Local 825, Int'l Union of Operating Engineers

National Labor Relations Board - Board Decisions

Jun 29, 1962

137 N.L.R.B. 1043 (N.L.R.B. 1962)

LOCAL 825, INT'L UNION OF OPERATING ENGINEERS 1043
Local 825, International Union of Operating Engineers, AFL-
CIO and Joseph Hender and H. John Homan Company, Party
to the Contract . Case No. 4-CB-657. June 29, 1962
DECISION AND ORDER
On November 28, 1961, Trial Examiner Louis Libbin issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent 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 a supporting brief.
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 Intermedi-
ate Report, the exceptions and brief, and the entire record in this case,
and hereby adopts the findings, conclusions, and recommendations of
the Trial Examiner except as modified herein.
1. We agree with the Trial Examiner that the record does not war-
rant a finding that Respondent discriminated against Render because
of his failure to pay a registrant's fee. According to the credited
'testimony of Lawrence Cahill, Respondent's financial secretary, it is
only after an applicant is interviewed and fills out a white "Registra-
tion Card" at the Newark office that the applicant is regarded as a
qualified registrant and goes on the referral lists. The record shows
that Render, a member of Respondent's sister Local 542, attempted to
register on Respondent's employment list at the Hammonton hiring
hall branch sometime in December 1960. June Ambrose, the clerk at
the Hammonton hall, gave Hender a card on which he checked the
type of equipment he could operate and then advised Render to con-
tact the Newark office of Respondent. Render did not contact the
Newark office at that time. Subsequently, when the Homan Company
called Ambrose requesting the referral of Render by name, Ambrose
checked with the Newark office and was informed that Newark had no
record of Render having been there or having paid the registrant's fee.
Consequently, Hender was not referred to work from the Hammonton
hall of Respondent. Accordingly, we find that Respondent refused to
refer Render for work only because he had not taken the necessary
steps for registering and placement on the referral lists.
2. We agree with the Trial Examiner that the fee charged nonunion
registrants for use of Respondent's hiring hall has not been proved by
the General Counsel to be discriminatory nor violative of the Act. It
is the position of the General Counsel that the monthly fee of $9 paid
by an employee, who is not a member of the Union, does not repre-
137 NLRB No. 118.
1044 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sent his "pro rata share of the cost and expense of operating the em-
ployment list and referrals therefrom" pursuant to the collective-
bargaining agreement between Respondent and the Homan Company.
The General Counsel points to the fact that members pay no fee for
referrals and are charged only $10 per month in dues, of which $1.10 is
deducted and forwarded to the Respondent's International as a tax,
leaving a balance of $8.90 for the Respondent's use at the local level.
Obviously, the fee paid by a nonmember is 10 cents more per month
than the dues paid by a member for local use. Union members, how-
ever, pay an initiation fee of $360 plus 6 months' dues in advance, for a
total of $420 within the first 30 days of their membership. Moreover,
their responsibilities as union members subject them to the payment of
assessments and other monetary obligations of a continuing nature.
A nonmember of the Union, on the other hand, has no such obligation,
but pays a fee only for the period he desires to be registered in the hir-
ing hall. The fact that the fee paid by a nonmember is roughly equiva-
lent to the monthly dues of a member is not, in our opinion, sufficient in
and of itself to establish that the former has been required to pay more
than his fair share for the use and operation of the hiring hall. Apart
from the fact that all employees, whether members or nonmembers, re-
ceive all the benefits of the Respondent's collective-bargaining agree-
ment, including welfare and pension payments, it would be a matter
of considerable difficulty to distinguish between the costs of operating
a referral system that guaranteed to each applicant union wages and
conditions of employment and those union costs which might be said to
have no relation to the applicant's job opportunities before, during,
and after his employment at a particular jobsite. Other than to recite
a number of expenses which appear to him to be "totally unrelated"
to the operation of Respondent's hiring hall, the General Counsel has
made no attempt to specify the fair cost of this Respondent's referral
procedures and the pro rata share of each registrant. We cannot agree
that this is a matter to be left to the compliance stage of this proceed-
ing; nor do we agree with our dissenting colleagues that the burden
is on the Respondent to disprove a generalized allegation that the
fees paid by nonmember registrants are, in fact, a disproportionate
sum for Respondent's services in securing and maintaining sources of
employment under contractual terms and conditions.
[The Board dismissed the complaint.]
MEMBERS RODGERS and LEEDOM, dissenting in part :
We are in agreement with the decision of the majority regarding the
dismissal of the complaint as to Joseph Hender.
We disagree, however, with the majority's further conclusion to
dismiss the complaint insofar as it alleged that Respondent maintained
LOCAL 825, INT'L UNION OF OPERATING ENGINEERS 1045
a practice of charging discriminatory registration fees of applicants
for referral. Contrary to our colleagues ' assertion , we believe that
the General Counsel has amply sustained his burden of proof in this
respect.
The General Counsel adduced evidence which shows the following
situation to exist : The collective-bargaining agreement between Re-
spondent Local 825 and H. John Homan Company contains no union-
security provision,' but under its terms the Union serves as the
exclusive source of referrals for employment. Besides providing that
the Union shall establish and maintain an open employment list for
the employment of workmen "not based on any aspect or obligation
of union membership, policies or requirements," the pertinent pro-
vision of the agreement reads :
6. The cost and expense of establishing and maintaining the
open list and of the referrals therefrom shall be borne by all of
the registrants thereon. In the case of registrants who are not
members of the Union, their share of such costs and expenses
shall not exceed a sum equal to the pro rata share of the cost and
expense of operating the employment list and the referrals there-
from which is being borne by members of the Union from the
payment of Union dues. After seven (7) days from the date of
this agreement or of the date of registry on the list, whichever is
later, registrants shall incur the obligation of making quarterly
payments of their share of such cost and expenses. Failure of a
registrant to make payment of such cost and expenses shall consti-
tute grounds for removal from such list and shall nullify any
prior referral therefrom.
