Local 401, Int'l Brotherhood of Boilermakers, Etc.

National Labor Relations Board - Board Decisions

Feb 25, 1960

126 N.L.R.B. 832 (N.L.R.B. 1960)

832 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the basis of the foregoing findings of fact and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. By discriminating in regard to the hire and tenure of employment of Bill Kirby,
thereby discouraging membership in Retail , Wholesale and Department Store Union,
AFL-CIO, the Respondent has engaged in and is engaging in unfair labor practices
within the meaning of Section 8 ( a) (3) of the Act.
2. By the foregoing conduct, by interrogating an employee as to why he was for
the Union and if he would join the Union if it got in , by telling him that the Union
could not do a thing for him and that he could not work for the Union and the
Company at the same time , by stating that "we have not even began to fight this
Union yet," by warning that Respondent would not recognize the Union even if it
got voted in, by telling an employee not to mention the Union to the employees at
any time, and by warning him "not to be so brave for the Union or the Company will
bump you off," the Respondent has interfered with , restrained , and coerced its
employees employees in the exercise of rights guaranteed in Section 7 of the Act and
thereby has engaged in and is engaging in unfair labor practices within the meaning
of Section 8 (a) (1) of the Act.
3. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
4. The Respondent has not engaged in unfair labor practices within the meaning
of Section 8(a)(3) and (4) of the Act by its treatment and discharge of Bonnie K.
Field.
[Recommendations omitted from publication ]
Local 401, International Brotherhood of Boilermakers, Iron
Ship Builders, Blacksmiths, Forgers and Helpers , AFL-CIO;
International Brotherhood of Boilermakers , Iron Ship Build-
ers, Blacksmiths , Forgers and Helpers , AFL-CIO; and John
Stender, International Vice President and Orran Lyman
Chamberlain and M. A. Roberts and James G. Roberts, Part-
ners, d/b/a M . A. Roberts & Company, Parties to the Contract
Local 401, International Brotherhood of Boilermakers, Iron
Ship Builders , Blacksmiths, Forgers and Helpers, AFL-CIO
and George B. Seybold and M. A. Roberts and James G.
Roberts , Partners, d/b/a M. A. Roberts & Company, Parties
to the Contract . Cases Nos. 36-CB-203 and 36-CB-204. Feb-
ruary 25, 1960
DECISION AND ORDER
On February 10, 1959, Trial Examiner James R. Hemingway issued
his Intermediate Report in the above-entitled proceedings, finding
that the Respondents had engaged in and were engaging in certain
unfair labor practices and recommending that they cease and desist
therefrom and take certain affirmative action as set forth in the copy
of the Intermediate Report attached hereto. Thereafter, the Re-
spondents filed exceptions to the Intermediate Report and a support-
ing brief.'
1 As the record , exceptions. and brief adequately reflect the issues and positions of the
pastier the Respondents' request for oral argument is denied
126 NLRB No. 91.
LOCAL 401 , INT'L BROTHERHOOD OF BOILERMAKERS , ETC. 833
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and the brief, and the entire record in
these cases , and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner with the modifications and addi-
tions noted below.
1. We agree with the Trial Examiner that the Respondents Inter-
national and Local 401 violated Section 8(b) (2) and (1) (A) of the
Act by maintaining and giving effect to the hiring provisions of the
parties' 1957 contract. Like the Trial Examiner, we are of the
opinion that rules 2, 14, and 15 of said contract, which are fully set
forth in the Intermediate Report, manifest an intent that the signatory
employers should hire only through the hiring halls of the particular
local union having jurisdiction over the construction job.
In Mountain Pacific 2 the Board held that an exclusive hiring-hall
agreement was lawful only if it explicitly provided three safeguards :
(1) the selection of employees must be on a nondiscriminatory basis,
unaffected by union considerations, membership, or obligations; (2)
the employer must have a right to reject a job applicant referred by
the union; and (3) the parties must post all provisions relating to the
functioning of the hiring arrangement. In the instant proceeding, as
conceded by the Respondents, the 1957 agreement fails to provide for
postings In addition, the agreement does not adequately provide for
the referral of employees by the Union on a nondiscriminatory basis,
nor does it accord to the employer a right of rejection of a job ap-
plicant. As the Trial Examiner found, the contract, in effect, gives,
the employer only the right to discharge an employee already hired
but no right to select him. Moreover, as the Trial Examiner further-
found, rule 14 imposes a limitation on the employer's right of selec-
tion, and rule 15 clearly imposes discriminatory conditions of employ-
ment in that it limits the right of the employer to transfer his em-
ployees from one job to another within a local's jurisdiction to mem--
bers of the particular local. Accordingly, we find that, under the-
principles of Mountain Pacific, the Respondents International and
Local 401 violated Section 8(b) (2) and (1) (A) by maintaining and
giving effect to the hiring provisions of the 1957 agreement.
2. We agree with the Trial Examiner that the Respondents Inter-
national and Local 401, violated Section 8(b) (2) and (1) (A), by
causing Roberts & Company to discriminate against the charging-
parties, Chamberlain and Seybold in violation of Section 8(a) (3).
As set forth in the Intermediate Report and established in the record,.
2Mountatin Pacific Chapter of the Associated Geneal Contracto,s , Inc, et at, 119
NLRB 883, 893.
E & B Brew ing Company , Inc. , 122 NLRB 354
5544G1-G0-vol 126-54
834 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent Local 401 refused to clear Chamberlain and Seybold for
employment on the Vaughn, Oregon, job when clearance was requested
by Roberts & Company. For this reason, Roberts & Company refused
to transfer Chamberlain and Seybold to the Vaughn, Oregon, job, and
was compelled to hire a number of employees referred by Local 401.
It is manifest that this denial of employment to Chamberlain and
Seybold was the direct result of the application of the unlawful hiring
provisions in the 1957 contract, for which the Respondents, as parties
thereto, were responsible. We therefore find that the Respondents
violated Section 8(b) (2) and (1) (A) of the Act.
3. We also agree with the Trial Examiner that the Respondents
Stender and the International violated Section 8(b) (1) (A) of the
Act by threatening to take disciplinary action against Chamberlain
and Seybold for having filed unfair labor practice charges against the
Respondent International. We agree with the Trial Examiner that
a threat of such disciplinary action reasonably carried with it a threat
of the loss of union membership, which, under the hiring arrange-
ments in effect, could readily lead to a loss of employment op-
portunities.
THE REMEDY
We found, in agreement with the Trial Examiner, that the 1957
agreement provided for unlawful conditions of employment. To
remedy these unfair labor practices, we shall order the Respondents
to cease and desist from maintaining and giving effect to such unlaw-
ful conditions of employment, as the Trial Examiner recommended.
The Respondents contend, however, that their 1958 agreement cured
such unfair labor practices. We find no merit in this contention. It
is settled law that the discontinuance of unfair labor practices does
not dissipate their effect and does not obviate the need for a remedial
order.4 Moreover, even assuming, without deciding, that the 1958
agreement otherwise conformed with the Act, there is no evidence in
the record that the Respondents took steps to notify the employees
that the prior unlawful hiring procedures and practices were discon-
tinued. In these circumstances, we find that the effectuation of the
policies of the Act require the order herein.5
Like the Trial Examiner, we shall require the Respondents to make
whole Chamberlain and Seybold for any loss of pay they may have
suffered by reason of the discrimination against them. With respect
4 N L.R B v Ainerican National Insurance Co , 343 U S 395
s Member Fanning would find that the 1958 agreement, which requires posting by the
Union," adequately provides for Respondents' notification to employees of the provisions
of the agreement relating to the functioning of the hiring arrangement Because the
legality of the 1958 agreement was not attacked in the complaint, because the Respondents
may in fact ha%e posted the requisite notices, and because the agreement otherwise con-
tains the sateguards announced in Mountain Pacific, Member Fanning would defer for
compliance proceedings any determination as to whether disgorgement should be ordered
during the period covered by the 1958 contract
LOCAL 401 , INT'L BROTHERHOOD OF BOILERMAKERS , ETC . 835
to Chamberlain, the record indicates that the Respondents notified him
that he could secure employment on the Vaughn job involved herein
and that he thereafter accepted such position. In these circumstances,
backpay shall terminate upon Chamberlain's employment. With re-
spect to Seybold, the record does not indicate whether he received
notice that the Respondents had withdrawn their objection to his
employment on the Vaughn project. While it appears that, at the
hearing, Seybold was advised that objections to his employment were
withdrawn, it does not appear whether a job was available to him at
that time. Under the circumstances, we shall leave to compliance the
question as to when the Respondents' liability terminated with
respect to him.
