Local 304, Laborers

National Labor Relations Board - Board Decisions

Jun 29, 1971

191 N.L.R.B. 764 (N.L.R.B. 1971)

764 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Construction and General Laborers ' Union Local,304,
Laborers ' International Union of North America,
AFL-CIO and George D. Willis. Case 20-CB-2260
June 29 1971
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS BROWN
AND JENKINS
On April 2, 1971, Trial Examiner Irving Rogosin
issued his Decision in the above-entitled proceeding,
finding that the Respondent had engaged in and was
engaging in certain unfair labor practices and recom-
mending that it cease and desist therefrom and take
certain affirmative action, as set forth in the attached
Trial Examiner's Decision. Thereafter, the Respondent
filed exceptions to the Trial Examiner's Decision and
a supporting brief, and the General Counsel filed a brief
in answer to the Respondent's exceptions and in sup-
port of the Trial Examiner's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its powers
in connection with this case to a three-member panel.
The Board has reviewed the rulings of the Trial Ex-
aminer made at the hearing and finds that no prejudi-
cial error was committed. The rulings are hereby
affirmed. The Board has considered the Trial Ex-
aminer's Decision, the exceptions and briefs, and the
entire record in the case, and hereby adopts the
findings,' conclusions, and recommendations of the
Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor Re-
lations Act, as amended, the National Labor Relations
Board adopts as its Order the recommended Order of
the Trial Examiner and hereby orders that the Re-
spondent, Construction and General Laborers' Union
Local 304, Laborers' International Union of North
America, AFL-CIO, its officers, agents, and represent-
atives, shall take the action set forth in the Trial Ex-
aminer's recommended Order.
' Respondent 's exceptions directed to the credibility resolution of the
Trial Examiner are without meet The Board will not overrule the Trial
Examiner's resolutions as to credibility unless a clear preponderance of all
relevant evidence convinces us that they are incorrect . On the entire record,
such a conclusion is not warranted . Standard Dry Wall Products, Inc, 91
NLRB 544, enfd. 188 F 2d 362 (C A.3).
191 NLRB No. 127
DECISION OF TRIAL EXAMINER
STATEMENT OF THE CASE
IRVING ROGOSIN , Trial Examiner : The complaint , issued
October 1 , 1970, alleges that since on about March 30, 1970,
Respondent by its officers , agents, and representatives, has
engaged in unfair labor practices within the meaning of Sec-
tion 8(b)(2) and (1)(A) of the Act.'
Respondent's answer admits the procedural allegations,
but denies for lack of information, the commerce allegations
and, generally , the remaining allegations of the complaint.
Hearing was held on February 4, 1971, at San Francisco,
California, before the duly designated Trial Examiner. The
General Counsel and Respondent Union were represented by
counsel and were afforded full opportunity to be heard, to
examine and cross-examine witnesses , to introduce evidence
relevant and material to the issues , to argue orally , and to file
briefs and proposed findings of fact and conclusions of law.
The parties declined to argue orally, electing to file briefs,
which were received on March 15 , 1971, in the time allowed.
No proposed findings of fact or conclusions of law have
been filed by any of the parties.
Upon the entire record in the case, the resolution or recon-
ciliation of conflicting testimony , on the basis of the appear-
ance and demeanor of the witnesses , and the briefs, which
have been carefully considered, the Trial Examiner makes the
following:
FINDINGS OF FACT
I. THE BUSINESS OF THE EMPLOYER
The complaint alleges, but Respondent's answer denies for
lack of information, that at all times material herein, Wells
and Kelly Steel Form Erection Service, herein called Wells
and Kelly, a partnership, with its place of business in Oak-
land, California, has been engaged in the business of produc-
ing concrete forms. During the year preceding the issuance
of the complaint, Wells and Kelly received in excess of $50,-
000 for services performed for and on behalf of Harvis Con-
struction Company, herein called Harvis.
The complaint further alleges that, at all times material
herein, Harvis, a California corporation, with its place of
business in south San Francisco, California, has been a gen-
eral contractor engaged in the building and construction in-
dustry, and a member of the Northern and Central California
Chapter of the Associated General Contractors of America,
Inc., herein called AGC, a voluntary association of employers
existing for the purpose, inter alia, of representing and assist-
ing, through the procedures of multiemployer collective bar-
gaining, its employer-members, including Harvis, in negotiat-
ing and entering into labor contracts with their employees'
collective-bargaining representatives, including Respondent.
