Local 841, Int'l Union of Operating Engineers

National Labor Relations Board - Board Decisions

Jan 30, 1962

135 N.L.R.B. 657 (N.L.R.B. 1962)

WINSTON & GREEN 657
CONCLUSIONS of LAW
1. Hod Carriers Building and Construction Laborers , Local 294, and Tunnel and
Rock Workers of America are labor organizations within the meaning of Section
2(5) of the Act.
2. By discriminating in regard to the hire and tenure of employment and the
.terms and conditions of employment ,of Turner, Andrus , and Fisher , thereby dis-
couraging membership in the Union , Respondent has engaged in and is engaging in
unfair labor 'practices within the meaning of Section 8 ( a)(3) of the Act.
3. By interfering with, restraining , and coercing its employees in the exercise of
the rights guaranteed in Section 7 of the Act , Respondent has engaged in and is
engaging in unfair labor practices within the meaning of Section 8(a) (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices within the mean-
ing of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
Local #841, International Union of Operating Engineers; AFL-
CIO [Avco , Construction , Inc.] and Kenneth E. Cooprider.
Case No. 25-CB-445. January 30, 1962
DECISION AND ORDER
. On October 13, 1961, Trial Examiner Morton D. Friedman issued
his Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and is 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. Thereafter the Respondent filed exceptions to the
Intermediate Report.,''
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, Fanning, and Brown].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Intermedi-
ate Report, the,exceptions, and the entire record in this proceeding,'
and hereby adopts the findings, conclusions, and recommendations of
the Trial Examiner.
ORDER
Upon the entire record in this proceeding, and pursuant to Section
10 (c) of the National Labor Relations Act, as amended, the National
Labor Relations Board hereby orders that Local #841, International
Union of Operating Engineers, AFL-CIO, its officers, representatives,
agents, successors, and assigns, shall:
'As the record and -the exceptions adequately present the issues and . the positions of
the parties, the Respondent's request for oral argument is denied.
135 NLRB No. 71.
634443-f f=uel 135=43
658 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1. Cease and desist from :
(a) Causing or attempting to cause Avco Construction, Inc., or any
other employer, to discharge Kenneth E. Cooprider because he is not a
member of the Respondent.
(b) Refusing to Kenneth E. Cooprider the use of the Respondent's
exclusive referral system because Cooprider is not a member of the Re-
spondent, provided that Cooprider makes application for referral in
accordance with the terms of the collective-bargaining agreement be-
tween the Respondent and Avco Construction, Inc., dated May 6,1959.
(c) In any like or related manner restraining or coercing employees
or applicants for employment in the exercise of their rights guaranteed
in Section 7 of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Notify Avco Construction, Inc., and Kenneth E. Cooprider, in
writing, that it has no objection to the employment of Cooprider and
that it will not refuse Cooprider the use of its exclusive referral system
provided that Cooprider makes application for referral in accordance
with the terms of the collective-bargaining agreement between Avco
Construction, Inc., and the Respondent dated May 6, 1959.
(b) Make Kenneth E. Cooprider whole for any loss of pay he may
have suffered by reason of the discrimination against him in the man-
ner set forth in the section of the Intermediate Report entitled "The
Remedy."
(c) Post at its office, referral office, and meeting hall in Terre Haute,
Indiana, copies of the notice attached hereto marked "Appendix." 2
Copies of said notice, to be furnished by the Regional Director for the
Twenty-fifth Region, shall, after being duly signed by the Respond-
ent's representative, be posted by the Respondent immediately upon
receipt thereof, and be maintained by it for 60 consecutive days there-
after, in conspicuous places, including all places where 'notices to its
members are customarily posted. Reasonable steps shall be taken by
the Respondent to insure that said notices are not altered, defaced, or
covered by any other material.
