Local 694, United Brotherhood of Carpenters, Etc.

National Labor Relations Board - Board Decisions

Sep 8, 1961

133 N.L.R.B. 52 (N.L.R.B. 1961)

52 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
All our employees are free to become or remain or to refrain from becoming or
remaining members of Retail Automobile Salesmen , Local Union No. 501, affiliated
with Retail Clerks International Association, AFL-CIO, or any other labor
organization.
JIMMIE GREEN CHEVROLET,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posited for 60 days from the date hereof, and must not be
altered, defaced, or covered by any other material.
Local 694, United Brotherhood of Carpenters and Joiners of
America, AFL-CIO [Jervis B. Webb Company] and Elmer
P. Barr
Lower Ohio Valley District Council of Carpenters and Joiners
of America, United Brotherhood of Carpenters and Joiners
of America, AFL-CIO [Jervis B. Webb Company] and Elmer
P. Barr. Cases Nos. 25-CB-395 and 25-CB-40.14. September 8,
1961
DECISION AND ORDER
On October 27, 1960, Trial Examiner Reeves R. Hilton issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondents had not engaged in the unfair labor practices alleged in
the complaint and recommending that the complaint be dismissed in its
entirety, as set forth in the Intermediate Report attached hereto.
Thereafter, the General Counsel filed exceptions to the Intermediate
Report and u supporting brief.
Pursuant to the provisions of Section 3(b) of the Act, the Board
l,as deleg-ited its powers in connection with this case to a three-
member pLsnel [Members Rodgers, Fanning, and Brown].
The Board has reviewed the rulings made by the Trial Examiner at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and brief, and the entire record in the
case, and hereby adopts the findings, conclusions, and recommendations
of the Trial Examiner, with the following additions.
We agree with the Trial Examiner's conclusion that there is in-
sufficient evidence to support a finding that the Respondents and the
Employer were parties to an unlawful hiring arrangement whereby
members of Respondents were given preference in hiring over non-
members. It is clear, as our dissenting colleague concedes, that the
Respondent Council's area contract is nondiscriminatory on its face.
It is also clear that on January 27 the business agent of Respondent
Local 694 specifically told Barr, the alleged discriminatee, that he
had no objection to Barr's going to work for the Employer, and that on
133 NLRB No. 9.
LOCAL 694, UNITED BROTHERHOOD OF CARPENTERS , ETC. 53
January 28 the Employer offered to employ Barr without any referral
from the Respondents. After the Employer had made this job offer,
Barr spoke to the job steward who stated that he had no authority to
run Barr off the job even though Barr was working without a referral.
In view of the Employer's specific offer of work and the business agent's
statement that Barr could work without a referral, we do not regard
the statements of the job steward that Barr might "get himself in
trouble" and "could be fined" as evidence that the Respondents caused
the Employer to deny employment to Barr. Accordingly, we agree
with the Trial Examiner that there was no discrimination against
Barr.
Although our dissenting colleague places great reliance on the
existence of a hiring list to prove the alleged unlawful arrangement,
there was no indication that this list was ever used insofar as this
Employer was concerned. The Employer's offer of work to applicants
who did not possess referrals negatives the allegation that referrals
were required in gall cases. The dissent also places great weight on the
way the application cards were filed in the out-of-work file. How-
ever, the point that the hiring arrangement conceivably could have
been utilized in a discriminatory manner does not in any way establish
that the hiring arrangement in fact was so utilized by Respondents and
this Employer. Indeed, the evidence presented in this case of the oper-
ation of the hiring arrangement is not evidence of discrimination but
evidence of lack of discrimination.
The interdiction of the statute is not directed against exclusive
referral arrangements as such, but only against exclusive referral ar-
rangements that are operated in a discriminatory manner. Discrimi-
nation must be proved ; it cannot be presumed. In adopting the Trial
Examiner's report, we are holding only that there was a failure to prove
a discriminatory hiring arrangement.
[The Board dismissed the complaint.]
MEMBER RODGERS, dissenting :
I do not agree with my colleagues in their decision to dismiss the
complaint.
