Local Union No. 450, Int'l Union of Operating Engrs.

National Labor Relations Board - Board Decisions

Dec 19, 1958

122 N.L.R.B. 564 (N.L.R.B. 1958)

564 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IT IS HEREBY ORDERED that the Petitioner's request to withdraw
the petition be, and it hereby is, granted with prejudice to its filing
a new petition for a period of 6 months from the date of this Order,
unless good cause is shown why the Board should entertain a new
petition filed prior to the expiration of such period.
Local Union No. 450, International Union of Operating Engi-
neers, AFL-CIO, and W. S. Chennault , business representative
[Tellepsen Construction Company ] and J. R. Rittenberry,
Charging Party. Case No. 39-CB-120. December 19, 1958
DECISION AND ORDER
On December 19, 1956, Trial Examiner Harry S. Sahm issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondents had engaged in and were engaging in certain unfair
labor practices and recommending that they cease and desist there-
from and take certain affirmative action, as set forth in the copy
of the Intermediate Report attached hereto. Thereafter, the Re-
spondents filed exceptions to the Intermediate Report and a sup-
porting brief.'
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
Intermediate Report, the exceptions and briefs, and the entire record
is the case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner with the exceptions, modifica-
tions, and additions noted below.
1. We agree with the Trial Examiner that the Respondents, in
violation of Section 8(b) (2) of the Act, caused the Company dis-
criminatorily to deny employee Rittenberry a promotion to master
mechanic because he was not a member in its organization for 3 years.
As shown in the Intermediate Report and the record, the Re-
spondent Union and the Company were parties to a contract which
required that .the master mechanic be a "practical mechanic of the
craft . . . and have three (3) years or more of experience at . . .
[his] trade." In April 1955, Farmer, the Company's superintendent,
told employee Rittenberry that he might surprise him and make
him a master mechanic. Rittenberry, who had joined the Respondent
Union 2 years earlier, had experience in the trade dating back to
I As the record, exceptions, and brief adequately present the issues and positions of
the parties, the Respondents' request for oral argument is denied.
3 Because of their disagreement with the Trial Examiner 's findings and recommenda-
tions , the Respondents charge the Trial Examiner with bias and prejudice . We find no
evidence in the record of bias or prejudice or merit in this contention.
122 NLRB No. 78.
LOCAL UNION NO. 450, INT'L UNION OF OPERATING ENGRS. 565
1927. Following this conversation, Farmer telephoned the Respond-
ent Union's business agent, the Respondent Chennault, and notified
him of the contemplated promotion of Rittenberry. Although
Chennault originally indicated in this conversation his satisfaction
with this appointment, he later telephoned Farmer and told him
that Rittenberry's union book or card showed that he lacked the
3 years' experience as required by the contract. Thereafter, Farmer,
with Chennault's approval, selected Cannard as master mechanic.
The Respondents contend that the denial of the promotion to
Rittenberry was the voluntary act of the Company; that the Union's
approval was not necessary; and that all Business Agent Chennault
did was to point out that Rittenberry lacked the 3 years' required
experience. We find no merit in these contentions. Significantly,
the Respondents do not, nor could they validly, argue that Ritten-
berry actually did not possess this experience. As indicated above,
Rittenberry's experience in the trade began in 1927. Moreover, the
Respondents were fully aware of this fact for, when Rittenberry
joined the Union 2 years earlier he had given them this information.
It is thus clear that the Respondents' opposition to Rittenberry's
promotion stemmed not from inadequate experience but from the
fact that he had not been a member of the Union for 3 years.
That the Respondents caused this discrimination is also clear.
Concededly, the Respondents purported to act pursuant to the terms
of the contract which prescribed the qualifications of the master
mechanic. As it was the Respondents' opposition to Rittenberry's
promotion for reasons related to union membership which prevented
Rittenberry from obtaining a promotion he otherwise would have
secured, the Respondents thereby caused the Company to discriminate
against him within the meaning of Section 8(b) (2) of the Act.3
We further find that, by such conduct, the Respondents restrained
and coerced employees in the exercise of their rights in violation of
Section 8(b) (1) (A) of the Act.
2. The Trial Examiner also found that, although the contractual
provision recognizing the Respondent Union as a source for securing
operating engineers was lawful,4 the Respondent Union, in practice,
maintained an exclusive hiring hall for the Company, which was
operated in an unlawful manner by giving preference in employment
to union members in good standing. He therefore found that the
s Radio Officers ' Union etc. v. N.L.R.B., 347 U.S. 17; ef. N.L.R.B. v. International
Union of Operating Engineers etc. (Sub Grade Engineering Co.), 216 F. 2d 161, 164
(C.A. 8), enfg. 93 NLRB 406; N.L.R.B. v. Bell Aircraft Corporation, 206 F. 2d 235
(C.A. 2), enfg. 101 NLRB 132.
4 The General Counsel concedes the validity of the contract clause which provides that
the Company-
recognize [s] the Union as a source of such skilled manpower and will, therefore, use
it as a source when in need of employees . The Union agrees that when Contractors
request employees , it will exert every effort to supply skilled men.
566 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondents thereby violated Section 8(b) (2) of the Act. The
Respondents deny the existence of an exclusive hiring-hall arrange-
ment and, in any event, insist that the referral system was operated
on a nondiscriminatory basis. For the reasons hereinafter stated,
we agree with the Trial Examiner's unfair labor practice findings
and find no merit in the Respondents' contentions.
As shown in the intermediate Report and the record, it was the
function of the master mechanic, a supervisory employee, to recruit
engineers for the Company when the Company requested him to do
so. To secure the needed engineers, the master mechanic utilized
exclusively the Respondent Union's hiring hall. The master me-
chanic, whose selection was required by the terms of the contract
between the Respondent Union and the Company when a specified
number of engineers was employed, was a union member. As
indicated previously, such appointment was subject to the Union's
approval. As a member of the Respondent Union, the master
mechanic was obligated to abide by the International Union's con-
stitution, which provided that "each shall hire none but those in
good standing with a union having jurisdiction over the work to
be done ....75
It thus follows that the master mechanic served in a dual capacity-
as agent of the Company in recruiting engineers and as agent of
the Respondent Union bound to enforce its constitutional hiring
restrictions. In such circumstances, we find that the Company and
the Respondent Union, in effect, agreed through the master mechanic
as their agent to operate under a closed-shop arrangement which
the Act plainly prohibits.-
The discriminatory nature of the hiring arrangement between the
Respondent Union and the Company is further revealed by other
evidence in the case. Thus, the only persons referred by the Union
were union members. In addition, Business Agent Chennault testi-
fied that the Union's out-of-work list was maintained solely for
union members. Moreover, as discussed in the Intermediate Report,
and later in this decision, the Union made Rittenberry's good stand-
ing in its organization a condition of employment when it refused
to place Rittenberry's name on the Union's out-of-work list because
5Art. XXIII, subdivision 3, Section (a). Although a union's constitution and bylaws
may be used as evidence of an unfair labor practice , the Trial Examiner is in error in
indicating that the constitutional provision itself was illegal. Joliet Contractors Asso-
ciation v. N.L.R.B., 202 F. 2d 606, 608-609, 612 (C.A. 7), enfg. as mod. 99 NLRB 1391,
1394, cert . denied 346 U.S. 824.
e Enterprise Industrial Piping Company , 117 NLRB 995 ; Booth and Flinn Company,
120 NLRB 545.
In finding that master mechanics were agents of the Union , we do not rely , as did the
Trial Examiner in part, on the fact that there was "some indication " that when there
was no steward on the job the responsibility of enforcing the Union's rules devolved upon
the master mechanics . The Trial Examiner did not permit the General Counsel to adduce
such evidence.
LOCAL UNION NO. 450, INT'L UNION OF OPERATING ENGRS . 567
of his failure to picket or pay the $22.50 fine or assessment, and
when Master Mechanic Cannard, as the Respondent Union's agent,
refused, pursuant to the Union's instructions, to ask for Rittenberry's
referral until he straightened out his picketing difficulties with the
Union. Finally, the Union threatened Rittenberry with expulsion
and the consequent loss of employment if he did not withdraw his
charges filed herein. This also indicated that membership in good
standing in the Union was a condition of employment.?
In the recent Mountain Pacific case," the Board held that an ex-
clusive hiring-hall agreement between an employer and a labor
organization is permissible if certain safeguards against discrimina-
tion are provided. It is obvious that not only were such safeguards
not provided here but the hiring hall was actually operated for
benefit of union members in good standing.
Accordingly, we find that, by maintaining an exclusive hiring-hall
arrangement with the Company, which gave preference in employment
to union members in good standing, the Respondents violated Sec-
tion 8(b) (2) and (1) (A) of the Act.
3. We agree with the Trial Examiner that the Respondents vio-
lated Section 8(b) (2) and (1) (A) of the Act by causing the
Company to discriminate against Rittenberry in violation of Sec-
tion 8(a) (3). We find, as did the Trial Examiner, that the Re-
spondents refused to place Rittenberry on the out-of-work list and
to return him to his prestrike job when work became available
because of his failure to perform picket-line duty or pay the $22.50
fine or assessment imposed upon him. As Rittenberry could not be
reemployed without the Respondent Union's clearance, we find that
the delay in his reemployment was the direct result of the operation
of the discriminatory hiring system.° Moreover, separate and apart
from the existence of a discriminatory hiring arrangement, the Re-
spondent Union caused the Company to discriminate against Ritten-
7 In finding an illegal hiring-hall arrangement, we, unlike the Trial Examiner, do not
rely on the written statements given by Company Superintendents Farmer and Looper.
The County Electric case, 116 NLRB 1080, cited by the Trial Examiner, is inapplicable,
as it deals with admissions of "responsible representatives" of respondent parties in a
proceeding. The Company in the present case is not a respondent party.
8 Mountain Pacific Chapter of the Associated General Contractors, Inc., 119 NLRB 883.
Such agreement or arrangement must provide that:
(1) Selection of applicants for referral to jobs shall be on a nondiscriminatory basis
and shall not be based on, or in any way affected by, union membership, bylaws,
rules, regulations, constitutional provisions, or any other aspect or obligation of
union membership, policies, or requirements.
(2) The employer retains the right to reject any job applicant referred by the
union.
(3) The parties to the agreement post in places where notices to employees and
applicants for employment are customarily posted, all provisions relating to the
functioning of the hiring arrangement, including the safeguards that we deem essen-
tial to the legality of an exclusive hiring agreement.
See also Joe K. Miller, d/b/a K.M. & M. Construction Co., 120 NLRB 1062.
8 N.L.P.B. v. Local 369, International Hod Carriers', etc. (A. C. Frommeyer Co.),
240 F. 2'd 539, 544 (C.A. 3), enfg. as mod. 114 NLRB 872.
568 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
berry by reason of Master Mechanic Cannard's refusal to hire him
until he straightened out his picket-line difficulties with the Re-
spondent Union. The record shows that Rittenberry had spoken
to Cannard on two occasions about returning to work and that the
Union had instructed Cannard not to request Rittenberry until he
had adjusted his picket-line difficulties with the Union. In so doing,
Cannard was acting as the Respondent Union's agent, not only as
a result of these instructions, but also as a union member bound
by the Union's constitution to hire only union members in good
standing.10 We therefore find that the Union was responsible for
Cannard's conduct in imposing a discriminatory condition of employ-
ment in contravention of the prohibition in the Act.
