McCormick Construction Co.

National Labor Relations Board - Board Decisions

Mar 23, 1960

126 N.L.R.B. 1246 (N.L.R.B. 1960)

1246 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
would be just about the time necessary for information and a decision on it to
travel back and forth through channels.
In view of the foregoing and considering the record as a whole, I find that the
discharges were discriminatorily motivated in violation of Section 8 (a) (3) and (1)
of the Act as alleged in the complaint.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above , occurring in con-
nection with the operations of the Respondent 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
It having been found that the Respondent has engaged in unfair labor practices
in violation of Section 8(a) (1) and ( 3) of the Act, it will be recommended that the
Respondent cease and desist therefrom and take certain affirmative action designed
to effectuate the policies of the Act.
Having found that the Respondent discriminated with regard to the hire and
tenure of employment of Burkett Black, Richard G. Phillips, and Robert E. Bridges
on July 14, 1958, the Trial Examiner will recommend that the Respondent offer
each of them immediate and full reinstatement to his former or substantially
equivalent position without prejudice to his seniority or other rights and privileges,
and make each of them whole for any loss of pay suffered as a result of the dis-
crimination against him, by payment to each of them of a sum of money equal to
the amount he would have earned from the date of the discrimination to the date
of the offer of reinstatement less net earnings to be computed on a quarterly basis
in the manner established by the Board in F. W. Woolworth Co., 90 NLRB 289,
291-294. Earnings in any one particular quarter shall have no effect upon the
backpay liability for any other such period. It will also be recommended that the
Respondent preserve and make available to the Board , upon request , payroll and
other records to facilitate the computation of backpay due.
As the unfair labor practices committed by the Respondent were of a character
striking at the roots of employee rights safeguarded by the Act, it will also be
recommended that the Respondent cease and desist from infringing in any manner
upon the employee rights guaranteed in Section 7 of the Act.
Upon the basis of the foregoing findings of fact , and upon the entire record in
the case, the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. Truck Drivers and Helpers Local Union No. 515, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of America, is a labor organiza-
tion within the meaning of the Act.
2. By discriminating in regard to the hire and tenure of employment of the
employees named above, in the section entitled, "The Remedy," thereby discouraging
memberhip in the Union, the Respondent has engaged in unfair labor practices within
the meaning of Section 8 (a) (3) and (1) of the Act.
3. 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.]
McCormick Construction Company and Joseph Bender
Local Union 542, International Union of Operating Engineers,
AFL-CIO and Joseph Mender . Cases Nos. 4-CA-1607 and
4-CB-421. March 23, 1960
DECISION AND ORDER
On May 26, 1959, Trial Examiner Henry S. Sahm issued his Inter-
mediate Report in the above-entitled proceeding, finding that the
126 NLRB No. 153.
McCORMICK CONSTRUCTION COMPANY 1247
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. The Trial Examiner also
found that the Respondents had not engaged in certain other unfair
labor practices and recommended that the complaint be dismissed
with respect to such allegations. Thereafter, the General Counsel,
the Respondent Company, and the Respondent Union filed exceptions
to the Intermediate Report and supporting briefs.'
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record in
the case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner, only insofar as they are consistent with
the Decision herein.
As discussed in the Intermediate Report and as shown by the record,
the Company entrusted its master mechanic, who had direct super-
vision over its operating engineers, with authority to recruit operating
engineers for its construction projects. Thus, when the Company's
superintendent determined that operating engineers were needed, it
was his practice to request Master Mechanic Olsen to obtain them.
Olsen, who was a member of the Respondent Union, used the Union's
hiring hall exclusively to recruit the required engineers, with few
exceptions. In those exceptional cases where the Company desired to
hire operating engineers at the jobsite, the record discloses that Olsen
sought clearance from the Union before hiring such individuals.2
As a union member, Master Mechanic Olsen was obligated, under the
International's constitution, to hire none but members in good stand-
ing.3 In addition, a resolution passed by the union membership
required master mechanics to obtain men only through the Union's
hiring hall.
In view of the foregoing, it is clear that Olsen served in a dual
capacity. On the one hand, he acted as agent for the Company in
hiring operating engineers ; on the other hand, he acted as agent for
the Union bound by the International constitution and the Union's
rules in enforcing its restrictive hiring policies. In such circum-
stances, we find that the Company and the Union, in effect, entered
'The Board hereby denies the Respondent Company 's request for oral argument, be-
cause the record, the exceptions , and briefs , adequately present the Issues and positions of
the parties
2 Thus , when Hender originally sought employment at the construction site , Olsen first
obtained union clearance to hire him . Similarly , the record shows that the Company was
required to obtain union approval to bypass the Union's out-of-work list when the
Company desired to hire certain individuals
s Article XXIII, subdivision 3, section ( a) provides that "Each member shall hire none
11but those in good standing with a Union having jurisdiction over the work done . .. .
