for more than 2 years at the time ,of
the hearing. Of the total contract figure, $38,000 was earned during the year 1954.
Also during 1954, Griffin, in a joint venture with Griffin Brothers. a New Mexico
corporation, performed a contract for trucking at an airbase at Mountain Home,
Idaho. This contract was for the gross amount of $596,000.
1500 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On the basis of the foregoing evidence, it appears that Griffin, the primary con-
tractor, performed out-of-State services in excess of $50,000 annually and that this
alone would warrant the assertion of jurisdiction by the Board.2 As will appear
hereafter, the activity of the Union tended to interfere with performance of a sub-
contract essential to the performance of a prime contract with the Government which
substantially affected the national defense.3 Even if the Board's criteria for asserting
jurisdiction were not met on the basis of Griffin's business alone, the combined busi-
ness of primary and secondary employers, or even of the prime contractor alone,
would warrant assertion of,jurisdiction 4 I find, therefore, that it would effectuate
the policies of,the Act to assert jurisdiction.
The evidence develops the fact that Griffin, Drake-Fuller,5 and Columbia, are
persons and employers within the meaning of Section 2 (1) and (2) of the Act.
II. LABOR ORGANIZATION
The Union admits the allegation of the complaint that it is a labor organization
within the meaning of Section 2 (5) of the Act and I so find.
III. UNFAIR LABOR PRACTICES
A. Union hiring practices
1. The union contracts
Drake-Fuller became a member of the Spokane, Washington, Building Construc-
tion Chapter of the Associated General Contractors of America, usually called AGC,
when it started work in the Moses Lake area in May 1954. By virtue of its member-
ship, the joint venture became bound by the terms of the extant building construc-
tion contract between the AGC and certain signatory unions, including the Union.
Unaware that there was also a Heavy Construction Chapter of the AGC in Spokane
which had a separate contract with certain unions, including the Union, Drake-
Fuller did not join that chapter, although the paving work which was being done
at Larson Air Force Base would have come under that AGC contract. Between
May and October 1954, the work performed by Drake-Fuller fell under the build-
ing construction contract. In October 1954, it commenced heavy construction
work and then for the first time learned of the heavy construction contract. Al-
though it did not join the Heavy Construction Chapter of AGC, Drake-Fuller
began to follow the terms of the latter contract. According to Donald G. Drake,
president of the Drake Co., "as a member of . . . the national A. G. C. you are
pretty much bound to do that." The relationship is partially clarified by Drake's
testimony:
When we go into another area, whether we join or not and get all of their agree-
ments and sometimes we may not be a complete member, but we may pay them
a fee for a labor service which amounts to about the same thing. In other
words, we don't assign our bargaining rights so to speak, or they don't represent
us so to speak, but we come into an area and in good faith we pay them a
fee to work under the agreement.
I deduce that, although Drake-Fuller was not legally bound by the heavy con-
struction contract, it intended to bring its practices into conformity therewith be-
cause it was expedient to do so.
The heavy construction contract, made in 1950, had a term expiring at the end
of 1955, but in 1953 it was amended to include a new wage scale and a provision,
starting July 1, 1954, for monthly payments by employer members of AGC of 7t6
cents per workman-hour into a health and welfare fund.
Among the unamended relevant provisions of the contract are the following:
ARTICLE III-SUB-CONTRACTORS
(a) The EMPLOYER agrees that sub-contractors to whom subcontracts are
let shall become parties to this Agreement, and shall remain so during all parts
of their sub-contract work.
2 Columbia-Southern Chemical Corporation, 110 NLRB 206.
8 Maytag Aircraft Corp., 110 NLRB 594; Ready Mimed Concrete Company, 110 NLRB
1251.
Reilly Cartage Company, 110 NLRB 1742; Dennehy Construction Company, 111
NLRB 1025.
6 Grove Shepherd Wilson & Hruge, Inc., et at., 109 NLRB 209.
LOCAL 148 1501
ARTICLE IV-EMPLOYMENT CLEARANCE
Established practice having proved mutually satisfactory to the Parties hereto
over a period of years, in the employment of workmen, whereby the Employers
party to this agreement have called on the Unions to- furnish qualified workmen,
in the classifications listed under Schedule "A", an integral part of this agree-
ment, the Employers agree to maintain the aforesaid practice.
ARTICLE V -UNION MEMBERSHIP AND DUES
The Unions assume all obligation and responsibility for the continued mem-
bership of their members and the collection of their dues, and the Unions shall
retain the right to discipline their members at all times, even unto removal
from the job, for failure to maintain themselves in good standing with the_
Union.
ARTICLE XIV-OTHER EMPLOYERS
The Unions agree that during the life, of this Agreement they will not furnish
members to employers other than those set forth in Schedule "B" under con-
ditions more favorable to the Employer than those herein established.
2. The Union's hiring-hall practices
It has been the Union's practice to maintain a list of names of men seeking em-
ployment. When a contractor telephones the union hall for men to drive certain
types of trucks, the Union selects men qualified to drive such trucks from this list,
assertedly giving priority to those whose names have been longest on the list. Of
those who register with the Union for work, in addition to members of the Union,
some are members of other Teamster locals, some are members of other A. F. of L.
unions, and some are not members of any union. As long as such men register, they
are supposed to be given clearance when their names come up in turn as employers
call for men. Strict rotation is not always followed, however. If the registrant has
a job in another location at the time that he is notified by the Union of a job, he
has been privileged to leave his name in the same position on the register without
removal; and if Whitmore, the dispatcher, is at home when a call comes in for
drivers, she relies on her memory of the register to call men to be dispatched. This
has resulted in calling someone out of turn, since Whitmore is more familiar with
the names of certain men, especially those of members of the Union. Also, if a
contractor calls in and wants a driver right away and there happens to be a driver in
the union hall at the time, Whitmore may dispatch him out of turn.
Until about October 1954, the register consisted of sheets of paper on which the
names of'job applicants and other information was written. Early in 1954, the date
of registration was shown on such sheets for each registrant. ' Later, the date ap-
peared with less frequency until, finally, after September 9, 1954, no registration dates
were shown at all. Thus, no date was shown for the last 45 men to register before
,this form of registry was discontinued. Following October 1954, the registry has
been kept in a looseleaf notebook with the name of each registrant on a card which,
'following the driver's dispatch to a job, is transferred to an inactive file by alpha-
betical arrangement. Such cards are pulled out of the file and inserted in the book
again when the same man reregisters. While these cards are in the book, it is
possible to determine who is next in order to be dispatched, but once the card is
removed and put in the inactive file, there is no way to determine whether or not
the man dispatched was in fact dispatched in the proper order. During the period
before November 1954, the registration list contained not only the name, address,
and telephone number of the registrant, but frequently indicated the type of equip-
went he was accustomed to operating, and more often than not indicated the regis-
trant's union affiliation. The latter was indicated by putting the local number of the
union or of an affiliated local between the date of registration and the registrant's
name. The handwriting on the list indicates that 2 or 3 persons usually wrote the
data on the list, and I infer that in most cases this was the dispatcher or acting dis-
patcher. If a person was not a member of the Union or of any affiliated local, there
would appear in the space where the local number usually was written the initials
NC, standing for "no card." Inactive members were indicated by the initials WC,
standing for "withdrawal card." In some cases, the number of the local from which
the registrant withdrew was added to the initials WC.
In theory, if the men were always dispatched in order of priority of registering,
there would be no discrimination in favor of members of the Union or members of
1502 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
an affiliated local. But the evidence tends to support the contention of the General
Counsel that a greater percentage of members of the Union who registered were
cleared for jobs than were nonmembers or members of other locals. The out-of-
work register for the period from September 23, 1953, to the end of October 1954,
was introduced in evidence. A large number of names have a line drawn through
them. This usually indicated that the man whose name was stricken had been re-
ferred to a job, but there were a few exceptions. Some names had been stricken
with the notation "moved away," "tried," or "called" on dates shown. But names
were not always stricken after an unsuccessful call, and in some instances names of
men not stricken had marginal notations indicating that the man was working or
waiting for particular work. The following statistics taken from this list are sig-
nificant, even making allowance for certain errors made in keeping the record.