During the year preceding issuance of the complaint, the
employer-members of the AGC, above referred to, collec-
tively, in the course of their business operations, purchased
and received, in the State of California, goods valued in excess
of $50,000, which were shipped to them directly from suppli-
ers located outside the State of California.
' The charge was filed on June 18, 1970, and served the following day.
Designations are as follows- the General Counsel, unless otherwise stated,
his representatives at the hearing; Respondent, Respondent Union or the
Union, Construction and Gereral Laborers' Union Local 304, Laborers'
International Union of North America, AFL-CIO, the Charging Party,
George D. Willis, an individual; the National Labor Relations Act, as
amended, 61 Stat. 136, 73 Stat. 519, 29 U.S.C. Sec. 151, et seq., the Act;
the National Labor Relations Board, the Board. Unless otherwise stated, all
events occurred in 1970.
LOCAL 304, LABORERS 765
It was stipulated at the hearing that the foregoing allega-
tions were admitted. It is, therefore, found that, at all times
material herein, Wells and Kelly has been an employer en-
gaged in commerce and in operations affecting commerce
within the meaning of Section 2(2), (6), and (7) of the Act and
the Board's jurisdictional standards.
II THE LABOR ORGANIZATION INVOLVED
Construction and General Laborers' Union Local 304, La-
borers' International Union of North America, AFL-CIO,
herein called Respondent, Respondent Union, or the Union,
is, and at all times material herein has been, a labor organiza-
tion within the meaning of Section 2(5) of the Act.
III THE UNFAIR LABOR PRACTICES
A. The Violation of Section 8(b)(2) and (1)(A)
George D. Willis worked for Wells and Kelly initially in
March 1970, as a general laborer, on a temporary basis, clean-
ing steel forms which the Company had acquired from a firm
in Concord, California, preparatory to the removal of these
forms to other jobsites. He was hired for this job by Foreman
Howard Peppers through a friend in the employ of Wells and
Kelly. Willis reported to the yard in Concord on Wednesday
morning, March 25, 1970. Willis was not then a union mem-
ber and there is no suggestion that union membership was
required on that job.
Friday morning , Willis' friend told him that he thought
Fred T. Cavanaugh, superintendent for Wells and Kelly, was
interested in hiring him for another job. Later that day, Fore-
man Peppers told Willis that there was work available for
him, that Cavanaugh was impressed with his work and had
informed him that if Willis desired employment there was
work available for him. Willis asked Peppers what the next
step would be and was told to see Cavanaugh Monday morn-
ing for a letter authorizing him to obtain union clearance
inasmuch as he was not a member.
On Monday morning, Willis went to Burlingame where
Cavanaugh was engaged on a project. Cavanaugh was not
there when Willis reached the job, but Peppers told him that
he would find Cavanaugh at a wrecking job in Berkeley and
gave him the address. Willis went to the job and requested
Cavanaugh to furnish him with a letter which he could take
to the Union, stating that he had a job. Cavanaugh complied
and wrote a note to the Union, requesting that Willis be
referred to the Burlingame job. On the reverse side of the
note , however, Cavanaugh wrote that Willis would be start-
ing work at the Catering Building at the Oakland Airport.'
Cavanaugh told him to report to the Oakland Airpot as soon
as he cleared with the Union. At Peppers' suggestion, Willis
went to the Labor Temple in Oakland where Local 304 main-
tained its offices. Peppers had explained to Willis the previous
Friday that each local had its own jurisdiction, and that
eligibility for membership in the local depended on the loca-
tion of the job to which the employee was assigned . Eager to
join Local 304, Willis went to the Labor Temple in Oakland
where he had gone a few months earlier in connection with
a different union, arriving at about 10:30 a.m.
After ascertaining the location of Local 304 from the build-
ing directory, Willis went to a window marked "Business Rep
-No Dues," where several other men were waiting, and took
his place in line. When he reached the window, he found a
young Negro woman, identified at the hearing as Irma Jean
Lee, in attendance. He explained to her that he had a letter,
which he showed her, stating that a job was available to him,
but that he was not a member of the Local, and asked the
procedure for obtaining clearance for the job. She told him
that he would have to join the Union, and at some stage
mentioned the sum of $125 for initiation fees and dues. Willis
said that he would be glad to join the Union but that he did
not have the money then and inquired whether it would be
possible for him to go to work and be granted a "grace
period" in which to make payment. Willis asked if he could
see the business agent and "work [it] out" with him. She told
him that she would see, wrote his name and the name of the
company which had offered him the job on a piece of paper,
and went into an adjoining office. When she returned several
minutes later, she told him that she was sorry but unless he
could make the payment, there was nothing they could do.