1248 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
into an arrangement or agreement to operate under closed-shop con-
ditions, which the Act plainly prohibits. The fact that Olsen did
not also determine initially when and how many operating engineers
to hire does not detract from the unlawful nature of the hiring
arrangement 4
Moreover, the Board has held in Mountain Pacific 8 that where an
employer and a union enter into an exclusive hiring arrangement,
this is a violation of Section 8(b) (2) and (1) (A) by the union and
Section 8(a) (3) and (1) by the employer, unless the agreement ex-
plicitly provides that all applicants must be referred for employment
without regard to their union membership or obligations; that the
employer retains the right to reject any job applicant referred by
the union; and that the provisions relating to the functioning of the
hiring arrangement be posted.6 Obviously, the Respondents herein
did not comply with these requirements to validate their hiring
arrangement.
Accordingly, we find that the Respondent Company and the Re-
spondent Union, by being parties to an unlawful hiring arrangement,
violated Section 8(a) (3) and (1) and Section 8(b) (2) and (1) (A)
of the Act, respectively.
2. We also find that Render was denied reemployment as a result
of the operation of the unlawful hiring-arrangement discussed above.
The record discloses that on or about January 17, 1958, Master
Mechanic Olsen called the Union and requested Mary Gallagher, the
Union's office manager who administered the Union's out-of-work list,
to dispatch Hender to a front-end loader job for which Hender was
qualified. Gallagher refused and instead referred another union
member and Render was not reemployed by the Company. It is thus
clear that, were it not for the unlawful hiring arrangement, Hender
would have been reemployed at that time. Accordingly, we find that
the Respondent Company thereby discriminated against Hender in
violation of Section 8 (a) (3) and (1) of the Act and that the Respond-
ent Union caused such discrimination in violation of Section 8(b) (2)
and (1) (A) of the Act'
THE REMEDY
Having found that the Respondents have engaged in unfair labor
practices, we shall require them to cease and desist therefrom and
from any like or related conduct, and take certain affirmative action
designed to effectuate the policies of the Act.
* United States Steel Corporation ( American Bridge Division ), 122 NLRB 1324.
is
Mountain Pacific Chapter of the Associated General Contractors , Inc., et ai., 119
NLRB 883, 893, 897.
e This posting requirement includes the posting of out-of-work or referral lists.
United States Steel Corporation ( American Bridge Division ), supra; Local Union
No. 450, International Union of Operating Engineers , AFL-CIO, et at. (Tellepsen Con-
struction Company), 122 NLRB 564 . In so finding , we do not adopt the Trial Examiner's
reasoning.
McCORMICK CONSTRUCTION COMPANY 1249'
We have found that the Respondents are parties to an unlawful
closed-shop hiring arrangement. We shall therefore order them to
cease and desist from entering into, maintaining, or giving effect to
such arrangement, agreement, or understanding, or any other ex-
clusive hiring arrangement, agreement, or understanding, which does
not provide for the safeguards prescribed in the Board's decision in
Mountain Pacific Chapter of the Associated General Contractors,
Inc., et al., supra, and which is not enforced in a nondiscriminatory
manner.
We have also found that under the hiring arrangement between
the Respondents, membership in good standing was a condition for
securing and retaining employment with the Respondent Company,
thereby inevitably coercing employees not only to become members
in good standing in the Respondent Union, but also to pay the Re-
spondent Union initiation fees, dues, and other sums. The payment
of such money thus constituted the price employees had to pay for
their jobs in disregard to their statutory rights. In order to ex-
punge the coercive effects of such illegal exactions, we shall order,
in accordance with the General Counsel's request, the Respondents
jointly and severally to refund to former and present employees of
the Respondent Company moneys so collected.' However, in con-
formity with Section 10(b) of the Act, the Respondents' liability
,shall begin 6 months prior to the date of the filing and service of the
initial charge against each Respondent. As the Trial Examiner
found that no unlawful hiring arrangement existed, we shall not re-
quire the Respondents to refund such moneys paid to the Respondent
Union during the period between the date of the issuance of the Inter-
mediate Report and the date of the Decision and Order herein.