Indicated Membership
Number of
Names
Number of
Names Not
Stricken Stricken
148 (I.e ,the Union) ------------------------------------------------------- a 195 b 40
148 WC --- ------------------------------------------------------------------ 5 04
-
Nonmembers willing to join the Union d---------------------------------- 15 3
Members of other locals or on withdrawal cards of other locals-------------- 15 52
Nonmembers NC (No card) ----------------------------------------------- 11 40
Unidentified by any notation--------------------------------------------- 9 10
On withdrawal card with no local indicated-------------------------------- i2 g 14
About 8 of these had notations indicating that they had moved away or were unavailable. About
3 more bore notations that they had been called (1 man having given the wrong telephone number). It
does not appear whether or not two of these had or had not received work assignments before their names
were stricken
b Three had been called, apparently without success
One had been called, apparently without success
d Willingness is to be inferred from notations such as "application," "will join," or "148 join" in space for
affiliation
e Some of those included in this group may have been on withdrawal card rather than having no card
since the handwriting makes it difficult to distinguish WC from NC in several instances.
i One was stricken with notation that registrant had moved.
g One bore notation, "doesn't live there any more "
Some errors in designation of union affiliation existed. For example, a man named
Elemuel Pannell was shown on the list as a member with the designation "148."
Whitmore explained that he was not a member when he registered although he was
when he was dispatched. Another, indicated as a member, was an applicant for
membership only. A man named Ray Shinkle was shown on the list as a member
of the Union, but Whitmore testified that he was not then a member but made appli-
cation when he was dispatched. I note that Shinkle was not dispatched in order of
priority, several others who registered later having been assigned to work first.
The contrast between the percentage of members who were dispatched by the
Union and the percentage of nonmembers or members of other locals is so marked
as to render it inconceivable that such difference resulted purely from chance. Even
making allowances for occasional errors, the percentage would still be grossly unequal.
Clearance consists of giving a man a slip of paper printed in the following form:
Teamsters Local 148
Phone 1598 Labor Temple
A. F. of L.
Division -----------------------------------------------
TEMPORARY CLEARANCE CARD
Name -------------------------------------------------
SOCIAL SECURITY NO. -------------------------------
Address ------------------------------------------------
Employer ----------------------------------------------
Date Issued --------------------------------------------
Expires on ---------------------------------------------
IMPORTANT-On or before expiration date you are to make application for
union membership at Teamster's office
Chas. H. Jewell
No. ------------ Business Representative and Sec.-Treas.
LOCAL 148 1503
If an employer calls the Union and asks that a particular man be cleared to him,
- the dispatcher will not comply with the request unless that man is near the top of
the Union's out-of-work list. Usually, when an employer calls the Union for men,
he merely asks for a man or a certain number of men to operate a certain type of
equipment. Upon receipt of such a call for a man, the dispatcher selects a qualified
man off the registration list, notifies him, and, if he is available, calls him in and
prepares a clearance card for him on one of the foregoing forms. When preparing
the clearance card for a driver, Whitmore asks if he has a union card. It he does
not have a card, Whitmore testified, "... we tell him he has the 30-day period that
he comes in and makes out his application." But the space for expiration date-on
this form is not filled in with the 30-day or any other period of time. Whitmore
testified that it was the duty of Lewis Leininger, the Union's business representative
at Moses Lake, to follow up such notice to see that the man dispatched made appli-
cation for membership' within 30 days. The extent of influence brought to bear on
a nonmember-who has been cleared by the Union-to join it is not too clear.
Leininger, as a witness, gave varied answers concerning this subject. On cross-
examination by counsel for the General Counsel, Leininger first testified that a man
who had registered on the Union's out-of-work list and been referred to a job by the
Union would be required to join the Union. This was not pursuant to the AGC con-
tract, Leininger testified, "I would request that he become a member because of
the services the union rendered him in gaining employment." On redirect examina-
tion for the Union, Leminger testified that men were only "required" to join the
Union where there is a union shop and that under the AGC contract there is no
requirement that men become members of the Union, so they are only "requested
to join." On examination by the Trial Examiner, Leininger testified that he had
never "directly" told any employee that he could not work any longer unless he
joined the Union. "In some jobs we have shop agreements and they work from one
job to another and in order for them to go from one job to another, it's sometimes
to their benefit to be members of the union," Leininger said. Again, he, testified
that, except in cases where the Union has a lawful union-shop contract, he has "never
insistently" required as a condition of employment that a man be or become a
member of the Union. By "never insistently," Leininger testified he meant that
-"when we place a man on a job we feel that he has a certain obligation because we
have assisted him in gaining employment and we would like to have him in our
organization." Asked whether anyone had ever turned the Union's solicitation down
under those conditions, Leininger answered: "Yes, men have terminated their em-
ployment. Some of them the jobs have lasted one day to months and they have
never come in and applied for work again.... After the job was over they have
just left the country and haven't come in to make application or join the union or
to seek new employment." Whitmore, in contrast to Leininger, testified that under
the AGC heavy construction contract the requirement of membership in 30 days
was enforced. From all the evidence, including the quoted' provisions of the con-
tract; the form of the clearance slip; the dispatcher's notice concerning the time given
to join the Union; evidence indicating that the Union gives preference to its own
members, to members of affiliated locals that are signatories to the same AGC con-
tract, and to applicants who have indicated willingness to become members of the
Union; and evidence that the Union feels it is "working for" its members and is not
required to work for others and that the Union expects an application for member-
ship as the regular form of compensation for referring a nonunion man to a job, I
conclude that, whether or not the AGC contract is involved, the Union creates an
appearance of union-shop conditions and attempts to get both employers and em-
ployees to conform to its practices as though a valid union-shop agreement existed.
Further evidence will be found in the facts hereinafter related which confirm this
conclusion and which will demonstrate the length to which the Union will go in its
efforts to get employers and employees to conform to its practices.
The Union's practice of clearing men brought into the area from another loca-
tion by an employer was not made completely certain by the evidence. There is
evidence that in some instances the Union had cleared men' brought into the area
by contractors or subcontractors. But it is not clear from the evidence whether or
not, at the time of such clearance, qualified men were on the out-of-work list or
whether local members were registered for work at the time. Also it is not shown
by the evidence that the Union would clear men brought in if they were not members
of affiliated locals or members of those affiliated locals which were signatories to
the Spokane Chapter, AGC, contract. If the employee is not registered on the out-
of-work list, the Union might clear him if he were a keyman of a contractor enter-
ing the area. But Jewell and Griffin had different ideas as to the meaning of "key
men." Furthermore, Jewell testified that this exception applied only to prime con-
1504 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tractors and not to subcontractors . So no men were cleared to subcontractors just
because they were keymen. The Union, by agreement with other locals of the
Union's parent organization in Washington and Northern Idaho, would clear their
members when they came into the jurisdiction of the Union and vice versa. But the
record is not perfectly clear that such men would be cleared without regard to
whether or not they were on the out-of-work list. I infer that they would be
if they were employed before entering the area. But if they came from locals
other than those in Washington and Northern Idaho, apparently they received less
favor and would not be cleared unless their names came up on the Union's out-of-
work register or unless there was no one waiting for work.