Willis asked her if there would be any problem about his
going to work if he paid the money and she replied that once
he paid the money, he "was in the Union" and could report
to the job. Willis left and went to the Laborers Union in
Richmond.
Willis worked for Wells and Kelly the following Saturday
at the Oakland Airport. The following Monday, he went to
Burlingame where he joined the local there, paid the registra-
tion fee, obtained clearance, and was allowed 2 weeks in
which to join.
Emmett R. Jones, field (business) representative of the
Union, testified that he had never seen Willis until the day of
the hearing. Irma Jean Lee, whose duties consisted of regis-
tering the men by means of a "plug board," posting the jobs
to which the men were dispatched, issuing health and welfare
and other forms, and performing various other clerical duties,
testified that, although she was on duty on March 30, 1970,
she had no recollection of seeing Willis on the day in question
and did not recognize him at the hearing.
Describing the dispatching procedures for Local 304, Jones
explained that, as job orders are received, the workmen are
dispatched in rotation in the order in which they appear on
the "plug board." With regard to a "request man," that is,
a worker whom the employer desires to hire, the man is
required to furnish a letter from the employer, stating the
man's name, address, social security number, and the job to
which he is to be assigned. This letter is then delivered to the
woman at the dispatching window. This person has no au-
thority to issue clearances and all such communications are
processed by a field representative of the Union. He checks
the job to make certain that the "proper ratio" of workers is
maintained on the job before dispatching a request man. Ex-
plaining the term "proper ratio," Jones testified that, under
the terms of the collective-bargaining agreement, later de-
scribed and in effect at the time, the employer is permitted to
hire, presumably without regard to the union security provi-
sions of the agreement, the first, sixth, and eleventh men. The
"first man" is defined as an 'employee who has worked for that
company for the last consecutive 6 months of the preceding
12-month period. The sixth and eleventh men may be selected
by the company from any source.
According to Jones, the attendant at the dispatching win-
dow, in this instance, Irma Lee, has no authority to dispatch
any workers without specific authorization by a business rep-
resentative. Jones, or another field representative, issues in-
structions to the attendant at the dispatching window regard-
ing her duties and the limitations on her authority with
regard to dispatching. Jones denied that he instructed such
personnel to notify persons applying at the dispatching win-
dow that membership in the Union is required as a condition
of being dispatched. According to him, such personnel are
2 The note was not produced at the hearing, Willis testifying that It was not permitted to make any statements in that regard, such
probably lost when he moved his residence authority being reserved to the field representative. Jones
766 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
testified that he had never seen a letter from Wells and Kelly,
signed by Cavanaugh , requesting that , Willis be referred to the
job.
Jones testified that he is in the office at various times each
month, and attends the dispatching window from 7 o'clock
until 9 o 'clock in the morning, alternating with two other
field representatives . Apart from his dispatching duties he
deals with problems which may arise and devotes a substan-
tial part of his time in the field policing contracts. Thus,
according to him , he would be present in the union office
approximately one-third of the time during dispatching
hours.
Sylvia Maker is the only other female employee who par-
ticipates in the dispatching procedure . Both she and Lee
function under the direct supervision of the field representa-
tives. Both have been in the employ of Local 304 for about
2 years. Maker 's duties, however, are concerned primarily
with the clerical work involved in pension , health and wel-
fare, vacation and, disability , matters and any other related
problems which may arise. Basically, her duties consist of
handling the clerical work for union members relating to
health and welfare matters, as well as serving as secretary, to
the field representatives . When attending the dispatching
window, her duties are the same as Lee's, to answer inquiries,
investigate problems of persons presenting themselves, and
handle the plug board . During actual dispatching hours,
however, a field representative is at the dispatching window.
The president and secretary-treasurer of the Local occupy
desks in a large room behind a wall separating the offices from
the service windows.