(d) Mail to the Regional Director for the Twenty-fifth Region
signed copies of the notice attached hereto marked "Appendix" for
posting, if Avco Construction, Inc., is willing, at the Zionsville, In-
di,ana, project, for 60 consecutive days in places where notices to em-
ployees are customarily posted. Copies of said notice, to be furnished
by the Regional Director for the Twenty-fifth Region, shall, after
being duly signed by Respondent's representative, be forthwith re-
turned to said Regional Director for such posting.
2In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order "
LOCAL 841, INT'L UNION OF OPERATING ENGINEERS 659
(e) Notify the Regional Director for the Twenty-fifth Region, in
writing, within 10 days from the date of this Order, what steps have
been taken to comply herewith.
APPENDIX
NOTICE TO ALL EMPLOYEES AND MEMBERS OF LOCAL #841, INTERNA-
TIONAL UNION OF OPERATING ENGINEERS, AFL-CIO
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify you that :
WE WILL NOT cause or attempt to cause Avco Construction, Inc.,
or any other employer, to discharge Kenneth E. Cooprider be-
cause he is not a member of Local #841, International Union of
Operating Engineers, AFL-CIO.
WE WILL NOT refuse to Kenneth E. Cooprider the use of our
exclusive referral system provided that registration for referral
is made in accordance with the terms of our collective-bargaining
agreement with' Avco Construction, Inc., dated May 6, 1959.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce any employee or applicant for employment in the
exercise of his rights guaranteed in Section 7 of the Act.
WE WILL make Kenneth E. Cooprider whole for any loss of pay
he may have suffered as a result of our discrimination against him.
LOCAL #841 INTERNATIONAL UNION OF
OPERATING ENGINEERS, AFL-CIO,
Labor Organization.
Dated---------------- By-------------------------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional
Office (614 ISTA Center, 150 West Market Street, Indianapolis, Indi-
ana ; Telephone Number, Melrose 2-1551) if they have any question
concerning this notice or compliance with its provisions.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
This proceeding, with all parties represented , was heard before the duly designated
Trial Examiner in Indianapolis , Indiana, on July 17 and 18 , 1961 , on the complaint
of the General Counsel and answer by the Respondent . The issue litigated was
whether Local #841, International Union of Operating Engineers , AFL-CIO, herein
called the Respondent or the Union , caused Avco Construction, Inc., herein called
Avco or the Company, to discharge Kenneth Cooprider because of Cooprider's lack
of membership in the Respondent in violation of Section 8(b)(1)(A ) and (2) of
the Act . All parties were afforded full opportunity to examine and cross-examine
660 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
witnesses , to introduce evidence, to present oral arguments, and thereafter to file
briefs. The parties waived oral argument . Briefs were received from the General
Counsel and from counsel for the Respondent.
Upon the entire record and from my observation of the witnesses, I make the
following:
FINDINGS OF FACT
I. THE BUSINESS OF AVCO CONSTRUCTION, INC.
Avco, an Indiana corporation, with its principal office and place of business in
Zionsville, Indiana, is engaged in general contracting work, primarily the construc-
tion of water and sewage treatment plants at various construction sites, including
the Zionsville, Indiana, construction site, with which this proceeding is concerned.
During the past 12 months, which is a representative period, in the course and con-
duct of its operations, Avco purchased, transferred, and delivered to its place of
business in Zionsville, Indiana, and other construction sites located in Indiana, goods
and materials valued in excess of $100,000, of which goods and materials valued
in excess of $100,000 were transported to said place of business in Zionsville and to
the construction sites located in the State of Indiana directly from States of the
United States other than the State of Indiana.
Accordingly, I find that Avco is engaged in commerce within the meaning of the
Act, and that it will effectuate the policies of the Act to assert jurisdiction in this
proceeding.
II. THE LABOR ORGANIZATION INVOLVED
Local #841, International Union of Operating Engineers, AFL-CIO, is a labor
'organization within the meaning of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Issues
The complaint alleges , in substance , that Avco and the Respondent maintained a
hiring agreement whereby Avco agreed to hire all its employees in operating engineer
classifications through the Respondents ; that the Respondent discriminatorily refused
Kenneth Cooprider the use of its hiring hall and caused Avco to discharge Cooprider
because the latter was not a member of the Respondent.