The Respondents contend, however, that no violation could be
found because no jobs were available at the time Rittenberry re-
quested referral or applied for his prestrike job. We find no merit
in this contention. It is well settled that discrimination may be in-
ferred where it is clear that the existence of a discriminatory hiring
practice and the union's attitude toward the applicant would make
.reapplication futile when a job did open up.11 This is precisely the
situation in the present case.
4. We also agree with the Trial Examiner's finding that the Re-
spondents, in violation of Section 8(b) (1) (A) of the Act, threatened
Rittenberry with loss of employment if he did not withdraw the
charges he had previously filed with the Board. The Respondents'
exceptions to the Trial Examiner's finding are based primarily on
their disagreement with the Trial Examiner's credibility findings.
We perceive no reason to disturb these findings.12
5. Finally, the Respondents contend, in substance, that the unfair
labor practices alleged in the complaint are not supported by a
charge, as required by Section 10(b) of the Act. We do not agree
with this contention.
The charge filed herein alleges that the Respondents, in violation
of Section 8(b) (1) (A) and (2) of the Act, caused the Company to
"terminate the employment of Rittenberry" and that the Respondents
restrained and coerced employees of the Company in the exercise
of the rights guaranteeed in Section 7 of the Act. In our opinion,
these allegations are sufficiently related to, and broad enough to
encompass, the allegations of the complaint. Accordingly, as the
unlawful conduct alleged in the complaint occurred within 6 months
prior to the filing and service of the charge herein, we find that
Section 10(b) does not bar the complaint.
10 United Brotherhood of Carpenters and Joiners of America, Local #517 (Gil Wyner
Construction Company), 112 NLRB 714, 716, enfd. 230 F. 2d 256 (C.A. 1).
n N.L.R.B. v. Local 369, International Hod Carriers', etc., supra, at p. 544.
12 Standard Dry Wall Products, Inc., 91 NLRB 544, enfd. 188 F. 2d 362 (C.A. 3) ; cf.
N.L.R.B. v. Universal Camera Corporation, 190 F. 2d 429 (C.A. 2), on remand from
Universal Camera Corp. v. N.L.R.B., 340 U.S. 474.
LOCAL UNION NO. 450, INT'L UNION OF OPERATING ENGRS. 569
THE REMEDY
To remedy the unfair labor practices herein, we shall adopt the
Trial Examiner's recommendations except as modified herein.
We have found that the Respondents have operated an unlawful
exclusive hiring hall pursuant to an arrangement. with the Com-
pany. We shall therefore order them to cease and desist from
entering into, maintaining, or giving effect to such arrangement,
agreement, or understanding with the Company or any other em-
ployer over whom the Board will assert jurisdiction, which does
not provide for the safeguards prescribed in the Board's decision in
Mountain Pacific and which is not enforced in a nondiscriminatory
manner.13
We have also found that, under the hiring-hall arrangement be-
tween the Respondent Union and the Company, membership in good
standing was unlawfully imposed as a condition for securing and
retaining employment with the Company, thereby inevitably co-
ercing employees not only to become members in good standing in
the Respondent. Union but also to pay the Respondent Union
initiation fees, dues, and other sums. The payment of such moneys
thus constituted the price employees had to pay for their jobs in
disregard of their statutory rights. In order to expunge the
coercive effects of such illegal exactions, we find it necessary and
appropriate in effectuating the policies of the Act to direct the
Respondent Union to refund the moneys so collected from the
Company's employees.14 Otherwise, the Respondent Union would
be permitted to enjoy the fruits of its own unfair labor practices.
However, in conformity with Section 10(b) of the Act, the Re-
spondent Union's liability shall be limited to moneys collected during
the period beginning 6 months before the filing and service on it
of the charge herein.
The evidence of the Respondents' unlawful conduct herein per-
suades us that there is a reasonable likelihood that the Respondents
will engage in similar unfair labor practices with respect to em-
ployees of other employers unless they are enjoined. Moreover,
Board records disclose that the Respondents have committed other
violations of the Act.15 In addition, as found above, the Respond-
13 Mountain Pacific Chapter of the Associated General Contractors, Inc., 119 NLRB 883.
14 Cf. United Association of Journeymen & Apprentices of the United States and Canada,
Local 231, AFL-CIO (J. S. Brown-E. F. Olds Plumbing & Heating Corporation), 115
NLRB 594; Harold Hibbard and Ben R. Stein d/b/a Hibbard Dowel Co., 113 NLRB 28;
N.L.R.B. v. Broderick Wood Products Co., et at., 261 F. 2d 548 (C.A. 10). Contrary to
the implication in the Intermediate Report, we find that the requirement of membership
in good standing as a condition of employment establishes that the Respondent Union
coerced employees into paying these moneys. Moreover, we find that the power to direct
the refund herein is an incident of the Board's general authority to order such affirmative
action to remedy an unfair labor practice as will effectuate the policies of the Act. Ibid.
15 See, for example, Local 450, International Union of Operating Engineers, AFL-CIO
(Construction Employers etc. and Tampco Piping, Inc.), 120 NLRB 568; Local 450,
International Union of Operating Engineers, AFL-CIO (W. J. Hedrick and H. W.
Marschall, Jr., d/b/a Industrial Painters and Sand Blasters), 117 NLRB 1301.
570 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ents have caused the Company unlawfully to discriminate against
Rittenberry. Therefore, to effectuate the policies of the Act, we
shall order the Respondents to cease and desist from causing other
employers over whom the Board will assert jurisdiction to dis-
criminate against their employees or applicants for employment,
and from in any other manner restraining or coercing employees
in the exercise of their statutory rights.
ORDER
Upon the entire record in the case, and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National
Labor Relations Board hereby orders that the Respondent, Local
Union No. 450, International Union of Operating Engineers, AFL-
CIO, its officers, representatives, agents, successors, and assigns, and
the Respondent, W. S. Chennault, its business representative, shall:
1. Cease and desist from :
(a) Entering into, performing, maintaining, or otherwise giving
effect to any agreement, arrangement, or understanding with Tel-
lepsen Construction Company, or any other employer over whom
the Board will assert jurisdiction, which conditions the hiring of
applicants for employment, or the retention of employees in their
jobs, with such employer upon clearance or approval by the said
Respondents, or which conditions employment upon membership in
the Respondent Union, except as authorized by Section 8(a) (3) of
the Act.
(b) Causing or attempting to cause Tellepsen Construction Com-
pany, or any other employer over whom the Board will assert
jurisdiction , to discriminate against J. R. Rittenberry, or any other
employee or applicant for employment, in violation of Section 8(a)
(3) of the Act,
(c) Threatening J. R. Rittenberry or any other employee with loss
of employment if he refuses to withdraw any unfair labor practice
charge filed by him with the National Labor Relations Board.
(d) In any other manner restraining or coercing employees in
the exercise of their rights guaranteed in Section 7 of the Act, except
to the extent that such rights may be affected by an agreement re-
quiring membership in a labor organization as a condition of em-
ployment as authorized by Section 8(a) (3) of the Act.
2. Take the following affirmative action, which the Board finds
will effectuate the policies of the Act :
(a) Make whole J. R. Rittenberry for any loss of earnings he
may have suffered because of the discrimination against him, in the
manner set forth in the section of the Intermediate Report entitled
"The Remedy."
LOCAL UNION NO. 450, INT'L UNION OF OPERATING ENGRS. 571
(b) Refund to all present and former employees of Tellepsen
Construction Company any initiation fees, dues, or other moneys
they were illegally required to pay the Respondent Union in order
to secure or retain employment with the said Company under the
illegal hiring arrangement between the Respondent Union and the
Company during the period beginning 6 months before the filing
and service upon the Respondent Union of the charge in this
proceeding.
(c) Preserve and make available to the Board or its agents upon
request, for examination and copying, all records, reports, out-of-
work lists, and other documents necessary to analyze the amounts
of moneys due and the rights of employment under the terms of this
Order.
(d) Post in the Respondent Union's business offices and meeting
halls copies of the notice attached hereto marked "Appendix."'s
Copies of said notice, to be furnished by the Regional Director for
the Sixteenth Region, shall, after being duly signed by an authorized
representative of the Respondent Union and by the Respondent
Chennault, be posted by the said Respondents immediately upon
receipt thereof, and be maintained by them for a period of sixty (60)
consecutive days thereafter in conspicuous places, including all places
where notices to members are customarily posted. Reasonable steps
shall be taken by the Respondents to insure that the said notices
are not altered, defaced, or covered by any other material.
(e) Mail to the Regional Director for the Sixteenth Region
signed copies of the notice attached hereto as an appendix for
posting at the offices of Tellepsen Construction Company and project
sites where the said Company is engaged in business within the
territorial jurisdiction of the Respondent Union, in places where
notices to the Company's employees are customarily posted, if the
said Company is willing to do so.
(f) Notify the Regional Director in writing, within ten (10) days
from the date of this Order, as to what steps the Respondents have
taken to comply herewith.
19 In the event that this Order Is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the wards "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order."
APPENDIX
NOTICE TO ALL MEMBERS OF LOCAL UNION No. 450, INTERNATIONAL
UNION OF OPERATING ENGINEERS, AFL-CIO; TO ALL EMPLOYEES
OF TELLEPSEN CONSTRUCTION COMPANY; AND TO ALL APPLICANTS
FOR EMPLOYMENT
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby given notice that :
572 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT enter into, perform, maintain, or otherwise give
effect to any agreement, arrangement, or understanding with
Tellepsen Construction Company, or any other employer over
which the National Labor Relations Board will assert juris-
diction, which conditions the hiring of applicants for employ-
ment, or the retention of employees in their jobs, with such
employer upon clearance or approval by us, or which conditions
employment upon membership in our organization, except as
authorized by Section 8(a) (3) of the Act.
WE WILL NOT cause or attempt to cause Tellepsen Construction
Company, or any other employer over which the Board will
assert jurisdiction, to discriminate against J. R. Rittenberry, or
any other employee or applicant for employment, in violation
of Section 8(a) (3) of the Act.
WE WILL NOT threaten J. R. Rittenberry or any other employee
with loss of employment if he refuses to withdraw any unfair
labor practice charge filed by him with the National Labor
Relations Board.
WE WILL NOT in any other manner restrain or coerce employees
in the exercise of their rights guaranteed in Section 7 of the
Act, except to the extent to which such rights may be affected
by an agreement requiring membership in a labor organization
as a condition of employment as authorized by Section 8(a) (3)
of the Act.
WE WILL make J. R. Rittenberry whole for any loss of pay
suffered as a result of the discrimination against him.
WE WILL refund to all employees of Tellepsen Construction
Company any initiation fees, dues, or other moneys they were
illegally required to pay in order to secure or retain employment
with the said Company under the illegal hiring arrangement
between our Union and the said Company during the period
beginning 6 months before the filing and service upon us of the
unfair labor practice charge in this proceeding.
LOCAL UNION No. 450, INTERNATIONAL UNION
OF OPERATING ENGINEERS, AFL-CIO,
Labor Organization.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
W. C. CHENNAULT,
Business Agent.