The Trial Examiner recommended that the Respondents Interna-
tional and Local 401 jointly and severally refund to those employees
of Roberts & Company who were furnished by Respondent Local, all
initiation fees, dues, assessments, and other moneys unlawfully ex-
acted as the price for their employment, beginning 6 months prior to
the filing and service of the charges against them respectively. We
adopt this recommendation. However, we limit our Order to the re-
imbursement of employees of Roberts & Company solely because only
that Company was served with a copy of the complaint as "Party to
the Contract." 6
ORDER
Upon the entire record in these cases and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that :
A. The Respondents Local 401, International Brotherhood of
Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers,
AFL-CIO, and International Brotherhood of Boilermakers, Iron
Ship Builders, Blacksmiths, Forgers and Helpers, AFL-CIO, their
officers, representatives, agents, successors , and assigns, shall:
1. Cease and desist from :
(a) Maintaining, performing, or otherwise giving effect to the
provisions of any agreement with M. A. Roberts and James G. Roberts,
Partners, doing business as M. A. Roberts & Company, or with any
-other employer over whom the Board would assert jurisdiction, which
unlawfully conditions the hire of applicants for employment, or any
term or condition of employment, upon referral or clearance by the
Respondents, or any other affiliated local of the Respondent Interna-
tional, except as authorized in Section 8(a) (3), as modified by the
Labor-Management Reporting and Disclosure Act of 1959.
(b) Causing or attempting to cause Al. A. Roberts & Company, or
any other employer over whom the Board would assert jurisdiction, to
°Conip.ue Passau and Suffolk Contactors' Association, Inc, and its members, 123
NLRB 1393
836 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
discriminate against Orran Lyman Chamberlain and George B.
Seybold, or any other employee or applicant for employment in viola-
tion of Section 8 (a) (3) of the Act.
(c) In any like or related manner, restraining or coercing em-
ployees of, or applicants for employment with, M. A. Roberts &
Company, or any other employer over whom the Board would assert
jurisdiction, in the exercise of the rights guaranteed in Section 7 of
the Act, except to the extent that such rights may be affected by an
agreement requiring membership in a labor organization as a con-
dition of employment as authorized in Section 8(a) (3), as modified
by the Labor-Management Reporting and Disclosure Act of 1959.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Jointly and severally make whole Orran Lyman Chamberlain
and George B. Seybold for any loss of pay they may have suffered
by reason of the discrimination against them, in the manner and to
the extent set forth in the Intermediate Report as modified by "The
Remedy" section of the Board's Decision and Order.
(b) Jointly and severally refund to all present and former em-
ployees of said M. A. Roberts & Company, who were referred or
furnished to the said Company by Respondent Local 401, all initiation
fees, dues, assessments, and other moneys which they were unlawfully
required to pay to the Respondent Local 401, in the manner and to
the extent set forth in the section of the Intermediate Report entitled
"The Remedy," as modified by "The Remedy" section of the Board's
Decision and Order.
(c) Post at their respective offices, hiring halls, and meeting halls,
copies of the notice attached hereto marked "Appendix A."' Copies
of the said notice, to be furnished by the Regional Director for the
Nineteenth Region, shall, after being duly signed by authorized repre-
sentatives of the Respondent Unions, be posted by the said Respond-
ents immediately upon receipt thereof, and be maintained by then
for a period of 60 consecutive days in conspicuous places, including
all places where notices to members and other employees using Re-
spondent Local 401's hiring hall are customarily posted. Reasonable
steps are to be taken by the Respondents to insure that the said notices
are not altered, defaced, or covered by any other material.
(d) Mail to the Regional Director for the Nineteenth Region
signed copies of the notice attached hereto as "Appendix A" for post-
ing at the offices of said M. A. Roberts & Company and at project
sites where the said Company is engaged in business within the juris-
7 In the event that this Order is enforced by a decree of a United States Court of
Appeals , there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order."
LOCAL 401 , INT'L BROTHERHOOD OF BOILERMAKERS , ETC . 837
diction of Respondent Local 401 in places where notices to employees
are customarily posted, if M. A. Roberts & Company is willing to
do so.
(e) Notify the Regional Director for the Nineteenth Region, in
writing, within 10 days from the date of this Order, what steps the
Respondents have taken to comply herewith.
B. Respondent International Brotherhood of Boilermakers, Iron
Ship Builders, Blacksmiths, Forgers and Helpers, AFL-CIO, its
officers , agents, successors , and assigns , including its vice president,
Respondent John Stender , shall :
1. Cease and desist from :
(a) Threatening Orran Lyman Chamberlain, George B. Seybold,
or any other employee, with impairment of job opportunities, by
threatening disciplinary action against them as members of any of
the Respondent International 's affiliated locals because of his or their
filing of unfair labor practice charges with the National Labor Rela-
tions Board , or because of his or their refusal to withdraw charges
pending with the National Labor Relations Board.
(b) In any like or related manner, restraining or coercing em-
ployees or applicants for employment with said M. A. Roberts &
Company, or any other employer over whom the Board would assert
jurisdiction , in the exercise of the rights guaranteed in Section 7 of
the Act, except to the extent that such rights may be affected by an
agreement requiring membership in a labor organization as a condi-
tion of employment , as authorized in Section 8(a) (3), as modified by
the Labor-Management Reporting and Disclosure Act of 1959.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Post at Respondent International 's office and meeting hall, at
the office, hiring hall, and meeting hall of Respondent International's
affiliated Local 72 and Local 401, and at the office or places where
Respondent Stender conducts his business on behalf of the Respond-
ent International, copies of the notice attached hereto marked "Ap-
pendix B."" Copies of said notice, to be furnished by the Regional
Director for the Nineteenth Region, shall, after being duly signed by
an authorized representative of the Respondent International and by
Respondent John Stender, be posted by the said Respondents imme-
diately upon receipt thereof and be maintained by them for a period
of 60 consecutive days in conspicuous places, including all places
where notices to members and other employees using Local 72 and
Local 401 's hiring halls are customarily posted. Reasonable steps
shall be taken by the Respondents to insure that said notices are not
altered, defaced , or covered by any other material.
8 See footnote 7.
838 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) Notify the Regional Director for the Nineteenth Region, in
writing, within 10 days from the date of this Order, what steps the
Respondents have taken to comply herewith.
MEMBER RODGERS took no part in the consideration of the above
Decision and Order.
APPENDIX A
NOTICE TO ALL MEMBERS OF LOCAL 401 , INTERNATIONAL BROTHERHOOD
OF BOILERMAKERS , IRON SHIP BUILDERS , BLACKSMITHS , FORGERS,
AND HELPERS , AFL-CIO; INTERNATIONAL BROTHERHOOD OF BOILER-
MAKERS, IRON SHIP BUILDERS , BLACKSMITI--IS, FORGERS AND HELP-
ERS, AFL-CIO; AND TO ALL EMPLOYEES OF M. A. ROBERTS AND
JAMES G. ROBERTS , PARTNERS , D/B/A M. A. RoBERTS & COMPANY,
AND ALL 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:
117E WILL NOT maintain, perform, or otherwise give effect to the
provisions of any agreement with M. A. Roberts and James G.