Irma Lee generally corroborated Jones' testimony regard-
ing the instructions she received from the field representatives
and the procedures to be followed. Asked what instructions
she had received from Jones or other field representatives in
the event a nonunion employee submits a written request by
an employer for referral at a time when no field representative
is available , Lee testified , "Well, my instructions are to tell
the man he should see a Field Representative , about joining
and also about the job.,' She disclaimed any authority to
dispatch workers, testifying that she had received specific
instructions to that effect. She did not , of course, she testified,
have authority to, accept any person for membership in the
Union . She admitted, however, that she did receive inquiries
about the amount of the initiation fee and similar matters,
and that she has received instructions to supply this informa-
tion . She denied that she ever told any nonunion worker who
presented himself at the window that he must first join the
Union before he could be dispatched . She also testified, that
if a person presented himself at the window, with . a letter
requesting his referral to a job in another county; she would
inform him that he should join the local having jurisdiction
in that county . She denied4hat she ever told anyone present-
ing himself at the window that the prospectiveemployee must
pay the initiation fee before he can be permitted to go to work.
Lee acknowledged that there had been a number, of in-
stances of persons presenting themselves at the; window to
apply for registration , dispatching, or referral, but testified
that she could not recall whether she had ever seen Willis or
had a conversation with him and that she did not recognize
him at the hearing . She testified , however, that had she
spoken to him , she would have heeded the instructions which
she, had received from her , field representatives . She denied
Willis' testimony that she copied pertinent information from
a letter requesting Willis' referral and took it into the adjacent
office , while Willis waited , testifying that in such , a situation
It is thus evident that Willis' testimony regarding his ex-
perience at the union hall, when he attempted to obtain work
referral, has not been categorically denied . Instead,Respond-
ent has attempted to controvert this testimony by relying on
the hiring hall practices and procedures, instructions issued
to employees participating in the dispatching system, and
self-serving statements of a field representative and one of
these employees that the practices and instructions were con-
sistently followed . As opposed to this, the General Counsel's
evidence establishes that there was a job available for which
the employer was willing to hire Willis, provided he could
obtain clearance from the Union . Willis was eager for the job
and desirous of joining the Union . It is, therefore , logical to
assume that he would have lost no time in seeking to obtain
clearance . His testimony regarding his visit to the Union,
buttressed by his detailed descriptor of the union headquar-
ters, leaves no doubt that he was actually there on the occa-
sion in question . His recital of what occurred was direct,
forthright and unequivocal , giving every indication of
verisimilitude . Since he was willing, if not eager, to join the
Union, if arrangements could be made to defer the payment
of initiation fees and dues, there would 'appear to be no cogent
reason for him to impute to Lee the statement that he would
have to join the Union before he could be eligible to be
dispatched unless she had actually made it. Moreover , Willis'
credible testimony that he tried to arrange for deferred pay-
ment of initiation fees and dues lends credence to the fact that
Lee told him that the amount required was $125, information
which, by the way, she was admittedly authorized to release.
Where Willis obtained the information as to the amount, if
not from Lee, has not been suggested . Nor has Respondent
offered any evidence that the amount to which Willis testified
was not the correct amount of the initiation fees and dues
charged by the Union . Had Lee followed her alleged instruc-
tions, she would have referred Willis to a field representative,
at least one of whom was presumably , available, who could
have explained to Willis the prevailing union security and
preferential hiring provisions under the `existing contract to
which his tentative employer was a party. Willis' testimony,
that Lee did, in fact , take a note bearing the vital information
contained in the employer 's request for referral into the office
used by the' field representatives; suggests that, she may, in-
deed, have attempted to comply with her instr'uctions . 3 In any
case, there is no evidence that she referred Willis to one of the
business representatives on this occasion , as she was presuma-
bly under instruction to' do in the situation . Be that as it'may,,
and apart from Willis ' testimony that Lee returned to report
to Willis that there was nothing that could be done ' for him,
the fact remains that Willis was not given a referral or clear-
ance or even offered an opportunity to register.'
It is, therefore , found that whatever instructions Lee might
previously have received regarding the operation of the hiring
hall; the issuance of permits or clearance , and the dispatching
of registrants ,'and whether or not 'she-was acting on'instruc-
tions from her superiors in that regard , she did , in fact, tell
Willis that he could not work at th& job which the employer
had 'offered him without first joining the Union . It is further
found that Lee at the same time told Willis that he would be
required to pay $1"25 as initiation fee and ' union ` dues' to
become a member of the Union , and that failing that, he
would be unable to work for the employer on that job. Con-
sideringthe nature and extent of Lee's duties, the fact that she
was assigned to the dispatching window to answer inquiries
regarding union matters, including the procedure required to
it is her invariable practice to take the ' letter itself in to the J Her testimony that she would under these circumstances have taken the
field representative . According to her, however, she bad no letter itself into the field representative is not sufficiently persuasive to
recollectionof any, such incident ' involving Willis. eliminate the likelihood that she did not do so on this occasion.