The terms of the collective-bargaining contract of the parties are
not here in issue. However, with respect to Respondent' s manner of
operation, the General Counsel adduced evidence which showed the
following :
A. Respondent maintains three hiring halls. Its main office and
central hiring hall is located in Newark, New Jersey. This office han-
dles referrals for jobs located in New Jersey from the New York State
line down to Trenton, New Jersey. A branch hiring hall is maintained
in Hammonton, New Jersey, which handles referrals from Trenton
south through the rest of the State to Cape May, and a branch is
maintained in Newburgh, New York, which handles the referrals in
the five southern counties of New York. There are approximately
6,300 members of Local 825, 145 members of sister locals, and 1,400
nonunion registrants who use the facilities of the three hiring halls.
'In view of our finding that Respondent violated the Act by charging disparate fees,
we do not here pass upon the issue of whether it was lawful for Respondent, in the ab-
sence of a union -security provision in its contract , to impose any fee whatever on appli-
cants who used the facilities of its exclusive hiring hall.
1046 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Hammonton branch averages about 500 registrants; the Newark
office averages about 4,000 registrants; and the other registrants use
the facilities of the Newburgh branch.
B. Members of Respondent Local 825 pay $10 in the form of
monthly dues. From this amount, $1.10 is specifically allocated to
the International as a per capita tax. There is no hiring hall registra-
tion fee, as such, for members. The monthly charge to the nonunion
registrants is $9, which is paid quarterly in advance.
C. Members of sister locals pay $2.50 a week as "travel service
dues," as required by the constitution of the International. "Travel
service dues" have no connection with the hiring hall, for payment
thereof is not a condition precedent to being registered on the hiring
hall list or remaining thereon. The constitution of the International,
article XV, section 3(a), provides that "travel service dues" have as
their primary purpose :
The defraying of the additional administrative and collective
bargaining cost incurred by a Local Union in providing services
for traveling members from sister Local Unions who are working
within its jurisdiction and the International Union's cost of re-
cording members' movements in the labor market.
D. Beginning on July 1, 1961, all registrants, union and nonunion,
were required to contribute $1 per month to a "Defense and Education
Fund." This fund is ostensibly used to defend any operator against
any suit for damages caused by an accident arising out of the op-
erator's employment and to educate operators in connection with new
programs and the use of new equipment.
E. All moneys collected by Respondent go into Respondent's "gen-
eral union fund," from which all expenses are met. According to
the Respondent's financial accounting statement, general union ex-
penses and hiring hall expenses are not separated. This statement
indicates that a number of Respondent's expenses are completely un-
related to operating a hiring hall and referral list. Thus, it appears
that the Union's general fund is used to pay the cost of the following :
(1) "Travel Service Receipts Purch," which are receipt books pur-
chased by Local 825 from the International to be used by members
of sister locals; (2) "Per Capita Tax-Trades" which is an assessment
levied on Respondent by the various building trades councils to "keep
the building trades going"; (3) "Convention Expenses" which "could
cover the International Convention"; (4) "Meeting Expenses" to
supply refreshments for Local 825 meetings; (5) "Organization Ex-
pense," which involves organizing new plants; (6) "Committee
Expense," which pays for tellers during elections; (7) "Subscriptions,
Tickets, Ads," which are bought from various other trade unions in
the area; (8) "Flowers"; (9) "Miscellaneous" (unexplained) ; (10)
LOCAL 825, INT'L UNION OF OPERATING ENGINEERS 1047
"Xmas Expenses" which are Christmas bonuses given to the stewards
of Local 825; (11) "Dues Refund" (unexplained) ; (12) "Pension
Payable-J.S.F.," which is a pension to one of Respondent's former
officials, identified in the record as one "Fay" or one "Faye (phonet-
ically spelled)"; (13) "Salaries," which includes salaries of Respond-
ent's officers, and Respondent's business representatives who do
organizational work; and (14) "Business Representative All." and
"Business Representative Exp.," which are the allowances sent to the
business representatives covering their expenses.
Analysis of the foregoing factual statement shows, for the fol-
lowing reasons, that Respondent conducted its hiring halls
discriminatorily :
1. Assuming that the portion of the dues it receives from its mem-
bers are allocated by Respondent in their entirety to defray the cost
of operating the hiring halls, it would nevertheless appear that non-
union registrants are being charged a greater amount for the same
purpose. Thus as $1.10 per month is deducted from members' dues and
forwarded to the International, members are contributing only $8.90
to meet the hiring hall expenses; on the other hand, nonunion appli-
cants are being charged $9 per month, or 10 cents more per month
than Respondent's members. This basic assumption is, moreover,
contrary to the facts because the moneys contributed by Respondent's
members also go to pay Respondent's general expenses.
2. It is apparent from a cursory review of Respondent's financial
structure that fees paid by nonunion members are being expended for
matters other than that of the hiring hall in view of the fact that their
fees go into Respondent's general fund and expenses unrelated to the
hiring hall are met from this fund. It is no answer to this to point
out that members' dues are likewise so allocated; for Respondent
clearly has no lawful authority to require nonunion members to con-
tribute toward defraying its general expenses.
3. Meanbers of sister locals appear to be subject to disparate treat-
ment. They are not required to pay a registration fee of any kind, for
the travel service dues which they do pay are in no way related to the
operation of the hiring hall. But even were we to assume that they
were so related, it still would appear that the travel service dues of
•$2.50 a week are not equivalent to $10 per month, or the $9 per month,
charged, respectively, of union and nonunion members. Thus, com-
puted on a yearly basis, or in a month which has more than 4 weeks,
the fees paid by members of sister locals are greater than those im-
posed on members and nonunion registrants.
4. Respondent requires all registrants to contribute $1 to the so-
called "Defense and Education Fund." This fund in no way relates
to the hiring hall.
1048 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Accordingly, we would find on the basis of this record that the
General Counsel has proved "by a preponderance of the testimony" 2
that a discriminatory practice exists .3 Certainly, if we test Respond-
ent's conduct by the terms of its own contract, it appears that the
General Counsel has introduced enough evidence to show that Re-
spondent was not operating its hiring halls in the manner required
by that contract : the costs of the hiring hall clearly were not "borne
by all of the registrants"; and nonunion registrants were clearly
charged more than "a sum equal to the pro rata share of the cost .. .
which is being borne by members of the Union...."