Roberts, Partners, d/b/a M. A. Roberts & Company, or with any
other employer over whom the Board will assert jurisdiction,
which unlawfully conditions the hire of applicants for employ-
ment, or any term or condition of employment, upon referral or
clearance by Local 401, International Brotherhood of Boiler-
makers, Iron Shop Builders, Blacksmiths, Forgers and Helpers,
AFL-CIO, and International Brotherhood of Boilermakers,
Iron Ship Builders, Blacksmith, Forgers and Helpers, AFL--
CIO, or any other affiliated local of the International, except as
authorized in Section 8(a) (3), as modified by the Labor-
Management Reporting and Disclosure Act of 1959.
AVE WILL NOT cause or attempt to cause M. A. Roberts & Com-
pany or any other employer over whom the Board would assert
jurisdiction, to discriminate against Orran Lyman Chamberlain
and George B. Seybold, or any other employee or applicant for
employment, in violation of Section 8(a) (3) of the Act.
WE WILL NOT in any like or related manner restrain or coerce
employees or applicants for employment with M. A. Roberts &,
Company, or any other employer over whom the Board would
assert jurisdiction, in the exercise of the rights guaranteed in
Section 7 of the Act, except to the extent that such rights may be
affected by an agreement requiring membership in a labor organi-
zation as a condition of employment as authorized in Section
8(a) (3), as modified by the Labor-Management Reporting and
Disclosure Act of 1959.
LOCAL 401, INT'L BROTHERHOOD OF BOILERMAKERS , ETC. 839
WE WILL jointly and severally make whole Orran Lyman
Chamberlain and George B. Seybold for any loss of pay they
may have suffered by reason of the discrimination against them.
WE WILL jointly and severally refund to all present and former
employees of M. A. Roberts & Company who were referred or
furnished to the said Company by Local 401 all initiation fees,
dues, assessments , and other moneys which they were unlaw-
fully required to pay to Local 401.
LOCAL 401, INTERNATIONAL BROTHERHOOD
OF BOILERMAKERS, IRON SHIP BUILDERS,
BLACKSMITHS, FORGERS AND HELPERS,
AFT-CIO,
Labor Organization.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
INTERNATIONAL BROTHERHOOD OF BOILERMAKERS,
IRON SHIP BUILDERS, BLACKSMITHS , FORGERS
AND HELPERS , AFL-CIO,
Labor Organization.
Dated------ ---------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
APPENDIX B
NOTICE TO ALL MEMBERS OF INTERNATIONAL BROTHERHOOD OF BOILER-
MAKERS, IRON SHIP BUILDERS, BLACKSMITHS, FORGERS AND HELPERS,
AFL-CIO, AND TO ALL EMPLOYEES OF M. A. ROBERTS AND JAMES
G. ROBERTS, PARTNERS, D/B/A ROBERTS & COMPANY, AND ALL APPLI-
CANTS 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 threaten Orran Lyman Chamberlain, George
B. Seybold, or any other employee or applicant for employment
with impairment of job opportunities by threatening disciplinary
action against them as members of any of the locals affiliated
with International Brotherhood of Boilermakers, Iron Ship
Builders, Blacksmiths, Forgers and Helpers, AFL-CIO.
WE WILL NOT in any like or related manner restrain or coerce
employees of or applicants for employment with M. A. Roberts
& Company or any other employer over whom the Board would
assert jurisdiction, in the exercise of the rights guaranteed in
840 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Section 7 of the Act, except to the extent that such rights may be
affected by an agreement requiring membership in a labor organi-
zation as a condition of employment as authorized in Section
8(a) (3), as modified by the Labor-Management Reporting and
Disclosure Act of 1959.
INTERNATIONAL BROTHERHOOD OF BOILERMAKERS,
IRON SHIP BUILDERS, BLACKSMITHS, FORGERS
AND HELPERS, AFL-CIO,
Dated---------------- By-------------------------------------
(Representative ) (Title)
Dated----------------------------------------------------------
(JOHN STENOER, International Vice President)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon charges filed on May 23, 1958, by Orran Lyman Chamberlain and George B.
Seybold, individuals, against Local 401, International Brotherhood of Boilermakers,
Iron Ship Builders, Blacksmiths, Forgers and Helpers, AFL-CIO, herein called Re-
spondent Local, and, under an amended charge filed on September 29, 1958, by
Chamberlain against International Brotherhood of Boilermakers, Iron Ship Builders,
Blacksmiths, Forgers and Helpers, AFL-CIO, herein called the Union, and against
John Stender, vice president of the Union, the General Counsel of the National
Labor Relations Board, herein called the Board, caused as amended consolidated
complaint to issue on October 6, 1958, alleging that the Respondents had engaged
in and were engaging in unfair labor practices within the meaning of Section
8(b)(1)(A) and 8(b)(2), and Section 2(6) and (7) of the National Labor Rela-
tions Act, as amended, 61 Stat. 136, herein called the Act.
The complaint alleges that the Union committed unfair labor practices, first, by
the execution and maintenance of a contract between the Union and M. A. Roberts
& Company, herein called the Company, containing provisions for an alleged illegal
exclusive hiring hall to be conducted by the Respondent Local; second, by the re-
fusal of the Respondent Local to grant job referrals to the Charging Parties because
they were not members of that Local, thereby causing the Company to refuse to
employ them; and, third, by warning and threatening the Charging Parties that if
they continued in their efforts to obtain work on a particular job of the Company,
they would lose their membership in their own local and in the Union with which
the Charging Parties' local and the Respondent Local were affiliated.
The Respondents' answer, filed on October 14, 1958, admitted the execution and
maintenance of a contract as alleged but denied the quoted provisions thereof and
the commission of any alleged unfair labor practices.
Pursuant to notice, a hearing was held before the duly designated Trial Examiner
at Portland, Oregon, on October 28 and 29, 1958. At the opening of the hearing
the parties stipulated to an amendment to the answer which, instead of denying the
quoted provisions of the aforesaid contract, admitted that such provision was in
effect prior to August 6, 1958. At the close of the hearing, the General Counsel
moved to conform the pleadings (i.e., the complaint) to the proof with respect to
minor discrepancies such as dates, names, and places. The motion was granted.
The parties argued orally on the record and, at request of counsel for the Re-
spondents , a date was fixed for the filing of briefs with the Trial Examiner. This
date was later extended, and within the extended period the Respondents filed a
brief, which has been considered by the Trial Examiner.
From my observation of the witnesses and upon the entire record in the case, I
make the following:
LOCAL 401 , INT'L BROTHERHOOD OF BOILERMAKERS , ETC. 841
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
The Company, an engineering construction company, is a partnership engaged in
the business of designing and constructing powerhouses, principally steam-generated
power plants. Its principal office is in Portland, Oregon. In the Company's fiscal
year ending November 30, 1958, it purchased, up to the date of the hearing, raw
materials of a value of $150,000, of which approximately 75 percent, or $112,500 by
value, was purchased and shipped to it from outside the State of Oregon. During
the same period, the Company received a total of $320,000 for its engineering con-
struction work, of which about 22 percent, or $70,400 was received for construction
work performed outside the State of Oregon. Contrary to the contention of the
Respondents, I find that the Board has, and under present jurisdictional standards
will assert, jurisdiction on the facts of this case.'
II. THE LABOR ORGANIZATIONS
The Respondent Local has its office and place of business in Eugene , Oregon.
Local 72, International Brotherhood of Boilermakers , Iron Ship Builders, Black-
smiths, Forgers and Helpers , AFL-CIO, herein called Local 72, has its office and
place of business in Portland , Oregon. Both the Respondent Local and Local 72 are
subordinate lodges of the Union . The Respondent Local, Local 72, and the Union
are labor organizations within the meaning of Section 2 ( 5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Union's 1957 contract
1. Facts
In September 1957, the Union and representatives of employers in the industry
negotiated and adopted a contract covering the term from October 1, 1957, to
October 1, 1959, for wages and working conditions in the then Territory of Alaska
and the States of Washington, Oregon, California, Idaho, Utah, Nevada, and
Arizona. Among the 297 employer signatories to this contract was the Company.