The record establishes that the Employer commenced work on the
Alcoa project on or about January 18, 1960, with a crew of five or six
men. On January 26, Respondent Local 694's business agent, Well-
meyer, gave the Employer's superintendent, Colley, a copy of the
Respondent Council's area contract. This contract provided, inter
alia, for an exclusive and, on its face, nondiscriminatory referral ar-
rangement.' During the instant hearing Wellmeyer testified that in
operation of the hiring hall by Respondent Local 694, each applicant
' Respondents ' answer to the complaint admits the exclusive arrangement.
54 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for referral executes four application cards-one for each of the four
locals making up the Respondent Council. These application cards,
according to Wellmeyer's uncontradicted testimony, are filed in the
out-of-work file in the following order: applicants who are members
of Local 694; applicants who are members of locals affiliated with
the Respondent Council; applicants of other locals of the Carpenters
who clear into Local'694; and lastly, nonmembers who wish to work
on a permit . Wellmeyer further testified, without contradition, that
referrals from the hall were in the same order as the application cards
were on file . When the General Counsel pursued this line of testimony
further, Wellmeyer testified that when members of Local 694 com-
pleted a work assignment their application card was placed at the
head of the out-of-work file at the rear of the cards of members of
Local 694, and that such members were eligible for referral before the
other categories of applicants.
Barr, the alleged discriminatee, is a member of Carpenters Local
90, not affiliated with the Respondent Council. Around January 23,
Barr spoke to Wellmeyer about obtaining work at the Alcoa project
and clearing into Respondent Local 694. Wellmeyer was agreeable
but pointed out that Barr could not be cleared until the next member-
ship meeting to be held on January 29. While awaiting to be cleared,
Barr learned from another prospective applicant for employment at
the Alcoa project that the Employer was interested in hiring him,
and that he should deposit his book with Wellmeyer and get "straight-
ened out." On January 26, Barr deposited his book with Wellmeyer
and executed the four application cards. That evening Barr received
the Employer's employment record form and an employee tax with-
holding exemption certificate, both of which Barr executed and dated
January 28.
During the morning of January 27, Barr met Colley who signed
Barr's employment record form. Barr then went to Respondent Lo-
cal 694's hiring hall. Sometime later, Colley appeared at the hall and
conferred with Wellmeyer, after which Colley informed Barr and five
others present in the hall that Wellmeyer refused to send them out to
the Alcoa project. Barr and the others remained at the hall. About
an hour later Wellmeyer informed them that they could go down to
the job if they wanted to go to work but that he was not going to give
them a referral. The following morning Barr went to the Alcoa proj-
ect, where Colley offered to put him and two others to work even
though they did not have referrals. Barr stated that he first wished
to confer with the steward of Local 694. Barr spoke to the steward,
Lampkins, who informed Barr that he didn't have authority to run
him off the job, but that he could get into trouble by working without
a referral and could be fined. Lampkins also told Barr that he, Lamp-
kins, would have to tell Local 694 if Barr went to work. Barr, and
LOCAL 694, UNITED BROTHERHOOD, OF CARPENTERS, ETC. 55
the two others who lacked a referral, decided not to go to work. That
afternoon Barr visited his home local (Local 90) and asked the busi-
ness agent what would happen if he went to work without a referral
from Local 694. Barr was informed that Local 694 could fine him,
refer the charges back to Local 90, and Local 90 would have to collect
the fine before Barr could be referred for employment from that local.
Colley testified at the hearing that late in January he conferred
with Wellmeyer and Ward, the Respondent Counsel's business agent,
and was informed that Barr and four others could not be referred
out because there were other men out of work and there as a hiring
procedure to go through first.
On February 2, while representatives of the Respondent and Em-
ployer were conferring about the employment of two men from
Detroit, Barr came into the hiring hall and complained about not
being able to work. Cox, the Employer's general superintendent,
stated to Barr that Colley had no right to hire him except under the
hiring provisions of the contract. Barr became dissatisfied and re-
-quested that his book be returned. Barr's book, but not his application
cards, was returned to him. The record shows that by mid-February
Barr's was the sole application for referral on file with Respondent
Local 694, and, although the Respondents had difficulty in filling refer-
rals, Barr had not been referred.