B. Griffin's contract with Drake-Fuller
When Griffin was contemplating undertaking work for Drake-Fuller, he had men
at work on a job at Mountain Home, Idaho. On November 13, 1954, before en-
tering into a contract with Drake-Fuller, Griffin while at Larson Air Force Base
telephoned Charles Jewell, the Union's secretary-treasurer and business agent, who
was in Spokane, and asked if he might bring his trucks to work on Larson Air Force
Base (at Moses Lake, Washington) for Drake-Fuller. Jewell said he had no
objection but said that Griffin would have to clear through the Union. Griffin under-
stood this to mean that any men he employed would have to get clearance through
the Union before going on the job. But he also understood that the employees whom
he intended to bring to Washington with trucks would be the employees who would
be cleared. Jewell told Griffin that since Griffin had last worked in Washington
the Union had established a health and welfare plan, and it would be necessary for
Griffin to see Leininger, the Union's agent at Moses Lake, to sign an agreement cover-
ing his employees. Jewell testified that he told Griffin he would also have to sign
a "stipulation to our agreement." 6 The stipulation referred to was a "compliance
agreement" which would oblige the subcontractor to comply with the terms of the
AGC contract under which Drake-Fuller was operating. If Jewell in fact men-
tioned this latter agreement (which I doubt), Griffin did not understand Jewell, be-
cause Griffin had never signed such an agreement on any previous occasion when
working for an AGC member, who is obliged by the terms of the AGC contract to
see that his subcontractor complies with its provisions.
Following his conversation with Jewell, Griffin, on November 15, 1954, entered
into an agreement with Drake-Fuller to haul all concrete dry batch materials for
outside paving, all building batch materials to be mixed through a paver, and all
concrete aggregates from Columbia to the batch plant of Drake-Fuller on Larson
Air Force Base. By the terms of this agreement Drake-Fuller agreed to carry
Griffin's payroll, that is, to compute the pay due for time worked and make out the
checks for Griffin's drivers. Drake-Fuller, receiving the weekly payroll data from
Griffin, was to deliver the paychecks to Griffin's foreman for delivery to Griffin's
employees. Griffin retained all control of hiring and discharging. The moneys so
paid out by Drake-Fuller were to be deducted from the sum earned by Griffin on
his contract, performance of which was, by its terms, to commence on November
18 or 19 at 7a.m.
C. Restraint and coercion; attempt to cause and causing discrimination; requiring an
employer to cease doing business with another person
1. Griffin's employees
Having previously consulted with some of the truckdrivers who were working for
him in Idaho, he directed a number of them to proceed to Moses Lake, Washington,
in time to commence work on November 18. Griffin had an oral understanding
with Drake-Fuller that he could bring his keymen on his equipment as long as
the drivers had paid-up union cards. Pursuant to Griffin's instructions, I I men,
with trucks, drove to Moses Lake from Mountain Home, Idaho, and arrived in time
to commence work on the agreed date. Others, en route from South Dakota,
were stopped by Griffin before they arrived after he learned of the difficulties with
the Union, as hereinafter related.
Of 11 drivers who were on Griffin's payroll at Larson Air Force Base on Novem-
ber 18, only a few drove Griffin's own trucks. Two of the drivers owned or had an
6 His testimony reads : "And I told him I had no objections whatsoever with him coming
in, but before he started on the job to go see our business agent, Mr. Leininger, at Moses
Lake and sign our stipulation to our agreement and also to sign our health and welfare
plan."
LOCAL '148 1505
equity in their trucks. Six of the trucks belonged to Whera, Inc., who had drivers
on them who had worked for Griffin at Mountain Home, Idaho. For such trucks,
Griffin's arrangement was to pay $7 an hour, with the wages of the truckdriver and
cost of gasoline deducted from the gross earnings at the end of the month. All
drivers, whether or not owner-operators, were carried on the employee payroll at
the hourly scale called for under the AGC contract. As previously stated, Drake-
Fuller maintained the payroll records, showing the earnings of each driver, and was
to make out the checks for wages each week, less proper deductions, and deliver
them to Griffin's foreman. On November 18, 1954, 10 of the 11 drivers on the
payroll worked under Griffin's contract with Drake-Fuller.? The Union did nothing
that day to interfere with their performance.
2. The Union's welfare fund and its efforts to collect payment
On June 15, 1953, an amendment to the AGC 1950 contract added a provision
for the payment by employer-members of the Spokane chapter of AGC of "71h
cents per workman hour for all employees covered by this Agreement," such pay-
ment to be made monthly beginning July 1, 1954, and the benefits under the plan
to begin on October 1, 1954.
Jewell testified to having had certain difficulties in collecting the health and wel-
fare payments from Drake-Fuller. He testified, "I might say originally in 1953, I
believe it was, when our health-welfare plan first went into effect, Donald Drake
was the prime contractor on the aluminum plant in Wenatchee, and it took me
until the time that he got on this job [the Boeing contract related above] to collect
about six or seven hundred dollars in health-welfare payments." As the contract
did not call for payments to begin before July 1, 1954, it is difficult to understand
how Drake could have been under obligation to make payments during 1953 and
why Jewell should expect such payments.
While working on the Boeing contract, Drake-Fuller, in the summer or early fall
of 1954, had a subcontractor named Symington doing the work for which Griffin
was later engaged. According to Leininger, Symington brought men in "from the
outside area" whom the Union had cleared.8 To comply with the provisions of Sec-
tion 302 (c) (5) of the Act and collect the welfare payments under the 1953 amend-
ment to the AGC contract, to be paid by contracting employers, the Union sought
to have Symington sign the requisite agreement. But Symington never personally
appeared and the agreement was never signed. Presumably the Union then took
steps to have its own members placed on the job, for Leininger testified, "Mr. Sy-
mington had not appeared on the job himself so in order to keep harmony on the job
and keep the material moving which I considered was vital as far as the job was con-
cerned, we had men of ours employed there." The evidence indicates that nine
members of the Union were cleared to Symington between October 6 and 19, 1954.
Symington, sometime soon after this, withdrew from the job. The Union sought
to have Drake-Fuller make Symington's payments to the welfare fund, but Drake-
Fuller took the position that it was not responsible for the Symington payroll.
On November 18, 1954, Leininger and Jewell went to the Drake-Fuller office at
Larson Air Force Base for further discussion of the Symington matter. After a
fairly lengthy discussion about it, Drake agreed to see that Symington made the pay-
ments due. Jewell then commented that he did not want to have the same trouble
with Griffin, and asked whether Griffin's drivers would be working for Griffin or for
7 No time is shown for W. P Gattis on that day.
8 Between October 6 and 19, 1954, the Union's records show that 15 men were cleared
to Symington. Of these, 3, David Crunirine, Robert Bowen, and Roy Henrickson, cleared
on October 11, 12, and 18, respectively, were not shown on the out-of-work list In evidence;
9 were shown on the out-of-work list to be members of the Union ; 1, Ted Osborn, cleared
on October 19, was shown as a member of Local 551, an affiliate of the Union which signed
the same AGC contract; 1, Tom Beam, was shown on the out-of-work list to be on with-
drawal from Local 483, a Boise, Idaho, affiliate of the Union ; and the other 1, Robert
Fears, was shown on the out-of-work list to be a nonmember. The men cleared were not
dispatched in order of seniority on the out-of-work list For example, Floyd Renu. 3d
longest on the out-of-work list, was the 14th of the foregoing to be dispatched. He may,
of course, have been working elsewhere when men were first dispatched to Symington.
Men in the following seniority positions on the list were dispatched in sequence as follows :
2, 5, 8, 1, 10 12, 11, 4, 7, 6, 3, 9. Those shown as 2 and 4 in seriority were registered
twice in different positions. It is impossible to tell which would be their correct position
on the date of dispatch It is also not possible to determine from the evidence in the
record if members were immediately available for dispatch when nonmembers were cleared.