LOCAL 304, LABORERS 767
obtain permits or clearance for jobs under the Union's juris-
diction, and that she actually handled the registration and
dispatching of laborers through the operation of the plug
board, it is found that the statements imputed to her by Willis
were within the scope of her general authority,, and that
Respondent is liable therefor: Moreover, on the basis of Wil-
lis' credited testimony, it is evident that Lee,.in,effect, reiter-
ated what she had told Willis earlier, adding that there was
nothing the Union.could rlo after consulting with a field or
other union representative privately, giving rise to the infer-
ence that Lee's statementshad been adopted andiratified by
an authorized union representative and reflected union policy
in'the matter.
If was stipulated at the hearing that Wells and Kelly is a
signatory. to a collective-bargaining agreement with the
Union, which is a short form counterpart of the contract,
designated as Laborers' Master Agreement between North-
ern and Central California Chapter of the Associated General
Contractors of America, Inc., entered into June 16, 1968, for
a term of 3 years, expiring June 15, 1971, without provision
for reopening it, automatically renewable annually thereafter
in the absence of specified notice.4
The master agreement contains the conventional construc-
tion industry union security provisions, requiring member-
ship in the Union after 7 days of employment and providing
for the operation of an exclusive, nondiscriminatory hiring
hall with detailed registration and dispatching procedures
and preferential hiring based on length of service with em-
ployers in the geographical area within the Local's jursidic-
tion and similar criteria. There is no allegation or contention
that the union' security and preferential hiring provisions are
unlawful.
The gravamen of the General Counsel's case is that Re-
spondent Union required Willis to join the Union as a condi-
tion of employment, contrary to the provisions of Section 8(f)
of the Acts
4 The preamble of the agreement designates the parties as Northern and
Central California Chapter, the Associated General Contractors of
America, Inc., The Engineering and Grading Contractors Association of
California, Inc , The California Contractors Council, Inc., hereinafter re-
ferred to as collective-bargaining representative of Employer, and the
Northern California District Council- of Hod Carriers, Building and Con-
struction Laborers of the Laborers' International Union of Northern
America, hereinafter referred to as the Union, modifying a series of prior
agreements commencing May 17, 1951, and ending July 1, 1965,
Section 8(f) provides:
It shall not be unfair labor practice under subsections (a) and (b) of this
section for an employer engaged primarily in the building and construc-
tion industry to make an agreement covering employees engaged (or
who, upon their employment, will be engaged) in the building and
construction industry with a labor organization of which building and
construction employees are members (not established, maintained or
assisted by any actions defined in section 8 (a) of this Act as an unfair
labor practice) because (1) a majority status of such labor organization
has not been established under the provisions of section 9 of this Act
prior to the making of such agreement or (2) such agreement requires
as a condition of employment, membership in such labor organization
after the seventh day following the beginning of such employment or
the effective date of the agreement, whichever is later, or (3) such
agreement requires the employer to notify such labor organization of
opportunities for employment with such employer, or give such labor
organization an opportunity to refer qualified applicants for such em-
ployment, or (4) such agreement specifies minimum training or experi-
ence qualifications for employment or provides for priority in oppor-
tunities for employment based upon length of service to such employer,
in the industry or in the particular geographical area: Provided, That
nothing in this subsection shall set aside the final proviso to section
3(a)(3) of this Act. Provided further, That any agreement which would
be invalid, but for clause (1) of this subsection, shall not be a bar to a
petition filed pursuant to section 9(c) or 9(e),
The General Counsel maintains that Respondent Union's
conduct in this regard, without more, constitutes a violation
of Section 8(b)(2) and (1)(A) of the Act.'
That Lee herself equated the right to obtain a job referral
with unionmembership is evident from her testimony regard-
ing instructions she had received as to the procedure to be
followed with regard to nonunion applicants seeking referrals
in the absence of field representatives. Lee testified, "Well, my
instructions are to tell the man he should see a Field Repre-
sentative about joining and also about the job." (Emphasis
supplied.) Regarding a person presenting a request for refer-
ral from an employer for work in a jurisdiction outside
Alameda County, Lee testified, "Of course, if a-person should
come up to the window with_a letter stating that he wants to
go to work in another county, I would then, tell him that he
should join the Local, that covers that particular county."
(Emphasis supplied.) She denied, however, that she ever told
any person applying at the dispatch window that under union
policy he must pay the initiation fee before he can go to work.