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
LOCAL UNION NO. 450, INT'L UNION OF OPERATING ENGRS. 573
INTERMEDIATE REPORT
BACKGROUND
J. R. Rittenberry , the Charging Party herein , went to work for the Tellepsen Con-
struction Company on March 3, 1953, operating a welding machine. Shortly before
going to work, Rittenberry joined the Respondent Union which had a collective-
bargaining agreement with the Houston Chapter of Associated General Contractors
of America, Inc., of which Tellepsen Construction Company is a member. This
agreement, relevant provisions of which are attached hereto as Appendix B, pro-
vided, inter alia, that the Company would use the Union as a manpower source to
supply it with construction employees.
The General Counsel claims that sometime in April 1955 , the Company sought
to make Rittenberry a master mechanic , a supervisory position,' but that the Union
refused to agree to his promotion for proscribed reasons. The Union defends its
action by pointing out that inasmuch as its agreement with the Company provided
that master mechanics must have at least 3 years ' experience at their trade, and
Rittenberry did not, he was ineligible for the promotion . The General Counsel
counters this defense by alleging that this 3 years' experience provision was interpreted
by the Union to mean that an employee must have been a member of the Union for
3 years before he could be eligible to become a master mechanic , and since it is
undenied that Rittenberry had such experience the Union 's refusal to agree to his
promotion under these circumstances was a violation of the Act.
On July 20, 1955 , at a time when the Charging Party, Rittenberry , was on his
vacation , the Union went on strike . The strike lasted until Sunday , August 14, 1955.
The following day, Rittenberry went to the union hall and was told by the union
officials that because he had not walked the picket line during the strike his name
would be placed at the bottom of the out-of-work list. The Union denies this, claim-
ing that Rittenberry did not return to work because there was no job for him when
the strike ended and that one did not become available until March 20, 1956, when
he returned to work.
The General Counsel also alleges that shortly before the hearing commenced in
this proceeding union officials threatened Rittenberry with expulsion from the Union
which is the equivalent of loss of his job, if he did not change or withdraw his then
pending charge which he had filed with the Board . The Union denies this accusation.
1. FINDINGS OF FACT
It is conceded and found that the Respondent Union is a labor organization within
the meaning of Section 2(5) of the Act. It is conceded also that the Tellepsen
Construction Company, herein referred to interchangeably as Tellepsen and the
Company, is engaged in general construction . It has a contract with the Dow
Chemical Company under which it performs maintenance , repair, and construction
work as an independent contractor for the Dow Chemical Company at its plants
A and B, located at Velasco and Freeport, Tex. respectively.' Tellepsen also
performs services in the State of Louisiana for Esso Standard Oil Company, and
for Gulf Interstate Company, a natural gas transmission company. Tellepsen in the
course and conduct of its business during the 12-month period from April 1955 to
April 1956 , which period is representative of all times material hereto, performed
services for Dow Chemical Company at its plants A and B in excess of $1,000,000. In
addition, Tellepsen performed services outside the State of Texas for Esso Standard Oil
Company in excess of $50,000, and also performed services for Gulf Interstate
Company in excess of $50,000, both of which are located in the State of Louisiana.
Dow Chemical Company ships chemical products valued in excess of $1,000,000
annually to points outside the State of Texas; Esso Standard Oil Company ships
petroleum products in excess of $200 , 000 annually to points outside the State of
1 The General Counsel contends and Respondent denies that the master mechanics were
,supervisors. It is found, upon the basis of the entire record, that they are supervisors
within the meaning of Section 2(11) of the Act. See section 15 of the agreement between
the Union and Company (Appendix B). In addition, as discussed in later sections of this
report, master mechanics have powers which are supervisory and disciplinary in nature.
They hire and discharge the men working under their supervision, have charge of the
maintenance and repair of equipment, and instruct the men under their supervision.
Inasmuch as they are invested with authority to give orders, master mechanics are a part
of the supervisory system, even if, in some instances, the orders they give are not
initiated by them.
2 Plant A is located 8 miles from plant B.
574 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Louisiana ; and Gulf Interstate Company furnishes natural gas in excess of $200,000
annually to points outside the State of Louisiana . It is found , therefore , that the
Tellepsen Construction Company is engaged in commerce within the meaning of
the National Labor Relations Act3 and it is subject to the jurisdiction of the National
Labor Relations Board.
THE TESTIMONY
J. R. Rittenberry , the Charging Party, has had extensive experience as an operating
engineer dating back to 1927.4 In February 1953, he applied for a job to A. V.
Looper, construction superintendent of Tellepsen 's plant B project. Rittenberry
testified that Looper, who is related to Rittenberry's wife, told him that the
Respondent Union, which had a collective-bargaining agreement with the Company,
would not permit anyone to work for the Company who was not a member of the
Union. Consequently Looper made arrangements whereby Rittenberry appeared
before the Union 's examining board to determine his qualifications . The board
inquired about his experience and other related matters with respect to the operation,
maintenance , and repair of mechanical equipment . At that time he also paid half
of his union initiation fee of $83. Shortly afterwards , the union examining board
notified him by mail that he had passed the examination and was entitled to mem-
bership in the Union.
Shortly after Rittenberry received this notice, he met W. C. Chennault on March
3, 1953, at the union hall. Chennault at that time was a master mechanic for
Tellepsen at its plant A project.5 Chennault took him to the project at the Dow
Chemical Company, with whom Tellepsen had a construction and maintenance
contract , where he was finger-printed and filled out various employment forms
preparatory to being placed on the Tellepsen payroll. Chennault then assigned
Rittenberry to operating a welding machine under his supervision.6
About April 11, 1955, Rittenberry was transferred to plant B from what is referred
to as the Glycerol project? On or about April 18, 1955, while he was at the plant B
maintenance job, which, at that time, did not have a master mechanic to supervise
it, R. J. Farmer, Superintendent of the Tellepsen Construction Company's plants A
and B projects, informed Rittenberry that he had intended to promote Rittenberry
to master mechanic at the plant B project, but that when he took steps to bring about
the promotion, he was told by Chennault, the Union's business agent, that Rittenberry
had not been a union member for 3 years, and for this reason he was ineligible for
promotion.8 Shortly after this, V. A. Cannard, who had been a union member for
over 3 years , was made master mechanic at the plant B project.
In the early part of July, Rittenberry received permission from his master mechanic,
Cannard, to take a 2 weeks' vacation , commencing on July 16, and ending on August
1, 1955. On July 20, the Union went on strike against the Houston Chapter of the
Associated General Contractors , a multiemployer bargaining unit, of which Tellepsen
was a member .9 Rittenberry returned to his home from his vacation in the late
e 61 Stat. 136, as amended , herein called the Act.
I From 1927 to 1940 he operated bulldozers , water pumps, air compressors, dump
trucks, jackhammers, wagon drills , well-drilling machines , steam shovels , and drum
hoists. During the 5 years ( 1940-45 ) he was in the Army, he attended a heavy equip-
ment school , testing equipment , and, upon going overseas, was made a motor sergeant.
As such he operated , maintained , and repaired all types of heavy equipment. Upon his
discharge from the Army in November 1945, he was employed as an automobile mechanic.
From 1947 until he went to work for Tellepsen , he drove, maintained , and repaired buses
for a school district.
c Chennault left Tellepsen 's employ later and took a position on July 14 , 1953, as
business agent for the Respondent Union at its Freeport , Tex., office . He testified that
as business agent his duties included the maintenance and management of the Union's
out-of-work list, whereby job applicants were dispatched to employers.
8 Subsequently , Rittenberry operated a motor crane , air compressors , water pumps, bull-
dozers , winch truck , and at one time he uncrated and assembled four diesel welding
machines. During this time he also maintained and repaired various mechanical
equipment.
7 When Rittenberry first went to work, he was operating a winch truck at plant A.
Three or four months later , he was transferred to plant B ; later to plant A , and then to
the Glycerol project.
8 See General Counsel's Exhibit No . 5 and Looper 's testimony on redirect examination.
9 Tellepsen was not picketed but the premises of two other members of the Houston
Chapter of Associated General Contractors were. However, those union members em-
ployed by Tellepsen did not work during the strike.
LOCAL UNION NO. 450, INT'L UNION OF OPERATING ENGRS. 575
afternoon of July 29 at which time Looper, the Company's construction superin-
tendent, brought him a check for money owed him by the Company for services
rendered prior to his going on vacation. Rittenberry learned for the first time from
Looper that the Union had gone on strike on July 20. From July 29, when Ritten-
berry returned from his vacation, until August 14 when the strike ended, no one
from the Union requested him to walk the picket line. On Sunday, August 13,
Rittenberry telephoned his master mechanic, Cannard, at his home and learned that
the strike was settled. Cannard told him to report to the union hall the following
morning which Rittenberry did.
At the union hall, Rittenberry spoke to Chennault and Kenneth Cook (a picket
captain) about returning to work, and according to Rittenberry they told him that he
had no job because he had not walked the picket line during the strike and that his
name would be placed at the bottom of the Union's list which it maintained for the
members who were out of work and seeking employment. Rittenberry remonstrated
with them explaining that he was on his vacation during the strike and that, regard-
less of the strike, he was still in the employ of Tellepsen and that he therefore saw
no necessity for having to place his name on the out-of-work list. Chennault and
Cook explained to Rittenberry that at a recent union meeting, which Rittenberry did
not attend, a resolution had been passed by the membership that if any member did
not do his allocable share of picketing during the strike he would be fined $7.50 for
each time he missed doing picket duty. Rittenberry was advised by them that since
he had missed three tours of picket duty he owed the Union $22.50. Moreover,
explained Chennault, it would do him no good to report for work at the project
site as be could not work unless he had a job referral slip from the Union.1° When
he asked Chennault and Cook whether he would be able to return to his job if he
paid the $22.50, they told him that even if he paid the fine, his name would still be
placed at the bottom of the out-of-work list and as employees were requested, he
would have to wait his turn until his name got to the top of the list.
Shortly after the above incident, Rittenberry testified he telephoned V. A. Can-
nard, his master mechanic, at his home," to inquire about his job status and was
informed by Cannard that until such time as Rittenberry straightened out his picket-
line difficulties with the Union the Union would not permit him to request his
services.12
On or about November 22, 1955, Rittenberry again called Cannard and asked
him if the winch truck which Rittenberry had been operating immediately before the
strike was working and Cannard informed him that it was being used at plant A.13
Rittenberry also asked Looper the same question and Looper confirmed what
Cannard had told him.
About the beginning of March 1956, A. V. Looper, Tellepsen's construction
superintendent, had a conversation with Chennault, the Union's business agent, in
the course of which he asked Chennault if he had any objection to Rittenberry's
returning to work. Chennault replied that he did not. Upon being told by Looper
that Chennault had no objection, Rittenberry went to the union hall and requested
Chennault to place his name on the out-of-work list which he did. On March 19
Looper telephoned Chennault and asked him if he would send Rittenberry back to
work. The following day Chennault notified Rittenberry to report to work for the
Company.