The answer denies the foregoing allegations . By way of defense , the Respondent
contends that it never demanded Cooprider 's discharge , and, in any event , did not
know that Cooprider was employed by Avco at the time of the alleged discharge.
Moreover the Respondent asserts that Cooprider did not follow the procedure set
up by the referral arrangement and that had he done so he would have been referred.
Thus, the principal issues are: (a ) Did the Respondent know that Cooprider was
employed by Avco? (b) Did the Respondent by the actions of its representatives
unlawfully cause Avco to discharge Cooprider ? (c) Was Cooprider's failure to
follow the established referral procedure a defense herein or were the acts of
Respondent's representatives of such a nature as to render futile any attempt by
Cooprider to follow the said procedures?
B. The Facts
1. The referral agreement and procedures
At the outset, it should be noted that there is no contention made that the re-
ferral agreement and procedures set up pursuant thereto are discriminatory or in any
way violative of the Act. The only contention made is that the benefits of the
agreement and procedures were discriminatorily denied to Cooprider who thereby
was deprived of employment. However, the agreement assumes importance by
reason of the Respondent's defense that Cooprider failed to follow referral pro-
cedures provided therein.
After providing that Avco obtain its operating engineer employees from the
Union, the agreement provides, among other things, for classification of applicants
for jobs into groups, the first priority group being those who have 4 years of ex-
perience in their job classifications in the area serviced by the referral office, in this
case the Terre Haute, Indiana, area. Cooprider would have qualified for inclusion
in this group. Moreover, the job in question, at Zionsville, Indiana, came under the
jurisdiction of the Terre Haute office.
In addition,, the agreement provides that, an applicant for referral may apply to
the referral office during the regular office hours- where he milst• give the necessary
information regarding his name, address, telephone number, and work history. Sup-
LOCAL 841, INT'L UNION OF OPERATING ENGINEERS 661
plementing this provision, the Union provides application cards to be filed by the
referral applicant on which are provided spaces for supplying the information out-
lined above. This card can be obtained only by calling personally at the referral
office, but it may be filled out and mailed back to the office. Oral application for
registration is never accepted so that a telephone call to the office would not fulfill
the requirements and would not qualify the individual for referral. From the ap-
plication card, a registration card is made out by clerks in the office, which card is.
a record of referrals for each individual. From these cards the lists are made in-,
order of priority as to the classification and date of registration.'
The agreement also provides that "employers may request a former employee for
referral on a job or project, and the referral office shall refer said former employee
to the job or project provided he is a properly registered applicant in the referrat
o f i c e , a and is available for work at the time of the request... .
2. Background-Cooprider's earlier relations with the Respondent
Prior to the time of the events hereafter related, Cooprider had been a crane
operator for about 23 years. In 1945, while working in the St. Louis, Missouri, area,
he had been a member of a local of the Operating Engineers but upon his return to
the Terre Haute area, some years prior to the events herein, Cooprider allowed his
membership to lapse. Nevertheless he had worked as a crane operator in the area
near and around Zionsville, Indiana, where he had his home, although he was not a
member of the Respondent Union which had jurisdiction over this area.
Late in 1959, or early 1960, while engaged as a crane operator for Avco on a
bridge construction job near Mooresville, Indiana, Cooprider was approached by
Gilbert M. Bosworth and Frank F. Rambis, respectively, president and assistant
business representative of the Respondent Union, who asked him to join. Coop-
rider refused giving as his reason that the job was nearing its end .3 Also, about the
same time, Bosworth spoke to Jerry Hugh Thomasson, Avco's job superintendent,
about Cooprider and wanted to work where the "scab" (Cooprider) was working.
However, Thomasson admitted that the Respondent did not request Cooprider's
discharge at that time?