The fact that the requirement of union membership as a
prerequisite to referral or clearance was contrary to the plain
language of the union security provisions of the contract,
pertinent excerpts of which were alleged to have been posted
in the vicinity of the dispatch window is of no probative value
in establishing that Lee did not make the statements at-
tributed to her by Willis. Nor, does the fact that the posted
provisions may have been available for Willis to read, relieve
Respondent of the consequences of its unlawful conduct. As
long as Respondent acted in derogation of the terms of the
union-security provisions, it would have-been small comfort
to Willis to know that the contract imposed no requirement
of union membership, except to the extent permitted by the
Act. Respondent's attempt to disavow Lee's conduct on the
ground that she was totally without authority to make the
statements imputed to her, must fail Thus, it is evident that
Respondent Union held her out to the public as an agent,
with ostensible authority to furnish information on its behalf
in regard to referrals, clearances, and dispatching, of regis-
trants. The fact that she"may have acted in disregard of
express instructions does not relieve Respondent of the conse-
quences of her unlawful conduct.'
6 The pertinent allegation of the complaint reads as follows:
VI
Since on or about March 30, 1970, Respondent, by its officers , agents
and representatives, has refused to register and dispatch George D
Willis for employment on a nondiscriminatory basis to Wells and Kelly,
through its exclusive job referral procedure described above in para-
graph 5, because of the said Willis'=lack of membership in Respondent.
' Section 2(13) of the Act provides.
In determining whether any person is acting as an "agent" of another
person so as to make such other person responsible for his acts, the
question of whether the specific acts performed were actually author-
ized or subsequently ratified shall not be controlling.
To the same effect, the Restatement on Agency.
A principal may be responsible for the act of his agent within the scope
of the agent's general authority, or the "scope of his employment" if the
agent is a servant, even though the principal has not specifically author-
ized or indeed may have specifically forbidden the act in question It
is enough if the principal actually empowered the agent to represent
him in the general area within which the agent acted As quoted in
International Longshoremen's and Warehousemen's Union, CIO (Sun-
set Line and Twine Company), 79 NLRB 1487, 1509 See also United
Brotherhood of Carpenters & Joiners of America, Local Union No
2067, AFL-CIO, et al (Associated General Contractors of America,
Inc., etc.) 166 NLRB 532, 538-539.
768 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It is, therefore, found that by Lee's statements to Willis on
or about March 30, 1970, he could not be granted a work
permit, clearance, or job referral to Wells and Kelly unless he
joined the Union; by stating that he would be required to pay
the sum of $125 as initiation fees and dues as a prerequisite
to joining the Union; and by refusing to grant him a work
permit, clearance, or job referral because he was not a mem-
ber of the Union, Respondent Union has caused or attempted
to cause an employer to discriminate against an employee in
violation of Section 8(a)(3) of the Act, thereby engaging in
unfair labor practices within the meaning of Section 8(b)(2)
and restraining or coercing employees in the exercise of rights
guaranteed in Section 7 in violation of Section 8(b)(1)(A) of
the Act.
Respondent has not specifically made the contention that
under the union security and preferential hiring provisions of
the contract, the validity of which is not in issue, Willis
would, in any event, have been ineligible for dispatch even if
he had been permitted to register. Such a contention would
be untenable. Nor is it contended that Willis would have been
ineligible for dispatch to Wells and Kelly under the preferen-
tial hiring provisions which did not provide for the right of
the employer to select an employee by name in the situation
involving Willis.'
IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of Respondent Union, set forth in section III,
above, occurring in connection with the employer's opera-
tions described in section I, above, have a close, intimate, and
substantial relations to trade, traffic, and commerce among
the several states and tend to lead to labor disputes burdening
and obstructing commerce and the free flow of commerce.
V THE REMEDY
Having found that Respondent has engaged in unfair labor
practices within the meaning of Section 8(b)(2) and (1)(A) of
the Act, it will be recommended that it be ordered to cease
and desist therefrom and take certain affirmative action de-
signed to effectuate the policies of the Act.
It will be further recommended that Respondent notify
Wells and Kelly Steel Form Erection Service, in writing, with
a copy to George D. Willis, that Respondent will not dis-
criminate against Willis or any other job applicant in select-
ing or referring them for employment through its hiring hall
procedures , unless he joins or becomes a member of said
Union . It will also be recommended that Respondent make
said George D. Willis whole for any loss of earnings which
he may have suffered by reason of the discrimination against
him by payment to him of a sum of money equal to that which
he normally would have earned as an employee of Wells and
Kelly Steel Form Erection Service from the date he would
8 It has been held that the absence of vacancies does not absolve an
employer from a violation of Section 8(a)(3) of the Act, where the record
clearly shows that the employer refused to consider certain job applicants
because of their known union adherence [see Shawnee Industries, Inc., 140
NLRB 1451, 1452-1453 enf. den on other grounds, 333 F.2d 221 (C.A.