We have found that Hender was discriminatorily denied reemploy-
ment as a result of the unlawful hiring arrangement between the Re-
spondents. The record also does not show whether the Company is
still engaged in construction work at the Marcus Hook, Pennsylvania,
project, where Hender was denied reemployment. If the Company
is so engaged and is utilizing the services for which Hender is quali-
fied, we shall order the Company to reemploy Hender to the job he
would have obtained, absent the discrimination against him. In addi-
tion, we shall order the Respondents jointly and severally to make
Hender whole for any loss of pay he may have suffered by reason of
the discrimination practiced against him, by payment to him of a
sum of money equal to the amount he normally would have earned as
wages, absent the discrimination. The backpay, if any, shall be
computed in accordance with the formula promulgated in F. W.
8 See cases cited in footnote 7; of United Association of Journeymen & Apprentices of
Plumbing & Pipefitting Industry of the United States and Canada, Local 231, AFL-CIO
(J. S. Browm-E. F. Olds Plumbing & Heating Corporation ), 115 NLRB 594.
554461--G0-vol. 126 80
1250 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Woolworth Company, 90 NLRB 289. The Union's liability for back-
pay shall terminate 5 days after it notifies the Company that it has
no objection to Hender's reemployment.
ORDER
Upon the basis of the entire record in this case, and pursuant to
Section 10(c) of the National Labor Relations Act, as amended, the
National Labor Relations Board hereby orders that:
A. The Respondent, McCormick Construction Company, Philadel-
phia, Pennsylvania, its officers, agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Entering into, performing, maintaining, or giving effect to
any agreement, arrangement, or understanding with Local Union 542,
International Union of Operating Engineers, AFL-CIO, or any other
labor organization, which conditions the hiring of applicants for em-
ployment, or the retention of employees in their jobs, upon clearance
or approval by, or upon membership in, such labor organization,
except as authorized by Section 8(a) (3) of the Act, as modified by
the Labor-Management Reporting and Disclosure Act of 1959.
(b) Encouraging membership in Local Union 542, International
Union of Operating Engineers, AFL-CIO, or any other labor organi-
zation, by granting preference in hiring to its members or by dis-
^criminating in any other manner in respect to the hire or tenure of
(employment, or any term or condition of employment, except as per-
mitted by Section 8 (a) (3) of the Act, as modified by the Labor-
Management Reporting and Disclosure Act of 1959.
(c) Discriminating against Joseph Hender or any other applicant
for employment by refusing to hire him without approval of the
above-named Union, except to the extent permitted by Section 8 (a) (3)
of the Act, as modified by the Labor-Management Reporting and
Disclosure Act of 1959.
(d) In any like or related manner, interfering with, 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 requiring membership in a labor organization as a con-
dition of employment as authorized by Section 8(a) (3) of the Act, as
modified by the Labor-Management Reporting and Disclosure Act
,of 1959.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act:
(a) Offer employment to Joseph Hender, as provided for in the
section of the Decision entitled "The Remedy."
(b) Preserve and, upon request, make available to the Board or its
-agent, for examination and copying, all payroll records, social se-
McCORMICK CONSTRUCTION COMPANY 1251
curity payment records, timecards, personnel records and reports,
and all other records necessary to analyze the amounts of backpay
and other moneys due under the terms of this Order.
(c) Post at its offices and jobsites within the territorial jurisdiction
of Respondent Local Union 542, copies of the notice attached hereto
marked "Appendix A." e Copies of said notice, to be furnished by
the Regional Director for the Fourth Region, shall, after having been
duly signed by a representative of the Respondent Company, be posted
by it immediately upon receipt thereof, and be maintained by it for
60 consecutive days thereafter in conspicuous places, including all
places where notices to employees or job applicants are customarily
posted. Reasonable steps shall be taken by it to insure that said
notices are not altered, defaced, or covered by any other material.
(d) Post at the same places and under the same conditions as set
forth in (c) above, as soon as they are forwarded by the Regional
Director, copies of the Respondent Union's notice herein marked
"Appendix B."
(e) Mail to the Regional Director for the Fourth Region signed
copies of the notice attached hereto marked "Appendix A" for posting
by Respondent Local Union 542, at its offices, hiring halls, and meet-
ing halls in places where notices to members and to other persons
using Local Union 542's hiring hall are customarily posted. Copies
of said notice, to be furnished by the Regional Director, shall, after
being signed by a representative of the Respondent Company, be
forthwith returned to the Regional Director for such posting.