Even were the Board to hold the General Counsel to a standard
stricter than that required by the Act, it would still follow that the
General Counsel has at least made a prima facie showing of discrimina-
tion. That being so, it was incumbent on Respondent to come forward
and offer some explanation for its practices. This Respondent has
not done. Lacking any such explanation, we cannot gloss over what
has here been shown so clearly to exist 4
We would therefore find that Respondent has restrained and co-
erced employees in the exercise of the rights finder Section 7 of the
Act in violation of 8(b) (1) (A) and has caused or attempted to cause
The Homan Company to discriminate in regard to hire or tenure of
employment or any term or condition of employment, thereby en-
couraging membership in Respondent in violation of Section 8 (b) (2)
of the Act. We would further find that by requiring payments unre-
lated to the hiring hall Respondent restrained and coerced employees
in the exercise of the rights guaranteed in Section 7 and thereby inde-
pendently violated Section 8 (b) (1) (A).
' Act, Section 10(e).
s Porter-DeWitte Construction Co., Inc., 134 NLRB 963; Morrison-Knudsen Company,
Inc, et al. v . N.LR.B., 275 F. 2d 914 (C A. 2), enfg. as mod. 123 NLRB 12; Pardee
Construction Company, 115 NLRB 126
s Our colleagues seem to rely upon the fact that union members pay an initiation fee
of $360, besides being subject to payment of assessments and "other monetary obliga-
tions" of a continuing nature. In this connection , we point out , however, that the pay-
ment of initiation fees, assessments , and union "obligations " to the union treasury Is
immaterial to the issue in this case, which involves solely the charging of a disparate
hiring hall fee.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon charges filed by Joseph Hender , an individual , the General Counsel of the
National Labor Relations Board , by the Acting Regional Director for the Fourth
Region, issued his complaint, dated August 4, -1961, against Local 825, International
Union of Operating Engineers, AFL-CIO, herein called Local 825 or the Union
or the Respondent. With respect to the unfair labor practices, the complaint alleges,
in substance , that: ( 1) Respondent and H. John Homan Company, herein called
Homan , have been parties to a collective-bargaining agreement covering .the employ-
ment of "operating engineers" since September 1, 1960; ( 2) the contract provides that
(a) there should be an exclusive union referral and open employment list, (b)
the cost of establishing and maintaining the open list and of the referrals shall be
borne by all registrants , and (c ) the share of the cost and expense of registrants who
are not members of Respondent shall not exceed a sum equal to the pro rata share
LOCAL 825, INT'L UNION OF OPERATING ENGINEERS 1049
borne by members of Respondent from the payment of union dues; (3) the fees
required of nonmembers of Respondent as a condition of referral and employment
pursuant to said agreement have been in excess of the pro rata share of the cost of
operating the employment list and referrals borne by members of Respondent from
the payment of dues to Respondent; (4) Hender registered on the employment list
of Respondent in early December 1960 and thereafter was refused Teferral for em-
ployment to Homan because he had not paid the registrant's fees, and was also refused
employment by Homan because he was not referred by Respondent; and (5) by the
foregoing conduct Respondent has violated Section 8(b) (2) and (1) (A) of the Act.
In their duly filed answers, Respondent and Homan deny, generally, all unfair labor
practice allegations.
Pursuant 'to due notice, a hearing was held before Trial Examiner Louis Libbin at
Philadelphia, Pennsylvania, on September 28 and 29 and October 6, 1961. The
General Counsel, the Respondent, and Homan appeared and were represented. Full
opportunity to be heard, to examine and cross-examine witnesses, to introduce
relevant evidence, and to engage in oral argument before the close of the hearing
was afforded to all parties. On October 30, the General Counsel and ,the Respondent
filed briefs, which I have fully considered. Respondent's motion to dismiss the
complaint, made before the close of the hearing and upon which I reserved ruling,
is hereby granted in accordance with the findings and conclusions made below.
Upon the entire record in the case, and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT
I. THE BUSINESS OF H. JOHN HOMAN COMPANY , PARTY TO THE CONTRACT
All parties stipulated that if Stanley Bishop were called as a witness he would
testify that he is vice president of Homan and familiar with the volume of business
transacted by it, that during the calendar year 19160 Homan received for services per-
formed in the State of New Jersey $23,053 from Radio Corporation of America and
$148,645 from Public Service Corporation of New Jersey, that Radio Corporation
America annually produces and ships goods valued in excess of $50,000 to points di-
rectly out of the State of New Jersey, and that Public Service Corporation of New
Jersey is not a taxi cab corporation but is a public utility or transit system affecting
commerce within the meaning of the Act and has an annual gross revenue in excess
of $250,000.
Upon the basis of the above stipulation , I find that Homan is engaged in commerce
within the meaning of Section 2(6) and (7) of the Act and that the Board's stand-
ards for the assertion of jurisdiction in this case have been satisfied.
II. RESPONDENT LABOR ORGANIZATION
The complaint alleges, the answers admit, the record shows, and I find that Local
825, International Union of Operating Engineers , AFL-CIO, 'the Respondent herein,
is a labor organization within the meaning of Section 2(5) of the Act.
HI. THE ALLEGED UNFAIR LABOR PRACTICES
A. Introduction; the issues
At all times since September 1, 1960, Respondent and H. John Homan Company,
herein called Homan, have maintained, enforced, and given effect to a collective-
bargaining agreement relating to the hire, tenure, terms, and conditions of employ-
ment of operating engineers. Article I of this agreement, entitled "MANNING OF
JOBS," provides that "in the employment of workmen covered by this Agreement,
the following provisions shall govern," among others:
1. The Union shall establish and maintain an open employment list for the
employment of workmen . Such list shall be established and maintained on a
non-discriminatory basis and shall not be based on, or in any way 'affected by
union membership , by-laws, rules, regulations , constitutional provisions, or any
other aspect or obligation of union membership, policies or requirements.