On May 13, 1956, approximately 3 weeks after the complaint in this proceeding
had been served on the Respondent Union, Earl E. Ford, business representative for
the Respondent Union, came to Rittenberry's home. According to Rittenberry's
testimony, Ford asked Rittenberry to accompany Homer C. Pierce, Respondent's
business manager, to the office of the Union's attorney ". . . where I could ... change
my statement, reword my statement ... and drop the charges.... Well, [Ford] said
it would eventually lead to they would take my [union] book away from me and I
wouldn't be able to go to work nowhere, and throw all, everybody else out of work,
and the Union would be busted up and they would fine me.... I don't know exactly
10 Rittenberry testified that shortly after this conversation with Chennault he asked
Farmer, Tellepsen's superintendent, if his "job was still open" and he told him it was.
U Cannard, who is a member of Respondent Union, returned to work less than a week
after the strike had terminated.
12 Looper, construction superintendent, testified that Cannard told him that Rittenberry
would have to straighten out his difficulties with the Union with respect to his failure to
walk a picket line before he would be eligible to return to work.
13 Cannard testified that Rittenberry inquired from him about his job status at the
time the strike ended ; a few days later Rittenberry again spoke to him about coming
back to work and a third time a few months later.
576 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
all there was said , but anyway the whole intention for me was to come and change
my charges and drop the charges."
Rittenberry testified that about a week later Ford telephoned him at his home on
May 19 and asked him what he had decided to do and that he replied , "1 had done
made my statement and I couldn 't get in dutch with Uncle Sam by giving another
statement."
On May 24 Harvey Frazier, a master mechanic at Tellepsen 's plant A project,
and a union member , invited Rittenberry to his home that evening . When he
arrived at Frazier's home, Homer Pierce , business manager of the Respondent Union,
was also there . According to Rittenberry , Pierce asked him to drop the charges he
had filed with the Board against the Respondent Union and if he would not agree
to do so, his union book would be taken from him thus preventing him from con-
tinuing to work for the Company.
The following day Looper , Tellepsen 's construction superintendent , came to where
Rittenberry was working on the project site, and told him to telephone Chennault.
When he spoke to him , Chennault asked and Rittenberry agreed to meet at the
union attorney 's office in Houston on the following day. He came to the attorney's
office on Saturday , May 26, which was 2 days before the hearing in this proceeding
commenced . Also present were Chennault and Frazier . Rittenberry 's testimony
continues as follows:
I believe [the Union 's attorney] asked me that he wanted to talk to me about
this, and he didn't know all of the particulars about it, and I think I asked him
before we got started , I told him that we wanted to have one thing straight, that
it was going to be short and I was on the receiving end, I wasn't giving out no
information of any kind that-unless my lawyer was sitting here beside of me,
and he said , well, that was kind of impossible to reach him at Forth Worth or
get him here from Fort Worth, something like that and he did ask me 2 or 3
questions , and I refused to answer the questions .... I got up and he asked me
would I mind stepping outside while he talked to Mr. Chennault and Mr.
Frazier behind closed doors.
Turning to a consideration of the Respondent Union 's testimony , the record shows
that all its witnesses categorically denied that they asked Rittenberry to withdraw
the charge he filed with the Board or asked him to change , for the benefit of the
Union, a statement previously given by him to the Board or that he was threatened
with loss of future benefits by union officials.
Earl E. Ford , business agent for the Union , denied that he ever asked Rittenberry
to withdraw the charges or to change the statement he had given to the Board nor
did he threaten him in any way whatsoever with loss of employment rights. On
cross-examination , Ford testified as follows:
Q. What persuasion did you attempt to use on Mr . Rittenberry to induce
him to withdraw the charges he had filed against Local 450?
A. Well, I explained to Mr. Rittenberry that the charges that he had filed
against the Local Union would not only disrupt the Local Union but would
affect many people that belonged to it, gets the people all tore up and everything
else.... Well , it costs them money for all this hearing , everything else, it costs
everybody money, costs the Local Union money to hold the hearing cases, costs
all the business agents , everybody else that's representatives that's involved in
it their loss of time and everything else.
Q. What was your purpose in asking Mr. Rittenberry to go to Brock's office?
A. The purpose was to have him tell Mr. Brock his side of the story and he
also indicated that he would-he had the idea of wanting to drop the charges
but he didn't know how to go about it. He indicated that to me.
* * * * * *
He indicated to me by telling me that he didn't know how to go about dropping
the charges and I recommended that if he wanted to drop the charges I would
take him to Houston to Mr . Brock 's office , he could tell Mr. Brock his side of
the story, and they could work it out whatever he wanted to do about with-
drawine it. I didn't know personally how he could withdraw it.
Q. Did he ask you what assurance or protection you could give him if he
would withdraw the charge?
. A. Yes Sir. . . . I assured him that there would be no action taken against
him at any time.
Homer C. Pierce, business manager for Respondent Local 450, an elective official,
who appoints all the Respondent Union's business agents, denied that he ever asked
LOCAL UNION NO. 450, INT'L UNION OF OPERATING ENGRS. 577
Rittenberry to withdraw his charge or. change any statement he had given to the
Board or threatened him with loss of future employment. He testified that when he
spoke with Rittenberry at Frazier' s home on the evening of May 24, he told Ritten-
berry he "would like for him to come to Houston and talk to Mr. Brock and at least
be fair enough to give our attorney a statement of facts. And at no time did I ask
Mr. Rittenberry to change his statement in any form or anyhing that he might have
said to anybody in the past."
W. H. Frazier, master mechanic at plant A and a union member, testified that
it was he who invited both Pierce and Rittenberry to his home. When he was asked
on cross-examination what "prompted" him in doing so, he testified:
Well, I don't truthfully say that I can truthfully answer you, but I felt like he
didn't realize what he was doing. . . . because I wanted to see if he couldn't
drop this matter. I didn't think he realized what he was doing. . . I asked
Rittenberry to drop them charges because I thought I was doing the man a
favor.
Frazier's testimony on cross-examination continues as follows:
Q. Now, what was your purpose in telling Mr. Rittenberry that the union
men might object to working with him if he didn't drop those charges?
A. Well, I think anybody with common sense knows that a union man is
not going to work with a man not carrying a card.
Q. I understood in answer to my question a minute ago that [you testified]
anyone knew that there wouldn't be any union men working alongside a man not
carrying a card or a nonunion man, but evidently you are saying that you
didn't say that.
A. I said there is a possibility that you would run into complications.
On September 1, 1955, a little over 2 weeks after the strike had ended which
eventuated in Rittenberry not returning to work, he filed his charge with the Board.
On April 24, 1956, the complaint issued and alleged that the Union caused Ritten-
berry's employer, Tellepsen Construction Company:
(1) to refuse to promote Rittenberry to master mechanic in May '1955, be-
cause he was not a member of the Union for three years;
(2) the Union caused the Company to refuse employment to Rittenberry
from August 15, 1955, the date the strike ended, until March 20, 1956, because:
(a) Rittenberry did not picket during the strike nor pay the fine assessed
against him by the Union because of his failure to picket;
(b) the Union operated an illegal closed shop hiring arrangement
whereby the Company could hire only those who had referrals from the
Union and the Union refused to refer Rittenberry.
Respondent Union filed its answer on April 27, 1956, denying the commission of
any unfair labor practices. The hearing commenced at Houston, Tex., on May
28, 1956, before Henry S. Sahm, the duly designated Trial Examiner. At the
hearing the General Counsel moved to amend the complaint by adding an allegation
that shortly before the hearing commenced, the Union threatened Rittenberry, the
Charging Party, with loss of future employment rights if he did not withdraw the
charge he had filed with the Board and/or change an affidavit he had previously
given to a Board investigator. The Respondent Union's counsel pleaded surprise and
moved for a continuance in order to prepare to meet the allegations in the amend-
ment . In view of the grave accusations alleged in the amendment and in order to
accord Respondent's counsel adequate time in which to prepare his defense, the
hearing was adjourned on May 30, reconvened on July 10, and concluded on July 11.
All parties were represented by counsel14 and were afforded full opportunity to
participate in the hearing, to introduce relevant evidence, and to argue orally. The
motion of the Respondent to dismiss the case at the end of the General Counsel's
case-in-chief was denied. Ruling was reserved on the Respondent Union's renewal
of its motion at the conclusion of its case-in-chief and it is hereby ruled upon in
accordance with the findings and conclusions made herein. Briefs were filed by both
the General Counsel and the Respondent's counsel which thoroughly analyzed the
facts and cited cases alleged to be dispositive of the issues in this proceeding.
14 W. C. Chennault, business agent of the Union, appeared on his own behalf.
505395-59-vol. 122-38
578 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Contentions of the Parties as to the Alleged Closed Shop
The relevant portions of the collective -bargaining agreement entered into between
the Respondent Union and the Association, of which Tellepsen is a member, discloses
no patent illegality with respect to the contract itself.15 The General Counsel con-
cedes this but contends that the written contract has been supplemented by unwritten
practices and oral agreements which have resulted in closed-shop conditions whereby
a prospective employee must first obtain membership in the Union before he can be
hired by the Company.
The General Counsel claims that the Union's illegal closed-shop hiring-hall
arrangement operated in the following manner: The master mechanics who are
supervisors and union members are hired by the Company but not before obtaining
clearance from the Union. After the master mechanic is hired, the Company
informs him of the number and categories of operating engineers the detail will
require.16 He, in turn , contacts the union hiring ha1117 and requests that these men
be sent to the project site. The Union, claims the General Counsel, then fills the
request by selecting men from its out-of-work list which contains only the names
of union members.
The Respondent contends, however, that there was no underlying agreement or
practice for the Tellepsen Construction Company to recruit its employees exclusively
through the Union. It claims that the testimony fails to prove discrimination against
nonunion applicants for employment. On the contrary, the Union urges it proved
affirmatively that its out-of-work list was maintained for union as well as nonunion
job applicants. Moreover, argues the Union, the Company did not vest sole
authority to hire in the master mechanics nor was there any understanding, agree-
ment, or practice requiring Tellepsen to clear the employment of all master mechanics
with the Union.
Resolutions of Credibility
It is readily apparent, therefore, that the General Counsel and Respondent's
counsel are diametrically opposed in their respective versions as to the manner in
which the Union operated its hiring hall. Nevertheless, after observing the wit-
nesses and analyzing the record and the inferences to be drawn therefrom, these
conflicting contentions are resolved for the reasons hereinafter explicated, in favor
of the version advanced by the General Counsel.18
Rittenberry, the Charging Party, appeared to be a sincere and truthful witness.
This impression became a conviction when his testimony was found to be both
consistent with the attendant circumstances in this case and not appreciably shaken
by able counsel for the Respondent who vigorously and thoroughly cross-examined
him.
On the other hand, the demeanor of Chennault, Pierce, and Cannard, while on
the witness stand, and their disposition to fence with the General Counsel, together
with their vague, inconvincing, and in some instances evasive and incredible testi-
mony, which frequently contradicted themselves and one another, compels the trier
of these facts to discredit their testimony, insofar as inconsistent with the findings
made herein.
Farmer, superintendent of Tellepsen Construction Company, was so reluctant to
state frankly any matter adverse to the Union's interest that at times this charac-
teristic approached not only evasion but incoherence. This disinclination of Farmer
to testify adversely to the Union's interests was probably due to a painful awareness
that he must avoid precipitating a cleavage between the Company and the Union.