10)]. So too, here, the fact that Willis might not have been eligible to be
dispatched even if he had been afforded an opportunity to register, does not
relieve Respondent of the consequences of its discriminatory conduct "It
is the `true purpose' or 'real motive' in hiring or firing that constitutes the
test' (Local 357, Teamsters v. N.L.R.B., 365 U.S 667-675) and, so long as
a reason for referral or discharge is one proscribed by the Act, it is im-
material that other valid reasons for the action may also be present. (cases
cited)" International Brotherhood of Electrical Workers, AFL-CIO, Local
648 (Foothill Electrical Corporation), '182 NLRB No. 4 See also, Apen
Ventilating Co., Inc., 186 NLRB No 68
have been hired, but for Respondent's discrimination, and the
date 5 days after notification by Respondent to said Wells and
Kelly and Willis, as provided above, less his net earnings
during said period to be computed in the manner set forth in
F. W. Woolworth Company, 90 NLRB 289, with interest as
prescribed in Isis Plumbing & Heating Co., 138 NLRB 716.
The unlawful conduct in which Respondent has engaged
indicates a purpose to infringe upon the lawful rights of em-
ployees and the danger of such continued conduct is reasona-
bly forseeable. It will, therefore, also be recommended that
Respondent be ordered to cease and desist from causing or
attempting to cause Wells and Kelly or any other employer
within Respondent's jurisdictional or geographical area to
deny employment to any employee or applicant for employ-
ment because of lack of union membership or clearance, ex-
cept to the extent permitted by Section 8(a)(3) of the Act.
Upon the basis of the foregoing findings of fact and upon
the entire record in the case, the Trial Examiner makes the
following:
CONCLUSIONS OF LAW
1. Wells and Kelly Steel Form Erection Service, a partner-
ship, with a place of business in Oakland, California, is, and
at all times material herein has been, an employer within the
meaning of Section 2(2), (6) and (7) of the Act.
2. Construction and General Laborers' Union Local 304,
Laborers' International Union of North America, AFL-CIO,
is, and at all times material herein has been, a labor organiza-
tion within the meaning of Section 2(5) of the Act.
3. By discriminatorily refusing to refer George D. Willis to
Wells and Kelly Steel Form Erection Service for employment
or grant him job clearance on or about March 30, 1970, and
refusing to register and dispatch said Willis for employment
on a nondiscriminatory basis to said Wells and Kelly because
of his lack of membership in Respondent Union, Respondent
has caused an employer to discriminate against an employee
in violation of Section 8(a)(3) of the Act and has thereby
engaged in and is engaging in unfair labor practices within the
meaning of Section 8(b)(2) and (1)(A) of the Act.
4. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
Upon the basis of the foregoing findings of fact, conclusions
of law, and upon the entire record in the case and pursuant
to Section 10(c) of the Act, the Trial Examiner hereby issues
the following recommended:'
ORDER
Respondent , Construction and General Laborers' Union
Local 304, Laborers' International Union of North America,
AFL-CIO, of Oakland , California, its officers , agents, and
representatives shall:
1. Cease and desist from:
(a) Failing or refusing to register , refer, dispatch, or grant
clearance for employment to any employee or applicant for
employment on a nondiscriminatory basis to Wells and Kelly
Steel Form Erection Service or any other employer with
whom Respondent has a collective-bargaining agreement
containing a valid, exclusive job referral procedure because of
lack of membership of any such employee or applicant for
' In the event no exceptions are filed as provided by Section 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall, as provided in
Section 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions and Order and all objections thereto shall
be deemed waived for all purposes.
LOCAL 304, LABORERS
employment in Respondent Union, except in accordance with
the provisions of Section 8(a)(3) of the Act.
(b) Causing or attempting to cause Wells and Kelly Steel
Form Erection Service, or any other employer within Re-
spondent's jurisdictional or geographical area, to deny em-
ployment or otherwise discriminate against employees or ap-
plicants for employment because of lack of membership or
union clearance, except in accordance with the provisions of
Section 8(a)(3) of the Act.
(c) In any like or related manner restraining or coercing
employees in the exercise of any rights guaranteed in Section
7 of the Act.
