Local Union No. 85, Sheet Metal Workers' Int'l, Etc.

National Labor Relations Board - Board Decisions

Dec 22, 1958

122 N.L.R.B. 631 (N.L.R.B. 1958)

LOCAL UNION NO. 85, SHEET METAL WORKERS' INT'L, ETC. 631
The Union shall submit to the Company in writing each
month, a list of their members with an itemized account of their
dues, initiation fees, etc. The Company shall deduct the amount
so submitted from the pay of the member-employee the fol-
lowing pay period and shall forward same to the Secretary-
Treasurer of the Union, provided that the Union furnishes the
Company with written authorization cards from the employees.
The first basis for our finding such clause to be defective was that
it requires the checkoff of moneys other than dues. However, we
now believe that, as a matter of comity, our interpretation of the
term "membership dues" as used in Section 302 should follow that
of the Department of Justice which has the responsibility of en-
forcing that section of the Act. As the Justice Department has
construed the term "membership dues" in the context of Section 302
to include initiation fees and assessments in addition to dues, we
hold that the subject checkoff clause, in providing for the checkoff
of "dues, initiation fees, etc.," does not on its face conflict with
Section 302.2 The other basis upon which we relied to find the
checkoff clause defective was that it set no limit to the period for
which authorizations should be irrevocable, as required by Sec-
tion 302(c) (4). As the question of conformity of a checkoff agree-
ment with Section 302 in this respect involves the statutory standards
applicable to the separate authorizations to be executed by the
individual members, we are of the opinion that the absence in a
contractual checkoff clause of a specific reference to the authoriza-
tions.or the statutory requirements therefor does not by itself render
the clause defective under our Keystone decision.
Accordingly, we shall, and hereby do, grant the motion for recon-
sideration and vacate the Decision and Direction of Election herein,
pending further consideration of other issues in the case.
2 See International Harvester Company, 95 NLRB 730, 733.
Local Union No. 85, Sheet Metal Workers ' International Asso-
ciation , AFL-CIO and J . P. Gasaway. Case No. 10-CB-610.
December 22, 1958
DECISION AND ORDER
. On May 8, 1958, Trial Examiner Robert E. Mullin issued his
Intermediate Report in this case, finding that the Respondent had
engaged and was engaging in certain unfair labor practices within
the meaning of Section 8(b) (1) (A) and (2) of the Act, and
recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the copy of the Intermediate
122 NLRB No. 79.
632 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Report attached hereto. Thereafter, the Respondent filed exceptions
to the Intermediate Report and a supporting brief.
The Board has reviewed the rulings of the Trial Examiner made
at this hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the
Intermediate Report, the exceptions and brief, and the entire record
in the case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner, with the modifications and addi-
tions noted below.
THE REMEDY
Having found that the Respondent has violated the Act, we shall
order that it cease and desist therefrom and take certain affirmative
action in order to effectuate the policies of the Act.
For reasons fully detailed in Local Union No. 450, International
Union of Operating Engineers, AFL-CIO (Tellepsen Construction
Company),' we find that the illegal hiring arrangement between
Respondent and R. C. Mahon Construction Company unlawfully
coerced employees into becoming members of, and paying initiation
fees, dues, and other moneys to, the Respondent and that an order
directing Respondent to refund the moneys so collected is necessary
and appropriate in this case. The Respondent's liability for reim-
bursement shall be limited to moneys collected during the period
beginning 6 months before the filing and service on it of the charge
herein. Contrary to the Trial Examiner, we shall apply the remedy
of disgorgement of sums illegally exacted from employees to all
business locations of the Company herein involved within the ter-
ritorial jurisdiction of the Respondent. Tellepsen Construction
Company, supra.
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. 85, Sheet Metal Workers' International Association, AFL-CIO,
and its officers, representatives, agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Entering into, performing, maintaining, or otherwise giving
effect to any agreement, arrangement, or understanding with R. C.