My colleagues, by adopting the Trial Examiner's report, hold that
there was no illegal referral arrangement between the Employer and
the Respondent. I disagree. In the first place, the Respondent spe-
cifically admitted the existence of an exclusive hiring arrangement in
their answer to the complaint herein. Secondly, over and above the
Respondent's admission, there is substantial evidence in the record
that the parties did in fact maintain an exclusive arrangement.' That
this exclusive arrangement was implemented in an unlawful way is
shown by Wellmeyer's testimony that preference was given in refer-
rals to members of the Respondents over other applicants. Accord-
ingly, I would find that the Respondents by maintaining and enforc-
ing the unlawful arrangement have violated Section 8(b) (2) and
(1) (A) of the Act.
I would also find that the Respondent discriminated against Barr in
violation of the Act. Although Wellmeyer told Barr lie could go to
work, and although Colley offered to put Barr to work without a refer-
ral, in a very realistic sense Barr was actually prevented by the Re-
spondents from taking the job. This is true in view of the fact that
2
As previously noted, Colley attempted to have Barr and others cleared for referral
through Local 694's hiring hall and was thwarted in this attempt ; Colley was informed
by Wel]meyer and ward that Barr and others could not be referred because there was a
Firing procedure to be followed ; the Employer found it necessary to confer with the
Respondents concerning the employment of two men from Detroit ; and , the Employer's
general superintendent Cox, stated to Barr that Colley had no right to hire him except
under the provisions of the contract
56 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Job Steward Lampkins told Barr that he could be fined for working
without a referral, and in view of the statement of Local 90's business
agent that that local would not refer Barr out of its hall until the fine
had been paid. Obviously any waiver of the referral requirement as
to Barr was purely illusory. I am persuaded that by the threat of
fining Barr the unlawful arrangement was enforced as to him, and
that Barr was constructively denied employment because he had not
perfected his clearance into Local 694. I would, therefore, find that
the Respondents by this conduct violated Section 8 (b) (2) and (1) (A)
of the Act.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
Upon separate charges, as amended , which were duly consolidated , the General
Counsel of the National Labor Relations Board , through the Regional Director for
the Twenty-fifth Region (Indianapolis , Indiana ), issued a complaint, dated June 16,
1960, against the above -named Respondents , herein referred to as Local 694 and the
Council , alleging that the Respondents have engaged in and are engaging in unfair
labor practices in violation of Section 8(b)(1)(A ) and (2 ) of the Labor Manage-
ment Relations Act, as amended . In their answer the Respondents admit certain
allegations of the complaint but deny the commission of any unfair labor practices.
Pursuant to notice , a hearing was held on July 25,• 1960, at Evansville , Indiana,
before the duly designated Trial Examiner . All parties were present and represented
by counsel , as indicated above, and were afforded full opportunity to adduce evidence,
to examine and cross -examine witnesses , to present oral argument , and to file briefs.
Counsel waived oral argument and did not file briefs.
Upon the entire record , and from my observation of the witnesses , I make the
following:
FINDINGS OF FACT
1. THE COMPANY 'S BUSINESS
Counsel stipulated that Jervis B. Webb Company , herein called the Employer, is a
Michigan corporation having its main office and place of business at Detroit , Michi-
gan, and is engaged in the manufacture and erection of power and free conveyors.
During the year preceding the issuance of the complaint , the Employer performed
services valued in excess of $100,000 in States other than the State of Michigan. I
find the Employer is engaged in commerce within the meaning of the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
Local 694 and the Council are labor organizations within the meaning of Section
2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The issues
The complaint alleges that since January 1, 1960 , the Employer and the Respond-
ents have maintained and followed an unlawful hiring agreement , arrangement, or
practice and since January 28 , 1960, the Respondents have refused to refer Elmer
P. Barr for employment to the Employer because he was not a member or applicant
for membership and had not "cleared into" the Respondents . As a consequence Barr
was denied employment by the Employer . By the foregoing acts the Respondents
allegedly violated Section 8(b) (1) (A ) and (2 ) of the Act.