3. The alleged discharge and refusal to refer
In the latter part of 1960, Avco was awarded a contract for the construction of a
sewage treatment plant at Zionsville, Indiana. Around the latter part of December
1960, Charles Atkinson, Avco's president, spoke to Cooprider, relating to him the
Company's plans to build the sanitary plant. At that time, Atkinson offered Coop-
rider a job as a crane operator on the project. Cooprider stated that he would
accept the offer because he was then working as a crane operator in Indianapolis and
that Indianapolis was too far from Zionsville where Cooprider had his home. Also,
Cooprider stated that he would prefer the type of work that Avco offered. Some-
time in late December 1960, Cooprider started to do some preliminary road grading
at the jobsite for Avco on a part-time basis and as an independent contractor. This
work ended by the first of the year.
In the early part of January, Cooprider actually did go to work as a crane operator
employee for Avco at the sewage plant jobsite. However, because of bad weather
the work was intermittent, and after working a few days each week for a period of
several weeks the weather forced an extended job shutdown. The equipment was
left at the jobsite with Cooprider as crane operator taking the key to the crane with
him. He also left his personal hand tools on the crane.
Both at the time that Atkinson first spoke to Cooprider and during the shutdown
caused by the weather, Atkinson asked Cooprider if .the latter had become a member
or had straightened out with the Respondent. Atkinson made it pretty clear to
Cooprider that this must be done. For example, Atkinson reminded Cooprider that
the Respondent had given him, Atkinson, some trouble at the Mooresville job a year
before that because Cooprider, who was working for the Respondent on the Moores-
ville job, had refused to join the Respondent. Cooprider promised that he would
attempt to get straightened out with the Respondent. Therefore, toward the latter
part of January, when the job was shut down because of the weather, Cooprider
called union headquarters in Terre Haute and spoke to Bosworth, the Respondent's
1 From the credited testimony of Oliver L. Conics, and Gilbert M. Bosworth.
2 Emphasis supplied.
3 From the credited testimony of Cooprider as corroborated in part by testimony of
Bosworth.
4 From the credited testimony of Thomasson.
,662 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
president and business agent. Cooprider told Bosworth that he wanted "to join
the Union either on a permit or on a card ." Bosworth recognized Cooprider and
asked the latter to give him his telephone number so that two union representatives
who were going to be in the Zionsville area that day could reach Cooprider.'
Bosworth further told Cooprider that the representatives would call him and talk to
him.5
On the same day, Rambis and Coulee , the Union's assistant business representa-
tives, called on Avco's president , Atkinson , at Atkinson's office in Zionsville. Also
present was Thomasson, Avco's job superintendent . One of the business representa-
tives asked Atkinson whether he was doing a job at Zionsville ( describing the sanitary
plantsite ) and Atkinson acknowledged that he was. The business representatives
then wanted to know how Atkinson was manning the job and why he had not called
the union referral office for operating engineers . Atkinson stated that he had not
thought that was necessary , at which time the union representatives reminded him of
the referral agreement , aforementioned , and stated that Atkinson should adhere
strictly to it . Atkinson promised that he would and then told the union representa-
tives that Cooprider had been doing some work and asked if Cooprider would become
a member in good standing would the Respondent refer him to the job. The answer
of one or the other was to the effect at that time they had numerous men unemployed
and it was unlikely that the membership would favor accepting Cooprider. One of
the representatives also stated that Cooprider had had an opportunity to join the
Union in 1959 but had refused 6
Although Bosworth had promised that the Respondent 's business representatives
would call on Cooprider on that day they did not . Cooprider waited for that call all
the next day. Finally , on the second day after Cooprider had first spoken to Bos-
worth he again called the latter. According to Cooprider , at the time of this second
call Bosworth 's tone was not friendly . Cooprider asked Bosworth why the men had
not called him and told Bosworth that he had waited for them . Bosworth answered
that he knew that this was so , that the men were up there and found out what was
going on between "you [Cooprider] and that damned company ." Then Bosworth
said to Cooprider , "you gave us a bad time at Mooresville , now we are going to
give you a bad time." Bosworth mentioned the referral agreement in the conversation
and said that the Union was going to have men up there every day on the job to make
sure that the Company lived up to it. He also , according to Cooprider , told the latter
that they had about 4,000 men unemployed and that all 4,000 men who were out of
work would be put to work before Cooprider would be given a job. With this,
according to Cooprider, the conversation became an argument in which Cooprider
threatened to go to the Labor Board.