He was in the dilemma of knowing that he would have to continue to deal with
the Union in the future and that his company was almost entirely dependent upon
the Union for its labor supply. These subjective considerations, which the cold
record fails to capture, are not stated to justify Farmer's questionable conduct or
his witness-stand deportment, but solely to attempt to explain that part of his in-
15 One agreement ( General Counsel ' s Exhibit No. 2) was in effect from July 1, 1954, to
July 1, 1955, and was extended on August 14, 1955, to April 30, 1958 (General Counsel's
Exhibit No. 3).
16 For the types of job categories encompassed by the term "operating engineer," see
General Counsel 's Exhibit No. 3, beginning at page 9.
17 A hiring hall is a location from which a union fills requests for workers under a
rotary hiring system. Under this system , when a worker is unemployed , he registers at
the union hiring hall where the registrants are listed in order of date of registration.
When an employer advises the union of vacancies , the union normally selects men from
the top of the register and refers them to the employer.
28 Universal Camera Corporation v. N.L.R.B., 340 U.S. 474 , at 494 to 496.
LOCAL UNION NO. 450, INT ' L UNION OF OPERATING ENGRS. 579
credible testimony where he professed not being aware of these closed-shop condi-
tions. It is believed that as superintendent, he must not only have known of these
illegal hiring arrangements but he must have also acquiesced in them in order for
them to have become operative.
Another consideration for finding that the Union's hiring hall was operated under
a closed-shop arrangement is the fact that although the Union denied this, the denials
were voiced by witnesses in response to leading and suggestive questions propounded
by Respondent's counsel. By reason of the leading and suggestive character of the
questions, less weight has been given to these witnesses' testimony than ordinarily
would be given to their answers to such questions.
Before leaving the matter of credibility, it might be well to consider what probative
value should be given to the witnesses' affidavits in resolving the issues in this pro-
ceeding. A field examiner of the Board investigating this case prior to the hearing
obtained voluntary sworn statements which were executed by Superintendent Farmer
and A. V. Looper, construction superintendent of the Company.19 No objection was
made to their reception in evidence. Both Farmer and Looper testified at the hearing,
were cross-examined by the Union, and neither of them repudiated their sworn state-
ments. Both of them testified that their affidavits were true to the best of their knowl-
edge. Farmer, at the hearing, made certain explanations of immaterial and minor
inaccuracies in his statement which did not impugn the substantive allegations in his
affidavit. Both Farmer and Looper testified that they read the statements and initialed
each page before they were signed.
In County Electric Co., Inc., 116 NLRB 1080, the Board credited testimony of
witnesses which was not inconsistent with the statements contained in affidavits
they gave to a field examiner of the Board. In that case, the statements were
those of "responsible representatives" of a party to the proceeding. In the instant
proceeding, however, Looper and Farmer are supervisory officials of Tellepsen
Construction Company which is not a party, but which the record shows was
in part delicto with the Respondent Union 20 To hold that the Company's non-
joiner, for reasons which the record fails to disclose, should be a distinguishing
circumstance which renders the rule enunciated in the County Electric case, supra,
inapplicable, is a distinction without a difference and ascribes greater importance
to assumed technical and procedural difficulties which have neither practical reality
nor legal substance. No sound reason is evident for differentiating under the
unique circumstances in this case between affidavits given by parties and nonparties,
particularly where the party not joined is equally responsible with the Respondent
inasmuch as it was in privity with and acquiesced in this illegal hiring-hall arrange-
ment. To not give substantive validity to the allegations in Farmer's and Looper's
sworn statements insofar as they are not inconsistent with and support other inde-
pendent evidence introduced by the General Counsel, would be disregardful of the
facts in this case in that the illegal hiring-hall arrangement was necessarily con-
sensual so that the company officials were as intimately acquainted with the facts
pertaining to it as the Union. If Farmer and Looper, officials of Tellepsen, were
competent witnesses to testify as to the manner in which the hiring hall was oper-
ated with respect to job applicants referred to Tellepsen by the Union, no reason
is logically apparent why the sworn statements they gave prior to the hearing as
to these same circumstances were not of probative value insofar as being corrobo-
rative of one version of the facts in issue, particularly where Farmer's consent was
necessary to effectuate this hiring arrangement in order for it to be operative.
Moreover, these statements were given at a time when the occurrences related
therein were more fresh in the minds of these witnesses than when they testified
at the hearing. Therefore, reliance has been placed upon statements made in
Farmer's and Looper's affidavits insofar as they are corroborated by other inde-
pendent evidence in the case that an illegal hiring-hall arrangement existed be-
tween the Union and the Company 21
Ultimate Findings and Conclusions
1. The alleged discriminatory hiring-hall arrangements
Based upon the entire record and the credibility resolutions made above, it is found
that the Respondent's hiring hall operated in the following manner. The master
mechanics who have hiring duties and were all union members and who supervised
the operating engineers working under them were required to have the Union's impri-
19 General Counsel's Exhibits Nos. 5, 6, and 7.
29 H. M. Newman, 85 NLRB 725, footnote 15.
2 See 2 Corpus Juris Secundum, page 987, and Mita v. Bonham, 25 F. 2d 11 (C.A. 9).
580 , DECISIONS. OF NATIONAL LABOR RELATIONS BOARD
matur before the Company could hire them.22 The master mechanic, in turn, hired
the operating engineers.23 The company superintendent would enumerate to the
master mechanic the number and categories of operating engineers and allied classifi-
cations required to staff the detail. The master mechanic would then contact the
Union's hiring hall and relay to the Union's business agent the number of men re-
quired, specifying the qualifications required of each man.
After the master mechanic had made his request to the Union, the business agent
would select the men whose names were highest on the out-of-work list and qualified
for the particular jobs. The Union's business agent would then give these men referral,
slips and dispatch them to the job site where their services were required.24
As no job applicant except a union member could obtain a job-referral slip, it was.
necessary for him to join the Union before his name could be placed on the out-of-
work list. In order to get on the out-of-work list, an applicant would have to appear
first before the Union's examining board. At the time he presented himself for this
oral examination, he paid one-half the Union's initiation fee. Shortly thereafter, the
Union notified the applicant whether he had passed the examination. If he was.
successful in his examination, he was admitted to union membership and his name
placed at the bottom of the out-of-work list.
Upon being referred by the Union, the job applicant presented himself at Tellepsen's:
personnel office at plant A or B where he showed his job referral slip to the Com-
pany's timekeeper.25 This referral slip, which is signed by the business agent, bears,
the date of the referral, the applicant's name, and a statement that he is qualified to
operate specifically named construction equipment. (General Counsel's Exhibit.
No. 8.)
The Company's timekeeper then processed the applicant by having him° fill out
certain employment forms and other prescribed formalities preparatory to placing
his name on the payroll.26 He then reported to the union steward of the detail to
which he had been dispatched and to whom he gave his job referral slip.27
Discussion
The agreement entered into between the Company and the Union does not on its
face discriminate against nonmembers. Unlike a patently illegal closed-shop contract
by virtue of which employers are required to hire only such persons as are members
of the contracting union, the contract between Tellepsen and the Union requires in
article IV only that the Company "recognize the Union as a source when in need of
employees." (See appendix B.) However, the test of the legality of a hiring-hall
agreement is not necessarily determined by its patent provisions but whether in its
22 This is evidenced by Farmer 's being required to obtain union approval for Ritten-
berry's inchoate promotion to master mechanic. This is further confirmed by the fact
that when Cannard took over the job for which Rittenberry was originally slated , Farmer
first obtained Chennault 's approval for the substitution of Cannard as master mechanic
in place of Rittenberry.
23 The superintendent told the master mechanic what he wanted done but left the
manner in which the work or result was to be accomplished to the master mechanic's
judgment.
24 Although Farmer testified "men" are hired at the project site, Looper, construction
superintendent, testified on redirect examination that those employees who were hired
at the project site were "crafts other than engineers ," and to his knowledge he had never
hired an engineer at the project site.
25 Inasmuch as the allegations of the complaint are limited to the hiring arrangements
which were in effect at Tellepsen's plants A and B projects , the frame of reference in
which these findings are made are confined to those two projects.
25 In this regard, it is significant that Farmer testified he had never rejected a man,
reporting for work at the project site who had been referred by the Union.
27 Although the record is not clear in this regard , there is some indication that where a
detail does not have a union steward , the responsibility of enforcing the Union 's working
rules devolves upon the master mechanic who in - such situations acts In a dual capacity.
However , in such situations , it appears that the dominating interests of the master
mechanic lay with the Union , perhaps, because his appointment to this position required
union approval . Furthermore , he had to be a union member, his oath required him to
hire only union members, and both Cannard and Frazier , master mechanics , testified they
abided by their union ' s constitution so that it would appear, and is so found , that they
also acted as -agent of their union . See Grove Shepherd Wilson & Kruge , Inc., 109^
NLRB 209, 215.
LOCAL UNION NO. 450, INT'L UNION OF OPERATING ENGRS. 581
-operation it results in unlawful discrimination to nonmembers of the contracting
union . 28 In applying this test to the facts in this case , it is found that such discrimina-
tion against nonmembers did exist , and that both the Company and the Union con-
templated and understood that the Union in supplying personnel would discriminate
in favor of union members who were in good standing.
At the Respondent 's hiring hall , jobs were assigned in rotation from the out-of-
work list which was maintained exclusively for those union members who had
registered as available for the jobs for which the particular applicant was qualified
and over which the Union had jurisdiction.29 Consequently, the Union in the opera-
tion of its hiring hall caused discrimination by not making available the registration
and referral facilities available to nonmembers on the same terms and conditions as
it was available to members.30
Nor is there any doubt that the Company' s practices in hiring operating engineers
conformed to the insistence of the Union upon a closed shop and that such illegal
practices were acquiesced in by Tellepsen. The practice of the parties thereto clearly
establishes that they mutually interpreted and administered the contract as one requir-
ing preferential hiring of union members. Any doubt as to this conclusion is dispelled
by article XXIII, subdivision 3, section 3(a) of Respondent's constitution which
provides , in part, that "Each member shall hire none but those in good standing with
a union having jurisdiction over the work to be done... 31
However, argues the Respondent, even though this provision of the constitution
which requires union members to hire only union members is illegal , nevertheless it
was never enforced. This contention lacks merit because the Board has held that
where the challenged provision involved is illegal on its face, as here, it is immaterial
that the provision has never been enforced,32 or has been orally rescinded.33 More-
over , it would appear that where a party seeks to show that an unlawful provision has
never been enforced , it should be more closely scrutinized and a distinction made
between its admissibility in an unfair labor practice proceeding and a representation
proceeding . 34 Furthermore , assuming that this constitutional provision of the Union
was never enforced, there is no assurance it may not be enforced in the future. The
mere presence of this provision in the constitution is an effective means whereby
obedience by its members can be insured.35 Besides, there is evidence in the record
from which it might be concluded that the Respondent did not enforce the above-cited
28 N.L.R.B. v. National Maritime Union, 175 F. 2d 686 (C.A. 2), cert. denied 338 U.S.
954, rehearing denied 339 U.S. 926. See also Grove Shepherd Wilson & Kruge, Inc.,
supra; International Brotherhood of Teamsters, etc., Local 182, etc. (Lane Construction
Corporation), 111 NLRB 952 ; Gil Wyner Construction Company, 112 NLRB 714;
N.L.R.B. v, Philadelphia Iron Works, Inc., 211 F. 2d 937 (C.A. 3) ; Eichleay Corporation
v. N.L.R.R.. 206 F. 2d 799 (C.A. 3).