(f) Notify the Regional Director for the Fourth Region, in writing,
within 10 days from the date of this Order, what steps the Respondent
Company has taken to comply herewith.
B. The Respondent, Local Union 542, International Union of Op-
erating Engineers, AFL-CIO, 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 the
Respondent McCormick Construction Company, or any other em-
ployer 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 Respondent Union, or which conditions employment upon mem-
bership in the Respondent Union, except as authorized by Section
8(a) (3) of the Act, as modified by the Labor-Management Reporting
and Disclosure Act of 1959.
OIn 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."
1252 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) Causing or attempting to cause the Respondent Company or
any other employer over whom the Board will assert jurisdiction, to•
discriminate against Joseph Hender, or any other employee or appli-
cant for employment, in violation of Section 8(a) (3) of the Act.
(c) In any like or related manner restraining or coercing employees
or prospective employees of Respondent Company, or any other em-
ployer, 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 agree-
ment requiring membership in a labor organization as a condition of
employment as authorized by Section 8(a) (3) of the Act, as modified
by the Labor-Management Reporting and Disclosure Act of 1959.
2. Take the following affirmative action, which the Board finds
will effectuate the policies of the Act :
(a) Preserve and, upon request, make available to the Board or its
agents, for examination and copying, all records, reports, referral and
out-of -work lists, and other documents necessary to analyze the right
to employment and the amounts of moneys due under the terms of
this Order.
(b) Notify in writing the Respondent Company and Joseph
Render that the Respondent Union has withdrawn its objections to
the hiring of Render by the Respondent Company, or to his employ-
ment by any other employer.
(c) Post in the Respondent Union's business offices, hiring halls, and
meeting halls copies of the notice attached marked "Appendix B." 10
Copies of said notice, to be furnished by the Regional Director for
the Fourth Region, shall, after being duly signed by an authorized
representative of the Respondent Union, be posted by the said
Respondent immediately upon receipt thereof, and maintained by it
for a period of 60 consecutive days in conspicuous places, including all
places where notices to members and to other persons using the,
Respondent Union's hiring hall are customarily posted. Reasonable
steps shall be taken by the Respondent to insure that the said notices
are not altered, defaced, or covered by any other material.
(d) Post at the same places and under the same conditions as set.
forth in (c) above, as soon as they are forwarded by the Regional
Director, copies of the Respondent Company's notice herein marked
"Appendix A."
(e) Mail to the Regional Director for the Fourth Region signed
copies of the notice attached hereto marked "Appendix B" for posting
by Respondent McCormick Construction Company at its office and
jobsites within the territorial jurisdiction of the Respondent Union,,
including all places where notices to employees or job applicants are
customarily posted. Copies of said notice, to be furnished by the
Regional Director, shall, after being duly signed by a representative,
10 See footnote 9, supra.
McCORMICK CONSTRUCTION COMPANY 1253
of the Respondent Union, be forthwith returned to the Regional
Director for such posting.
(f) Notify the Regional Director, in writing, within 10 days from
the date of this Order as to what steps the Respondent has taken to
comply herewith.
C. The Respondent, McCormick Construction Company, its officers,
agents, successors, and assigns, and the Respondent, Local Union 542,
International Union of Operating Engineers, AFL-CIO, its officers,
representatives, agents, and assigns, shall jointly and severally make
whole Joseph Hender for any loss of pay he may have suffered by
reason of the discrimination against him, in the manner set forth in
the section of this Decision entitled "The Remedy"; and shall jointly
and severally reimburse all present and former employees of Respond-
ent Company, who have unlawfully been required to pay initiation
fees, dues, or other money to the Respondent Union in order to secure
or retain employment with the Respondent Company under the illegal
hiring arrangement, in the manner set forth in the section of this
Decision entitled "The Remedy."
MEMBERS RODGERS and FANNING took no part in the consideration of
the above Decision and Order.
APPENDIX A
NOTICE TO ALL EMPLOYEES
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 give notice that :
WE WILL NOT enter into, perform, maintain, or otherwise give
effect to any agreement, arrangement, or understanding with
Local Union 542, International Union of Operating Engineers,
AFL-CIO, requiring membership in, or clearance by, said labor
organization as a condition of employment, except as authorized
by Section 8(a) (3) of the Act, as modified by the Labor-
Management Reporting and Disclosure Act of 1959.