Mahon 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 referral, clearance, or approval by
the Respondent, or which conditions employment upon membership
1122 NLRB 564.
LOCAL UNION NO. 85, SHEET METAL WORKERS' INT'L, ETC. 633
in the Respondent, except as authorized by Section 8(a) (3) of the
Act.
(b) Causing or attempting to cause R. C. Mahon Construction
Company, or any other employer over whom the Board will assert
jurisdiction, to discriminate against J. P. Gasaway, or any other
employee or applicant for employment, in violation of Section 8(a)
(3) of the Act.
(c) 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. P. Gasaway 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."
(b) Refund to all present and former employees of R. C. Mahon
Construction Company any initiation fees, dues, assessments, or any
other moneys they were illegally required to pay the Respondent
Union in order to secure or retain employment with the said Com-
pany 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) Notify R. C. Mahon Construction Company and J. P. Gasa-
way, in writing, that it has no objection to Gasaway's employment?
(d) 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.
(e) Post in the Respondent Union's business offices and meeting
halls copies of the notice attached hereto as an Appendix.-3 Copies
of said notice to be furnished by the Regional Director for the Tenth
Region, shall, after being duly signed by'an authorized representa-
tive of the Respondent, be posted by the said Respondent immediately
upon receipt thereof, and be maintained by it for a period of
sixty (60) consecutive days in conspicuous places, including all
places. where notices to members are customarily posted. Reasonable
sLocal Union 595, International Association of Bridge, Structural and Ornamental
Iron Workers , AFL (R. Clinton Construction Company ), 109 NLRB 73.
3In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order."
634 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
steps shall be taken by the Respondent to insure that the said
notices are not altered, defaced, or covered by any other material.
(f) Mail to the Regional Director for the Tenth Region signed
copies of the notice attached hereto as an Appendix for posting at
the offices of R. C. Mahon 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 Com-
pany is willing to do so.
(g) Notify the Regional Director in writing, within ten (10)
days from the date of this Order, what steps the Respondent has
taken to comply herewith.
APPENDIX
NOTICE TO ALL MEMBERS OF LOCAL UNION No. 85, SHEET METAL
WORKERS' INTERNATIONAL ASSOCIATION, AFL-CIO ; TO ALL EM-
PLOYEES OF R. C. MAHON 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, we hereby give notice that :
WE WILL NOT enter into, perform, maintain, or otherwise give
effect to any agreement, arrangement, or understanding with
R. C. Mahon Construction Company, or any other employer
over which the National Labor Relations Board will assert
jurisdiction, which conditions the hiring of applicants for em-
ployment, 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.
WIPE WILL NOT cause or attempt to cause R. C. Mahon Con-
struction Company, or any other employer over which the Board
will assert jurisdiction, to discriminate against J. P. Gasaway,
or any other employee or applicant for employment, in violation
of Section 8 (a) (3) of the Act.
WE WILL NOT in any other manner restrain of coerce 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 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. P. Gasaway whole for any loss of pay
suffered as a result of the discrimination against him.
LOCAL UNION NO. 85, SHEET METAL WORKERS' INT'L, ETC. 635
WE WILL refund to all employees of R. C. Mahon Construc-
tion Company any initiation fees, dues, assessments, or any 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 six (6) months before the filing
and servicing upon us of the unfair labor practice charge in this
proceeding.