25 Pierce, the Respondent Union's business manager, testified "at least 98 percent of
the people that work on construction work that operate equipment in the Freeport area
belong to our local union." This would appear, it seems, to corroborate the finding made
herein that preexisting union membership was a prerequisite to obtaining employment.
:w Respondent's contention that the General Counsel failed to prove discrimination
against nonunion applicants is contrary to the finding made herein. However, argumenta-
tively assuming this to be so, Respondent cannot escape liability for this reason because
"it was certainly reasonable to conclude that no one applied because it appeared futile to
do so" in the face of the Union's known discriminatory operation of its hiring hall.
Eichleay Corporation v. N.L.R.B., 206 F. 2d 799, 803 (C.A. 3). See also N.L.R.B. v.
Gottfried Baking Co., Inc., 210 F. 2d 772 (C.A. 2) ; Consolidated Western Steel Corpora-
tion, 108 NLRB 1041, 1044.
31 This provision is particularly significant when it is considered that all master
mechanics were union members. See also article XV, section 3(h) of the constitution
(appendix C,), and N.L.R.B. v. International Brotherhood of Boilermakers, 232 F. 2d
393 (C.A. 2).
32F. G. Kress Box Company, 97 NLRB 1109; Regal Shoe Company, 106 NLRB 1078.
33 Seaboard Terminal and Refrigeration Company, 114 NLRB 1391, 1392-1393; Ketchum
& Company, Inc., 95 NLRB 43; Flint Lumber Company, 85 NLRB 943; Reading Hardware
Corporation, 85 NLRB 610, 612.
34 Metropolitan Life Insurance Company, 90 NLRB 935. See also Hawaii Teamsters
and Allied Workers Union (Oakley Dahlberg et al . d/b/a Waialua Dairy), 111 NLRB 1220,
1228-1231, where it was held that parol evidence is not admissible to prove a secret
contract clause as a defense to an unfair labor practice charge against a union,
35A. & M. Woodcraft, Inc., 85 NLRB 322, 323-324,
582 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
constitutional provision because it was aware of its illegality so that such an explana-
tion instead of being an answer only serves to confirm its illegality.36
The Supreme Court held in Radio Officers' Union, etc. v. N.L.R.B., 347 U.S. 17,
53, that Section 8(b)(2) is violated if the union causes an employer to engage in
conduct which would violate Section 8(a)(3). It is found, therefore, that the
Respondent Union violated Section 8(b)(2) of the Act by entering into an oral
arrangement with the Tellepsen Construction Company with respect to the operating
engineers and allied classifications employed at its plants A and B, whereby the Com-
pany had an unlawful exclusive hiring arrangement with the Union which was in-
tended to and did give preferential employment to members of the Union thereby
discriminating against nonmembers.37
2. The alleged failure to promote Rittenberry
Sometime between the latter part of April or early part of May 1955, Farmer,
superintendent of Tellepsen, told Rittenberry, the Charging Party, that he had intended
to promote him from his then present position of operating engineer to the supervisory
position of master mechanic but that the Union's business agent, W. C. Chennault,
would not agree to it because Rittenberry had not been a member of the Union for
3 years.
Section 15(G) of the collective-bargaining agreement entered into between the
Respondent Union and Tellepsen provides that all master mechanics must have 3
years' or more experience at their trade. However, the Respondent Union interpreted
this provision of the collective-bargaining agreement to require that the person being
considered for promotion to the position of master mechanic must have been a mem-
ber of the Union for at least 3 years. The Union's denial of the Company's request
that Rittenberry be promoted because he was not a union member for 3 years (al-
though his extensive experience was known by Chennault) is a violation of the Act
since it constituted discrimination with respect to his "tenure of employment" as the
prospects for promotion were among the conditions of his employment. As the
Respondent Union was responsible for Chennault imposing this discriminatory con-
dition on Rittenberry's promotion, it thereby caused the Tellepsen Construction Com-
pany to discriminate against him in violation of Section 8(a)(3) and therefore
violated Section 8(b)(2) of the Act.38
3. The alleged discrimination against Rittenberry due to his failure to picket
The Union went on strike on July 2, 1955, at a time when Rittenberry was on vaca-
tion. When the strike terminated, Rittenberry went to the union hiring hall on August
15 and requested Chennault to send him back to work.39 Chennault told him there
was no job available for him and, furthermore, inasmuch as he had not picketed
during the strike his name would be placed at the bottom of the out-of-work list 40
Moreover, said Chennault, the Union had recently passed a resolution that any mem-
ber who had failed to picket would have his name placed at the bottom of the out-of-
work list, and fined $7.50 for each tour of picket duty he had missed. Rittenberry
3e Homer E. Pierce, business manager of Respondent, testified on cross-examination
that the Union's attorney advised him in 1952 or 1953 that "there may be a question
about" the legality of certain provisions in the Union's constitution.
s7 Decision was reserved at the hearing on Respondent's motion objecting to the
admissibility of evidence which was offered to prove that the Union accorded referral
preference to those members on its out-of-work list who were issued certain types of "work
books." The motion is hereby granted as this evidence is beyond the scope of the allega-
tions in the complaint and therefore not litigable.
'N.L.R.B. v. Belt Aircraft Corporation, 206 F. 2d 235 (C.A. 2).
39 Respondent's contention that Rittenberry' s name was not placed on the out-of-work
list because he had not requested it, although it is undenied that he requested Chennault
to send him back to work on August 15, appears to have an aura of hair-splitting and to
evince an undue preoccupation with semantics which may not be employed in construing
the Act. See N.L.R.B. v. Metallic Building Company, 204 F. 2d 826 (C.A. 5). Moreover,
Chennault testified that there was a "thorough understanding" that those employees
who were working before the strike would, upon termination of the strike, be sent back to
work on the equipment they had been operating immediately before the strike. See
Pacific American Shipowners Association, 98 NLRB 582, 588-589, where the Board held
the discriminatees were entitled to be redispatched to their prestrike jobs even though
they made no such request.
no Rittenberry was the only union member who failed to walk the picket line during
the strike.
LOCAL UNION NO. 450, INT'L UNION OF OPERATING ENGRS. 583
remonstrated with Chennault explaining that he was on his vacation and that no one
from the Union contacted him on his return to request that be do picket duty.
Furthermore, argued Rittenberry, there was no necessity for his name being placed
on the out-of-work list because he had been employed by Tellepsen immediately prior
to the strike and he therefore considered himself upon termination of the strike as still
working for the Company and entitled to return to work. Chennault, however, was
adamant. Rittenberry then offered to pay the fine of $22.50 (assessed on the basis of
$7.50 for each of the three tours of picket duty he missed) but Chennault told him
that even if he accepted the $22.50 fine, he would still have to go to the bottom of the
out-of-work list.41
Subsequent to this conversation with Chennault at the union hall, Rittenberry spoke
to Cannard, his master mechanic, on three occasions to ascertain what was his job
status. On each occasion, Cannard told him that he had been instructed by the Union
not to request Rittenberry until he had the picket line "matter straightened up with
the Union." Until such time as he had, Cannard informed Rittenberry, he could not
ask for him. Rittenberry also testified that shortly after the strike ended, he saw
Farmer who told him that his job was still open.42 This was confirmed by Farmer
who placed the incident as occurring sometime in August after the strike. Rittenberry
did not return to work until March 20, 1956, when Chennault dispatched him to the
Tellepsen project, when Construction Superintendent Looper interceded with Chen-
nault on Rittenberry's behalf on March 19 and received union clearance.
Under Section 8(a)(3) of the Act, it is an unfair labor practice for an employer
"by discrimination in ... employment . . . to encourage or discourage membership
in any labor organization...." By Section 8(b)(2) of the amended Act, this pro-
hibition was extended to unions , which were forbidden "to cause or attempt to
cause an employer to discriminate against an employee in violation of subsection
(a)(3)...." Therefore, subject to a proviso permitting discharge of employees
for failure to pay union dues and initiation fees pursuant to a union-security agree-
ment, an employee may not be subjected to job discrimination at the hands of the
union. And where, as here, there was no union-security agreement in effect, this is not
encompassed within the Respondent's defense nor considered hereinafter in resolving
the issues in this proceeding.
The legislative history of Section 8(b) (2) shows that Congress sought to eliminate
union abuses of control over employment.43 The statutory scheme clearly establishes,
and its legislative history conclusively confirms, that a labor organization is divested
of all control over employment for the purpose of either advancing or retarding an
employee's exercise of his right to participate in or to forego union activity.44
The Supreme Court in the Radio Officers' case 45 said:
The policy of the Act is to insulate employees' jobs from their organizational
rights. Thus §§ 8(a)(3) and 8(b)(2) were designed to allow employees to
freely exercise their right to join unions, be good, bad, or indifferent members,
or abstain from joining any union without imperiling their livelihood....
As the Supreme Court ruled in the Radio Officers' case, supra, a union may not
apply its rules against its own members, so as to cause job discrimination by employ-
ers. While the proviso to Section 8 (b) (1) (A) protects the union's right to prescribe
its own rules with respect to the acquisition or retention of membership therein, it
does not authorize the union to extend the effective scope of those rules so that they
determine the right of a member to the acquisition or retention of a job.46
The Respondent argues, however, that there is no evidence that it requested the
Company not to reemploy Rittenberry after the strike terminated. Assuming but
11 The Union's insistence that Rittenberry go to the bottom of the out-of-work list even
if his proffer of the fine were accepted constitutes further evidence of discriminatory
motive.
42 After Rittenberry filed his charge with the Board on September 1, 1955, Chennault
requested Farmer to give him a letter stating that Rittenberry no longer had a job with
Tellepsen . Farmer refused to give Chennault such a letter.
u H. Rept. 245 , 80th Cong ., 1st sess., p . 34; S. Rept. 105, 80th Cong ., 1st secs., pp. 6, 7,
21, and 22; H. Conf. Rept . 510, 80th Cong., 1st sess., p . 44; 93 Cong . Rec. 3837, 4135,
4191, 4193, 4432, 4886, 4887; S. Rept. 986, part 3, 80th Cong., 2d sess., p. 52.
" See Union Starch & Refining Co. v. N.L.R.B., 186 F. 2d 1008 (C.A. 7), cert. denied
342 U.S. 815, 87 NLRB 779; N.L.R.B. v. Electric Auto-Lite Company, 196 F. 2d 500
(C.A. 6) enfg. 92 NLRB 1073; N.L.R.B. v. Eclipse Lumber Co., Inc., 199 F. 2d 684
(C.A. 9), enfg. 95 NLRB 464; Allied Aviation Fueling of New York, Inc., 113 NLRB 111.
+sRadio Ofcers' Union, etc. v. N.L.R.B., 347 U.S. 17, 40, affg. 196 F. 2d 960, enfg.