WE WILL NOT encourage membership in Local Union 542, Inter-
national Union of Operating Engineers, AFL-CIO, or any other
labor organization, by refusing to hire Joseph Hender, or any
other applicant for employment, or by discriminating in any
other manner in regard to hire or tenure of employment or any
term or condition of employment, except as authorized by Section
8(a) (3) of the Act, as modified by the Labor-Management Re-
porting and Disclosure Act of 1959.
WE WILL NOT discriminate against Joseph Hender or any other
applicant for employment by refusing to hire him without ap-
1254 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
proval of the above-named union, except as permitted by Section
8 (a) (3) of the Act, as modified by the Labor-Management Re-
porting and Disclosure Act of 1959.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce employees in the exercise of their rights guar-
anteed 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 author-
ized in Section 8(a) (3) of the Act, as modified by the Labor-
Management Reporting and Disclosure Act of 1959.
WE WILL make Joseph Hender whole for any loss of pay suf-
fered as a result of the discrimination against him, and offer him
employment, in the manner set forth in the Decision and Order.
WE WILL REFUND to all present and former employees any
initiation fees, dues, or other moneys they were illegally required
to pay to Local Union 542, International Union of Operating
Engineers, AFL-CIO, in order to secure or retain employment
with us under the illegal hiring arrangement between our Com-
pany and the said Union beginning 6 months before the filing
and service upon us of the unfair labor practice charge in this
proceeding.
MCCORMICK CONSTRUCTION COMPANY,
Employer.
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.
APPENDIX B
NOTICE To ALL MEMBERS OF LOCAL UNION 542 , INTERNATIONAL UNION
OF OPERATING ENGINEERS , AFL-CIO TO ALL EMPLOYEES OF
MCCORMICK CONSTRUCTION COMPANY j TO ALL EMPLOYEES WHO
WORK, OR WISH To WORK, WITHIN THE JURISDICTION OF OPERATING
ENGINEERS; 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 give notice that:
WE WILL NOT enter into , perform, maintain , or otherwise give
effect to any agreement , arrangement , understanding , or practice.
with McCormick Construction Company, or any other employer
within our territorial jurisdiction over which the Board would
assert jurisdiction , which conditions the hiring of applicants for
employment, or the retention of employment in their jobs, with
McCORMICK CONSTRUCTION COMPANY 1255
such employer upon clearance or approval by us, or which con-
ditions employment upon membership in our organization, ex-
cept as authorized by Section 8(a) (3) of the Act, as modified by
the Labor-Management Reporting and Disclosure Act of 1959.
WE WILL NOT cause or attempt to cause McCormick Construc-
tion Company, or any other employer over whom the Board will
assert jurisdiction, to discriminate against Joseph Hender, or any
other employee or applicant for employment, in violation of
Section 8(a) (3) of the Act.
WE WILL NOT in any like or related manner restrain or coerce
employees in the exercise of their rights guaranteed in Section 7
of the Act, except to the extent 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, as modified by the Labor-Management Reporting and Dis-
closure Act of 1959.
WE WILL make Joseph Hender whole for any loss of pay suf-
fered as a result of the discrimination against him.
WE WILL refund to all present and former employees of Mc-
Cormick 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 said Company beginning 6
months before the filing and service upon us of the unfair labor
practice charge in this proceeding.
WE WILL notify, in writing, McCormick Construction Com-
pany, that we have no objection to the hiring or employment of
Joseph Render.
WE WILL notify, in writing, Joseph Hender, that we have with-
drawn our objection to the hiring of him by McCormick Con-
struction Company, or to his employment by any other employer.
LOCAL 542, INTERNATIONAL UNION OF
OPERATING ENGINEERS, AFL-CIO,
Labor Organization.
Dated---------------- By-------------------------------------
(Representative ) (Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT
Upon the entire record in this case, upon consideration of the arguments and
motions of counsel , including the briefs filed by the parties and citations of cases
alleged to be dispositive of the issues in this proceeding , there are hereby made the
following:
FINDINGS OF FACT
Joseph Hender , the Charging Party herein , went to work for the Respondent
McCormick Construction Company on March 27, 1957 , operating a front-end loader
1256 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
until his termination on December 6, 1957, because of lack of work. Since 1950
Hender has been a member of the Respondent Union 1 which has a collective-
bargaining agreement with the General Contractors Association, Pennsylvania
Excavators Association and Contractors Association of Philadelphia and Eastern
Pennsylvania, of which Respondent McCormick Construction Company is a mem-
'ber.2 The General Counsel concedes that said collective-bargaining agreement
discloses no patent illegality but he contends that the operation of the Union's
referral system has resulted in unlawful discrimination against Hender, the Charging
.Party.