Bosworth's version of this conversation differed somewhat. According to Bos-
worth, he told Cooprider that the business representatives evidently did not have the
time to contact Cooprider . Cooprider then stated that he wanted to come down and
see Bosworth with another member of the Union who lived in Zionsville and Bos-
worth told him that he could come in and see Bosworth anytime he wanted to, that
Bosworth was there every morning . Then Cooprider mentioned something about an
opportunity to go to work in Zionsville and Bosworth said that he had learned that
Avco had a job up there Then Bosworth explained to Cooprider that Avco had an
agreement with the Union and Avco was going to live up to that agreement and that
agreement contained hiring procedures and Avco was going to follow the procedure
as outlined . Whereupon Cooprider said something to the effect that Bosworth was
telling him he could not go to work and Bosworth denied that and said that he was
not telling Cooprider that the latter could not go to work ; he was merely telling
Cooprider that Avco was going to live up to its agreement with the Union . Bosworth
then testified that Cooprider threatened to file a charge with the Board at which point
Bosworth said that he did not care; he was not going to be threatened by anyone.
Bosworth admitted that he did not inform Cooprider about how to get on the out-of-
work list or whether Cooprider should register nor did Cooprider mention anything
to him about using the Union 's referral facilities.
I do not find, that the Cooprider and Bosworth versions of this second telephone
conversation differed so materially . I believe that both of the men remembered parts
of the conversation and gave their own interpretation to the actual facts. I find that
the testimony of both men established that (a) Cooprider explained that he had
been working for Avco, (b) that Cooprider was refused membership in the Union,
(c) that Bosworth told Cooprider that the agreement was to be strictly enforced,
(d) that the Union had been up to the job and had learned of Cooprider 's employ-
From the credited testimony of Cooprider.
From the credited testimony of Atkinson and Thomasson
LOCAL 841, INT'L UNION OF OPERATING ENGINEERS 663,
ment by Avco, (e) that Cooprider was told by Bosworth that all of the unemployed
men would be employed before Cooprider was, and (f) that Cooprider was not
made aware of the hiring hall procedures nor was it hinted that they would be avail-
able to him if he registered.
I also find that it was Cooprider's first call which first alerted the Union to the fact
that Avco was undertaking the sewage treatment plant and that Cooprider was work-
ing or about to work on that job. I find further that when the union representatives
found out that Cooprider was to be employed on the job, they informed Avco that
the latter would have to adhere strictly to their collective-bargaining agreement.
I also credit that portion of Cooprider's version of the second telephone call to the
effect that Bosworth did say to Cooprider "You gave us a bad time at Mooresville
now we are going to give you a bad time" and that the Union found out "what was
going on between you and that damn Company."
Later in the month of January, Atkinson asked Cooprider if the latter had done
anything about straightening out or joining the Union and Cooprider told him that
he had been unsuccessful. Around the same time Atkinson told Thomasson, Avco's
job superintendent, that Cooprider had not informed him whether he had joined
the Union and instructed Thomasson to call the union hall if he needed crane opera-
tors when the job opened up again, if Cooprider had not straightened out with the
Union. At some time after this last conversation between Thomasson and Atkinson
and before Thomasson did call the referral office for operating engineers, Thomasson
was visiting at Cooprider's home and told Cooprider that he -thought Atkinson was
not going to use Cooprider inasmuch as Cooprider had not straightened out with the
Respondent.