The Respondent Local was one of 15 locals signing the contract. This contract,
which was printed and bound in booklet form, contains the following provisions:
RULE 2. Hiring of Men
(a) The Contractor recognizes the Union as the sole collective bargaining
agent for all of its employees employed on work covered by the scope of this
agreement.
(b) When the Contractor requires employees to perform the work included
within the scope of this agreement, the Contractor agrees to notify the local
union having jurisdiction of the job of the number of employees and classifica-
tions required. The Business Manager shall, at all times, cooperate with the
Contractor in the selection of qualified workmen. Past work performance of
such men shall be the determining factor, regardless of the workmen's position
on the out of work list. When the local union is requested to furnish men, the
Union agrees to supply the Contractor with the most competent workmen
available within two (2) working days in metropolitan areas and three (3)
working days in rural areas after the date for [on?] which the men are re-
quested. When requested by the Contractor, welders in a local union's juris-
diction previously certified by the Contractor will be sent to the job of the
Contractor requiring certified welders from among such available welders. The
Contractor shall not discriminate against employees in regard to hire or tenure
of employment by reason of union membership.
(c) The Contractor shall have the right to determine the competency and
qualifications of its employees and the right to discharge any employee for any
just and sufficient cause, provided, however, that no employee shall be dis-
criminated against.
(d) In the event the parties, subsequent to the signing of this agreement, are
authorized under provisions of the Labor Management Relations Act, or it is
possible by reason of an amendment or repeal thereof to enter into an agree-
ment requiring membership in the Union as a condition of employment, or in
the event it is determined by a final judgment of a court of competent jurisdic-
tion that such authorization is unnecessary, either party may give written notice
I See Joe K. Miller, d/b/a K .M. & M. Construction Co., 120 NLRB 1062.
842 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to the other of its desire to reopen the provisions of this agreement affecting
union security. In the event such notice is given the parties shall meet within
fifteen (15) days to negotiate such union security provisions.
RULE 14. Transfer of Employees From Territorial Jurisdiction of One Local
Union to Another
Contractor will be allowed to bring in practical mechanics of the trade from
among its regular employees on the following basis: One (1) man where seven
(7) or less are employed; two (2) where eight (8) or less than sixteen (16) are
employed, and three (3) where sixteen (16) or more are employed.
RULE 15. Transfer of Employees Within the Jurisdiction of a Local Union
A Contractor may, on jobs located within the territorial jurisdiction of a
local union, transfer its employees, members of said local union, from one job
to another, provided the employees so transferred are in the continuous em-
ployment of the Contractor and provided further that employees transferred
shall not displace employees already working on the new job. Due to the inter-
mittent nature of field work it is understood that continuous employment by
a Contractor is not broken so long as the layoff between jobs does not exceed
five (5) working days. The Contractor shall notify the local union at least
forty-eight (48) hours prior to any such transfers, the nature and location of
the new job and the names of the employees to be transferred. . . .
On August 6 and 7, 1958, at a conference between labor and management repre-
sentatives, certain amendments to the 1957 contract were negotiated. These include
the following substitutions for the foregoing quoted passages:
RULE 2. Hiring of Men
(a) The Contractor recognizes the Union as the sole collective bargaining
agent for all of its employees employed on work covered by the scope of this
agreement.
(b) As of the effective date of this Agreement all employees under the
terms of this Agreement must be or become members of the Union thirty (30)
days thereafter; the employees hired after the effective date of this Agreement
shall be or become and remain members of the Union thirty (30) days after
their date of employment in accordance with the provisions of the National
Labor Relations Act.
When the Contractor is notified by the Union in writing that an employee is
delinquent in the payment of union dues, or, within the time required by the
Union, has failed to make proper application and pay the initiation fee re-
quired, the Contractor shall immediately terminate such employee. Such em-
ployee shall not be re-employed by the Contractor during the life of this
Agreement, until notified by the Union that the employee is a member in
good standing in the Union.
(Subparagraph (b) shall be effective only in those States permitting Union
Security )
(c) The Contractor, under the terms of this Agreement, shall hire any quali-
fied applicant for employment on a non-discriminatory basis. When the Con-
tractor has requested the Union to furnish men for a job such men will be
selected by the Union on a non-discriminatory basis.
All applicants for employment shall be required to furnish the Contractor
satisfactory evidence in writing of their qualifications and skill from any source
that is recognized as a proper source by the Contractor, not limited to the
Union, and such evidence shall be kept by the Contractor. The Contractor
shall have the right to reject any applicant for employment who is unable to
thus establish his qualifications and skill necessary to perform the work re-
quired by the Contractor or for any other bona fide reason.
The Contractor and the Union shall both post in such places as notices are
customarily posted, a copy of this Ai ticle.
(d) The Contractor shall have the right to determine the competency and
qualifications of its employees and the right to discharge any employee for any
just and sufficient cause, provided, however, that no employee shall be discrimi-
nated against.
* * * * * * *
RULE 14. Transfer of Employees From Outside The Area of a Local Union
The Contractor agrees to provide employment for men within the local area
of a union by limiting the transfer of employees from outside areas to the
LOCAL 401, INT'L BROTHERHOOD OF BOILERMAKERS, ETC. 843
following ratio: One (1) man where seven (7) or less are employed; two (2)
where eight (8) or less than sixteen (16) are employed and three (3) where
sixteen (16) or more are employed.
RULE 15. Transfer of Employees Within the Local Area of a Union
When a Contractor transfers its employees from one job within the local
area of a union to another job within the same local area the employees so
transferred shall have been in the continuous employment of the Contractor and
provided further that employees transferred shall not displace employees already
working on the new job. Due to the intermittent nature of field work it is under-
stood that continuous employment by a Contractor is not broken so long as the
layoff between jobs does not exceed five (5) working days. The Contractor
shall notify the local union at least forty-eight (48) hours prior to any such
transfers, the nature and location of the new job and the names of the em-
ployees to be transferred.
A mimeographed copy of the amendments was signed by 11 of the employers and
13 of the locals who were signatories to the original contract. The Company, one
of the 11 employers, signed this amendment on August 25, 1958. The Respondent
Local was also a signer.
2. The Conclusions respecting illegality of the 1957 contract
The 1957 contract, in terms, requires the signatory employers to hire their em-
ployees through the locals of the Union which have "jurisdiction" of the job.
Employers are not permitted to hire elsewhere and are not given the final deternuna-
tion of men to be hired. Rule 2(c) appears to give the employer sole discretion
in discharging employees already hired but no discretion in selecting men for hire
initially. The sentence requiring cooperation by the local' s business manager with
the employer in the selection of qualified workmen is far from the equivalent of
permitting the employer to have the final say in hiring employees. Past performance
rather than position on the out-of-work list is declared to be "the determining factor,"
but determining factor of what and determined by whom?-determining factor in
the priority given a workman to a job, perhaps, but not as determined by the
employer, presumably. At least the agreement does not so state. Harold Burton,
the business manager of the Respondent Local, testified that he picked men off the
out-of-work list in accordance with their ability to do the work, not necessarily
following the applicant's position on the list unless ability was equal. Thus, whatever
the meaning of the contract, the business manager, in practice, was the one to select
the men for the job. Agreements can be drafted in clear and unambiguous language.
This agreement so obviously leaves such questions in doubt that it must be inferred
that the ambiguous language was artfully chosen to give the Union's locals more
complete control of the selection of men.