LOCAL UNION No. 85, SHEET METAL
WORKERS' INTERNATIONAL ASSOCIA-
TION, AFL-CIO,
Labor Organization.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
Upon a charge duly filed by J. P. Gasaway, an individual , the General Counsel
of the National Labor Relations Board , by the Regional Director of the Tenth
Region ( Atlanta, Georgia ), issued a complaint and amended complaint against
Local Union No. 85, Sheet Metal Workers ' International Association , AFL-CIO
(hereinafter called Union or Local No. 85) alleging that the Union had engaged
in and was engaging in unfair labor practices affecting commerce within the mean-
ing of Section 8(b)(1)(A) and (2 ) and Section 2(6) and (7) of the National
Labor Relations Act, 61 Stat. 136, herein called the Act. Copies of the charge,
the complaint , the amended complaint and notice of hearing were duly served
upon the Respondent Union. With respect to the unfair labor practices, the
amended complaint alleged, in substance that: ( 1) at all times material herein the
Union has maintained in effect an understanding , practice , and agreement with
the R . C. Mahon Construction Company ( herein called Mahon or Company),
whereby the latter hired and retained as sheet metal workers on its job site in
Hapeville, Georgia, only members of Local No. 85 whose employment was ap-
proved by that Union; ( 2) on about November 7, 1957, J. P. Gasaway was not
employed by Mahon because the Union refused to give the aforesaid Gasaway
a referral ; ( 3) pursuant to the understanding , practice , and agreement with Mahon,
the Union has, since about September 1, 1957, required and collected dues from
its members approved , or referred , for employment by Mahon. In its answer,
duly filed, the Union conceded certain facts with respect to the business of the
R. C. Mahon Construction Company, the Employer here involved , but denied the
commission of any unfair labor practices.
Pursuant to notice , a hearing was held on February 3, 1958, in Atlanta , Georgia,
before the duly designated Trial Examiner . All parties were represented at the
hearing at which full opportunity to be heard , to examine and cross -examine
witnesses and to introduce evidence bearing upon the issues was afforded all
parties. At the conclusion of the hearing oral argument was had by counsel for
the Union . Subsequent to the hearing , able and comprehensive briefs were sub-
mitted by both the Union and the General Counsel.
Upon the entire record in the case, and from my observation of the witnesses,
I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE EMPLOYER
The R. C. Mahon Construction Company is a Michigan corporation with its
principal office and place of business at Detroit, Michigan. It is engaged in the
business of structural steel and industrial equipment erection. During the past
636 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
fiscal year, a representative period, Mahon performed contracts valued in excess
of $50,000 outside the State of Michigan. At all times material herein Mahon
was engaged in the completion of a project at the plant of the Ford Motor
Company in Hapeville, Georgia. On the foregoing facts, the Respondent Union
concedes, and I find, that the Company is engaged in commerce within the
meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Introduction
J. P. Gasaway, a journeyman sheet metal worker, with approximately 13 years
experience in that craft, had been a member of Local No. 85 for 5 years when he
was laid off on October 30, 1957, by Hoffman and Wolfe, a contractor at work
on a project for the Ford Company at its Hapeville plant.
On about November 4, Gasaway went to the union hall of Local No. 85, where
he met with J. L. Fleming, the business agent. There he asked if the latter had
any work for him and the business agent answered in the negative. However,
when Gasaway asked whether Fleming would give him a referral card if he
sought work by himself the business agent promised that he would., On about
November 7, Gasaway went to the Mahon job site where he met one Lyles, the
general foreman, who, in turn, referred him to George A. Thompson, the field
superintendent. There Gasaway requested employment as a sheet metal worker.
Thompson told him he could use him on a stainless steel welding job and that
he could go to work that day provided he obtained a referral card from Local
No. 85. Gasaway testified that he told Thompson that he was sure that he could
satisfy this condition because Fleming had already promised him a referral. When
Mr. Thompson was subsequently called as a witness he corroborated Gasaway in
the following testimony:
Mr. Lyles brought Mr. Gasaway to me and told me that he would be given
a referral to come out on the job if I could use him and I said if he was a
stainless steel welder I could probably use him providing that he was cleared
through the hall, because previous to that I had just laid off six or seven men,
I forget the actual count now, but if he was cleared through the hall I could
probably use him....2
Gasaway immediately proceeded to the union hall where he told Fleming about
his employment prospects on the Mahon job provided he obtained a referral.
According to Gasaway, the business agent replied "No, you cannot go out there.