2. Whenever desiring to employ workmen, the Employer shall call upon the
Union or its agent for any such workmen as the Employer may, from time to
time, need and .the Union or its Agent shall refer such workmen from the open
employment list. The Employer shall give the Union twenty-four (24) hours
notice when requiring the services of an Engineer, Apprentice Engineer, Fire-
man or Maintenance Engineer.
3. The Employer shall retain the absolute and unconditional right to reject
any workmen referred by the Union.
1050 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4. The Union, in referring workmen, shall give consideration to and shall be
governed by the following criteria, which shall be applied in a non-discriminatory
manner, as provided for in (1) above:
(a) Recent employment by a particular Employer now desiring to re-
employ the same workman provided he is available;
(b) Length of prior employment with any Employer party of this.
Agreement;
(c) Competency and experience in the performance of the particular
tasks involved in the job to which referral is being made;
(d) Age, insofar as it affects the physical ability to perform the tasks
involved ,in the job to which referral is being made.
(e) An applicant must have maintained his permanent residence in the-
geographical area of the entire State of New Jersey and the five southern
counties of New York (Delaware, Ulster, Orange, Sullivan and Rockland),
for a period of one (1) year or, who having had a permanent home in
the area, has temporarily left with the intention of returning to this area as
his permanent home.
s e s s s r •
6. The cost and expense of establishing and maintaining the open list and
of the referrals therefrom shall be borne by all of the registrants thereon. In
the case of registrants who are not members of the Union, their share of such
costs and expenses shall not exceed a sum equal to the pro rata share of the cost
and expense of operating the employment list and the referrals therefrom which
is being borne by members of the Union from the payment of Union dues. After
seven (7) days from the date of this Agreement or of the date of registry on the
list, whichever is later, registrants shall incur the obligation of making quarterly
payments of their share of such cost and expenses. Failure of a registrant to,
make payment of such cost and expenses shall constitute grounds for removal
from such list and shall nullify any prior referral therefrom.
7. The parties to this Agreement shall post in places where notices to employ-
ees and applicants for employment are customarily posted, all of this Article I,
MANNING OF JOBS.
The hiring hall fees charged by Respondent to nonunion registrants have always.
been $1 per month less than the monthly dues of union members. The General'
Counsel is not attacking the legality of the contract and concedes the validity, on
their face, of the hiring hall and referral provisions contained therein. It is his posi-
tion that the actual amount charged as a fee to nonunion registrants is discriminatory
and violative of the Act because it allegedly is in excess of the pro rata share of the
costs and expenses of operating the hiring hall and referral system borne by mem-
bers' dues and therefore is not in accord with the literal terms of paragraph No. 6
of article I of the contract. The Respondent contends that the amount of the fees-
which nonunion registrants are required to pay for the cost and expense of operating
the hiring hall and referral facilities is not in excess of the pro rata share of such
expense borne by union members' dues and in any event is not discriminatory within
the meaning of the Act.
Joseph Hender, the Charging Party herein, is a member of a sister local of Re-
spondent. In December 1960, Hender appeared at the Respondent's hiring hall at
Hammonton, New Jersey, where he sought to register. Thereafter, Hender, who
had not paid a registrant's fee, was refused referral to Homan upon the latter's request,
and was not employed by Homan because of Respondent's refusal to make such
referral. The General Counsel contends that the refusal to refer Hender to Homan
for employment was due to Hender's failure to pay the nonunion registration fee,
and that such conduct was violative of the Act because said registration fee was
discriminatory. The Respondent contends that Hender was not referred to Homan
solely because he had not completed the necessary steps required for registration
and placement on the referral list.
B. The issue as to whether Respondent discriminated against nonmember registrants,
in violation of the Act, because of the amount charged for the use of the hiring
hall and referral facilities
1. The operation and maintenance of the hiring hall and referral system 1
Respondent's main office and central hiring hall is maintained in its own two-story
building in Newark, New Jersey, herein sometimes called the Newark office. Branch
' Unless otherwise indicated, the factual findings in this section are based on credited'
testimony and evidence which is either admitted or undisputed
LOCAL 825, INT'L UNION OF OPERATING ENGINEERS 1051
hiring halls are maintained by Respondent in Hammonton, New Jersey, herein some-
times called the Hammonton office, and in Newburgh, New York, herein sometimes
called the Newburgh office. The Hammonton office consists of a single rented room,
with one clerk. In addition to being the central hiring hall and main office, the
Newark office handles referrals for jobs located in New Jersey from the New York
State line down to Trenton; the Hammonton office handles referrals from that point
through the rest of the State of New Jersey down to Cape May; and the Newburgh
office handles referrals for jobs located in the five southern counties (Delaware,
Ulster, Orange, Sullivan, and Rockland) of the State of New York.,
Registrants on the hiring hall lists are comprised of operators who are members of
Respondent and its branches, operators who are members of sister locals of the Inter-
national Union, and operators who are not members of any union. The procedure
which is required for a nonunion applicant, or an applicant who is a member of a
sister local of the International, to become a registrant on the hiring hall lists is
described in the following paragraphs:
When such an applicant applies to the Hammonton or Newburgh office for the
purpose of becoming a registrant, the girl in the office gives him a buff colored card
on which he writes his name, telephone number, and home local number, if any, and
checks the type of equipment listed thereon which he feels qualified to operate. The
card is then retained by the girl, who advises the applicant to get in touch with the
Respondent's Newark office, where the central hiring hall is maintained.
At the Newark office, the applicant is interviewed by an experienced staff man
who ascertains the branch office at which the applicant initially applied and then
interrogates the applicant concerning his ability to operate the numerous and various
types of equipment listed by Respondent. The interviewer then telephones to the
branch office where the applicant first applied, the Hammonton or Newburgh office
as the case may be, and checks the information which the girl in that office had
received from the applicant. If the interviewer is satisfied with the applicant's
experience and ability to operate some of the equipment involved, the applicant then
fills out a white card, entitled "Registration Card." On the upper half of the face
of the card, he writes his name, address, telephone and social security number, and
information as to his sister local of the International, if any. On the lower half of
the face of the card, a check mark is made alongside the type of equipment listed
thereon which he has had experience and is qualified to operate. The back of the
card, entitled "Hiring Hall Registration Card," applies only to nonunion applicants.