That the employer's right to select his own men is limited is clearly shown in rule
14 of the contract. The employer may not even retain a crew of men in his employ
when he enters a new local's jurisdiction unless he hires a much larger number of
men through that local. Rule 15 clearly limits the language of rule 2 and demon-
strates that past performance of even an existing employee is not the determining
factor justifying an employer in continuing to employ or to reemploy a particular
workman, for even if the man was employed within the local's jurisdiction, his
employer's right to choose him for the next job exists only if the employee has con-
tinued in his employ or not been laid oft more than 5 working days between jobs.
Furthermore, this rule expressly limits the right of transfer even of employees on a
job in the local's jurisdiction to members of that local by the language, "A Contrac-
tor may . . . transfer its employees, members of said local union . . .."
In essential features, the hiring provisions of the 1957 contract are like those
involved in the Mountain Pacific case, which the Board held to be illegal without any
requirement of proof of discriminatory practices in hiring? Here there is even more
complete surrender of the normal management hiring prerogative to the Union and
its locals than there was in that case because here there is no provision permitting
the employer to procure workmen from other sources if the local could not supply
men within 48 hours as there was there.
It is apparent that this contract fails to provide the safeguards against union en-
couragement that the Board specified in the Mountain Pacific case, and, as it does
provide for an exclusive hiring hall, the provisions of the 1957 contract are neces-
2 Mountain Pacific Chapter of the Associated General Contractors, Inc, et at, 119
NLRB 883 and 893 et Seq.
844 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sarily illegal. However, the execution of this contract occurred more than 6 months
prior to the date of the filing of the charge. Hence, I make no finding of violation
of the Act in the execution of the contract and I find no violation in maintaining or
giving effect to such contract earlier than a date 6 months before the date of the
filling of the original charges.
Harold Burton, business manager of the Respondent Local, testified that job
assignments depended on whether men were or were not on his out-of-work list
rather than on whether they were members and that if members of a sister local
had been on that list, and if it was their turn to go out, he would have dispatched
them. However, he also testified that he did not strictly follow the order of names
on the list because all were not "qualified," but that, if men were equally qualified,
he would follow the order in which their names appeared on the list. Regardless of
the employer's opinion of qualification, Burton could select men for dispatch on the
basis of his own subjective determination thereof. Because the contract provided
for an exclusive hiring hall, it is not necessary to decide whether or not Burton might,
if operating under a legal type of hiring hall, have handled it in a nondiscriminatory
fashion. The contract created potentially discriminatory conditions and, while it
continued, it created the means of discrimination. This means of discrimination was
placed in the hands of an agent in the employ of the local having jurisdiction (as
determined by the Umon) of the work. Such agent would be somewhat less than
human if he did not attempt to satisfy the members of his own organization by
giving them prior job opportunities.3
However, here as in the Mountain Pacific case, heretofore cited, whether or not
the evidence discloses a practice of causing discrimination in hiring is immaterial
where, as here, the contract itself is unlawful because of the exclusive hiring-hall
provision which it contains. I conclude and find, therefore, that by maintaining and
giving effect to a contract providing for an exclusive hiring hall, in the period
following a date 6 months prior to the filing of charges herein, the Union and
Respondent Local have caused employers to discriminate against employees and ap-
plicants for employment in violation of Section 8(a) (3) of the Act, thereby violating
Section 8 (b) (2) and 8(b) (1) (A) of the Act.
The Union and Respondent Local produced the 1958 amendment to the 1957
contract, presumably to show that, if the contract were illegal, the unfair labor
practice had already been remedied. However, the amendment is not coextensive
with the original agreement in adoption. Only a fraction of the total number of
employers had signed the amendment before the date of the hearing. The contract
could not be altered unilaterally by the Union. The amendment negotiated in
August 1958, which was adopted by the Union, by the locals which had signed the
original contract,4 and by some of the employers who had signed the original con-
tract, therefore fails, as to most employers, to repeal the provisions sought to be
amended. Hence, it must be presumed that, for most of the signatories to the 1957
agreement, the 1957 contract is, and will continue to be, in effect until its expiration
date on October 1, 1959 Even if it were found, therefore, that the language of the
amendment was such as to remove all taint of illegality, it would still fail to do so
in scope; so it is apparent that the original agreement is still being maintained in
violation of the Act.
But there are further reasons for finding that the amendment falls short of
remedying the unfair labor practice heretofore found. Although the 1958 amend-
ment appears to have been negotiated in order to avoid the illegality in the original
agreement, it fails effectively to remove the illegality, even in terms, for it fails to
use all of the language enounced by the Board, in the Mountain Pacific case, to be
necessary before it would find an agreement to be nondiscriminatory on its face;
and although the 1958 amendment to rule 2 of the 1957 contract states that the
"Contractor and the Union shall both post in such places as notices are customarily
posted, a copy of this Article," it fails to require a posting of the amendments to
rules 14 and 15. Further, the requirement that the "Union" post the notice of
amendment of rule 2 fails to provide adequate safeguard by requiring the locals
also to post the notice. That the word "Umon" as used in the amendment fails to
signify both the Union and its locals is apparent from the limited meaning of the
word "Union," as used in the 1957 contract, as applying to the Respondent Union
sSee Alaska Chapter of the Associated General Contractors of America , Inc, 113
NLRB 41.
4 Locals 39 and 681, both in Oakland, California, were on the original agreement but
had not signed the amendment. However, Local 10 of Oakland, which was not on the
original contract , did sign the amendment by the same representative as had signed in
1957 for Local 681 . It is possible that Locals 39 and 681 may have merged into Local 10.
LOCAL 401, INT'L BROTHERHOOD OF BOILERMAKERS, ETC. 845
and not to the respective locals.5 Furthermore, no evidence was offered to prove
that notices were actually posted or the extent of such posting, if any.
On the record, therefore, it is impossible to find that the violation of the Act
found in the Union's and Respondent Local's maintenance of an illegal contract and
in the Respondent Local's illegal practices pursuant thereto have been remedied by
the negotiation of the aforesaid amendment or by the mere signing of the amendment
by the Union and the Respondent Local.
The complaint does not allege any illegality in the language actually used in the
amendment and I have not undertaken to pass on the legality of the language em-
ployed therein. I have merely demonstrated the fact that the Union and the Re-
spondent Local have failed to remedy the unfair labor practice found in the
maintenance of the 1957 contract.
B. Causing discrimination against Chamberlain and Seybold
1. The facts
On May 14, 1958, the Company completed a job at Toledo, Oregon. Chamberlain
and Seybold, the Charging Parties, are boilermakers, members of Local 72 of the
Union, and they had been employed on this job on referral from that local. The
Company valued their services, recognizing them to be highly skilled. A few days
before the end of the job at Toledo, the Company's senior and junior superintendents,
Harry Llewellyn and Clyde Ellinger, having agreed between themselves that they
would like to have Chamberlain and Seybold on the next job of the Company, spoke
to them and asked if they would like to work on the Company's next job, which
was to be at Vaughn, Oregon. Each replied that he would. Ellinger told them
that if they could be cleared by the Respondent Local they had a job. Llewellyn
said he knew Burton, business manager of the Respondent Local, and thought he
•could arrange its On the final day of the Toledo job, Ellinger told Chamberlain,
according to the latter, that the Company would be starting at Vaughn on May 19
and that Chamberlain was due to start on May 20 to do some preparatory work
before the actual construction work started.?