I am not going to let them pick you." The following day Gasaway returned to
the Company's project and told Thompson of his difficulties in obtaining a union
clearance. The latter promised that he would look into the matter. Thereafter,
the same day, Gasaway went to the union hall once more and again asked for
a referral. According to Gasaway, Fleming replied "No, you ain't going to get
any referral card to go out there," and then, when Gasaway protested with the
statement that he intended to see a lawyer, the business agent said "I am your
lawyer and I will tell you when to go to work and not to." Gasaway did
not return to the Mahon employment office and was never hired by that company.
On November 8, he filed the charge which initiated the instant proceeding.
Fleming testified that in the foregoing conversations he merely told Gasaway
that he would give him a referral in the event Thompson asked for him but
that the latter never made such a request. According to the business agent, when
Gasaway came to see him the first time "He said that he had a job at the Ford
place if I would give him a referral. I told him that if he had a job, he ought
to have went to work. I did not have no call in the office for nobody." As to
his conversation with Gasaway on the following day, Fleming testified "I told
him I still had not had no call for no men, that if he [Thompson] wanted him,
'This finding Is based on the credible testimony of Gasaway which was not denied
by Fleming.
2 An objection to this answer on the ground that it was hearsay was sustained only as
to a portion which is not quoted above. In that part of his answer which was ruled
objectionable, Thompson related his belief, apparently based on hearsay, that Gasaway
had subsequently come back to the jobsite and told Lyles that he was unable to obtain
a referral.
LOCAL UNION NO. 85, SHEET METAL WORKERS' INT'L, ETC. 637
to put him to work." For reasons set forth more fully below I was not impressed
with the frankness of Mr. Fleming's recollection as to these conversations. Gasa-
way's testimony on the other hand, was, to me, more reliable. For this reason,
it is my conclusion, and I find, that, as the Charging Party testified, the business
agent first promised him a referral card if he found a job for himself, but when
the latter returned within a few days to report that he had been promised em-
ployment by the Mahon Company provided he obtained a referral card, Fleming
refused to give Gasaway such a referral and declared "No, you cannot go out
there. I am not going to let them pick you."
Local No. 85 operated a hiring hall in the manner common to the industrial
scene. Mr. Fleming testified that the union maintained an out-of-work list on
which the name of an unemployed member was put at the bottom when he first
reported to the hall and then, as those ahead of him were referred to jobs, his
name was moved up the list. Fleming testified that at the time of his con-
versations with Gasaway the latter 'was between third and fifth place among the
welders on this roster. According to Fleming, whenever a company requested a
man, the name at the top would be the first referred unless the employer re-
quested a specific individual in which case the latter would be sent.
In an able brief, counsel for the Union argues that since Gasaway was not
at the top of the list, in the absence of a specific company request for him, it
would have been the grossest discrimination for Fleming to refer Gasaway ahead
of the men whose names appeared above his. This conclusion would be correct
if, in fact, the Company and the Union had no agreement, practice, or under-
standing whereby Mahon hired only sheet metal workers who had the approval of
Respondent Local No. 85. The General Counsel contends that there was such an
agreement or practice; this is denied by the Union. The evidence was as follows:
Mr. Thompson, field superintendent for Mahon and himself a member of the
Sheet Metal Workers, testified that his company had no written contracts with
any unions but that it endeavors "to abide by all the rules and working conditions
of every city local union." He testified that in hiring new employees it was their
usual practice to "call the hall and ask for the required number of men ... for
that particular day or week. He further testified that "as a rule" the
Company did not hire anyone who was not sent by the "hall" and that the
project at the Ford plant was "an all union job." According to Thompson, all of
the sheet metal workers whom he had hired on the Ford job were union members
and had been referred by the Union. Peak employment on this project was
approximately 72 journeymen sheet metal workers, all of whom were members of
Local No. 85.
A document entitled "Standard Form of Union Agreement," the contract nor-
mally used by Local No. 85, was received in evidence. Attached to this exhibit
was a two-page sheet containing nine addenda to the standard contract. Business
Agent Fleming described these "addenda" as the working rules of Local No. 85.