It might be well, therefore, to ascertain what the record discloses with respect to
how the referral system operated during the period of time which gave rise to this
proceeding Budd Olsen, a member of the Respondent Union, was hired by the
Respondent Company on March 1, 1957, as a compressor operator. A week later
he was promoted by the Respondent Company to the position of master mechanic.
As such, he had charge of the operating engineers working under him, kept their
time, maintained equipment, and had certain hiring duties. These hiring duties nor-
mally operated as follows: The company superintendent would enumerate to the
master mechanic the number and categories of operating engineers required to staff
the detail over which the master mechanic had charge; the master mechanic would
then contact the Respondent Union's office and relay to the Union's business agent
or office manager, the number of men requested by the superintendent, specifying the
-qualifications required of each man; the union official or representative would then
,dispatch the men to the jobsite where their services were required.
However, this procedure was not invariably followed as illustrated by the manner
in which Hender was originally hired by the Company. In March of 1957, Olsen,
-the master mechanic, was told by Respondent Company's superintendent to call the
union office and request two engineers to operate front end loaders. The Union,
however, for some reason not disclosed by the record, sent only one man. The
-following morning Hender appeared at the project site in the hope that there might
be a vacancy for a man of his qualifications and asked Olsen for a job.3 Olsen asked
'him to wait, telephoned a business agent of the Respondent Union, one Stafalo,
,explained the situation to him, and inquired if it would be all right to hire Hender.
Stafalo answered in the affirmative, whereupon Hender was hired by Respondent
Company.
Due to lack of work, Hender was terminated on December 6, 1957, at which time
he asked Olsen to keep him in mind if there should be any need in the future for
a man of his qualifications. Olsen assured him that he would. On January 17, 1958,
Respondent McCormick's superintendent told Olsen, the master mechanic, to call
the union office for a front-end loader operator. He telephoned the Respondent
'Union's office and spoke to Mary Gallagher, the office manager, whose duties include
:administering the out-of-work list. Olsen 's testimony continues as follows:
I told her that I needed a front end loader operator for Monday, that Joe
Hender had worked for us previously, could run a front end loader, and that
he had five children and as far as I knew he was out of work , and if she could
help him out I would appreciate it. . . . she told me that we were working by
this out-of-work list... .
Gallagher, who was called as a witness by the General Counsel, testified on direct
'examination that when Olsen suggested Hender she told him: "Well, you know
-how it is, Mr. Olsen. . . They must be sent out according to the out-of-work list,
their standing on the out-of-work list."
The Union sent out to the jobsite, pursuant to Olsen's request, an operator for a
front-end loader by the name of Matucci who had been on the Union's out-of-work
list since November 11, 1957. Hender's name was entered on the Respondent
Union's out-of-work list on December 9, 1957, pursuant to his notifying the Union
on that day that he was no longer employed by the Respondent Company.
3 It is conceded and found that the Respondent Union is a labor organization within the
meaning of Section 2(5) of the Act
2It is conceded also that the McCormick Construction Company, a Delaware corpora-
tion, is engaged in industrial construction and that it annually performs construction
services in States other than the State of Delaware, valued at more than $1,000,000. It is
-found, therefore, that the McCormick Construction Company is engaged in commerce
'within the meaning of the National Labor Relations Act (61 Stat. 136, as amended),
herein called the Act, and that it is subject to the jurisdiction of the National Labor
'Relations Board, hereinafter referred to as the Board.
8 Render was not dispatched by the Union.
McCORMICK CONSTRUCTION COMPANY 1257
Olsen also testified that on January 13, 1958 , he called the union hall for an
operating engineer and "suggested" a man by name, as he had previously worked
under Olsen and he had asked Olsen to keep him in mind when a vacancy occurred.
However, the man "suggested " by Olsen was not sent at that time but he was
referred by the Union on a later occasion although Olsen did not suggest his name-
at the later time.
Olsen, the master mechanic, also testified that on one occasion , his superintendent
asked him to request the Respondent Union to send out two men whom he specifi-
cally named . Olsen 's testimony continues as follows:
I says, "we will have to clear it through the hall ." So we did that . I called the
hall and I explained the situation to Miss Gallagher , who referred me to . .