J506 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Drake-Fuller. Drake said that the hiring, firing, and supervision would be taken
care of by Griffin. Jewell asked who was going to pay them. Drake said that
Drake-Fuller was taking care of Griffin's payroll and that the welfare payments
.would be taken care of in the maintenance of the payroll. The testimony is in con-
flict as to the exact statements of Drake and Jewell. Drake testified that he told
Jewell, with reference to Griffin's payment of the welfare funds, that "because we
were taking care of his pay rolls and so forth, that it would all be taken care of and
it would be paid," and that Jewell had replied, "That is fine, just see that he has his
men clear in within the next several days and they can go to work." Leininger
testified that Drake "did not make too much conversation, he just said 'that will be
taken care of.' " Jewell testified that Drake "told me that he thought Harry [Grif-
fin] would sign the agreement [for payment to the welfare fund], and he would try
to get him to sign the agreement. And he would see that he would call him and
get all the maneuvering and get the deal straightened up." Jewell testified that until
a meeting held on the night of November 19 he did not know that Drake-Fuller in-
tended to keep the payroll on Griffin's men and did not know that Drake-Fuller
would deduct the welfare money from the drivers' pay. However, at that meeting,
on the night of the 19th, Drake-Fuller decided to hire men through the union hall
on its own on the assumption that Griffin could not perform. So there was no rea-
son at that time for Drake-Fuller to give assurance that the welfare payments would
be deducted on Griffin's payroll. Furthermore, before that meeting, Jewell had seen
a letter of assurance tendered by Drake-Fuller on the morning of the 19th as here-
inafter related. Drake's testimony appears logical, as his statement to Jewell was in
accord with the memorandum agreement between Griffin and Drake-Fuller by which
the latter undertook to maintain Griffin's payroll and his testimony is partially cor-
roborated by Leininger. I find that Drake made the statement quoted in his
testimony.
Leininger testified that when he and Jewell left the conference on the evening of
November 18 and reached their car, he said to Jewell, "I am certain that Mr. Drake
is under the impression that all of these men are coming in here and going to work
in the morning and we don't have a contract with Griffin," and.that Jewell had re-
plied, "Well, that is not the deal, we will go back inside." Leininger testified that
they then went back inside and Jewell told, Drake "that there would be no men
cleared to Harry Griffin unless he had a contract with him. And Mr. Drake got
very rattled about it and he told him, I am quite certain it was at that meeting, or
maybe at that-if Griffin men didn't drive those trucks nobody else would." Neither
Drake nor Jewell testified to this incident, and I believe that, so far as Jewell's in-
forming Drake was concerned, Leininger confused the occurrence with the conference
of the next morning.
On the night of November 18, Glen Shipp, Griffin's foreman, and Leminger had
a conversation about clearance of Griffin's men.9 In this conversation, Leininger
told Shipp that the job could not start the next morning unless Griffin had signed the
agreement. Shipp said that Griffin was out of town and asked if Leininger would not
let him finish the week, assuring Leininger that Griffin would sign when he arrived.
Leminger refused. Shipp asked if the Union would clear Griffin's men (presumably
after Griffin had signed an agreement) and Leininger said that he would clear men
only out of Local 551 and Washington locals Apparently Leminger was referring
to the locals which were signatories to the contract with the Spokane Chapter of the
AGC. Shipp said that Griffin's men all had union cards and asked if they could not
be cleared in as key operators. Leminger said they would not be. Shipp asked if
Leininger would clear members of the Union and Washington locals if there should
be any in Griffin's group. Leininger said that the Union would clear no men unless
it had a contract with Griffin. Learning that Jewell was with Leininger, Shipp asked
to speak with him. Shipp quoted Jewell as threatening that if Griffin went to work
the next morning the Union would use force, "baseball bats or fists or any way we
wanted to go." Jewell denied making any threat of force. Although I am not con-
vinced that Jewell used the words quoted by Shipp, the subsequent events confirm
Shipp's testimony that Jewell indicated he would enforce his edict that there would
be no work the next day.
3. Steps taken by the Union to prevent Griffin's performance by
his own employees
On the morning of November 19, some of the trucks hauling aggregate from
Columbia started work at 6 o'clock. About 6:45 a. m. Jewell and Leininger arrived
6 It was disputed whether Shipp called Leininger or vice versa. I deem this immaterial
and do not resolve the conflict.
LOCAL 148 1507
at Drake-Fuller 's paving office in Leininger 's station wagon. With them they had
2 men-1 a heavy-set man named McCourtie , who was a steward for the Union at
Othello, Washington , a town about 36 miles south of Moses Lake, and the other,
Donald High , a business representative for the Union at Brewster , Washington, a
town about 150 miles north of Moses Lake. At this time, truckdriver James King
was dumping his first load of the day at the Drake-Fuller stockpile . Leininger asked
to see King's union book. King showed it to him and then Leininger said, according
to King's credited testimony, "Fellow, I will tell you, I don't think we are going
to let you work, but we don't know yet."
Jewell, Lelninger, and High went into the paving office where Life, Shipp, Drake,
and 1 or 2 other Drake-Fuller men were Jewell, Life, and Drake left the others
to go into a small accounting office off the main room . According to Drake and
Lile, Jewell stated that the drivers from out of the State should not work because
there was a large number of local members out of work. Drake and Lile sought
to compromise with Jewell by suggesting that some of Griffin 's men be cleared and
some be hired through the union hall , but Jewell would not compromise. Drake
suggested proceeding with the work and submitting their differences to the joint con-
ference board.1° However, Jewell would not consent to permitting the job to pro-
ceed unless local men were used . Since the meeting produced no agreement, Drake
commented that as there were men ready to go to work, they should start, and the
Union could put up its picket line and then the controversy could be solved by the
normal procedure (i. e , the disputes procedure). Life opened the door into the
main room, saying that they would put the men to work. The evidence is disputed
as to whether or not Jewell (or someone else for the Union) said at this point that
if they went to work, the Union would put up a picket line and would "pull every
book" and blackball the drivers. No drivers were present to hear such a statement
and it is immaterial what form the threat took. Leininger testified that he did not
believe any statement was made that the Union would put out a picket line but
thought "it was mentioned that the job would be shut down." Lelninger admitted
that he had picket signs in his station wagon , but claimed that he generally had
them with him and that he did not bring them on this occasion to set up a picket line.
I find that, whatever the language used, the Union made it clear to Shipp, Griffin's
foreman, and to Drake-Fuller that it would prevent Griffin's men from operating.
Upon leaving the office of Drake-Fuller, the four union representatives got in the
station wagon and drove to Columbia. Thei e, Leininger got out, went into the office,
and spoke with a man named Nelson, the manager and a part owner of Columbia.
He told Nelson that the Union did not want any of Griffin's trucks loaded because the
drivers had not cleared and, according to Leininger's own testimony, he told Nelson,
"If you load these trucks we will shut your job down." Nelson said he did not know
which trucks were Griffin's and which belonged to someone else, so Lelninger should
go stop the trucks himself. Leininger indicated that if the matter were settled, the
Union would notify Columbia. Leininger then went to Columbia's leverman, Lafe
McCarty, whose job is was to pull a lever which released gravel from the bunkers
under which the trucks waited to receive their load Leininger told McCarty not to
load any of Griffin's trucks until the driver had checked with the office. Leininger
testified that he told McCarty that the instructions were from Nelson McCarty
testified that Leininger did not mention Nelson. McCarty was then loading the
Griffin truck being driven by King. Leininger told McCarty to finish loading King's
truck but to have him check in at the Columbia office before he came back. McCarty
gave King the message. The next Griffin truck was one being driven by Claude
Shatto. McCarty told Shatto that he could not load his truck and that they would
not load any of Griffin's trucks. Shatto went to Leininger 's car and asked what
the trouble was. Jewell told him that "we" are not loading Griffin's trucks and that
Griffin's drivers had not been cleared through the Union
After this, King and Shatto returned to the Drake-Fuller batch plant, and, while
they and other Griffin drivers were gathered there, Lile and Shipp asked the men
to go to work, but they refused because they did not wish to jeopardize their status
with the Union. Life then directed the drivers to get their union books and go to
the union hall with him. At the hall, Lile went to the dispatcher's window and
told Jewell, who had meanwhile arrived there with Leininger, that he wanted a
clearance for these men. Jewell told Life that he had not received any request for
men. Lile said he was making one . Jewell told Lile that, if the request was from
10 Under the AGC heavy construction contract , the board for settling disputes is called
a board of conciliation , under the building construction contract , a similar settlement of
disputes clause provided for settlement through a board of adjustment . I infer that
Drake had reference to such a board
387644-56--N of 1 14 96
1508 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Drake-Fuller, this was not the regular procedure, and that, if the request was for
Griffin, the Union had no contract with him and it was not clearing any of Griffin's
• men. Lile, believing that Jewell wanted a written request or assurance, telephoned
his office and had a letter prepared which certified that the drivers whose names
were listed therein would drive trucks belonging to Griffin and would be carried on
the Drake-Fuller payroll. This letter listed the names of 13 men, of whom all but 2
or 3 were present at the union hall with Lile.11 Lile presented this to Jewell, who
again refused to clear the men requested, saying that the letter was not what he
wanted, that he did not want the names of the men on there, and that if they (Drake-
Fuller) wanted men, they would have to order them from the union hall (i. e., those
on the Union's out-of-work list). Lile said the letter gave the names of the men that
were wanted and Jewell replied that that did not do him any good. Rudge individ-
ually applied for clearance and handed Jewell his union book. Jewell told Rudge
he did not have a job for him. Rudge showed Jewell a copy of the letter that Lile
had presented and told Jewell that that was a request and that he was presenting a
paid-up dues book. Jewell threw up his hands and told Rudge to remember his
oath. Jewell testified, in explanation, that Rudge ". . . didn't belong to our local.