The introductory paragraph and first "addendum" in this attachment read as
follows:
It is agreed by both parties that the following conditions become part of this
agreement Form A-3-7-55 effective Aug. 8, 1957, until July 1, 1959.
Addendum No. 1
Article II, Section 1
The employer agrees that none but Journeymen Sheet Metal Workers
and registered Apprentices, with referral cards from the Local Union,
shall be employed on any work described in Article I.3
3 A union-shop clause which appears in article III of the "Standard Form of Union
Agreement," has a provision which purports to render it of no force and effect in any
State where the union shop is prohibited by statute. Since Georgia is in the latter cate-
gory, the Respondent contends that, even assuming arguendo that this contract was in
effect between the Union and the Company, the union-shop clause would have been in-
applicable. This argument, however, ignores the fact that at the bottom of the second
page of the contract addenda which contain the closed-shop provision quoted above, two
printed signature elements appear, one captioned "Local Union No. 85 of Sheet Metal
Workers' International Association" and the other "Central Georgia Sheet Metal Con-
tractors' Association." Immediately under each there are appropriate blank spaces for
the signatures of officers or representatives of those parties. This, of course, would tend
to prove that the addendum portion of the document was in common usage between
Local No. 85 and the aforesaid employers' association. Under these circumstances the
"savings clause" in the standard contract form was rendered meaningless by the language
of Addendum No. 1, quoted above, which plainly provided for a closed shop.
638 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Another "Addendum" of this same form agreement required that an employer
signatory make regular payments to what was known as a "Joint Apprenticeship
Committee," the payment to be made at the rate of 1 cent per hour for the hours
worked on a job by each journeyman and apprentice.
Mr. Thompson testified that the Company had requested the Union to supply
it with a copy of the foregoing agreement. Although he stated that this copy
was obtained only to learn the local wage scale, when asked the following question:
Q. (By Mr. MacCarthy.) Mr. Thompson, did you follow the Standard
Form of Union Agreement?
A. We try to abide by all the rules and regulations everywhere we do
business.
Later, this same witness testified that whenever the Company did not follow the
rules and regulations of the local in a particular city "we usually hear from the
various locals." Thompson did not testify as to whether Local 85 had ever made
such a protest to Mahon. However, he was followed to the witness stand by
Business Agent Fleming. The latter was asked
Q. Mr. Fleming, to your knowledge, has the company gone by these
agreements [Standard Form of Union Agreement and the Addenda]?
A. As far as I know, they have.
Later, Mr. Fleming testified that he considered the Mahon Company a "fair"
contractor. It was also conceded by the Union that the Company had made all
the requisite payments to the apprenticeship fund which the addenda required.
Fleming's testimony about the provisions of the foregoing agreement were most
confused. He at first testified that the Union's contract had expired July 1, 1957.
Later he testified that Local No. 85 followed the standard form of union agree-
ment. Still later, with respect to the addenda provision requiring that an employer
hire only applicants with a referral card from Local No. 85, Fleming testified that
this section had been removed from the agreement about a week before the unfair
labor practice hearing began. The foregoing lack of specificity and conflict in his
testimony contributed to my conclusion, noted earlier, that Mr. Fleming's testimony
was lacking in candor and persuasiveness. Neither am I convinced that Mr.
Thompson was completely frank when he testified that he sought a copy of the
union agreement only to acquaint himself with the local wage scale. The latter
was a question which his firm had undoubtedly explored fully at the time it sub-
mitted its original bid on the job. Mr. Thompson's subsequent testimony revealed
that he sought the agreement and the attached working rules and regulations of
Local No. 85,4 in order to comply fully with their terms. The testimony of
both Fleming and Thompson establishes that on this all-union job the provisions
of the agreement were fully met and, as a result, Fleming had no occasion to
complain of any violations of the working rules of Local No. 85 by Mahon, a
"fair" contractor.5
It is significant to the issue here that shortly before Gasaway came to the job
site Mahon had laid off several men.6 As Thompson testified, ". . I said . . .