The Respondents generally deny the allegations of unfair labor practices and
affirmatively assert Barr was informed to go to work for the Employer.
B. The agreement between the Employer and the Council
The Respondent Council is composed of four local unions, namely Local 694 at
Boonville, Indiana, and others located at Huntingburg , Indiana , and Owensboro and
Henderson , Kentucky . One of the functions or purposes of the Council is to act as
collective-bargaining representative for all the locals.
LOCAL 694, UNITED BROTHERHOOD OF CARPENTERS, ETC. 57
At all times material herein , the Council had a standard contract for the area, and
the Employer , by virtue of an agreement with the International Union , accepted, and
was a party to , the Council area contract.
According to the contract the Council agrees upon request of the Employer, to
furnish competent journeymen selected for reference to jobs upon a nondiscriminatory
basis, the Employer retaining the right to reject or accept the applicants for em-
ployment. The contract further provides as follows:
SECTION 1. The Local Union (or Council ) shall establish and maintain open
and non-discriminatory employment lists for the use of individuals desiring
employment.
SEC 2. All individuals desiring employment shall register in person at the
Local Union (or Council).
SEC. 3. Employers shall first call upon the Local Union (or Council ) having
work and area jurisdiction for employees . If an employer requests individuals
by name pursuant to Section 5, he shall advise the Local Union (or Council) of
the location of the last job worked and the termination of date of such
individuals.
SEC. 4. If the Local Union (or Council ) is unable to furnish the number of
individuals desired within 48 hours after the request , the employer may obtain
individuals from any source and immediately notify the Local Union (or
Council ) of the names of the employees hired and the job location.
Section 5 of the contract provides for the order in which individuals shall be
referred to jobs:
(a) First, individuals in the order of their reigstration who within 2 years im-
mediately preceding the job order performed work covered by the contract in the
geographical area of each local union affiliated with the Council.
(b) Next, all other individuals in the order of their registration . However, an
employer may request by name, individuals formerly employed by him in the geo-
graphical area of each local union affiliated with the Council.
The contract also provides that a copy of the hiring procedures be posted at the
local union and Council office and at each jobsite covered by the contract . There is
no dispute regarding the Respondents ' compliance with the posting provisions.
The Hiring Procedures
Wallace Wellmeyer, secretary-treasurer and business agent of Local 694 , described
the hiring procedures of the local as follows:
An applicant for employment fills out four identical application cards wherein he
states his name, address , local union , and job qualifications . One of the cards is
retained by the local and the remainder are sent to the other three locals affiliated with
the Council . Local 694 maintains an out -of-work card file, which is divided into
groups, for the purpose of referring applicants to jobs. The first group contains the
cards of applicants who are members of Local 694; the second group those of appli-
cants who are members of locals affiliated with the Council ; the third group com-
prises members of locals outside the Council , who do not want to clear into Local
694, but desire to work on a permit basis, and the last group consists of nonunion
members Job applicants are referred for employment in the order of time in which
their applications were made and appear in the card file, provided they are qualified
for the job . Wellmeyer stated that clearing into the local means that a member of a
local outside the Council simply transfers his records from that local to the Council
local.
C. The alleged refusal to refer Barr for employment
Sam Colley, job superintendent , stated the Employer commenced the Alcoa
project , the one in question , about January 18, 1960 , and it was completed around
June 17, 1960. Wellmeyer testified he gave Colley a copy of the Council contract
around January 26. Colley started operations on January 19, with a crew of five or
six combination or conveyor men, including George Lampkins , who later acted as
job steward for Local 694.
Barr , a member of Local 90, at Evansville , Indiana, testified that Barney Conger,
a member of Local 1102 , in Detroit, Michigan , telephoned him, apparently about
January 25 , 1960, to state that Colley wanted him for the Alcoa job and to take his
book to Boonville ( Local 694) and get straightened out for the job. On the morning
of January 26, Barr went to the office of Local 694 , and gave his book to Wellmeyer,
who told him to fill out four application cards. Barr filled out the cards wherein he
stated he was a member of Local 90 and that he was qualified for work in the classi-
fications of millwright , welder, machine set, pile driver , and bridge . Barr gave the
58 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cards to Wellmeyer and inquired if he had any calls for men. Wellmeyer replied he
had no calls as of that time.