93 NLRB 1523.
16N.L.R.B. v. Philadelphia Iron Works, Inc., 211 F. 2d 937, 940-941 (C.A. 3).
584 • DECISIONS OF NATIONAL LABOR RELATIONS BOARD
not deciding this to be so, the Board and the courts have held that such refusal under
such circumstances nevertheless constitutes a violation of Section 8(b)(2) because
the refusal to return Rittenberry to his job was the proximate result of the discrimi-
natory referral and hiring arrangement. As the Respondent is responsible for the
unlawful hiring arrangement, it is also responsible for its reasonably-to-be-anticipated
results.47 Moreover, Master Mechanic Cannard was forbidden by the Union to
request Rittenberry.
Also, the Respondent argues that the General Counsel has not proved that there
were jobs available to which Rittenberry could have been referred after the strike.
The fallacy of this contention is that it fails to take into account that the Union's
refusal to even consider Rittenberry for employment on an equal basis with the other
members because of his neither walking the picket line nor paying the fine, and that
the Union's refusal to place his name on the out-of-work list when the strike ended
was unlawful discrimination. This denial of equal access to the available jobs was
in itself and without more a restrictive imposition in violation of the Act.
Under the circumstances described above, it is found that the Respondent Union
prevented Rittenberry from returning to work until March 20, 1956, because he had
failed to walk the picket line during the strike.48 This discrimination, based on
Rittenberry's failure to aid the Union in its strike, tended to "encourage ... member-
ship in [a] labor organization," even though Rittenberry was already a member of
the Union, in the sense that it was aimed at compelling obedience to union policy.
This discrimination, demonstrating the Union's strength, tends to encourage non-
members to join it and other members to retain their membership. Therefore, it is
found that the discrimination against Rittenberry was proscribed by Section 8(a)(3)
of.the Act, as he was entitled to be redispatched to his pre-strike job when it was
available, and the Union, by causing Tellepsen to so discriminate, violated Section
8(b)(2) 49
By the same conduct the Respondent Union also violated Section 8 (b) (1) (A).
That section safeguards employees against restraint and coercion by a labor organi-
zation "in the exercise of the rights guaranteed in Section 7." Section 7 confers on an
employee the right to "assist labor organizations and to engage in other concerted
activities ... or other mutual aid or protection"; but it also confers on employees the
converse right "to refrain from any or all of such activities" except as limited by a
valid union-security agreement. Rittenberry had the right to "refrain" from assisting
the Union in its picketing activities and this abstention is protected from restraint and
coercion.50 The Union's contention that the proviso to Section 8(b)(1)(A) immu-
nized its conduct is rejected. This proviso provides that a union shall have the right
to prescribe its own rules with respect to acquisition or retention of membership in
the Union. The Union can prescribe its own rules with respect to the acquisition or
retention of membership in the Union, but the Union cannot under cover of that right
require conformity with the resolution it passed nor enforce its asserted rights in such
a way as.to deprive one of its members of his employment.51 The inescapable effect
of requiring adherence to the Union's resolution penalizing members for failure to
comply was that existing members were compelled to picket in order to remain in
good standing with the Union so as to preserve their opportunity for employment and
thus remain eligible for assignment to jobs. Rittenberry was thus penalized by the
denial of employment with the Company because of his failure to picket. It was
against such deprivation of the opportunity to work that Section 8 (b) (1) (A) was
directed.52
4, Alleged threats by Union with respect to charges filed by Rittenberry
On May 13, 1956, Earl E. Ford, one of the Union's business agents, came to Ritten-
berry's home and asked him "to change [his] statement, reword [his] statement .. .
-Del D. Webb Construction Company, 95 NLRB 75, 82; Mundet Cork Corporation, 96
NLRB 1142, 1149-1150; Turner Construction Company, 110 NLRB 1860; Childs Com-
pany, 93 NLRB 281.
481t is noteworthy that even on March 20 It was still necessary for the Company to
obtain union clearance before Rittenberry could return to work.
4e Minneapolis Star and Tribune Company, 109 NLRB 727.
60 Contrary to the General Counsel's contention, this is not to be construed as holding
that the imposition of the fine is violative of Section 8(b) (1) (A) as the proviso to this
section precludes any such interference with the internal affairs of a labor organization.
American Newspaper Publishers Association, 86 NLRB 951, 955-957; Minneapolis Star
and Tribune, supra, p. 729. See volume 2, Legislative History of the Labor Management
Relations Act, pages 1139-1141.
5 'Marlin Rockwell Corporation, 114 NLRB 553, 561.
53 93 Cong. Ree. 4436; see also 93 Cong. Rec. 4021, 4023, 4435.
LOCAL UNION NO. 450, INT'L UNION OF OPERATING ENGRS. 585
and drop the charges that [he] had filed with the Board." Ford told him that if he
did not, his union book would be taken from him, thus precluding him from working.
On May 24, 4 days before the hearing commenced in this proceeding, Frazier, a
master mechanic at Tellepsen, invited Rittenberry to his home to meet with Homer
Pierce, business manager of the Respondent Union. Pierce also told Rittenberry that
if he did not drop the charge he would be unable to work in the construction industry
within the jurisdictional area encompassed by the Union.
It is found by this course of conduct whereby these union officials threatened
Rittenberry, the Charging Party, with loss of his job unless he withdrew or changed
the charge he filed with the Board that the Union coerced and restrained Rittenberry
in the exercise of rights guaranteed in Section 7 of the Act, thereby violating Section
8(b) (1) (A). Threatening Rittenberry with loss of employment was the most virulent
form of restraint and coercion, for there is little to which a worker is more sensitive
than loss of his earning capacity. The Respondent Union's conduct, therefore, falls
within the ban of the plain meaning of Section 8(b) (1) (A).53
THE REMEDY
It having been found that the Respondent Union was engaged in and its engaging
in unfair labor practices, it will be recommended that it cease and desist therefrom
and take affirmative action necessary to effectuate the policies of the Act.
Having found that the Respondent has violated Section 8(b) (1) (A) of the Act by
restraining and coercing J. R. Rittenberry, the Charging Party, when it threatened
him with loss of his livelihood if he did not change or withdraw the charge he had
filed with the Board, it will be recommended that it cease and desist therefrom.
It will be recommended that J. R. Rittenberry be made whole for any loss of pay
suffered by him as a result of the discrimination practiced against him by the Re-
spondent Union because he failed to picket during the strike. In computing the back
pay due the Charging Party, the customary formula of the Board shall be followed.54
There has been considerable testimony in the record as to when subsequent to the
termination of the strike a job was available for Rittenberry. The General Counsel
argues that where there existed a discriminatorily operated hiring hall as here, back
pay should not be computed from the date a job was available but from the date of
the commencement of the discrimination since the Union 's action caused Rittenberry
loss of earnings and, therefore, it should be chargeable for the consequences flowing
therefrom. However, the Board has held that no back pay accrues until work be-
comes available 55 It is clear from the record that Rittenberry asked Chennault,
business agent of Respondent, to return him to his job on August 15, 1955, and that
Chennault refused his request for proscribed reasons. It will be recommended, there-
fore, that Rittenberry be made whole for any loss of pay he suffered by reason of
the Respondent's discrimination against him, by payment to him of a sum of money
equal to the amount he would have earned as wages from the date a job was available
for him to March 20, 1956, the date when he returned to work. Thus, while it appears
that at the precise moment when Rittenberry requested to be sent back to his job on
August 15 his job was not available, it is clear that all of Tellepsen's striking employ-
ees were back at work by December 13 and that but for Rittenberry's failure to walk
the picket line, he would have been back on his job by at least that date. Rittenberry
testified that both Looper and Cannard informed him that the truck he had operated
immediately prior to the time he went on vacation was working on or about November
22, 1955. However, the record was not sufficiently developed with respect to deter-
mining the exact date when a job became available. In any event, as a matter of
Board procedure , such question can be more appropriately handled as a compliance
matter.56
In view of the Board 's ruling in H. E. Stoudt & Son, Inc., 114 NLRB 838,
841-842, it will be recommended that the Respondent W. C. Chennault, business agent
of Respondent , should not be held personally liable for the reimbursement to
Rittenberry.
'Local 29 4, International Brotherhood of Teamsters, etc. (Valetta Trucking Company),
116 NLRB 842; cf. Textile Workers Union of America, CIO (Personal Products Corpo-
ration), 108 NLRB 743, 749.
F. W. Woolworth Company, 90 NLRB 289.
es Swinerton and Walberg Company, 94 NLRB 1079, 1080, enfd. 202 F. 2d 511, 515-516
(C.A. 9) ; Seabright Construction Company, 108 NLRB 8, 9.
se Where an illegal hiring arrangement exists, the applicant need not continue to re-
apply to establish that he is a victim of a discriminatory hiring policy. Daniel Hamm
Drayage Company, Inc., 84 NLRB 458, 460, enfd. 185 F. 2d 1020 (C.A. 5).
586 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The complaint alleges that the Respondent "has illegally and coercively collected
initiation fees and dues from the employees pursuant to the . closed shop hiring
arrangement." The record, however, is not sufficiently developed with respect to
whether dues and initiation fees were unlawfully collected from Tellepsen's employees
although Rittenberry testified he paid an initiation fee. Therefore, this matter is left
to the compliance stage of this proceeding for determination in accordance with the
rule enunciated in J. S. Brown-E. F. Olds Plumbing & Heating Corporation, 115
NLRB 594.57
The record demonstrates that the Union does not refer applicants for employment
to Tellepsen Construction Company on a nondiscriminatory basis and that its referral
practices are inconsistent with the nondiscriminatory operation of a hiring hall. The
Union has maintained and enforced agreements, understandings, and practices in
violation of Section 8(b)(2) of the Act which contain and involve terms and condi-
tions of employment requiring compliance with qualification standards unilaterally
determined by the Union before a job applicant can even be considered for employ-
ment with no voice given the employer to accept or reject anyone referred by the
Union. Accordingly, it will be recommended that the Respondent Union cease and
desist from requiring employers for whom it supplies personnel to agree to any
arrangement, oral or written, which by its terms require these employers to discrimi-
nate against employees who are not members of the Respondent in regard to their
hire or tenure of employment or any term or condition of employment except in
accordance with the proviso in Section 8(a)(3) of the Act. Furthermore, it shall
be recommended that the Respondent cease and desist from requiring job applicants
to first apply for or obtain membership in the Union or obtain clearance from the
Union before they can be eligible for employment.
It having been conceded and found that the Union maintains contractual relation-
ships with contractors other than Tellepsen, it is reasonable to anticipate that the
Union will also discriminatorily require union membership or referral as a condition
of employment by employees, or prospective employees, of such other employers with
whom the Union maintains contractual relationships. Because it is believed that to
effectuate the policies and purposes of the Act it is necessary to have a remedial order
which is coextensive with the violations which are reasonably to be anticipated, it is
recommended that a cease-and-desist order be issued enjoining the Union from com-
mitting this and similar violations against employees of any other employer provided
such other employers are employers over whom the Board would assert jurisdiction
in an appropriate proceeding. International Brotherhood of Teamsters, etc. (De-
Prizio Construction Company), supra.