It states, in substance, that the card is being issued upon the holder being registered
by Respondent as an applicant for job referrals from the union hiring halls, and sets
forth the quarterly sum which the signer agrees to pay, after the seventh day, as his
share of the costs, which is not to exceed the amount of the quarterly dues paid by
registrants who are members of Respondent. There then follows a line for a signa-
ture and a date.
Only nonunion applicants are required to sign this "Registration Card." Appli-
cants who are members of a sister local of the International are not required to pay
any registration hiring hall fees and therefore do not have to sign this card. iHow-
ever, it is at this point, when the "Registration Card" has been signed by the nonunion
applicant or has been filled out, in the case of the applicant who is a member of a
sister local, that the applicant in each case is first regarded as a qualified registrant
and goes on the referral lists. Indeed, the Respondent has no knowledge of the appli-
cant becoming a registrant until this white "Registration Card" is signed or filled out,
as the case may be, and deposited in the file of the Newark office. All hiring hall fees
for registrants are paid at, and handled by, the Newark office.
After the "Registration Card" has been signed or filled out, as the case may be,
the Newark office then relays this information to the branch office where the appli-
cant first applied, the Hammonton or the Newburgh office as the case may be. The
branch office then fills out a buff colored card to correspond with the information
contained on the white "Registration Card." On the back of this buff colored card,
which is maintained in the files of the branch office, are columns to record the regis-
trant's "in" and "out" employment record. The card is then filed together with cards
of registrants who are members of Respondent, in accordance with the items of
equipment which the registrant is listed as being qualified to operate. The registrant
has the option of using any of the three hiring halls he desires. Referrals are then
made on a first-in-first-out basis, subject to the qualifications specified in the contract .2
z The findings as to the procedures required for an applicant who is not a member of
Respondent, whether he be a nonunion man or a member of a sister local of the Inter-
national, to become a registrant are based on the credited testimony of Lawrence Cahill,
1052 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As of the time of the hearing in the instant case, Respondent had approximately
6,300 members, about 145 members of sister locals working in its jurisdiction, and
about 1,400 registrants on the combined 3 hiring hall lists who were not members
of any union. The number of registrants, including union and nonunion, who
utilize the facilities of the Hammonton office average about 500; those using the fa-
cilities of the Newark office average about 4,000; and the remainder use the facilities
of the Newburgh office. A registrant is privileged to use any of the three hiring hall
offices within Respondent's jurisdiction. The exact number using a specific office is
also affected by the seasonal employment opportunities in the building and con-
struction industry. Respondent maintains one set of books for all three hiring hall
offices.
As previously noted, the hiring hall fees for nonunion registrants have always
been $1 per month less than the regular monthly dues of members of Respondent.
Thus, from September 1960 to January 1, 1961, the nonunion registrant's fee was $7
per month; the regular monthly dues for members of Respondent was $8 per month.
From January 1 to July 1, 1961, the nonunion registrant's fee was $9 per month;
the regular monthly dues for members of Respondent was $10 per month. Be-
ginning with July 1, 1961, both nonunion registrants and members of Respondent
were charged an additional $1 per month for a defense and education fund.3 As
specified by the contract, the nonunion registrant's fee is paid quarterly in advance.
An operator who becomes a member of Respondent pays an initiation fee of $360
and 6 months' dues in advance; thereafter, his dues, which at all times is $1 per
month more than the monthly fee of the nonunion registrant, is paid quarterly in
advance.4 The membership rolls of the Respondent are at all times open to any
nonunion operator as well as to any member of a sister local who wishes to transfer
his membership to Respondent.5
2. Position and contentions of the parties
As previously noted , the General Counsel does not attack the legality of the
contract hiring hall and referral provisions on their face . Although the fee which
Respondent has required of nonunion registrants has been $1 per month less than
the total amount of dues paid monthly by members of Respondent, the General
Counsel nevertheless contends that Respondent has not complied with the literal
terms of the contract provisions in that , according to the General Counsel , the fee
which Respondent has required of nonunion registrants is in excess of the pro rata
share of the costs and expenses of operating the hiring halls and referral system
borne by members of Respondent from the payment of union dues. The General
Respondent's long-time financial secretary and office manager of all three offices. To the
extent that the testimony of June Ambrose, who was employed in the Hammonton office
for about 7 years, may be regarded as being in conflict with that of Cahill, I do not credit
it. Moreover, a realistic and overall appraisal of Ambrose's testimony convinces me that
it is not truly inconsistent with that of Cahill in any material respect. Thus, she ad-
mitted that she would give an applicant, who was not a member of Respondent, a card
listing the various types of equipment and ask him to fill it out and check the equipment
he could operate; that she would then advise the applicant to get in touch with the
Newark office ; that after Hender, the Charging Party who was a member of a sister local
applicant, had filled out his card, she told him to contact the Newark office with respect
to making arrangements for his registration , that the applicant is interviewed at the
Newark office with respect to his background and experience on various types of equip-
ment ; that the Newark office relays such information to her ; and that she has no authority
initially to refer such an applicant to a job unless he has been cleared by the Newark
office and she has been advised by the Newark office that he be placed on the referral list.
Upon appraisal of her testimony as a whole, I am convinced and find that the card char-
acterized in her testimony as a "registrant's card" and which she testified she had Hender
fill out, was in fact the preliminary buff colored card referred to by Cahill in his testi-
mony as the card which an applicant fills out in a branch office, whether he be a non-
union applicant or a member of a sister local of the International
3 This fund is used for the purpose of defending any operator, union and nonunion,
against any suit for damages caused by an accident occurring during and arising out of
said operator's employment, and also for the purpose of educating operators in connection
with new programs and the use of new equipment in their work
4 Sixty dollars of the initiation fee and $1.10 of the monthly dues is transmitted by
Respondent to the International as a tax.
5 Respondent took in 360 new members during 1960, and 132 new members from Decem-
ber through June 1961.