The same night Barr met Conger who gave him the Employer's employment
record form and an employee's withholding exemption certificate. Barr completed
the employment record and gave January 28, 1960, as the date he was hired and his
occupation as a welder . He also signed the exemption certificate and dated it Janu-
ary 28, 1960.
About 7:30 the morning of January 27, Barr, with Conger and three or four other
men present, met Colley at a restaurant about a mile from the jobsite. While Barr
was somewhat hazy concerning their conversation, he did state that he spoke to
Colley and Colley asked if he had the cards (the employment record and withholding
exemption certificate). When Barr answered in the affirmative Colley said, "I will
sign them for you and give you a badge and go to work." The conversation ended
on that note and Barr then went to the Local 694 hall where he remained until dinner-
time, but nothing unusual occurred. Later, when the General Counsel inquired if
Colley had mentioned his going to the union hall, Barr replied, Colley asked ". . .
if I had my book up there and was ready to go to work and I told him my book was
at Boonville. I had taken it up and left it." Barr said that concluded his conversa-
tion but when further pressed by General Counsel on the subject of going to the
union hall Barr stated Colley "told me to go up there that he would call for me."
Barr then went to the Local 694 hall, arriving there about 8 o'clock, and met
five other men who were waiting to go to work. Barr related that Wellmeyer received
a telephone call from someone and about 30 minutes later Colley came to the hall.
Colley talked with Wellmeyer and after their conversation Colley told Barr and
the other men that Wellmeyer had refused to send them out to the job Barr and
the men remained at the hall and in about an hour Wellmeyer told Barr and the
men, ". . that we could go down to the job if we wanted to go to work he wasn't
going to tell us we couldn't go, but he wasn't going to give us a referral." Seemingly
the men made no response to this offer.
Around 8 or 9 a.m. on January 28, Barr went to the union hall but as Wellmeyer
was leaving he had no conversation with him. Barr then proceeded to the jobsite
where he met Colley. Barr testified, "Mr Colley offered to put us [Barr, Conger,
and Sunderland] to work without a referral, to go down to the job and go to work."
Barr said he wanted to talk to Lampkins, the job steward, before going to work.
He then spoke to Lampkins about going to work without a referral and Lampkins
informed him "I ain't got the authority to run you off. If they want you off somebody
else is going to have to come down here and take you off. I can't." Barr then
changed his mind about working without a referral and when Colley offered to
take him to the job Barr said it was near dinnertime and he would come in the next
morning. Like Barr, none of the other men went to work.
That afternoon Barr went to the hall of Local 90, where he spoke to Art Ulsas,
business agent for the Local. Barr asked Ulsas what Local 694 could do to him if
he went to work without a referral card and Ulsas said the local could fine him. He
then inquired how that would affect him with Local 90 and Ulsas explained that
Local 694 would "just refer the charges back down here and they would have to
collect from them before I could be sent out here."
Colley stated that in the latter part of January he was in a restaurant when Barr,
R. L. Wood, and several other men asked him for employment. All of these men
had previously worked for Colley and he said he would hire them. Colley did not
mention the union hall or tell them to report to the hall although he did ask them
"how they stood." Sometime later Colley telephoned Local 694 and spoke to Doras
F. Ward, who at that time was business agent for the Council. Colley told Ward
he wanted five welders and named Barr, Wood, John Clayton, Howard Hornback,
and Chick Varble as the men desired. Ward said he did not have these men or they
were not listed with the Union and the conversation ended
The next morning Colley went to Local 694 and told Wellmeyer or Ward that he
would like to have the five above-named men, that he was ready to start work.
According to Colley, Wellmeyer or Ward "seemed to say I was out of order or that
they didn't belong to that local that he had other men. He had a hiring procedure
to go through that had to go through first." Apparently, that ended the conversation.
Later, at some unspecified time, he told Barr that he could have the job if he checked
in with Local 694 and the local okayed him.