I could probably use him providing that he was cleared through the hall, because
previous to that I had just laid off six or seven men.. . ' Obviously, Thompson
foresaw that Gasaway, whom he wanted to hire, might not be at the top of the
4 As Dir. Fleming described the addenda.
5In a recent case where an employer offered the same explanation for its possession of
a union contract as did Mr. Thompson here, the Board commented : "Although the
Company contends that it used this contract only for purposes of determining the wages
of its employees, the only reasonable inference to be drawn from the facts herein pre-
sented is that the Company bound itself to more than the contract's wage scale." Booth
and Flinn Company, et al., 120 NLRB 545.
e The record indicates that Mahon terminated seven journeymen sheet metal workers
from October 25 to 30, 1957. These were all members of Local No. 85. Their names
and dates of termination were as follows
Employee Terminated
B. L. Eason----------------------------------------------------- Oct. 25
G. Pye---------------------------------------------------------- Oct.29
O. E. Leftwich-------------------------------------------------- Oct. 30
E. L. Mote------------------------------------------------------ Oct. 30
A. Bobo--------------------------------------------------------- Oct.30
O. H. Birt------------------------------------------------------ Oct. 30
C. E. Bozard---------------------------------------------------- Oct. 30
LOCAL UNION NO. 85, SHEET METAL WORKERS' INT'L, ETC. 639
referral list, and not wanting to endanger the Company's relations with the Union,
he left it for the Union to determine Gasaway's position on that list. When the
business agent refused Gasaway's request for a referral because there were others
ahead of him on the list, that closed the case insofar as the Company was con-
cerned and Gasaway was not hired.
From the foregoing findings it is my conclusion that the Company and the
Respondent had an understanding whereby Mahon agreed that for work within
the jurisdiction of Local No. 85 the Company would hire only members of
the Union who were referred to it by the Respondent. Such an agreement is
plainly proscribed by the Act. By its adherence to, and its acquiescence in, this
agreement and practice, the Company permitted a labor organization to determine
who would be permitted to work for it, at a time when no lawful contractual
obligation for such action existed. Such action on the part of an employer is
violative of Section 8(a)(3) of the Act. Although the Respondent did not request
or demand that the Company refuse to hire Gasaway the Company's failure to
hire the Charging Party was the proximate result of the discriminatory referral and
hiring agreement between Mahon and Local No. 85. When Fleming refused to
give a work referral to Gasaway under the circumstances present in this case it
was to be anticipated that the Company would refuse to hire him.7 Consequently,
it is my conclusion, and I find, that by such conduct the Respondent engaged in
unfair labor practices within the meaning of Section 8(b)(2) and Section 8(b)
(1) (A) of the Act. Booth and Flinn Company, supra; Mountain Pacific Chapter
of The Associated General Contractors, Inc., et al., 119 NLRB 883; The Lummus
Company, 101 NLRB 1628, 1629-1632; cf. Radio Officers' Union etc. (A. A. Bull
Steamship Company) v. N.L.R.B., 347 U.S. 17, 45.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in
connection with the operations of the Company described in section I, above,
have a close, intimate, and substantial relation to trade, traffic, and commerce
among the several States, and tend to lead to labor disputes burdening and
obstructing commerce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent Union has violated the Act, I shall recom-
mend that it cease and desist therefrom and take certain affirmative action designed
to effectuate the policies of the Act. I shall thus recommend, among other things,
that it make J. P. Gasaway whole for any loss of pay suffered by reason of the
discrimination against him, by payment to him of a sum of money equal to that
which he normally would have earned from November 7, 1957, until he would
have been laid off, absent unfair labor practices, less his net earnings during this
period. Back pay shall be computed in accordance with the formula set forth in
F. W. Woolworth, 90 NLRB 289.
The General Counsel also alleged that the Respondent had required and col-
lected dues from its members approved or referred for employment by the Mahon
Company. There was no evidence of a checkoff arrangement between the Union
and the Employer. There was evidence, however, that the 72 sheet metal workers
hired by the Company were members in good standing of Local No. 85. The
existence of the illegal referral agreement between the parties, such as found
herein, unquestionably facilitated the collection of dues and other union obligations.