Finally, on February 13, the weather became good enough to reopen the job and
Thomasson called the union hall telling them that the job was starting up again and
asked if Cooprider was a member. Rambis took the call and told Thomasson that
Cooprider was not a member and thereupon Thomasson without any further refer-
ence to Cooprider asked Rambis to refer two men to the job. On that same day the
Union dispatched two members to the job and advised Thomasson who these men
were. One of the men, ,a crane operator, replaced Cooprider. On the next day, when
the men were to report to work, Thomasson sent a laborer from the job to Cooprider's
home to pick up the keys to the crane. This was the first knowledge that Cooprider
had that he was definitely discharged. That same day, or perhaps later in the week,
Cooprider visited the jobsite to get his tools which were left on the crane and Thomas-
son explained to him that the latter could do nothing about the situation, that the job
had to be filled by unionmen.
As can be seen from the foregoing, at no time did either Cooprider or Atkinson
specifically ask of the Union that Cooprider be referred as a union referral applicant
pursuant to the collective-bargaining agreement , or offer to follow the procedures
through which all applicants must advance in order to become eligible for referral
by the Union. Cooprider testified, and I credit him, that he did not know of the
referral procedures and was unaware that he was eligible thereunder. Moreover,
it is established that representatives of the Respondent neither offered to explain the
referral system to Cooprider nor offered him a job through the referral system.
Certainly, Cooprider did not go to the Terre Haute referral office to fill out a referral
application card?
C. Findings and conclusions
As heretofore stated, when Rambis and Coulee, the assistant business representa-
tives of the Union, visited the office of Atkinson, Avco's president, late in January
1961, Atkinson told them that Cooprider was doing some work. Atkinson also
asked whether Cooprider could become a member and be referred. Additionally,
Bosworth told Cooprider over the telephone during their second telephone conversa-
tion that he knew what Cooprider and Avco were up to. The foregoing is sufficient
to establish, and I find, that the Respondent knew that Cooprider had been working
for Avco and that Avco desired Cooprider to continue in its employ as crane opera-
tor on the Zionsville sewage treatment plant job.
Having thus disposed of the preliminary issue of the Respondent 's knowledge of
the employment status of Cooprider, there are now presented for disposition the
issues of whether the Respondent caused Avco to discriminatorily discharge Coop-
7 Although it is not charged that the Respondent operated its hiring hall in a dis-
criminatory fashion generally, it should be noted that it was testified credibly by Bosworth
and the two assistant union business representatives that others were working on jobs
throughout the area who had been referred by the Union who were not members of the
Union -Specific places of employment and individuals were not named.
664 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
rider and whether the Respondent unlawfully refused to Cooprider the use of its
referral facilities. While at first blush these issues seem to be separate, they are, in
fact, capable of a single resolution because the circumstances which caused Avco to
discharge Cooprider are the same circumstances which brought about Cooprider's
failure to be referred If there is a violation as to the first, there is a violation as
to the second.
There is no contention by the General Counsel that the Respondent did not have
the legal right to insist that Avco honor the terms of the collective-bargaining agree-
ment between the Respondent and Avco. The question presented here is whether the
Respondent was protected by its right to insist upon the honoring of the referral
agreement in view of the actions of its representatives and the circumstances under
which those actions occurred.
As noted above, Conlee and Rambis insisted that Avco live up to its part of the
agreement and hire only through the Respondent's referral system. At the same
time and in the same conversation, when Atkinson inquired of Conlee and Rambis
whether Cooprider could become a union member and be referred, the answer was
in the negative and to the effect that the Union had too many men out of work.
Thus, by insisting that Avco hire only through the Union and at the same time
anticipatorily refusing membership and referral to Cooprider, the Respondent, in
effect, did force Avco's hand in discontinuing Cooprider's employment.
However, Atkinson's inquiries with regard to Cooprider were made in the con-
text of union membership and not solely in terms of referral through the procedures
established by the agreement. Moreover, when Cooprider made telephonic inquiries
of Bosworth, the Respondent's president, some days later, he, too, spoke again in
terms of joining the Union "on a permit or card or something." None of the Re-
spondent's representatives stated that the Respondent would refuse to refer Cooprider
as a former employee requested by Avco to be referred pursuant to the agreement.