On May 16, Chamberlain and Seybold communicated with Ellinger in Portland,
asking him to call Burton about their working on the Vaughn job. Ellinger did so,
telling Burton that he wanted to bring Chamberlain and Seybold, members of Local
72, to the Vaughn job. Burton said that he could not agree to it because he had
about 60 men on the out-of-work list and that some had already exhausted their
unemployment insurance. Ellinger relayed Burton's answer to Chamberlain and
Seybold, saying, in effect, that they could not be hired. The next day Chamberlain
himself called Burton in Eugene and asked to be cleared to the Vaughn job. Burton
gave him the same reply as he had given Ellinger and told Chamberlain that he
was wasting his money (i.e., on a long distance telephone call) when Chamberlain
sought to argue his rights. On May 19, Chamberlain and Seybold went to Delbert
McKamey, assistant business agent at Local 72, and related the conversation with
Burton. McKamey telephoned Burton, who told McKamey that he felt he should
take care of his own men first before he brought any new ones into the territory. At
the request of Chamberlain and Seybold, McKamey telephoned the Respondent
John Stender, the Union's vice president for the area covering Washington, Oregon,
5 The 1957 contract begins with the recitation . "Articles of Agreement between Inter-
national Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers, and
Helpers (Herein referred to as the `Union') .. When a local union is referred to in
the contract it is designated as "local union."
9 This finding is based on Seybold's testimony Llewellyn did not testify
' Chamberlain testified that Seybold "was to come" a day or two thereafter. Ellinger
testified that the Company would have started Chamberlain and Seybold at the Vaughn
job onliny t9 if they could have been hired, that is, if the Respondent Local had con-
sented to their being hired. Chamberlain's testimony regarding the time that Seybold
was to report does not clearly indicate that Ellinger told him that or told Seybold that
in his presence I do not regard his testimony therefore as fixing the date of Seybold's
expected eniployinent On the other hand, Olinger's testimony was not in agreement with
the (late green by Chamberlain As the date given by Chamberlain would result in loss
of a day's work and pay when compared to Ellinger's testimony, I consider Chamberlain's
testimony with respect to the day lie was to start as in the nature of an admission against
interest and entitled to considerable weight Ellinger apparently considered Chamberlain
as a more valuable man than Seybold and I infer that lie would not have employed
.Seybold before Chamberlain
846 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Idaho, and Alaska, about the matter. Stender at first told McKamey that he would
call Burton , but later said that he had decided to leave the decision with Burton.
McKamey again called Burton, who said that he was not going to put Chamberlain
and Seybold on the job because he had men of his own out of work and he felt that
they should go on the job first. McKamey told Burton that Chamberlain and
Seybold were going to take their case to the Board. Burton said that, if they did
that, he would prefer charges against them through the Union to take their member-
ship cards away from them. Burton later (how long after does not appear) called
McKamey to apologize for having made the threat he did.
On May 23, 1958, the original charges were filed with the Board by Chamberlain
and Seybold On about the same date, Burton visited the Company's job site at
Vaughn. Ellinger there told Burton that he wanted Chamberlain because of his,
continuous employment with the Company and because he was one of the best rig-
gers the Company had employed in a number of years. He also said that Seybold
was a very good man and that the Company has a better satisfied customer when
it employs these men because they do a better job. Burton again told Ellinger that
he could not have them. Through Llewellyn, the Company then ordered four or
five men from the Respondent Local and they were employed by the Company on
May 26.
The Respondents sought to establish that Ellinger's conversations with Burton
were of no consequence because, they asserted, the Company had agreed with the
Respondent Local that only Llewellyn was authorized to requisition men and
Llewellyn had not asked for Chamberlain or Seybold before mid-June. I find no
merit in this contention. James Roberts, one of the partners of the Company, tes-
tified that both Ellinger and Llewellyn were authorized to hire men. The Respond-
ents based their contention on an alleged agreement entered into between the
Company and the Respondent Local that only Llewellyn would requisition men. If
such an agreement had been made, it would have had to be made (without the
knowledge of James Roberts) by James' father, the other partner. But in view of
James Roberts' testimony that Llewellyn was getting along in years and was not
always on the job, I deem it unlikely that the Company would have made the
alleged agreement. But in any event I find that there was no such agreement before
the date that the Vaughn job started. Burton, in refusing Ellinger's request for
Chamberlain and Seybold, in refusing Chamberlain's direct appeal, and in telling,
McKamey that Chamberlain and Seybold could not work on the Vaughn job, at
no time referred to the alleged agreement with the Company that only Llewellyn
could hire and at no time gave the excuse for turning Chamberlain and Seybold down
that Ellinger was not authorized to hire them or that only Llewellyn had a right to,
requisition men. I find, accordingly, that Burton refused to clear Chamberlain and
Seybold to the Vaughn job on May 16 and 23, 1958, because they were not "his.
men," i.e, members of the Respondent Local or men in the class that Burton
considered eligible for employment in the jurisdiction of Respondent Local.
On June 23, 1958, Burton wrote a letter to George Heilig, business manager of
Local 72, of which Chamberlain and Seybold were members, stating that he had
just received a formal request from Llewellyn 8 for "two men who are members.
of your organization, for work as boilermakers at Vaughn, Oregon commencing
at 8 AM., Tuesday, June 24, 1958," and stating that, if Heilig desired, he could
either instruct "these men" to go directly to the job at Vaughn for the Long Bell
Lumber Company, the party for whom the Company was constructing a power
plant, or could send them through Burton's office. Chamberlain and Seybold were
not named in the body of this letter as the two men referred to, but at the bottom
of the letter was a note that copies of the letter were being sent to Chamberlain and
Seybold, and there is no contention that Burton's letter failed adequately to designate
Chamberlain and Seybold as the men who were the subject of the letter; so if they-
received notice of this offer it would effectively have withdrawn the objection previ-
ously interposed by Burton. Chamberlain acknowledged receipt of a copy of the
letter and testified that he "got" the job at Vaughn. Seybold was not asked if he had
received a copy of this letter or had otherwise been notified that he could be employed
by the Company at Vaughn, but he testified that he never got the job at Vaughn.
Stender testified that Chamberlain and Seybold "wouldn't go to work when they
were offered the employment" at Vaughn about a month after the job started.
Stender's testimony sounded like hearsay, however, and I do not believe that I can
safely make a finding thereon that Seybold received the offer in seasonable time.
Seybold was present at the hearing and , if he did not learn of it before, he learned
then of the Respondent Local's withdrawal of opposition to his employment at
Vaughn.
8 This request appears to have been solicited by Burton
LOCAL 401, INT'L BROTHERHOOD OF BOILERMAKERS, ETC. 847
2. Conclusions
It is clear and I find that, by Burton's refusal to consent to the employment of
Chamberlain and Seybold by the Company, the Respondent Union, for whom
Burton was an agent, caused the Company to discriminate against them in violation
of Section 8(a)(3) of the Act. From questions asked by counsel for the Respond-
ents in his examination of Ellinger, I infer that Respondents were contending that,
as no threats were made by Burton to Ellinger, the Respondents did not actually
cause the Company to deny them employment. This contention, if made, is without
merit. Burton's refusal was made under the sanction of, and while giving effect to,
the hiring provisions of the 1957 contract, which I have found were illegal. The
absence of any threat, under the circumstances, is immaterial.9
Because the illegal contract to which the Union was a party created the basis for
causing the Company to discriminate against Chamberlain and Seybold, the Union
as much as the Respondent Local is responsible for causing such discrimmation.ia
I find, therefore, that by causing the Company to discriminate in regard to the hire
and tenure of employment of Chamberlain and Seybold in violation of Section
8(a)(3) of the Act, the Union and the Respondent Local have violated Section
8(b)(2) and 8(b)(1)(A) of the Act.
C. Restraint and coercion
1. The facts
Following the date of the filing of charges with the Board, Stender made extended
efforts to induce Chamberlain and Seybold to withdraw their charges. It was stip-
ulated that "Mr. John Stender, International Vice President, offered to enter into
a settlement agreement with Orran L. Chamberlain and George B. Seybold that the
Union would pay to Chamberlain and Seybold the amount of back pay they had
lost on the Vaughn, Oregon, job if they would request the National Labor Relations
Board for withdrawal of the charges, and that back pay would be paid to Chamber-
lain and Seybold when and if the Board granted the request of Chamberlain and
Seybold to withdraw the charges" and that "these offers were made without any
admission of wrongdoing or violation of law on the part of anybody by Mr.