Wellmeyer testified Barr came to his home one Saturday seemingly January 23,
regarding employment at Alcoa. Barr explained he was a member of Local 90,
had previously worked for the Employer and would like to clear into Local 694.
Wellmeyer told him to bring in his book but he could not be cleared in until the
next meeting which would be held on Friday, January 29. Wellmeyer also stated he
LOCAL 694, UNITED BROTHERHOOD OF CARPENTERS, ETC. 59
had men on the waiting list and he would have to await his turn for employment.
Barr said he did not expect to be placed ahead of anyone.
The next Monday or Tuesday, January 25 or 26, Barr came to the hall of Local
694, where he filled out job application cards which he gave to Wellmeyer. At that
time, or later, he also presented his book for clearance into the local. Wellmeyer
again stated he could not be cleared in until the Friday meeting. Wellmeyer also
said that Wood, Clayton, Hornback, and Varble presented employment record cards
to him. He further said he read the hiring procedures as set forth in the contract,
and as posted at the jobsite, to Barr and the other men.
Concerning Barr's application cards, which were executed in quadruplicate, Well-
meyer said these cards and his book remained on his desk awaiting clearance into the
local, but, as appears below, the cards were apparently returned to Barr when he
requested the return of his book. On the other hand, Wellmeyer admitted that about
April 8, 1960, in the course of the investigation of the charge filed herein, Barr's
application card was found in his out-of-work file. Wellmeyer also conceded that
Barr's withdrawal of his book or removal of his card would not have precluded him
from being referred by the local. In fact by the middle of February the out-of-work
file was completely exhausted.
Wellmeyer denied he ever prevented Barr from working on the Alcoa job. On the
contrary, he specifically informed Barr he could work on the project, although he
could not give him a referral, but Barr declined because he was afraid he might get
in trouble
Lampkins likewise testified he told Barr he could go to work as far as he was
concerned but he might get into trouble.
The Meeting of February 2
On the above date Wellmeyer, Ward, and Hugh Washburn, International repre-
sentative, met with Colley and R. W. Cox, general superintendent for the Employer,
at the union hall The purpose of the meeting was to discuss the employment of two
men from Detroit. Wellmeyer claimed he did not issue referrals because the men
had not filed job applications and he had men who were not working.
While the meeting was in progress, Barr, as related by Wellmeyer, came in and
announced that somebody was going to pay for the time he had lost as a result of
his being unable to work. Washburn asked how he figured he had any lost time
and Barr stated he had been hired by Colley and produced his employment record.
Cox explained Colley had no right to hire Barr except under the hiring procedures
of the contract. Barr became dissatisfied and angered with the explanation and re-
quested the return of his book. Ward thereupon handed Barr his book. However,
Ward knew nothing of Barr's job application card and did not return any such card
to Barr. After receiving his book Barr talked to Cox and then left. Wellmeyer
stated that was the last he saw of Barr. Wellmeyer said that within the next few
days the remaining welders requested by Colley were cleared into the local and
referred to the job.
Barr testified that at the conclusion of the meeting he spoke to Cox, Washburn,
Wellmeyer, and Ward about employment and "they as' good as told me they wasn't
going to send me out." Barr declared if that was the way "you wanted to run the
thing you could give me my book." Ward then returned his book, but not his job
application card.
Colley said the meeting was called to discuss the employment of Licino and Water-
schoot of Detroit. Barr entered the room stating he wanted a job and he and Ward
became involved in an argument. Someone asked Barr to leave and Colley heard
Ward remark that the local did not need Barr and he was not going to work.
Colley admitted there was some discussion of the hiring procedures set forth in
section 5 of 'the contract and that he made arrangements for the employment of nine
men These men including Wood and Clayton reported for work between February
3 and 5. Hornback and Varble, though apparently cleared, did not report for work.
There were no hirings subsequent to the latter date. Colley said he would have
hired Barr on January 28, and thereafter, if he had been sent out by the Union.