So I had nothing to do with it. . . . If he was a member of our union we would be
working for him. He wasn't a member of our union, so I am not working for him."
Lile and the drivers then left the union hall, but drivers John Pinckard and King
returned to speak with Jewell. In the conversation, Jewell told them that, if he put
them to work, his men would vote him out of a job. Pinckard asked if he would
clear them when the matter was straightened up (presumably, when Griffin signed
a contract). Jewell said that he would not. King testified that High, at this time,
commented that the Union had been after Drake-Fuller and Griffin for 2 years and
that Griffin's drivers were being used to force the issue.12 I infer that High was
referring to the attempt of the Union to get Drake-Fuller and Griffin to order their
truckdrivers from the Union rather than that he was referring to the Union's attempt
to collect welfare funds, because the welfare plan had not been in effect for 2 years.
In fact, the payments had only become collectible about 4 months before.
On the evening of November 19, Jewell was invited to a meeting attended by
Drake, Lile, and two officers of the Fuller Co. Jewell accepted and came with High.
Drake asked Jewell what it would take to straighten the matter up. Jewell said, if
Griffin was going to subcontract the work, the Union would expect him to sign a
commitment form and a health-welfare form. Drake wanted to know if the situa-
tion would be satisfactory if Drake-Fuller should employ the men direct from the
Union. Jewell said it would be, but that in view of past difficulties, he though that
Drake should show his good faith by advancing $1,500 on the health and welfare
plan, that sum to settle the Union's claim against Symington and to constitute a
deposit against future sums due from Drake-Fuller. Drake agreed and gave Jewell
a check. Jewell was also given an order for a number of drivers and a schedule
of hours. According to Lile, Drake-Fuller assumed that Griffin had failed to per-
form his contract and, as further delay was not desired, it decided at this meeting
to take over the trucking itself.
On Monday, November 22, 1954, however, Griffin and Shipp went to Jewell's
office in Wenatchee, Washington, about 9 or 10 a. m. and had a lengthy conference
with Jewell in High's presence. Griffin attempted to get Jewell to agree to clear a
certain number of his drivers in the event that he (Griffin) would take others through
the Union's hiring hall. Jewell refused to clear anyone unless Griffin would sign the
Union's welfare agreement and an agreement to comply with the AGC contract. I
infer that Jewell's purpose in getting the latter agreement signed by Griffin was to
require him to get all his drivers through the Union's hiring hall. Griffin agreed
to sign on condition that Jewell would clear a certain number of his men. Griffin
testified that Jewell finally agreed to clear 4 of his men, inferentially 4 of those who
had started working. Jewell denied this. It may be that Jewell offered to clear a few
of Griffin's men on condition that Griffin would sign the agreements and take a cer-
tain number of men through the Union, but I find that Griffin did not accept such
offer if made; so there was in fact no such agreement.
Griffin returned to Moses Lake, Washington, with the intent of abandoning his
contract with Drake-Fuller, but before leaving, he took some of his men to the
union hall and asked Leininger to clear four of them, saying that Jewell had agreed
to it. Leininger at first refused to clear any, but after trying unsuccessfully to reach
n Those identified as not present were a man named Biswell and 1 or 2 men named Hale.
12 Pinckard attributed this or a similar statement to Jewell. Jewell was not asked
about this and High did not testify, although he was apparently available . Because King's
testimony Indicated a clearer memory, I credit his version.
LOCAL 148 15C9
Jewell by telephone, he finally agreed to clear two. The drivers who were present
suggested the names of the two to be cleared. One was William Gattis. According
to Evans, Leininger said: "I would' rather clear anyone here other than Bill Gattis.
He was up here working before and we chased him all over the flat up here for years
trying to get him to join the union." However, he did clear drivers Gattis and
Blunck. Blunck drove a truck owned by Whera, Inc., and Gattis drove a truck
owned by Owner-Operator Lundy.13 Five drivers ordered through the union hall
drove the other five Whera trucks, but Whera drivers drove a few trips with them
to train them, because they were not familiar with that type of truck. Of the original
Griffin drivers, then, only Blunck and Gattis were employed after November 19, and
Blunck and Gattis were laid off on December 9. It cannot be determined from the
record whether or not any of Griffin's drivers would have been employed longer
than December 9 had they been cleared by the Union and had they been working
instead of some of those employed through the Union as a result of the agreement
of the night of November 19. Lile testified that the paving job was shut down for
the winter about January 25, 1955, but except for the fact that three of the Whera
trucks were operated on December 31, 1954, there is no evidence of other trucking
work done after December 9.
D. Concluding findings
1. Employee status of certain drivers
Although not specifically pleaded, the parties tried the issues as though a question
had been raised concerning the status of certain drivers--whether they were em-
ployees or independent contractors-and this question is argued in the briefs. Two
of the drivers, Lundy and Gattis (the latter only until November 22, 1954), had
individual proprietary interests in the trucks they drove. Evans, Rudge, and Weathers
were connected with Whera, Inc., in the following manner: The corporation was
formed in March 1954 to purchase and operate trucks for Griffin at Mountain Home
Air Force Base in Idaho. The capital was supplied by W. C. Hibbert and Willard
Anderson, and the other three incorporators-Evans, Rudge, and Weathers-were
to drive and maintain the trucks. The initial letters of the incorporators' surnames
formed the name of the corporation. Evans was president, Weathers, vice president,
and Rudge, a member of the board of directors. However, in these positions, they
received no salary. They received no income personally from the rental of the
trucks. They were to receive only driver's pay for operating the trucks, but if they
worked over 8 hours, they were to be credited for their work toward the purchase
of stock in the corporation.14 The money from rental of the trucks was to be used to
pay off the balance of the purchase price due on the trucks and when the corporation
acquired full title to the trucks, the five incorporators were to have equal shares in
the corporation. Actually, no stock was ever issued to Evans, Rudge, or Weathers.
The terms which Griffin made with Whera when he contracted for its trucks to
work on the Drake-Fuller job called for payment of $2 a load of concrete batch or
$7 an hour guarantee. To be deducted from this sum was the cost of gasoline and
drivers' wages. As previously stated, Drake-Fuller was to keep the payroll and make
out the paychecks for Griffin's drivers, making the customary payroll deductions,
such as social security. Drake-Fuller then would deduct the money so paid in mak-
ing settlement with Griffin. Out of gross earnings, the truck owners were expected
to pay their own license fees and cost of maintenance.