Stender." 11 The first such efforts appear to have been made in a meeting between
Chamberlain, Seybold, and Stender early in June. At this meeting, Stender asked
Chamberlain and Seybold to state the amount of pay they claimed they had lost
and to sign a request for withdrawal of their charges, telling them that they would
get their money when the Board permitted the withdrawal. Seybold agreed to, and
did, on June 12, 1958, sign such a request in a letter to the Board, but Chamberlain
refused to do so. On June 16, 1958, however, Seybold wrote to the Board stating
that he did not wish to withdraw his charge.
Both Chamberlain and Seybold testified that, toward the latter part of September
1958, Stender told them that, if they continued with their case before the Board, he
would have to bring charges against them for violation of the Union's constitution.
According to Chamberlain, Stender told him that he would have to sign a request
°Local 392, United Association of Journeymen and Apprentices of the Plumbing and
Pipe Fitting Industry of the United States and Canada, AFL-CIO (Schenley Distillers,
Inc ), 122 NLRB 613
10 Indianapolis and Central Indiana District Council, United Brotherhood of Carpenters
and Joiners of America, AFL-CIO, et at (Mechanical Handling Systems, Incorporated),
122 NLRB 396, Los Angeles-Seattle Motor Express, Incorporated, 121 NLRB 1629.
Although the complaint specifically names the Union only in connection with the un-
fair labor practice committed by its agent, Stender (in paragraph XIV of the complaint),
it alleges in general terms that "the acts and practices of the Respondents described
above constitute unfair labor practices affecting commerce within the meaning of Section
8(b) (1) (A) and (2) . . I consider this a sufficient basis to hold the Union account-
able for all unfair labor practices described in the complaint with which it had any
connection
11 This inducement to Chamberlain and Seybold was not alleged in the complaint to be
a violation of the Act, and for that reason I make no finding thereon But see Local 294,
International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of
America, AFL-CIO (Valetta Trucking Company), 116 NLRB 842. Beyond any finding
of unfair labor practice that might be involved, it is not the function of the Trial
Examiner to pass on the question of ethics involved in attempts at settlement made with-
out the presence of a representative of the General Counsel or of counsel for the charging
Parties, if he was then being retained by them.
848 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for withdrawal of his charge filed with the Board "or I'll have Local 72-a committee
of Local 72 pull your card." Stender admitted a meeting and discussion with
Chamberlain and Seybold in September after Burton had reminded him that "we
were drawing close to the time of the hearing and that some disposition had to be
made one way or another, whether we were going ahead with the proposal that he
had made at my request or otherwise." I infer that Stender's testimony referred to
the same conversation as that testified to by Chamberlain and Seybold. Stender,
denying that he had threatened to bring charges against Chamberlain and Seybold,
testified:
I pointed out to them that our problem was getting greater in our lodge and
that . . . Lodge 72 was becoming so unsettled that the International President
had to set up a supervisor or trustee, 12 and that I felt that the charges lying
there [before the Board] were causing a considerable confusion and a problem
among our membership of our two lodges, and, further, that our constitution
provides, of course, that anyone creating or bringing-adding turmoil, and so
forth, between our lodges was a violation of our constitution and that, of course,
if charges were brought against them, that they would be processed in the
manner provided for under the constitution.
Whatever the form of the language used, I find that Stender, in effect, told
Chamberlain and Seybold that, unless they 13 withdrew their charges filed with the
Board, charges would be filed against them under the Union's constitution. The
result of such procedure (if they were found guilty by a trial committee) could be
expulsion from the Union and from Local 72. Following this warning by Stender,
Chamberlain and Seybold did not alter their course, and on September 29, 1958,
a charge, signed by a member of the Respondent Local, was lodged against them
with the president of Local 72, charging them with violation of a section of the
Union's constitution which makes it an offense for a member to resort to a civil
court or governmental agency before having exhausted the intraunion procedure
provided therein. It is questionable that this provision was applicable to the situa-
tion here because the foregoing offense is limited by the terms of that constitution
to "any case where [ a member is] asserting a right allegedly growing out of
his . . membership in" the Union, whereas the rights asserted here could not
legally be based on membership but are based on rights conferred by the Act regard-
less of union membership; but it was obvious that Chamberlain and Seybold were
not versed in legal terminology, and there is no reason to infer that they understood
this distinction, especially since the Union was administering a contract which gave
the various locals the privilege of favoring their own members.
2. Conclusions
The General Counsel apparently equates the threat of bringing charges under
the Union's constitution with a threat of loss of membership, and equates a threat
of loss of membership with a threat of impairment of ability to get employment.
Neither Stender nor Burton directly threatened Chamberlain and Seybold with loss
of employment opportunities if they failed to withdraw their charges filed with the
Board. As Burton's statement was made only to McKamey and not to Chamberlain
and Seybold, it is not certain that he intended it to be communicated to them. In
any event, the complaint does not allege coercion as a result of Burton's remark.
Stender's statement, although more moderate in choice of language, was made directly
to Chamberlain and Seybold and was, I have found, intended as a threat.
Since the threat was one of discipline within the Union, it may be argued that it
is not, in view of the proviso to Section 8(b)(1)(A), a restraint or coercion vio-
lative of the Act. However, the words are not to be considered only in the limited
meaning appearing on the face of them. Whether or not the threat constituted
restraint or coercion within the meaning of the Act depends on the meaning the
words would be likely to have (and the meaning Stender must have known they
would have) to Chamberlain and Seybold. Both men had observed the power of
the locals of the Union over job referrals. They knew that the business manager
of the Respondent Local had prevented them from getting a job that they would
have gotten if he had consented to their being hired. Both understood that they
were denied the jobs sought because they were members of a local outside the
z Stender took over Local 72 as trustee on September 8, 1958
is Stender told them that it would not suffice that one alone withdrew his charge, that
both would have to withdraw the charges.
LOCAL 401, INT'L BROTHERHOOD OF BOILERMAKERS, ETC. 849
territorial jurisdiction of the Respondent Local. As long-time union members,
they must have understood that the business agent, under a contract such as the
Union here maintained, had the power to impose closed-shop conditions. So long as
these conditions existed, job opportunities within the jurisdiction of any local would,
in their understanding or the understanding of the average union member, depend
upon the applicant's standing with the Union. Whether or not, in practice, a given
business agent might have given equal job opportunities to nonunion applicants
with no requirement that they file an application for membership or be eligible for
membership as a condition to being given a referral, the contract here did not
require the business agent to give such equal opportunities and the very nature of
the interests of the Union and Respondent Local justify an inference that, if they
lost their membership, Chamberlain and Seybold would have little likelihood of
getting employment in their line of work.
I do not believe it material that Stender did not expressly state to Chamberlain
and Seybold that they would lose their membership but only threatened that charges
would be filed against them which conceivably might have resulted in a finding of
not guilty and a dismissal of the charges. As I have said, Chamberlain and Seybold
were not lawyerlike in their thinking. Furthermore, Stender, in effect, told them
that they had already violated the Union's constitution. Thus, a trial under that
constitution might, to them, well have appeared to be a mere formal step toward
their expulsion from membership.
I conclude and find, therefore, that Respondents Stender and the Union, by and
through the threats made by Stender, as its agent, restrained and coerced Chamber-
lain and Seybold, employees within the meaning of the Act, in the exercise of
rights guaranteed in Section 7 of the Act.14
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondents set forth in section III, above, occurring in
connection with the operations of the Company set forth in section I, above, have
a close, intimate, and substantial relation to trade, traffic, and commerce among the
several States, and tend to lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondents have engaged in certain unfair labor practices,
I shall recommend that they cease and desist therefrom and take certain affirmative
action designed to effectuate the purposes of the Act. Since the Union's illegal
contract was made with approximately 297 employers, I shall recommend that the
Union not only cease and desist from maintaining and giving effect to the illegal
hiring provisions thereof with the Company but also with any other employer
within the scope of this contract over whom the Board would assert jurisdiction in
an appropriate proceeding.15
As I have found that the Union as well as Respondent Local caused the Company
to discriminate in regard to the hire and tenure of employment of Chamberlain
and Seybold, I shall recommend that they jointly and severally make them whole
for any loss of pay they may have suffered as a result of the discrimination by
paying each of them a sum of money equivalent to that which he would have
earned as wages on the Company's job at Vaughn, Oregon, but for the discrimination
against them.