Concluding Findings
The Council contract, as accepted by the Employer, obligates the Employer to
hire carpenters exclusively through Local 694, or the Council. The Board in the
Mountain Pacific case,1 held that an agreement of this character inherently and
1 Mountain Pacific Chapter of the Associated General Contractors, Inc ; et al , 119
NLRB 883 See also, Los Angeles-Seattle Motor Express , Incorporated, at at., 121
NLRB 1629.
60 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
unlawfully encourages union membership and is discriminatory on its face unless
the agreement specifically provides that: (1) selection of applicants for referral to
jobs shall be on a nondiscriminatory basis and shall not be based on, or affected by,
union membership, bylaws, rules, regulations, constitutional provisions, or any other
aspect of union membership, policies, or requirements; (2) the employer retains
-the right to reject any job applicant referred by the union; and (3) the parties to
the agreement post appropriate notices in places where notices to employees or
applicants for employment are customarily posted. The Council contract contains
the foregoing safeguards deemed essential by the Board for a legal exclusive hiring
.arrangement, and I find accordingly.
The next question presented is whether the Respondents carried out the contract
in an unlawful manner and caused or attempted to cause the Employer to discrimi-
nate against Barr in violation of Section 8(b)(1)(A) and (2) of the Act.
From the testimony detailed above, I find that around January 23, Barr spoke to
Wellmeyer about work at Alcoa and expressed his desire to clear into Local 694,
which was agreeable to Wellmeyer. However, Wellmeyer pointed out he Could not
be cleared until the next meeting which would be held on Friday, January 29. Barr
made no objection to this procedure.
Thereafter, about January 26, Barr presented his book to Wellmeyer and filled out
an application for work. Barr then asked if he had any calls for men and Wellmeyer
advised him he had none at that time. Barr's actions, of course, were voluntary
on his part and occurred prior to any employment or even promise of employment
by the Employer. Moreover, there is no evidence the Employer had requested Local
694, or the Council, to furnish any men for the job as of that date.
Early the morning of January 27, Barr was employed when Colley signed his
employment card and told him to go to work. Later, Barr related a different version
of his employment in that Colley inquired if he had left his book with Local 694
and when informed that he had, Colley instructed Barr to go to the local hall and
that he would call him. As Barr's second version was obtained through prodding
and leading questions I give little weight to its importance, but in any event Barr did
go to the local hall that morning. Sometime later Colley appeared at the hall and
after talking to Wellmeyer, he informed Barr (and other men) that Wellmeyer
would not send him to the job. Barr remained at the hall and about an hour later
Wellmeyer advised him (and the other men) that he could go to work on the project,
although he would not give him a referral card.
The next morning January 28, Barr went to the jobsite and Colley offered to put
him to work without a referral from the local. Barr did not accept the offer and
spoke to Lampkins about working without a referral card. Lampkins asserted he
had no authority in the matter and Barr could work as far as he was concerned,
although there was a chance he might get into trouble. Barr then changed his mind
about working and declined Colley's offer to take him to the job, stating he would
come in the following morning.
The same afternoon Barr discussed the matter with his business agent, Ulsas,
who expressed the opinion that Local 694 could fine him if he worked without a
referral.
Nothing further happened until February 2, when Barr accused representatives
of the Employer and the Respondents of refusing him employment and requested
the return of his book, which was given to him.
The foregoing facts make it abundantly clear that Barr was not denied employ-
ment by virtue of any unlawful hiring arrangement between the Respondents and
the Employer. On the contrary, the facts affirmatively prove that the Employer
offered to employ Barr without any referral from the Respondents and that the
Respondents explicitly instructed Barr they had no objection to his being employed
by the Employer. Despite these assurances, Barr declined employment unless the
Respondents granted him a referral card. His decision, no doubt, was prompted
by the opinion expressed by Ulsas to the effect that he might be subject to fine if he
accepted employment without a referral from the Respondents. It is sufficient to
say that Ulsas was a stranger in the matter and had no authority to speak on behalf
of either the Employer or the Respondents, therefore, his opinion was meaningless.