Whera was to supply six trucks to Griffin with drivers. In addition to Evans,
Rudge, and Weathers, Whera supplied drivers Pinckard, Smith, and Blunck, con-
cerning whose status as employees no question was raised. On the work for which
they were hired by Griffin, all the drivers, whether truck owners or not, were to be
under the supervision of Griffin's foreman and were to haul their loads when and
where directed by him. Although Whera may have had some authority to determine
is Gattis, who had been buying a truck from Griffin on a conditional sale contract, let
Griffin take it back. Lundy did not work
14 1 am uncertain from the evidence whether the credit for the purchase of stock was
to come from time spent in repairing and maintaining the trucks after hours, or whether
It was to come from overtime work driving the trucks. I infer, however, that it was the
former, because only then would 11'hera be the one who would give credit If it were
the latter, credit for overtime work would come fiom Griffin and the drivers would first
receive their pay and would have to pay the cash over to Whera before being credited
toward the purchase of stock.
1510 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
who should drive its trucks, this did not limit Griffin's overall authority to hire, dis-
charge, or lay off any truckdriver or to give him directions in the performance of
his work. The drivers all operated on shifts of a set schedule of hours predetermined
by Griffin from which they presumably could not deviate, whether or not they were
owner-operators.
In the case at hand, no formal contract of lease existed to define all the rights and
obligations of the lessor and lessee of the equipment. Although the lessor (Whera
or one of the owner-operators) was to pay for licenses and gasoline out of the amount
paid for the truck, the operator, whether an owner or not, was, as a driver, to be
paid separately for his services. With only the customary employee payroll deduc-
tions made from his pay, the driver was to be paid on an hourly basis for the time
put in by him. His time was not his own. He was required to work at such times
as the lessee, Griffin, decided. No speculative profit was involved; the driver had no
opportunity to vary the profit as a result of the exercise of good or poor judgment.15
He could not increase his profits by choosing to work when he pleased, as his hours
were regulated tor him. The hourly rate guaranteed for the rent of the trucks de-
pended on the time actually worked, which was under the lessee's control.ic
Unlike the situation in Eldon Miller, Inc.,i'l where the parties expressed an intent
to create an independent-contractor relationship, all here contemplated that the
drivers, whether owners or not, should be paid on an hourly basis with payroll deduc-
tions made therefrom and therefore that they should assume the status of employees.
When Griffin rented the Whera trucks he informed Weathers that the union scale
was $2 30 an hour. Griffin's contract with Drake-Fuller provided for the latter's
maintenance of Griffin's payroll on which were listed the names of all drivers,
whether or not owner-operators. Drake-Fuller expected to maintain these records
on an hourly basis at the union scale. The Union expected the $2.30 per hour to
be paid to all drivers, whether or not they were owner-operators. Its contract with
AGC would not halve applied if the drivers were independent contractors. It is
obvious, therefore, that the arrangements herein involved contemplated both a con-
tract for services and a contract for use of equipment. A driver who owned no
equipment made only the first type of contract. The owner-operators made both.
They therefore had a dual status-they were both employees and lessors.)
In view of my conclusion, I find it unnecessary to distinguish the situation of the
Whera drivers, Evans, Rudge, and Weathers, from that of Lundy or of Gattis (before
November 22). After November 22, no owner-operators were involved, because
they all leased their trucks to be operated by drivers hired exclusively by Drake-
Fuller. Consequently, from that time, the owner-operators were lessors only.
2. The alleged violation of Section 8 (b) (4) (A)
The General Counsel's argument is that when Leininger, as business agent for
the Union, went to Columbia's employee, McCarty, and told him not to load any
more of Griffin's trucks until the driver had checked with the office, he "obviously
intended to affect not only McCarty but the other Columbia Sand and Gravel em-
ployees engaged at the sand bins and in other parts of the gravel pit unloading Griffin's
trucks...." Even if an intent to produce a concerted refusal to load Griffin's trucks
could be inferred from Leininger's bare statement to McCarty not to load any more
of Griffin's trucks, an inference which I do not find logical, another obstacle pre-
cludes acceptance of the argument. I find the evidence inadequate to prove that
there were other employees than McCarty who might be induced to act in concert
with McCarty. The only evidence that there were coworkers with McCarty is found
in that part of Leininger's testimony where he purported to quote Nelson, Columbia's
manager, as saying to him, "You get down and tell the plant men who you don't
want loaded and have them report to the office." As I find that Nelson did not
make such a statement, the testimony furnishes no firm basis for even an inference
15 If paid by the load for the use of their trucks, the owner-operators might, by skill
and speed, conceivably increase profits. However, this would result not from business
acumen, by which independent contractors managing their businesses might increase
profits, so much as from skill as an employee
16 Griffin did not mention the alternative of $2 a load in his testimony as did Evans.
As Griffin estimated about 21/2 loads an hour per truck, it seems Improbable that more
than the $7 an hour could have been earned, in any event. -
14 103 NLRB 1627, 107 NLRB 557.
18 Hester Supply Company, 109 NLRB 466. See also Hughes Transportation, Inc.,
109 NLRB 458.
LOCAL 148 1511
that other employees existed who could act in concert with McCarty.19 There is no
doubt that the Union intended to prevent Columbia from doing business with Grif-
fin or with Drake-Fuller while the latter was using Griffin's drivers. When Leininger
threatened Nelson that the Union would shut down Columbia's operations, he inti-
mated the means intended to be employed. He told Nelson, according to Harold
Haney, the crusher superintendent at Columbia, who overheard the conversation, that
unless Columbia ceased loading Griffin's trucks, the Union would "shut off the other
trucks." Leininger inferentially contemplated a picket line as the means of affecting
Columbia's business with other truck operators. But such intent alone, with no
actual inducement or encouragement of employees or other employers to engage in
a concerted refusal as specified in the Act, is not proscribed by Section 8 (b) (4)
(A). Inasmuch as the Union's inducement of McCarty, if it can be called such,20
was not an inducement to concerted action, McCarty being the lone employee af-
fected, I find that the Union did not violate Section 8 (b) (4) (A) of the Act 21
3. Causing or attempting to cause discrimination
a. The Union's hiring practices
It is the Union's contention that the AGC heavy construction contract requires
contractors bound thereunder to hire their truckdrivers through the Union and re-
quires the contractors to see to it that subcontractors should do likewise, and the
Union contends that this agreement and the operations of the Union's hiring hall
were not illegal.
By the AGC agreement, the contractor members undertake to follow the practice
previously followed of calling upon the Union to furni,h qualified workmen. The
omission to define such practice, leaving the precise meaning uncertain, has the
appearance of design. The contract does not state that employers shall not employ
workmen except through the Union, and the evidence does not establish to my satis-
faction that such practice had been consistently followed within legal limits after the
enactment of the amended Act in 1947. The practice before that time would be irrel-
evant. But from the conduct of the Union's agents, it appears that the Union sought to
approximate the closed-shop conditions which would have been lawful before 1947.
I say approximate, because the Union paid lip service to the law by giving non-
members, who were referred to jobs, 30 days in which to join. But there is no
evidence that the Union complied with every provision of Section 8 (a) (3) of
the Act. In fact, the Union was not claiming to have been the authorized exclusive
bargaining represertative of an existing unit of employees of any specific employer,
and certainly not of Griffin. Article V of the contract, under which the Union retains
the right to remove members from the job for failure to maintain themselves in
good standing, shows, at the very least, that the Union assumed it had a main-
tenance-of-membership contract. The complaint does not allege that the contract,
itself, is illegal and I make no finding thereon. I mention it only as disclosing
the basis for certain assumptions indulged in by the Union to justify it in at-
tempting to enforce its practice of requiring clearance as a condition of employment.
The use of the word "clearance," deemed necessary as a condition of employment
according to the Union's practice, especially when combined with a warning that the
man cleared by the Union would be given 30 days in which to join the Union and
with the evidence of the Union's tendency to favor its own members, signifies more
than a mere hiring hall-it signifies that the Union sought to retain final determina-
tion over who should be hired and to give effect to union-shop conditions. Even if
the contract provided for exclusive resort to the Union's hiring hall and if it be
assumed such provision would be legal on its face,22 that would not authorize the
Union to make clearance by it a condition of employment and thus exercise final
"Columbia's crusher super intendent, Harold Haney, testified that he had authority to
hire and fire employees, but I cannot infer from this that there were other employees
besides McCarty who would be induced by Leininger's statement to McCarty to act in
concert. Reference by Leininger to shutting off the other trucks, in his threat to Nelson,
was to trucks of other employers, not to Columbia's trucks.