2. Take the following affirmative action which it is found
is necessary to effectuate the policies of the Act:
(a) Notify Wells and Kelly Steel Form Erection Service, in
writing, with a copy to Willis, that Respondent has no objec-
tion to the employment of Willis and will not discriminate in
his selection for employment or the employment of any other
job applicant because he is not a member of Respondent
Union or any other union.
(b) Make whole George D. Willis for any loss of pay he
may have suffered because of the discrimination practiced
against him, in the manner set forth in the section of this
decision entitled, "The Remedy."
(c) Preserve and, upon request, make available to the
Board or its agents for examination and copying all records
pertaining to the registration, referral, and dispatching of
employees through its hiring hall, and all records necessary
or useful to determine or compute the amount of backpay
due, if any.
(d) Post at its business office, hiring hall, and meeting
places, including all places where notices to its members are
customarily posted, copies of the attached notice marked
"Appendix."" Copies of said notice, on forms provided by
the Regional Director for Region 20, after being duly signed
by Respondent's authorized representative, shall be posted by
it immediately upon receipt thereof and be maintained by it
for 60 consecutive days thereafter in conspicuous places, in-
cluding all places where notices to members are customarily
posted. Reasonable steps shall be taken by Respondent to
ensure that said notices are not altered, defaced, or covered
by any other material.
(e) Sign and mail sufficient copies of said notice to the
Regional director for Region 20 for posting by Wells and
Kelly Steel Form Erection Service at all locations where no-
tices to employees are customarily posted,
(f) Notify the Regional Director for Region 20, in writing,
within 20 days from the receipt of this Decision, what steps
have been taken to comply herewith."
IT IS FURTHER RECOMMENDED that, unless on or before
20 days from the date of receipt of this Decision, Respondent
notify said Regional Director, in writing, that it will comply
with the recommended Order, the National Labor Relations
Board issue an order requiring Respondent to take the afore-
said action.
10 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
order of the National Labor Relations Board" shall be changed to read
"Posted pursuant to a judgment of the United States Court of Appeals
enforcing an order of the National Labor Relations Board."
" In the event that this recommended Order is adopted by the Board
after exceptions have been filed, this provision shall be modified to read.
769
"Notify the Regional Director for Region 20, in writing, within 20 days from
the date of this Order, what steps the Respondent has taken to comply
herewith "
APPENDIX
NOTICE
To ALL OUR MEMBERS, OFFICERS, REPRESENTATIVES,
AND AGENTS
To ALL EMPLOYEES OF WELLS AND KELLY STEEL FORM
ERECTION SERVICE, APPLICANTS FOR EMPLOYMENT, AND
PERSONS USING OUR HIRING HALL
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT fail or refuse to register, refer, dispatch,
or grant clearance for employment to any employee or
applicant for employment on a nondiscriminatory basis
to Wells and Kelly Steel Form Erection Service, or any
other employer with whom we have a collective-bargain-
ing agreement containing a valid exclusive job referral
procedure, because of lack or membership of any such
employee or applicant for employment in our Union,
except in accordance with the provisions of Section
8(a)(3) and (f) of the Act.
WE WILL NOT cause or attempt to cause Wells and
Kelly Steel Form Erection Service or any other em-
ployer to deny employment to an applicant for employ-
ment because he is not a member of our Union or any
other union, except in accordance with the valid provi-
sions of our collective-bargaining agreement.
WE WILL reimburse George D. Willis for any loss of
earnings which he may have suffered because of our
failure and refusal to refer him for employment to Wells
and Kelly Steel Form Erection Service, on or about
March 30, 1970, in the manner set forth in the section
of the Decision of Trial Examiner entitled "The
Remedy."
WE WILL notify Wells and Kelly Steel Form Erection
Service, in writing, with a copy to George D. Willis, that
we have no objection to his employment, in accordance
with the valid provisions of our collective -bargaining
agreement with said Wells and Kelly Steel Form Erec-
tion Service.
CONSTRUCTION AND
GENERAL LABORERS'
UNION LOCAL
304, LABORERS'
INTERNATIONAL
UNION OF
NORTH AMERICA,
AFL-CIO
(Labor Organization)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced by any-
one.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced, or
covered by any other material.
Any questions concerning this notice or compliance with
its provisions, may be directed to the Board's Office, 13050
Federal Building, 450 Golden Gate Avenue, Box 36047, San
Francisco, California 94102, Telephone 556-0335.