LOCAL 825, INT'L UNION OF OPERATING ENGINEERS 1053
Counsel argues that this conclusion follows from the fact that the Respondent remits
$1.10 of the monthly dues of its members to the International, from the fact that
Respondent's expenses are nowhere broken down into hiring hall and referral ex-
penses, and from his contention that a number of expenses (including all of the
salaries of officers and business representatives or delegates with their expenses)
"cannot even be remotely connected with running a hiring hall and referral list."
The General Counsel admits that he does not know, and is unable to inform the
Respondent or the Trial Examiner, what fee for nonunion registrants would satisfy
the literal terms of the contract provisions, contending that it is only necessary for
him to show that the fee charged to nonunion registrants was in excess of the pro
rata share of hiring hall expenses borne by members' dues without showing how
much in excess it was. The General Counsel then concludes that by charging such
a fee to nonunion registrants, Respondent "has thereby restrained and coerced em-
ployees in the exercise of rights under Section 7 of the Act in violation of 8(b) (1) (A)
and has caused or attempted to cause the employer to discriminate in regard to hire
or tenure or terms or conditions of employment, thereby encouraging membership
in Respondent in violation of Section 8(b) (2) of the Act."
Respondent contends that in view of the sporadic employment in the building and
construction industry and the large territorial jurisdiction of Respondent, virtually
the entire function of Respondent is to get jobs for the men through the hiring halls
and the referral lists, to protect the registrants' job rights and opportunities, and to
obtain and preserve the contractual benefits for all registrants; that virtually all
aspects of the Respondent's operations have a direct relationship to the maintenance
and operation of the hiring halls; that therefore support money for the hiring halls
is in effect equivalent to support money for the Respondent; that since nonunion
registrants receive all the benefits under the contract that the union members receive
without paying as much as the members' dues, the charge to the nonunion registrant
is not in excess of the pro rata share of members' dues; and finally that even if the
payments required of nonunion registrants technically violated the literal provisions
of the contract, it still does not establish a violation of the Act because such conduct
under all the circumstances does not have the effect of encouraging union membership
in Respondent.
3. Concluding findings
The Respondent has its work jurisdiction over the entire State of New Jersey and
the five southern counties in the State of New York. Throughout this area, Re-
spondent services over 4,000 contracts with employers, containing the same hiring
hall provisions. For this purpose, Respondent has 10 business agents or delegates
employed on a full-time basis with a salary and expense account. They are each
assigned to certain areas and are constantly on the road. Their duties are, in sub-
stance, to keep in touch with the local office in the area to which they are assigned
(the Newark, Hammonton, or Newburgh office) for the purpose of ascertaining if
there are any complaints by registrants or contractors, to go to the jobsites to adjust
the complaints of any registrant (union and nonunion) or of the contractor, to inquire
as to the abilities of the operators dispatched from the hiring hall, to police the
contracts in their assigned area to make sure that the contractors are utilizing the
hiring halls and that all registrants on the job are receiving all benefits and terms to
which they are entitled under the contract, and to have prejob conferences with
contractors to make certain that they will call the hiring halls for the different types
of men needed for the proposed project.
All registrants, nonunion and union, are covered by, and receive the various
benefits provided in, the collective-bargaining agreements negotiated with the em-
ployer, including the insurance, welfare, and pension benefits to which the employer
is the sole contributor. Respondent accords equal representation to nonunion and
union registrants in all matters affecting the employment relationship, including the
enforcement of the terms of the contract and the processing of grievances. Re-
spondent does not maintain a closed-union policy with respect to applicants for
membership. Any nonunion registrant has the option of becoming or refraining
from becoming a member of Respondent.
It is obvious that the hiring halls in the instant case cannot be maintained and
operated without there being in existence an actively functioning labor organization
which is adequately and effectively organized and staffed, such as the Respondent.
The hiring hall system does not encompass the purely ministerial task of registering
applicants and referring registrants. On the contrary, virtually all of Respondent's
tunities of nonunion employees upon their payment of support money to Respondent
operations and functions have some bearing upon, and relationship to, the mainte-
nance and operation of its hiring halls for the benefit of all registrants, nonunion and
1054 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
union . Realistically viewed, the contractual provision conditioning employment op-
portunities for nonunion registrants, who would otherwise be free riders, upon their
payment of support money for the maintenance and operation of the hiring hall
system in a sum not to exceed the support contributed from union members' dues, is
tantamount to or the equivalent of a provision conditioning the employment oppor-
Union in a sum not to exceed members' dues. Where the factors specified in the
preceding paragraph are present, such a contractual provision constitutes a permis-
sible form of union security under the Act, as ,the Board has recently held.6 Under
this construction, the fee which Respondent charged to nonunion registrants was in
conformity with the contractual requirements, and was neither discriminatory nor
violative of the Act.
Even accepting the General Counsel's view of the contractual provision, I still
cannot agree that the fee charged to nonunion registrants was discriminatory and
violative of the Act. In arguing that the fee did not comply with the literal terms of
the contract and was in excess of the pro rata share of the expense borne by members'
dues, the General Counsel in his brief lists "intra-union" expenses totaling approxi-
mately $57,000 for the period from December 1, 1960, to June 30, 1961, which
expenses he characterizes as "appear[ing] to be totally unrelated to the hiring hall
operations and of no value to registrants." However, during that same period Re-
spondent operated at a loss of $35,874. During the same period, Respondent also
received a net income in the amount of $19,469 from sources other than dues and
registrants' fees.? When this amount is deduced from the total income for that
period so as to conform the income to receipts from dues and registrants' fees, the
Respondent's loss during that period becomes approximately sufficient to offset the
alleged "intra-union" expenses which the General Counsel claims are totally unre-
lated to the hiring hall operations. Moreover, as just indicated, Respondent still
has a "kitty" of $19,469 from sources other than dues and registrants' fees for that
period, which sum can also be applied to expenses termed by the General Counsel as
wholly unrelated to the operation of the hiring hall. Finally, assuming that the fee
charged to nonunion registrants did not comply with the literal terms of the contract
and was in excess of the pro rata share of the expenses borne by union members'
dues, it is difficult for me to see how, under the circumstances of this case, such treat-
ment tended to restrain or coerce nonunion registrants in the exercise of their
statutory rights or to encourage membership in Respondent, without which factors
there can be no violation of Section 8(b) (1) (A) and (2) of the Act.s As previously
noted, membership in Respondent is available to any nonunion registrant who wishes
to join. The nonunion registrant receives the same contractural terms, benefits,9
representation, and service as the union registrant. For all this, the nonunion regis-
trant pays no initiation fee of $360 and no 6 months' payments in advance, as the
union member does, but merely pays a monthly registrants' fee, quarterly in advance,
equal to $1 less than the regular monthly union dues. While it is true that the natural
tendency of certain types of union conduct is to restrain and coerce employees in
the exercise of their Section 7 rights and to encourage membership in a labor organi-
zation,10 the evidence as to the type of conduct involved in this case does not permit
such a conclusion to be drawn here.