But, this question was not asked of them. As far as the record shows, Respondent
did not in fact refuse to refer any properly registered applicant On the basis of
these facts, the Respondent contends that it did nothing more than insist upon the
enforcement of the contract to the letter, that it had a legal right to do so, and
therefore since Cooprider did not register at the referral office there could not
have been a violation.
The General Counsel contends, however, that the Respondent went beyond merely
requiring that the lawful agreement be complied with and that the conduct of the
Respondent's representatives showed (1) the Respondent did not intend to refer
Cooprider under any circumstances and (2) that therefore had Cooprider gone
through the registration procedures his action would have constituted an empty and
futile gesture.
In answering this contention the history of the relationship between Cooprider
and the Respondent cannot be ignored. Cooprider had at least once before, at the
time he worked for Avco on the Mooresville bridge job, refused the invitation of
Bosworth to join the Union. Bosworth, at about that time in his conversation with
Thomasson, Avco's job superintendent, called Cooprider a scab.
From this can be drawn the inference that Respondent had little regard for Coop-
rider. This inference is bolstered by the statement of Bosworth to Cooprider during
their second January telephone conversation to the effect that Cooprider had given
the Respondent a hard time and in return the Respondent was going to give Coop-
rider a hard time. Moreover, it is not unreasonable to assume that unions generally
do not favor individuals who refuse to become members and yet occupy positions
which would otherwise be open to union members.
However, it is doubtful whether this alone would establish that the Union would
have refused Cooprider had he registered. One more factor of the case must be
considered. As noted above, when Cooprider made his two telephonic inquiries
of Bosworth in January, Cooprider did not ask whether if he registered at the referral
office would he be referred. He simply asked if he could join the Union and be
referred either on a permit or on a card. Bosworth, angered by Cooprider's past be-
havior and by what he termed was going on between Cooprider and Avco, did not
inform Cooprider of the manner in which the referral system was operated nor did
he offer to refer Cooprider if Cooprider would come in and register. He thus left
Cooprider, who did not know of the lawful referral system, with the impression
that membership was necessary for referral and that Cooprider would not be wel-
come to become a member . And this is the same impression left with Atkinson,
Avco's president, when Conlee and Rambis told Atkinson that Cooprider could not
become a member.
Under the foregoing circumstances it cannot be said that the Respondent 's repre-
sentatives were not under a duty to correct the given impression. Thus I make the
LOCAL 841, INT'L UNION OF OPERATING ENGINEERS 665
further inference that they utilized this means to convey to both Atkinson and
Cooprider that the latter could not be referred unless he became a member and
furthermore that Cooprider would not be accepted into membership. In thus con-
cluding I do not overlook the uncontroverted testimony of Bosworth that men were
working on jobs in the Respondent's jurisdiction who were referred to those jobs
by Respondent and who had been rejected for membership in the Respondent. This
is not sufficiently persuasive, in my judgment, to overcome the evidence of the bad
blood that existed between Cooprider and the Respondent, and that the Respondent,
in the final analysis, made it apparent to Cooprider that he (if no others) would
not be referred because of lack of union membership.8
Accordingly, I find that under all of the circumstances herein presented the Re-
spondent caused Avco to discriminatorily discharge Cooprider and furthermore dis-
criminatorily refused Cooprider the use of the lawful referral system set forth in
the collective-bargaining agreement. By these actions the Respondent violated
Section 8(b) (2) and (1) (A) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in con-
nection with the operations of the Company set forth in section I, above, have a
close, intimate, and substantial relation to trade, traffic, and commerce among the
several States, and lead to labor disputes burdening and obstructing commerce and
the free flow thereof.
V. THE REMEDY
Having found that the Respondent has engaged in unfair labor practices in viola-
tion of Section 8(b)(2) and (1) (A) of the Act, it will be recommended that it cease
and desist therefrom and take certain affirmative action designed to effectuate the
policies and purposes of the Act.