Although Burton testified that he dispatched nonunion as well as union members
who were on his out-of-work list, this does not make the illegal provisions of the
contract any less violative of the Act. Nor does it prove that such nonmembers
were not required to sign applications for membership or be eligible, because of
past good standing with the Union, for membership as a condition to referral to a
job. I take official notice of the fact that it is a common practice of local unions in
the building and construction trades not to accept for membership any applicant
11 See United Stone and Allied Products Workers of America , Local No. 24 , AFL-CIO,
and Harold Etchison, its agent ( Gibsonburg Line Products Company ), 121 NLRB 914;
Local Union No 450, International Union of Operating Engineers , AFL-CIO, et al
(Tellepsen Construction Company ), 122 NLRB 564 ; Local 294 , International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and Helpers of America , AFL-CIO ( Valetta
Trucking Company ), supra
is See footnote 10, supra
554461-60-vol. 126-55
850 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for membership before he has been given employment in the jurisdiction of such
local. As stated by the Board in the Mountain Pacific case, supra,
The contract or hiring arrangement need not explicitly limit employment to
union members to be unlawful. The statutory phrase "encourage membership
in a labor organization" is not to be minutely restricted to enrollment on the
union books; rather, it necessarily embraces also encouragement towards com-
pliance with obligations or supposed obligations of union membership, and
participation in union activities generally. It follows that specific or direct proof
of such unlawful encouragement is not an indispensable element in every case.
Here the very grant of work at all depends solely upon union sponsorship,
and it is reasonable to infer that the arrangement displays and enhances the
Union's power and control over the employment status. Here all that appears
is unilateral union determination and subservient employer action with no
aboveboard explanation as to the reason for it, and it is reasonable to infer
that the Union will be guided in its concession by an eye towards winning
compliance with a membership obligation or union fealty in some other respect.
The contract here involved inevitably encouraged employees and applicants for
employment to join the Union and, as the Board has held under similar circum-
stances, such illegal hiring provisions inevitably coerce such employees to pay
union initiation fees and dues.16
The General Counsel contends that this is a case where the Brown-Olds remedy 17
is called for. To call the remedy a Brown-Olds remedy does not, however, provide
a ready-fashioned remedy applicable to all cases of illegal contracts. Factual
differences call for a variation in the scope or application of the remedy. In the
case at hand, although the contract does not on its face call for a closed shop, it
may be inferred from the evidence that dues and initiation fees were collected by
the Respondent Local which it might not have received but for the union-
encouraging provisions of the contract. It might be inferred also that the same
thing was true with respect to other locals of the Union who were signatories to the
same contract. But such other locals are not parties hereto and due process requires
that they be made parties if an order is to run against them. In cases where both
local and parent unions are parties respondent, the Board has ordered both jointly
and severally to make restitution of moneys collected under illegal contract provi-
sions.18 This is not on the theory that the parent has actually received part of
the moneys collected by its local. Even if the parent or intermediate body, such
as a joint council, receives no direct monetary contributions, it is appropriate to
require all the organizations that have violated the Act, by adopting or maintaining
the illegal provisions, to restore, as nearly as possible, those conditions which existed
before the unfair labor practices were committed. Perhaps full correction of the
conditions created by the illegal contract could be effected here only by restitution
of initiation fees, dues, and assessments collected by all of the locals signing the
contract. But I know of no case where a parent organization has been required
by the Board to make restitution of dues collected by a local union except in con-
junction with the local which is made a respondent, although cases can be found
where the Board might have so ordered if it was of opinion that such a remedy
was necessary to effectuate the purposes of the Act.19
The scope of the remedy conceivably could extend so far as to require the Union
and Respondent Local to restore all such moneys collected by the latter from employ-
ees referred to any of the numerous employers who are signatories of the contract
and over whom the Board would exercise jurisdiction, limited, of course, to the
proper period of time. However, there is no evidence that any such employers
other than the Company ever requisitioned or hired men through the Respondent
Local, although evidence that the Company did so appears in the record. It is my
opinion, therefore, that the most appropriate remedy under the circumstances would
1e Los Angeles-Seattle Motor Express, Incorporated, 121 NLRB 1629.
17 So called because the remedy was used for the first time, in this type of case, in
United Association of Journeymen if Apprentices of Plumbing if Pipefitting Industry, etc
(J. S. Brown-E. F Olds Plumbing if Heating Corporation), 115 NLRB 594.
18 Indianapolis and Central Indiana District Council, United Brotherhood of Carpenters
and Joiners of America, AFL-CIO, at al. (Mechanical Handling Systems, Incorporated),
122 NLRB 396.
19 E g, Joint Council of Teamsters No. 17 and Local No. 501, at at (Portland Home
Builders Association, Inc.), 122 NLRB 514.
CHUN KING SALES, INC. 851
be to require the Union and the Respondent Local jointly and severally to refund
to those employees of the Company who were furnished by the Respondent Local all
initiation fees, dues , assessments , and other moneys unlawfully exacted as the price
for their employment , the period of liability to begin 6 months prior to the filing
and service of the charges against them respectively herein and extending to all
such moneys thereafter collected 20
On the basis of the above findings of fact, and upon the entire record in the case,
I make the following:
CONCLUSIONS OF LAW
1. The Company is an employer within the meaning of the Act.
2. The Company is engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
3. The Union and Respondent Local are labor organizations within the meaning
of Section 2(5) of the Act.
4. Respondent Stender is an agent of the Union within the meaning of Section
2(13) of the Act.
5. By maintaining and by giving effect to an exclusive hiring -hall agreement,
the Union and Respondent Local have caused and have attempted to cause employ-
ers, including the Company , to discriminate in regard to hire and tenure of employ-
ment of their employees in violation of Section 8(a)(3) of the Act , and by such
conduct the Union and Respondent Local have engaged in and are engaging in
unfair labor practices within the meaning of Section 8(b)(2) and 8(b),(l) (A) of
the Act.
6. By causing the Company to discriminate in regard to the hire and tenure
of employment of Orran Lyman Chamberlain and George B. Seybold, the Union
and Respondent Local have engaged in and are engaging in unfair labor practices
within the meaning of Section 8(b)(2) and 8 (b)(1)i(A) of the Act.
7. By threatening said Chamberlain and Seybold with action that would impair
their obtaining or retaining employment unless they should withdraw charges filed
with the Board, the Union and Respondent Stender have restrained and coerced
employees in the exercise of the rights guaranteed in Section 7 of the Act, thereby
violating Section 8 (b) (1) (A) of the Act.
8. 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.]
w See footnotes 10 and 19, supra.
Chun King Sales, Inc. and Leslie Moder
Chun King Sales, Inc. and Charles H. Lucht
Local 1116, Retail Clerks International Association , AFL-CIO
and Leslie Moder
Local 1116, Retail Clerks International Association , AFL-CIO
and Charles H. Lucht. Cases Nos. 18-CA-994, 18-CA-995,
18-CB-117, 18-CB-118. February 25, 1960
DECISION AND ORDER
On July 30, 1959, Trial Examiner Robert E. Mullin issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondents had engaged in and were engaging in certain unfair
labor practices and recommending that they cease and desist there-
from and take certain affirmative action, as set forth in the copy of
126 NLRB No. 98.