9 General Motors Corporation , 133 NLRB 451, and cases cited therein As the Respond-
ent and Homan satisfy. the conditions specified in Section 8(f) of the Act, a 7-day union-
security clause is permissible in this case
7 These were as follows: (a) $13,384 from initiation fees, less $1.928 tax remitted to
International, leaving a net income from initiation fees of $11,456; (b) $9,869 from
travel service dues, less $2,500 paid to the International for the purchase of travel serv-
ice receipts, leaving a net income of $7,369 from travel service dues; and (c) $644 re-
ceived from withdrawals and transfers
8See, eg, Local 357, International Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America v. N L R.B. (Los Angeles-Seattle Motor Express), 365 U S
667, 674.
8 Only the union member receives an intraunion nominal death benefit ranging from
$75 to $500, depending on the length of his membership. This benefit is more than offset
by the lower fee paid by the nonunion registrant in comparison with the members'
Initiation fee and dues.
is See, e.g, Morrison-Knudsen Company, Inc, et al v. NLRB, 275 F. 2d 914 (CA. 2),
enfg as mod. 123 NLRB 12, where the Board found a discriminatory hiring hall arrange-
ment and practice in requiring nonmembers to pay a weekly fee of $2 50 for a work
permit whereas the union dues was only $4 per month for oilers and $7 per month for
operating engineers. The court stated that "the natural tendency of such differential
is to encourage membership in Local 545."
LOCAL 825, INT'L UNION OF OPERATING ENGINEERS 1055
For each of the foregoing reasons, I find that the General Counsel has not sus-
tained the allegations of the complaint that Respondent has violated Section 8(b) (1)
(A) and (2) of the Act by charging nonunion registrants a monthly fee equal to $1
less than regular monthly dues of its members.
C. The issue as to whether Respondent violated the Act by refusing to
refer Hender to Homan
1. Sequence of events"
Joseph Hender, the Charging Party herein, has been a member of Respondent's
sister Local 542 in Philadelphia for the past 10 years. Local 542 has work jurisdiction
over the entire State of Delaware and 29 counties in Pennsylvania. In 1960 Hender
worked for Homan during various periods from April to August 14.
Sometime thereafter, Edward Geserick, an agent of Homan, called Respondent's
Hammonton office and requested that Hender be referred to work for Homan. June
Ambrose, the girl in the Hammonton office, informed Geserick that "it would be im-
possible because" Hender "was not even on our out-of-work list."
Thereafter, in late November or early December, Hender appeared at Respondent's
Hammonton office and told Ambrose that he was a member of Local 542, that he
was looking for work, and that he wanted to be put on the referral list. Ambrose
explained how the list worked and the procedure he would have to follow, and gave
him a card,12 which Hender filled out and on which he checked the type of equip-
ment he could operate.13 She also told him that he would have to contact the Newark
office with respect to making arrangements for his registration and in connection with
the payment of any fees.14
Thereafter Geserick called the Hammonton office about December 19, requesting
the referral of Hender. Ambrose thereupon telephoned to Respondent's Newark
office to inquire about Hender and was informed that they had no record of Hender
ever having been up to the Newark office or of having paid any registrant's fee.
Ambrose thereupon informed Geserick by telephone that she could not refer Hender.
She also told Hender, upon the latter's subsequent telephone inquiry as to why he
had not been referred to Homan, that the Newark office had informed her that there
was no record of Hender ever having gone up to their office and that they did not
know anything about him.15
On May 26, 1961, Hender appeared at the Newark office and on that date filled
out his white card, entitled "Registration Card." A buff colored card, correspond-
ing with the information contained on Hender's "Registration Card" and on the
back of which are columns for recording his "in and out" employment record, was
then filled out and deposited in the files of the Hammonton office. Thereafter, in
June and July Hender was referred for jobs from the employment list in the
Hammonton office, without payment of the registrant's fee required of nonunion
members.16
2. Position and contentions of the parties
The General Counsel contends that Respondent failed to refer Hender from its
Hammonton hiring hall, although requested by Homan, because of Hender's failure
"Unless otherwise indicated, the factual findings herein are not seriously disputed
12 As previously found, this was the preliminary buff colored card which an applicant
fills out at Respondent's Hammonton and Newburgh offices Footnote 2, supra.
13 As he did not have his book with him, he telephoned Ambrose upon his return home
and told her his book number Render admitted that when a member of one local seeks
work in an area over which another local has jurisdiction, it is the regular practice and
procedure to give the latter local his membership book to enable it to make a record of
the fact that he is looking for work in its territory
14 The findings in this paragraph are based on the credited testimony of June Ambrose,
who was no longer employed by Respondent and who was testifting under subpena as a
witness for the General Counsel, and on the testimony of Render to the extent not in-
consistent with that of Ambrose I do not credit IIendeu's denial of Ambrose's testimony
that she told him to contact the Newark office
1s The findings in this paragraph are based on the credited testimony of Ambrose and
Geserick I do not credit Hender's testimony that lie was informed by Ambrose that
Respondent passed a new rule the first of the year that only members of Respondent
would be permitted to work in New Jersey
13 As a member of a sister local, seeking work in the territorial jurisdiction of Respond-
ent, Render had the choice of transferring into Respondent or of paying travel service
dues as provided in the International constitution . Render voluntarily elected to pay
1056 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to pay a discriminatory registration fee, and thereby violated Section 8(b)(2) and
(1) (A) of the Act. The Respondent contends that the refusal to refer Hender was
due, not to his failure to pay a registrant's fee, but to his failure to appear at the
Newark office to complete the required procedures for placing him on the referral
list. Respondent contends that if Hender had gone to the Newark office, as ad-
vised by Ambrose, it would have been made clear to him that he did not have to
pay any registration fee.