20 According to McCarty's testimony, he was apparently unaware that he was being
asked by Leininger to further the Union's interest. He assumed that the office had some
reason for wanting the drivers to check in before returning for any further loads.
'Glaziers Union Local No. 27, etc., 99 NLRB 1391, petition to review and modify the
Board's decision and order denied in Jolliet Contractors Association, et at. v N. L. It. B.,
202 F. 2d 606 (C. A. 7), cert denied 346 U. S. 824; N. L. R. B. v. International Rice
Milling Company, Inc, 341 U. S. 665.
= American President Lines, Ltd., 101 NLRB 1417.
1512 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
determination over which employee should be hired.23 Furthermore, the Union
did not operate its hiring hall in a nondiscriminatory manner as is evident from the
favorable percentage of members of the Union cleared for jobs as compared with the
percentage of members of other locals or nonunion men who signified no intent to
join the Union cleared for jobs. Although this conclusion is based on records kept
prior to November 1954, it is not to be assumed that, just because the Union adopted
a new method of keeping its records of job applicants after that date, it abandoned
its preferential treatment of its own members. In fact, the evidence is to the
contrary.
In the absence of a contract made in conformity with the provisions of Section
8 (a) (3) of the Act, the Union certainly had no legal right to require employees or
applicants for employment to obtain clearance from the Union as a condition of
employment.24 Yet this is what the Union sought to do in Griffin's case and in its,
general practice. The existence of the AGC contract does not justify the imposition
by the Union of union-shop conditions. Even if that contract provided for a union-
shop contract, which it does not, it is obvious that the Union did not wait until an
employer had hired his employees, thus creating a unit of employees whom the
Union could represent before requiring clearance. By requiring clearance as a
condition of employment, the Union retained control over the identity of employees
who would compose each unit as it was created. It is apparent from the testimony
of the Union's agents that the Union erroneously looked upon the AGC contract as
creating a union shop. I find, therefore, that by maintaining a practice of requiring
clearance by it of all employees hired, the Union violated Section 8 (b) (1) (A)
and (2) of the Act.
b. Causing of discrimination
The Union admittedly had no contract with Griffin. Even if its hiring practices
were legal, therefore, the Union had no basis for requiring Griffin to conform there-
with. The Union sought to justify its conduct in insisting that Griffin conform by
the fact that a clause of the AGC heavy construction contract provides that sub-
contractors should become parties to that contract. But the Union and the contractor
cannot bind the subcontractor to the terms of their contract unless the subcontractor
assents to be bound thereby. At best they can agree that the contractor will not
subcontract work to any subcontractor unless the latter agrees to be bound. If the
subcontractor does get the subcontract without having so agreed, the contractor may
be guilty of a breach of its contract with the Union, but the subcontractor cannot
be found to have violated the agreement to hire his employees through the Union
when he did not agree to do so. As Drake-Fuller did not become a member of the
Heavy Construction Chapter of AGC, it did not automatically come under its pro-
visions. Some additional evidence of assent to be bound would be required. An
intent on Drake-Fuller's part to abide by its terms might, perhaps, be found in
Drake's assurance to Jewell that Griffin would come under the health-welfare pro-
visions of the contract and that Drake-Fuller would carry Griffin's payroll so that
the Union could be assured that the health-welfare payments would be made. In
any event, Drake testified that it was his intent to conform to the provisions of the
heavy construction contract. But, as I have previously found, even if such contract
were legal and were certain in meaning , Griffin never consented to be bound to a
contract which required him to employ all his drivers through the Union. There
is no contention by the Union that it was even authorized by Griffin's employees to
represent them in negotiations for a contract with Griffin.
In spite of its lack of agreement with Griffin, the Union sought to bar Griffin and
his employees from working for Drake-Fuller unless he agreed, first, to hire all
his employees through the Union and, second, to make payment to the Union's
health-welfare fund for each employee so hired through the Union. If the Union
had succeeded in its aims , the result would be that it would have caused Griffin
to discriminate against the employees he had already hired, since the Union insisted
that men on its registration list be hired, and, even if Griffin's drivers registered,
they could not, under the Union's system, if properly administered, be advanced to,
the top of the list ahead of other registrants. Hence, if Griffin were obliged to hire
m Grow Construction Co., Inc., 109 NLRB 522, enfd. 222 F. 2d 542 (C. A. 2).
u Alaska Chapter of the Associated General Contractors of America, Inc., 113 NLRB
41 ; O. W. Burke Company, 112 NLRB 592; Dennehy Construction Company, 111 NLRB
1025; Turner Construction Company, 110 NLRB 1860, Seabright Construction Company,
108 NLRB 8 ; Consolidated Western Steel Corpo r ation, 108 NLRB 1041 ; Local 595,
International Association of Bridge, Structural, and Ornamental Iron Workers, AFL
(Bechtel Corporation), 108 NLRB 1070.
LOCAL 148, 1513
men through the Union, the Union would have succeeded in causing Griffin to dis
charge his drivers whom he had employed independently of the Union.
This is not only what the Union attempted to do but what it actually did do by
the device of stopping the loading of Griffin's trucks at Columbia. This was done by
Leininger's instructions to Columbia's employee, McCarty, given in the presence of
two of Griffin's drivers, not to load the Griffin trucks. It is immaterial whether or
not McCarty was deceived about the source of, or reason for, the instructions. The
pressure on Griffin was just as effective as if the Union had enlisted McCarty's
conscious aid to the Union. Such instructions, given by the Union in the presence
of the two Griffin drivers, and followed by McCarty, demonstrate effectively to those
drivers that the Union had the power to compel compliance with its hiring practices,
legal or not. By such conduct the Union coerced and restrained Griffin's employees
in violation of Section (b) (1) (A) of the Act.
It was following this incident that the Griffin drivers decided not to work without
approval of the Union although Lile, of Drake-Fuller, and Shipp, Griffin's own fore-
man, suggested that they proceed. It may be argued because of this that the Union
did not cause Griffin to discriminate against his drivers when they, themselves, would
not work for fear of offending the Union. However, this was only a condition
brought about as a result of the pressure first applied against Griffin by Leininger's
instructions to McCarty at Columbia. There is no evidence that this pressure was
not continuing or that Griffin's trucks would have been loaded if they had returned
to Columbia. The inference is to the contrary. The suggestion to Griffin's drivers
that they go back to work was made while it was still early in the morning. McCarty
did not learn until noon that the reason for the Union's instructions to him was not
that something was amiss at the Columbia office. Although Nelson, the manager of
Columbia, apparently did not wish, himself, to do the Union's bidding, I am satisfied
that he connived at the Union's interference with Griffin's trucks on Columbia's prop-
erty and that he did so because of the Union's threat to close Columbia down by
shutting off all other trucks if Griffin trucks should be loaded there. It does not ap-
pear that such pressure was ever removed by the Union while Griffin was attempt-
ing to perform his contract with Drake-Fuller, at least not before the filing of the
charge in this case.25 As late as November 22, 1954, Jewell was still refusing Grif-
fin's request to clear his men.
Although I do not deem it material to the issues of this case whether or not, as
the Union contended, Griffin's refusal to sign an agreement that he would comply
with the health and welfare clause of the AGC contract was the reason or even an
important reason for the Union's refusal to clear Griffin's employees, I find that the
evidence as a whole establishes the fact that the Union's prime motivation in its con-
duct was its desire to effect the hire of employees listed on its registration list, espe-
cially members of the Union, to the exclusion of others.
The evidence shows that King, Shatto, Smith, Pinckard, Biswell, Blunck, Gattis,
Evans, Rudge, Weathers, and Lundy were on Griffin's payroll on November 18. The
payroll did not show either Walter Hale or Miles Hale to have been employed.