But, assuming the contrary, Barr foreclosed any resolution of that subject by declin-
ing employment. Further, while it is well settled that a labor organization may not
use the referral card or system as a device to deny employment to an employee,
I am unaware of any authority which holds that a labor organization must grant
a referral card to an employee where it has made no attempt whatever to prevent
his employment by an employer. In my opinion the Employer and the Respondents
complied fully with their statutory obligations in respect to the employment of
LOCAL 694, UNITED BROTHERHOOD OF CARPENTERS, ETC. 61
Barr.2 I, therefore, find that the Respondents have not engaged in any unfair labor
practices in violation of Section 8(b) (1) (A) and (2) of the Act.
At the hearing the General Counsel seemed to stress the point that although Barr's
book was returned to him on February 2, his job application card was not handed
to him, but retained by Local 694. This is true, but I fail to see how it lends any
support to the contention that Barr was discriminatorily denied employment with
the Employer. By withdrawing his book Barr clearly indicated he was no longer
interested in obtaining employment through Local 694 and this position is sub-
stantiated by the fact that he made no further visits or inquiries concerning work
after February 2. I do not consider Barr's failure to ask for his card, or the local's
failure to return it to him, as evidence that he was still seeking employment with
the Employer. This incident strikes me as an oversight on Barr's part, or an after-
thought to bolster his claim of discrimination.
Here the complaint alleges that since about January 1, the Respondents and the
Employer have maintained an illegal hiring arrangement. Colley testified that he
started the Alcoa project on January 19, with a crew of five or six men, but there is
no testimony that he called upon the Respondents for these men or that their employ-
ment was conditioned upon referral or clearance by the Respondents. Indeed,
Wellmeyer testified he did not give Colley a copy of the contract until about January
26. Clearly, this evidence refutes the idea that the Employer and the Respondents
were operating under any illegal hiring arrangement, and I so find. Actually, about
all the General Counsel was able to establish was the fact that Local 694 maintained
a hiring list, in the form of a referral card file, described above. In view of my
findings with respect to Barr and the four or five other men, plus the initial Wrings,
the evidence shows nothing more than Local 694 maintained a hiring list, which, as
I see it, was not even used insofar as the Employer was concerned. Nor is there any
allegation that the Respondents, by means of the hiring list, illegally refused to refer
men to other employers in the area. Certainly, mere possession of such a list does
not constitute evidence of an illegal hiring practice.
The Court of Appeals for the Ninth Circuit in N.L R B v. Mountain Pacific Chap-
ter of Associated General Contractors, Inc., et al., 270 F 2d 425, refused to enforce
the Board's order and remanded the case to the Board for further consideration.
The court ruled that the Board cannot hold illegal, as a matter of law, a hiring
clause which does not in terms give job preference to union members absent evidence
that the union has in fact given them preference. Although the court recognized (as
did the Board) that the record contained abundant evidence that the unions referred
nonmembers only if no members were available, it nonetheless concluded that it
could not enforce the order sua sponte, the Board's conclusion not having been
based on that ground. The court also refused to enforce portions of the order based
on findings that one job applicant had been denied employment since the Board's
conclusion was not based upon a finding that the applicant had been denied employ-
ment because he was not a member of the local union. In its Supplemental Decision
and Order (127 NLRB 1393), the Board accepted the remand and, upon considera-
tion of the entire record, found that even though the hiring provision did not, on its
face, give job preference to union members, the parties in fact gave them such
preference. The record in the instant case is insufficient to support such a finding.
There is no evidence at all to sustain the allegation of the complaint that the
Respondents collected moneys, such as initiation fees and dues , from employees of
the Employer pursuant to an illegal arrangement or agreement between the Respond-
ents and the Employer.
Upon the basis of the foregoing findings of fact, -and upon the entire record, I make
the following:
CONCLUSIONS OF LAW
1. The operations of the Employer occur in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. The Respondents are labor organizations within the meaning of Section 2(5)
of the Act.
3. The Respondents have not engaged in unfair labor practices as alleged in the
complaint within the meaning of Section 8(b)(1)(A) and (2 ) of the Act.
[Recommendations omitted from publication.]
2 See : County Electrio Co, Inc, et al., 116 NLRB 1080, 1086; and Victory Conatrue-
tion Co., 127 NLRB 400.