Sam Lubenknotchi [ an official of Respondent Union] . . . it was clarified it
would be all right for these two men to be hired on our job. In other words,
it was by-passing the out-of -work list to do this , but it was a specific request of
the contractor.
The evidence produced by the General Counsel shows that in administering this
referral system, Respondent Union maintains a list of applicants available for em-
ployment. This list, which is hereinafter referred to interchangeably as an "out-of-
work" list, "register," or "referral list" was intended to operate in the following
manner . After the master mechanic had made his request to the Union , the union
agent would select the man whose name was highest on the out -of-work list and
qualified for the particular job and he would be dispatched to the jobsite where
his services were required .4 The mechanics of its operation were that when a
worker was out of work, he registered with the union office where the registrants'"
names are placed on the out -of-work list in order of date of registration. When a
contractor contacts the Union, and states his requirements , the Union , acting through
its representative , selects from the top of the register the craftsman qualified for
the job.
Gallagher , Respondent Union's office manager, testified that in addition to mem-
bers of the Respondent Union , names of members of other locals affiliated with
the parent International are also listed. She testified that to her knowledge she has,
never known of a person not affiliated with the Respondent Local or another local
affiliated with the International who requested that his name be placed on the
out-of-work list.
Hender testified he did not ask employment of the Respondent Company after he-
was laid off on December 6, but that he inquired of Olsen sometime in January 1958,
as to whether he had requested the Union to refer him for a job. Olsen told him
that he had requested his services but Gallagher , the Union 's office manager, stated'
that there was a registrant on the list who was "out of work longer than [Render]."
Hender also testified that Olsen said he had requested him on another occasion but
Olsen was informed by the Union that Hender "didn 't have the right book . . .
[Hender ] only had an `A' book and this [job ] call for a `Parent-Body' book."
After being told by Olsen, the master mechanic , of these two incidents , Hender
went to the Respondent Union 's office and spoke to Gallagher , the office manager.
He asked her why he had not been sent out to the McCormick construction site
when Olsen suggested his name on two occasions for job vacancies . She said, "I
refuse to give you any information whatsoever ." Hender's testimony continues:
Q. Have you ever requested of Mary Gallagher or anyone else in the Local
as to where you stood on the out-of-work list . ?
A. I did on several times. But I could never find out.
Q. Did you ever request of Mary Gallagher?
A. I certainly did. I requested how I stood . The only information she told'
me, she couldn 't tell me.
Thereupon Hender filed charges with the National Labor Relations Board on,
January 27 , 1958 , and amended charges on August 25 , 1958 , against the Company
and the Union named herein as Respondents . The Regional Director, acting for the
General Counsel , issued a consolidated complaint on July 22, 1958 , alleging viola-
tions of Section 8(a)(1), 8 (a)(3), 8(b )( 1)(A), and 8(b)(2).
The Respondents filed their answers denying the commission of any unfair labor
practices . A hearing was held in Philadelphia , Pennsylvania , on November 18, 1958,
before Henry S. Salim , the Trial Examiner. All parties were represented by counsel'
4 The criteria or standard for a registrant's rank on the list was determined by length
of unemployment provided , of course, that the worker was qualified for the particular
job to be filled.
1258 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
-and were afforded full opportunity to participate in the hearing, to introduce relevant
evidence, and to argue orally. Ruling was reserved upon motions of the Respondent
Company and Respondent Union to dismiss the proceedings at the conclusion of the
General Counsel's case-in-chief. After ruling was reserved on the motion for dis-
missal, both Respondents rested and offered no testimony. The motions upon
which ruling was reserved are hereby ruled upon in accordance with the findings and
conclusions made herein. Briefs were filed by the parties and have been carefully
considered.
Contentions
The General Counsel claims that the evidence demonstrates that Respondent
Union maintained an exclusive hiring arrangement with the Respondent Company
which gave preference to union members. He contends that the Union refused to
.refer Hender when Olsen "requested" him on January 17, 1958. Therefore, argues
the General Counsel, "as the result of the operation of an illegal hiring practice,
Render was deprived of this work." Respondent Company and Respondent Union,
,on the other hand, maintain that the Company did not refuse to hire Render; that
the Company did not delegate hiring authority to Olsen; that Olsen was not obli-
gated to obtain only men cleared by the Union, and that the Union and Company
have not been shown to have engaged in any discriminatory referral practices.
Discussion and Conclusions
Since the complaint alleges that the Respondent Employer and Respondent Union
have discriminated against Joseph Hender in violation of Section 8(a) (1) and (3)
on the part of the Company, and Section 8 (b) (1) (A) and (2) on the part of the
Union, the pertinent provisions of these subsections of the Act are set out below.