It having been found that Respondent caused the Company discriminatorily to
discharge Kenneth E. Cooprider on February 14, 1961, it will be recommended that
the Respondent cease and desist therefrom and notify the Company and Kenneth
E. Cooprider, in writing, that it has no objection to the employment of Cooprider
provided Cooprider registers for referral with the Respondent in the manner pre-
scribed in the collective-bargaining agreement between the Company and the Re-
spondent dated May 6, 1959. It will be further recommended that the Respondent
make Cooprider whole for any loss of earnings he may have suffered by reason of
the discrimination against him, by the payment of a sum of money equal to that
which he would normally have earned from the date of the discrimination to a date
5 days.after the giving of the aforesaid notice, or the date of completion by the
Company of the Zionsville sewage disposal plant project, whichever shall first occur,
less his net earnings during said period. Backpay shall be computed on a quarterly
basis in a manner consistent with the policy established by the Board in F. W. Wool-
worth Company, 90 NLRB 289.
It will also be recommended that the Respondent cease and desist from discrimi-
natorily refusing to Kenneth Cooprider the use of its referral office and to register
Cooprider provided that Cooprider makes proper application for referral in accord-
ance with the aforesaid agreement.
In view of the nature of the unfair labor practices committed, the commission of
similar and other unfair labor practices reasonably may be anticipated. I shall
therefore recommend that the Respondent be ordered to cease and desist from in any
manner infringing upon the rights guaranteed to employees under the provisions of
the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. Local #841, International Union of Operating Engineers, AFL-CIO, is a
labor organization within the meaning of Section 2 (5) of the Act.
2. By causing the Company to discriminate against Kenneth E. Cooprider within
the meaning of Section 8 (a) (3) of the Act, the Respondent has engaged in and is
engaging in unfair labor practices within the meaning of Section 8(b) (2) of the Act.
3. By the aforesaid conduct, the Respondent has also restrained and coerced
8In making his conclusion I do not mean to infer that under all circumstances it
would be necessary for a union to inform a prospective employee of its referral system.
The conclusion to which I have come is based upon the peculiar circumstances of this case.
666 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees in the exercise of rights guaranteed in Section 7 of the Act, and thereby
has engaged in and is engaging in unfair labor practices within the meaning of Sec-
tion 8(b)(1)(A) oftheAct.
4. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
M. Eskin & Son and William R . Gerics
Confectionery and Tobacco Drivers and Warehousemen's Union,
Local 805, International Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America and William R. Gerics.
Cases Nos. 22-CA-555 and 22-CB-246. January 30, 1962
DECISION AND ORDER
On January 12, 1961, Trial Examiner Ralph Winkler issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondents had engaged in and were engaging in certain unfair
labor practices and recommending that they cease and desist there-
from and take certain affirmative action, as set forth in the Inter-
mediate Report attached hereto. The Trial Examiner found that the
Respondents had not engaged in certain other unfair labor practices
alleged in the complaint. Thereafter, the Respondents and the Gen-
eral Counsel filed exceptions to the Intermediate Report and support-
ing briefs.
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record in
these cases, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner, with the following exceptions, ad-
ditions, and modifications.
As set forth in the Intermediate Report, the Respondent Employer
and the Respondent Union were parties to a contract containing a no-
strike clause when 21 of the Employer's 25 employees, on December 2,
1959, walked out in violation of this contract. On the following day,
the Respondent Employer discharged the strikers. In the course of
State court proceedings on the Respondent Employer's request for
an injunction, settlement terms, including reinstatement of all
strikers, were agreed upon but no settlement agreement was executed.
Thereafter, the Employer refused to reinstate 9 strikers, referred to
as the "out" group, but offered to reinstate the other 12, referred to as
the "in" group, on condition that they obtain clearance from the
Union. The General Counsel excepts, inter alia, to the Trial Exam-
135 NLRB No. 61.