3. Concluding findings
Assuming that Hender were regarded as occupying the same status as a nonunion
registrant, as the General Counsel contended at the oral argument, a refusal to refer
Hender for failing to pay the required registrant's fee would not be violative of the
Act in view of my previous findings that conditioning employment opportunities
upon the payment of such a fee was not discriminatory but was permissive under the
Act. However, I am convinced and find, upon consideration of the entire record as
a whole, that the refusal to refer Hender to Homan was not due to Hender's failure
to pay the registrant's fee.
As previously found, in order for an applicant who is a member of a sister local
to become a registrant and be placed on the employment lists for referrals, he must
be interviewed at the Newark office and must fill out the white card, entitled "Regis-
tration Card." Such an applicant is not required to pay a registrant's fee after
filling out this card but it is not until he has filled out the white "Registration Card"
in the Newark office that he is first regarded as a qualified registrant and goes on the
referral lists. Prior to that time Respondent has no knowledge of the applicant
becoming a registrant.
Ambrose admitted that she has no authority initially to refer an applicant, such
as Hender, without first ascertaining from the Newark office that he had been
cleared and was entitled to go on the list. She had informed Hender that he would
have to contact the Newark office to make arrangements for his registration. Hender
admittedly did not contact the Newark office during the period material herein and
therefore had not been interviewed and had not filled out a required "Registration
Card." Consequently, when Ambrose called the Newark office to ascertain whether
Hender had been cleared and was entitled to be referred, she was informed that there
was no record of Hender ever having been to the Newark office and that they knew
nothing about him. Ambrose then refused to refer 'Hender because he had not been
cleared by the Newark office for placement on the referral list That Hender would
have been cleared and placed on the Hammonton referral list, without being, required
to pay the nonunion registrant's fee, if he had appeared at the Newark office and
had completed the necessary steps to become a qualified registrant, is apparent from
the fact that when on May 26, 1961, Hender did appear at the Newark office where
he filled out the required "Registration Card," he was placed on the Hammonton
referral list and was thereafter in June and July referred to jobs from the Ham-
monton office without having paid the registrant's fee.
Hender, the Charging Party and the only one claiming discrimination, was a
member of the International and of a sister local during the period in which the
discrimination was alleged to have occurred There is no question here of dis-
crimination between union and nonunion operators or between members in good
standing and members not in good standing. The record does not warrant a finding
that Respondent discriminated against Hender because of his failure to pay the
registrant's fee. Respondent was willing to accept Hender into membership if he
so desired, or to qualify him as a registrant and to place him on the referral list
without the payment of the registrant's fee if he preferred to remain a member of
his own local. What Respondent refused to do was to refer Hender for work, not
for discriminatory reasons, but because he had not taken the necessary steps for
registering and placement on the referral list. As Respondent had a lawful con-
tractual right to refer only those who were registered on its employment list, its
refusal to refer Hender for the above-stated reasons was not violative of the Act.17
the travel service dues. The International constitution provides that this is "an obliga-
tion arising as an incident of membership in the International Union," that "failure of a
traveling member to pay travel service dues shall not be used as a basis for any action
adversely affecting employment rights, except in accordance with the terms of a valid
union security agreement," and that "enforcement of the collection of travel service dues
shall be wholly a matter of internal union discipline "
17 See, e g, Local Union No. 106, United Brotherhood of Carpenters and Joiners of
America, AFL-CIO, et at (Otis Elevator Company, et at ), 132 NLRB 1444.
ELIAS BROTHERS BIG BOY, INC., ET C. 1057
For the foregoing reasons, I find that the General Counsel had not sustained the
allegations of the complaint that Respondent violated Section 8(b)(2) and (1) (A)
of the Act by failing and refusing to refer Hender to work for Homan during De-
cember 1960.
RECOMMENDED ORDER
Upon the basis of the foregoing findings, and upon the entire record in the case,
I hereby recommend that the complaint Abe dismissed in its entirety.
Elias Brothers Big Boy, Inc.; Greenfield Holiday, Inc.; and Holi-
day Drive In, Inc. and Local Joint Executive Board , Hotel and
Restaurant Employees , Bartenders International Union, AFL-
CIO
Elias Brothers Big Boy, Inc. and Bettie Gene Komorek. Cases
Nos. 7-CA-3207, 7-CA-3P238, and 7-CA-3255. June 29, 1962
DECISION AND ORDER
On February 1, 1962, Trial Examiner Robert E. Mullin issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the Intermediate Report
attached hereto. The Trial Examiner also found that Respondent
had not engaged in certain other unfair labor practices, and recom-
mended that the allegations in the complaint as to them be dismissed.
Thereafter, the Respondent filed exceptions to the Intermediate Report
and a supporting brief.' The General Counsel also filed exceptions
and a supporting brief.
The Board 2 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 briefs, and the entire record in
this case, and hereby adopts the Trial Examiner's findings, conclu-
sions, and recommendations except as modified below.
Respondent Elias had posted in at least one of its restaurants a
company rule which read, "No solicitations allowed in any Big Boy
'The complaint charged that Respondent Elias had discriminatorily discharged Bettie
Gene Komorek The answer admitted the discharge, but asserted it was for good cause
Respondent Elias now moves to amend its answer so that, in its amended form, the
answer would deny that Elias effected a discharge of Komorek We grant the motion
However, in so doing we note that the matter of Komorek' s termination was litigated, and
we adopt the Trial Examiner' s conclusion that the Respondent violated the Act by its
role in such termination
'Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its
powers in connection with this case to a three-member panel [Members Rodgers , Leedom,
and Brown]
137 NLRB No. 116.
649856-63-vol. 13 7-6 8