Witnesses testified that all of the men who went to the union hall with Lile on No-
vember 19 to request clearance signed their names to a slip of paper and that some-
one signed for 2 men who were absent, naming Biswell and 1 of the 2 Hales as those
who were absent. Which of the two Hales was present, if either, is not shown. The
typed letter listed all the names written on the list by hand. As Biswell was absent
and as his name appears on the typed list just before those of Walter Hale and Miles
Hale, which are at the bottom of the list, it might be inferred that all three men were
absent. Because neither Hale was on the payroll on November 18, because there is
no evidence that they were hired by Griffin, because there is no evidence that either
applied to Griffin for employment, because it is uncertain that either Hale was pres-
ent at the union hall with Lile on November 19, and because the identity even of
the one who was testified to be present at the union hall with Lile is not shown, it is
uncertain that they were ready, able, and willing to work on November 19 or there-
after. Hence, I find the evidence insufficient to prove that either Hale was discrimi-
nated against, and I limit my finding of discrimination to those named above as on
Griffin's payroll on November 18, 1954.
By causing Griffin to forfeit his contract with Drake-Fuller and thus to terminate
the employment of certain of the employees whose names are listed in the complaint,
as amended, and by refusing to clear such employees, the Union caused Griffin to
discriminate in regard to the hire and tenure of employment of said employees in
In March 1955, Griffin was permitted to perform a trucking contract with Drake-
Fuller, at which time several of the drivers here involved were issued clearances by the
Union. But the clearances gave the name of Drake-Fuller as the employer.
1514 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
violation of Section 8 (b) (2) of the Act. By such conduct, the Union violated Sec-
tion 8 (b) (1) (A) of the Act.
The complaint alleged that the Union caused or attempted to cause Drake-Fuller
as well as Griffin to discriminate in regard to the hire of the same men. The evi-
dence does not show an attempt by Drake-Fuller to hire these men on its own or to
have them cleared except as Griffin employees. Of course, the Union demonstrated
to Drake-Fuller the expediency of hiring men through it in order to avoid interrup-
tions of work, and it was obviously because of this and the fact that Drake-Fuller
knew or believed that the Union would not clear Griffin's men even if it hired them
itself that it did not ask for them as specific men. But in the absence of proof of an
application by these men for work as Drake-Fuller employees or of a request to the
Union for them by Drake-Fuller, I doubt that it can be said that the Union caused
Drake-Fuller to discriminate against them. In any event, it would make no differ-
ence in the remedy, for if the Union had not caused Griffin to discriminate, his em-
ployees would have had work for the same period of time as they would have if
Drake-Fuller had hired them upon Griffith's withdrawal.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE .
The activities of the Union set forth in section III, above, occurring in connection
with the operations of Griffin and Drake-Fuller described in section I, above, have
a close, intimate, and substantial relation to trade, traffic, and commerce among the
several States, and such of them as have been found to be unfair labor practices tend
to lead to labor disputes burdening and obstructing commerce and the free flow of
commerce.
V. THE REMEDY
Since it has been found that the Respondent has engaged in unfair labor practices,
I shall recommend that it cease and desist therefrom and take certain affirmative
action which I find will effectuate the policies of the Act.
It has been found that the Union has engaged in a practice of requiring clearance
of employees by it as a condition of employment. As the evidence indicates that
this practice was not limited in application to Drake-Fuller and Griffin, there is a
danger that like unfair labor practices will be committed in the future. I shall,
therefore, iecommend that the Union cease and desist from such practice with re-
spect to all employers within the Union's jurisdictional area.26 It has also been
found that the Union has favored its own members in giving clearances and has re-
fused to clear specific employees requested by employers. It will therefore be
recommended that it cease and desist therefrom except insofar as such practice may
be authorized by an agreement made in conformity with the provisions of Section
8 (a) (3) of the Act 27
It has been found that the Union caused Griffin to discriminate in regard to the
hire and tenure of employment of certain employees named in the complaint, as
amended. It will therefore be recommended that the Union make whole said in-
dividuals-James King, Claude Shatto, D. D. Smith, John Pinckard, Ronald Biswell,
John Blunck, William Gattis, Harold Evans, Dwain Rudge, Robert Weathers, and
Donald Lundy-for any loss caused by the discrimination against them, by paying
to each of them a sum of money equal to the amount which each would have earned
as wages from (and including) November 19 to the time when each would, in the
normal course of events, have been laid off in the absence of discrimination,28 less
his net wage earnings, if any, during said period, computing back pay in conformity
with the Board's usual formula.29
Upon the foregoing findings of fact, and upon the entire record in the case, I
make the following:
CONCLUSIONS OF LAW
1. Drake-Fuller and Griffin are engaged in commerce within the meaning of
Section 2 (6) and (7) of the Act.
28Within the limitations set forth in Daughe*tit Company, Inc, 112 NLRB 986.
27 DePrizio Construction Company, 110 NLRB 287; Daugherty Company, Inc., 112
NLRB 986.
29 It is not conclusively shown that the work terminated on December 9, so I do not
limit the period to that date.
29F. W. Woolworth Company, 90 NLRB 289. This will, of course, include that which
Gattis and Blunck earned in Drake-Fuller's employ between November 24 and December
9, 1954.
WESTINGHOUSE ELECTRIC CORPORATION 1515
2. Drake-Fuller, Griffin, and Columbia are employers within the meaning of
Section 2 (2) of the Act.
3. Drake-Fuller, Griffin, and Columbia are persons within the meaning of Section
2 (1) and Section 8 (b) (4) (A) of the Act.
4. The Union is a labor organization within the meaning of Section 2 (5) of
the Act.
5. By restraining and coercing employees in the exercise of certain rights guaran-
teed in Section 7 of the Act, the Union has engaged in and is engaging in unfair
labor practices within the meaning of Section 8 (b) (1) (A) of the Act.
6. By causing Griffin to discriminate in regard to the hire and tenure of employ-
ment of certain employees and by maintaining and enforcing certain practices re-
specting the clearance of employees as a condition of employment, the Union has
attempted to cause Griffin and other employers to discriminate in regard to hire and
tenure of employment within the meaning of Section 8 (a) (3) of the Act, and has
thereby committed and continued to commit unfair labor practices within the mean-
ing of Section 8 (b) (2) of the Act.
7. The foregoing unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication.]
Westinghouse Electric Corporation ( Sunnyvale Plant ) and Inter-
national Brotherhood of Electrical Workers, Local 786, AFL-
CIO.' Case No. 20-PC.-2903. December 28,1955
DECISION AND ORDER
Upon a petition duly. filed, a hearing was held before L. D.
Matthews, Jr., hearing officer of the National Labor Relations Board.
The hearing officer's rulings made at the hearing are free from pre-
judicial error and are hereby affirmed.
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of
the National Labor Relations Act.2
2. The labor organizations involved claim to represent employees of
the Employer.
3. No question affecting commerce exists concerning the representa-
tion of employees of the Employer within the meaning of Section 9
(c) (1) and Section 2 (6) and (7) of the Act, for the following
reasons:
The UE contends that no question concerning representation exists
on the ground, inter alia, that the petition was filed less than a year
after its certification. The Petitioner and IUE disagree, relying on
the Westinghouse Electric Corporation case.' It appears that UE
1 The AFL and CIO having merged subsequent to the hearing in this proceeding, we are
amending the identification of the affiliation of the Unions.
2 Local 1008, United Electrical, Radio & Machine Workers of America (PE), herein
called UE, and International Union of Electrical Workers, AFL-CIO, herein called IUE,
intervened in this matter We find no merit in the UE's opposition to the intervention of
IUE because of an alleged inadequacy of showing Showing is an administrative matter
not litigable by the parties. Moreover, we are satisfied as to the sufficiency of IUE's
card-showing.
8 Westinghouse Electric Corporation, 110 NLRB 872.
114 NLRB No. 239.