Section 10(c) requires not only that the equities between employers, labor organi-
zations, and employees be balanced but that the remedy remove and eliminate ob-
structions to commerce for the public benefit. Because Tellepsen has not been joined
in the complaint as a respondent in this proceeding, this case presents a novel problem
with respect to fashioning a remedy which will undo the effects of the Respondent's
unfair labor practices.58 Consequently, the affirmative remedial action which can
be ordered is necessarily limited and renders difficult, if not impossible, accomplish-
ment of the congressional mandate of undoing the effects of the unfair labor practices
found herein.
Merely because Rittenberry would be compensated for the discriminatory treatment
he received does not necessarily effectuate the public policies of the Act. Undoing
the effects of the unfair labor practices goes beyond this: it envisages publicly signifi-
cant rights of all the employees who are represented by the Union. Discrimination
exercises a restraining and coercive effect upon the rights not only of the immediate
victim but upon the rights of all present or future members of the Union; it impresses
upon them the danger to their welfare and security if they should incur the displeasure
of their Union. If these rights are being impinged upon, or perhaps disregarded
entirely, then it is important that those rights be restored and the cause therefor
eradicated. Accordingly, the remedy should not only restore the victim of the dis-
crimination to the position from which he was unlawfully excluded, but also, and
more significantly, it should dissipate the coercive effects upon other employees who
may desire other avenues of self-organization to be opened up to them but who have
been discouraged or prevented therefrom by the threat to them implicit in the dis-
crimination suffered by a fellow member who incurred the displeasure of their repre-
sentative: To say that the Act provides these employees with a means whereby they
57 See article XXIII, subdivision 7, beginning at page 93 of the Respondent's constitu-
tion (General Counsel's Exhibit No. 4) ; International Brotherhood of Teamsters etc.,
Local 179 (De Prizio Construction Company), 110 NLRB 287, 288.
°Section 10(e) of the Act.
LOCAL UNION NO. 450, INT'L UNION OF OPERATING ENGRS. 587
can rectify their predicament seems somewhat naive and unrealistic when the eco-
nomic reprisals inherent in this situation are considered.
An order merely requiring the Respondent to cease and desist from giving effect
to its currently existing discriminatory hiring-hall arrangement does not, in the opinion
of the Trial Examiner, adequately remedy the situation disclosed by this record,
because the Union will continue to retain the accrued benefits gained through its
violation of the Act. It would seem that the effect of the violations under this illegal
hiring-hall arrangement are such as to make it inequitable to permit the Respondent
who has not been certified by the Board as the collective-bargaining agent of the
employees to enjoy continued representative status which it may have perhaps
acquired and presumptively strengthened over the years by means of this illegal
hiring-hall arrangement.
The Board has recently indicated its concern in an analogous situation 59 where
an employer had neglected to obtain his workers' consent to be represented by a
bargaining agent when he signed an employer association contract with a union. The
Board held that the employer's action was illegal since his employees were not given
an opportunity to vote on the question of whether they wished to be represented on
an overall basis by the Union.
Moreover, it would seem that the prize of recognition of a union by an employer
should not be utilized by a union to coerce workers into becoming or remaining
members of a union which the workers may be found to have never had a choice in
selecting or if the employees' right to choose their own representative was barred by
the employer's entirely independent action. Similarly, by thus conditioning employ-
ment on preexisting union membership, the Board's performance of its duty to deter-
mine what union, if any, the majority wants, may not only be blocked but may result
in statutory stultification.
So too, in this proceeding, plenary effectuation of the statutory policies and purposes
cannot be achieved because of the insufficiency of the parties and the deficiency of the
complaint, with its consequential limiting of the issues. Therefore, an adequate
remedy can not be fashioned nor a determinative order issued which will eradicate
all the resultant effects of Respondent's unfair labor practices.so Whether under the
issues drawn by the pleadings and the record herein it would be proper, nevertheless,
to issue an order prohibiting the Respondent Union from representing the employees
in collective-bargaining negotiations unless it is certified by the Board is not here
decided. This is an innovation more properly within the province of the Board.
It is believed that the Union's unfair labor practices found above are potentially
related to similar unfair labor practices and that danger of future commissions of
such unlawful acts may be anticipated from its past course of conduct. The preven-
tive purposes of the Act will be thwarted unless the order is coextensive with the
threat. Accordingly, it is recommended that a broad cease-and-desist order shall issue
against the Union, encompassing all employers within its territorial jurisdiction over
whom the Board would assert jurisdiction.
CONCLUSIONS OF LAW
1. Tellepsen Construction Company is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
2. Respondent Local 450 is a labor organization within the meaning of Section
2(5) of the Act.
3. At all times material herein, the Respondent W. C. Chennault was an agent of
the Union within the meaning of Section 2(13) and Section 8(b) of the Act.
4. The violative activities of Respondent set forth above, occurring in connection
with the operations of the Company described above, have a close, intimate, and
substantial relation to trade, traffic, and commerce among the several States and tend
to lead to labor disputes burdening and obstructing commerce and the free flow of
commerce.
5. By restraining and coercing J. R. Rittenberry in the exercise of rights guaranteed
to him in Section 7 of the Act, and by preventing him from engaging in employment
with the Company and threatening him with loss of his job if he did not change or
withdraw his then pending charge which he had filed with the Board, the Respondent
59 Mohawk Business Machines Corporation, 116 NLRB 248. See also John B. Shriver
Company, 103 NLRB 23, 38, 39, 43.
60 See Eichleay Corporation v. N.L.R.B., 206 F. 2d 799, 804-806 (C.A. 3) ; Monolith
Portland Cement Company, 94 NLRB 1358. See also Julian Freirich Co., 86 NLRB 542,
where a respondent employer who violated Section 8(a) (1) of the Act by unlawfully
assisting and supporting a union was ordered to withdraw recognition from the union
unless it was certified by the Board.
588 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
has engaged in and is engaging in unfair labor practices within the meaning of Section
8 (b) (1) (A) of the Act.
6. By preventing the Tellepsen Construction Company from promoting Rittenberry
to a supervisory position and by causing the Company to discriminate against him,
in violation of Section 8(a)(3) of theAct, the Respondent Union has engaged in
and is engaging in unfair labor practices within the meaning of Section 8(b)(2)
of the Act.
7, 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]
APPENDIX B
The agreement between Respondent Union and the Houston Chapter of the Asso-
ciated General Contractors, of which Tellepsen Construction Company is a member,
provides in pertinent part as follows:
ARTICLE IV
Estimated Forces
In order to economically and efficiently serve the building public, it is impor-
tant to have experienced , skilled workmen . Contractors recognize the Union as a
source of such skilled manpower and will, therefore , use it as a source when in
need of employees . The Union agrees that when Contractors request employees,
it will exert every effort to supply skilled men.
ARTICLE VIII
Qualifying Intent
It is not the intent of either party hereto to violate any law or any ruling or
regulation of any Government authority or State agency having jurisdiction of
the subject matter of this agreement.
Working Conditions
Section 15.-Master Mechanic, Assistant and Engineer Ratio
(A) When as many as four (4) Operating Engineers are employed on any
one job, one shall be a master mechanic who may be required to work at his
trade but shall receive a master mechanic's pay.
(B) When there are six (6) or more Engineers employed on a job, one shall
be a master mechanic who shall not work with the tools but perform the custo-
mary duties of a master mechanic.
* * * * * *
(F) The master mechanic or assistant master mechanic shall have full and
complete charge of the men under him and discharging of his men shall be
done through him.
(G) All master mechanics and assistant mechanics must be practical mechan-
ics of the craft they represent and have three (3) years or more of experience
at their trade.
* * * * * *
Section 20.-General Conditions
* * * * * * *
(I) The Steward shall be the representative of the Union on the job. He
shall not be discriminated against for any lawful Union activity and shall at all
times be given ample time to take care of lawful Union business. The Steward
shall be appointed by the business representative and he shall be the last man
to be laid off, provided that in the opinion of management, he is qualified to do
the work available.
APPENDIX C
The constitution of the International Union of Operating Engineers provides in:
Article XV, Section 2 (d).
No member desiring to transfer into another local union shall negotiate for,
accept or commence work until his clearance card has been accepted or a Jour-
CIE GRAND UNION COMPANY 589
neyman Engineer's Temporary Permit shall have been issued to him as herein-
after provided. If and when his clearance card is accepted , he shall be governed
by the wage scale rules and by-laws of said Local Union.
Article XV, Section 3 (a).
Members of one Local Union shall not seek employment , be employed, or
remain at work at the craft within the territorial jurisdiction of another Local
Union without the consent of such other Local Union, which consent may be
evidenced by its acceptance of the clearance card presented to it by the member
involved, as provided in the constitution or by the issuance of the temporary ,
permit hereinafter described . If the member involved does not present a clear-
ance card to such other Local Union, or the Local Union to which the clearance
card is presented fails to act thereon, or the Local Union to which the clearance
card is presented acts thereon and refuses to affiliate such member , and the Busi-
ness Representative of such other Local Union , in such cases , shall thereupon
consent to the issuance of the temporary permit (described herein ) then the
member involved shall be entitled to receive and required to secure successively,
during the period within which said consent be granted and his work continue,
such number of weekly journeymen engineers ' temporary permits if he is a
stationary engineer, as shall be issued to him by the said Business Representative
under the regulations established by the General Excutive Board . Such permits
shall, for the period issued , allow the holder thereof to seek, accept, and hold
employment within the territorial jurisdiction of such other Local Union out of
which said temporary permits shall be issued, but subject always to such regula-
tions as shall be imposed thereon by the General Executive Board.
Article XV, Section 3 (c).
No member of this organization shall be permitted to remain at work at the
craft in the territorial jurisdiction of any other Local Union than the one to
which he shall belong for a longer period of time than that covered by the
temporary permit issued to him, nor shall any such member working under the
authority conferred by a temporary permit be removed from said work or
replaced by a member of the Local Union issuing the said temporary permit
until the expiration of the period for which the said temporary permit was issued,
unless such removal be for a good and sufficient cause.
Article XV, Section 3 (h).
, No temporary permit as described in this article shall be issued to or used
by any person who is not , at the time, either a member of the International
Union of Operating Engineers or an applicant for membership therein.
Article XXIII, Subdivision 3, Section (a).
Members of Local Unions shall conform to and abide by the Constitution,
Laws, Rules , Obligation and Ritual, and the decisions , rulings, orders and direc-
tions of any authority of the International Union empowered by this Constitu-
tion to make them . Each member shall keep the Recording-Corresponding
Secretary properly and promptly notified of his residence and any change thereof.
Each member shall hire none but those in good standing with a Union having
jurisdiction over the work to be done nor purchase commodities without the
union label thereon when otherwise possible.
The Grand Union Company and Robert E. Gray
Local 294, International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America and Robert E. Gray.
Cases Nos. 2-CA-5225 and 2-CB 1872. December 19, 1958
DECISION AND ORDER
On July 8, 195 '8, Trial Examiner Herbert Silberman issued his
Intermediate Report in the above consolidated proceeding , finding
that .the. Respondent Employer had engaged in and was engaging
in. certain unfair labor practices in violation of Section 8 (a) (1)
122 NLRB No. 68.