In several recent cases the Board has found it appropriate and necessary to order
reimbursement of the union dues and initiation fees collected pursuant to an un-
lawful union-security clause. It is also true that in all of those cases the employer
enforced a checkoff provision. United Association of Journeymen & Apprentices of
Plumbing & Pipefitting Industry, etc. Local 231 (Brown-Olds Corporation), 115 NLRB
594, 599-602; Hibbard Dowel Co., 113 NLRB 28; The Englander Company, Inc., 114
7 The Respondent relies heavily upon N.L.R.B. v. Turner Construction Co., et at., 227
F. 2d 448 (C.A. 6). Although, on the surface, that case is somewhat similar to the in-
stant matter, it is distinguishable, for in concluding that there was no discrimination,
the court there considered it extremely significant that, as it stated (ibid., at 500)
"Fisher [the alleged discrhninatee] had not been offered a job by anyone and there is no
evidence that the Union refused :to clear him or told the Company it could not hire him."
In this case, on the other hand, the Charging Party had been offered employment on
condition that he obtain clearance from the Union and when thereafter the Union re-
fused to clear him, the Company acquiesced in that decision.
640 DECISIONS OF NATIONAL LABOR RELATIONS BOARD.
NLRB 1034; and Broderick Wood Products Company, 118 NLRB 38.8 Here,
despite the absence of a checkoff arrangement , the broad language of the Brown-
Olds decision appears to require that because of the assistance provided the
Respondent in its dues collecting by the illegal referral agreement found herein,
the latter must now be compelled to refund such dues as were collected from its
members during their employment with the Mahon Company on the Ford project.
Accordingly, I shall make that recommendation here . I shall also recommend
that the Respondent cease and desist from maintaining and giving effect to the
illegal hiring arrangement described above.
Upon the basis of the foregoing findings of fact, and upon the entire record
in the case, I make the following:
CONCLUSIONS OF LAW
1. The Employer is engaged in commerce within the meaning of the Act.
2. The Respondent Union is a labor organization within the meaning of, Sec-
tion 2(5) of the Act.
3. By causing the Company to refuse to hire J. P. Gasaway because he had not
obtained a work referral from the Respondent, the Respondent has engaged in
unfair labor practices within the meaning of Section 8(b)(2) and 8(b)(1)(A)
of the. Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
8 At the same time, it should also be borne in mind that, on occasion the Board has
refused to order reimbursement of union dues collected by an employer on behalf of an
illegally assisted union . Cf. Bowman Transportation, Inc., 112 NLRB 387, 388 , enfd. in
part, sub nom . District 50, United Mine Workers of America v . N.L.R.B ., 237 F. 2d 586
(C.A., D.C.), vacated and remanded as to another point , 355 U . S. 458.
The Raser Tanning Company and Amalgamated Meat Cutters &
Butcher Workmen of North America, AFL-CIO. Cabe No.
8-CA-1313. December °L$, 1968
DECISION AND ORDER
On May 27, 1958, Trial Examiner C. W. Whittemore issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the copy of the
Intermediate Report attached hereto. Thereafter, the Respondent
filed exceptions to the Intermediate Report, a supporting brief, and
a request for oral argument.'
Pursuant to the provisions of Section 3(b) of:the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Chairman Leedom and Members Bean and Fanning].
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed . The Board has considered the
'Bemuse in our , . opinion the record , exceptions, and brief adequately set forth the
issues and the positions of the parties, this request is hereby denied.
122 NLRB No. 80.