Section 8 subsections (a) (1) and (3) of the Act, insofar as they are applicable to
the issues in this case, provide that it shall be an unfair labor practice for an
employer-
(1) to interfere with, restrain, or coerce employees in the exercise of the
rights guaranteed in section 7;
(3) by discrimination in regard to hire or tenure of employment . . . to
encourage or discourage membership in any labor organization: .. .
Section 8(b)(1)(A) and (2) of the Act provide that it shall be an unfair labor
?practice for a labor organization or its agents-
(1) to restrain or coerce (A) employees in the exercise of the rights guar-
anteed in Section 7: . .
(2) to cause or attempt to cause an employer to discriminate against an
employee in violation of subsection (a)(3)... .
Inasmuch as Section 8 and subsections (b) (2) and (a) (3) are interrelated, it is
necessary to analyze both subsections together. From such examination, it seems
clear that it is an unfair labor practice for a labor organization or its agents to
cause or attempt to cause an employer to discriminate against employees or appli-
cants for employment in regard to hire or tenure of employment or any term or
condition of employment. The decisions of the Board and the courts hold that the
,test of the legality of a referral system is whether in its actual operation, or effect,
it results in unlawful discrimination to applicants for employment .5 Settled law
establishes that, subject to one sharply defined exception,6 the power of a union or
employer to discriminate in employment has been amended by the Act so that
rights of an applicant for employment may not be abridged nor may he be subjected
to job discrimination. Accordingly, an employer violates Section 8(a)(3) of the
Act if he requires an applicant to obtain a referral from the union as a condition
.precedent to employment. Likewise, a union violates Section 8(b) (2) of the Act
where, by written agreement or by practice, it causes an employer to engage in
such discrimination?
5 N.L.R B. v F H. McGraw and Company, 206 F. 2d 635 (C.A 6).
O This exception permits a union through a valid union-security agreement to compel
,payment of union dues. See Sections 7,18 (a) (3) and (b) (2), and the proviso to Section
8(a)(3) with respect to union-security provisions.
I N L.R B v. International Longshoremen's & Warehousemen's Union et at (Pacific
Maritime Assn ), 210 F. 2d 581 (C A. 9) ; N L R B. v. International Longshoremen's &
Warehousemen's Union, Local 10, I L.W U. (Pacific Maritime Assn.), 214 F. 2d 778
(C A. 9) ; N L R.B. v. Waterfront Employers of Washington, et at., 211 F. 2d 946 (C.A. 9) ;
McCORMICK CONSTRUCTION COMPANY 1259
The Supreme Court has held 8 that the evidence necessary to make a finding of
,an unfair labor practice must be "substantial ." Substantial evidence is such evidence
as affords a substantial basis of fact from which the fact in issue can be reasonably
inferred.9
Judged by these tests and standards , and applying the legal principles enunciated
above, it is concluded for the reasons hereinafter explicated , that there is not sub-
stantial evidence that the complaint allegations have been sustained insofar as they
charge Respondents had imposed discriminatory conditions of employment with re-
spect to actual hirings. It has not been shown by substantial evidence that Olsen,
the master mechanic, either had independent authority to hire or that the Company
delegated such authority. When Olsen telephoned the Union on January 17, he
did not "request" Hender to be dispatched but merely "suggested" his name as a
courtesy to Hender whom he had assured at the time of Hender 's termination that
he would "keep in mind" in the event of a future vacancy. Moreover, the man who
was hired at that time had precedence over Hender on the out-of -work list . Assum-
ing arguendo , Olsen acted in a dual capacity , nevertheless that , in itself, is not
sufficient to show a violation as the General Counsel must prove by affirmative
evidence that the hiring system was operated in a discriminatory manner.
Nor has the General Counsel established by a preponderance of the evidence that
the Company was obligated to obtain only men cleared by the Union . Belieing this
contention is the incident where the Respondent Company's requisition for two
specifically named workers was honored by the Union . Moreover , the record es-
tablishes that the Respondent Company did not secure workmen exclusively from
the Respondent Union's hiring hall as evidenced by the fact that Hender, the Charging
Party, was hired when he applied for employment at the construction site. Further-
more, where a collective-bargaining agreement , such as is here present , is patently
legal, the General Counsel, in order to establish a violation , must prove a prima
facie case showing the hiring system resulted in actual discrimination . This he has
affirmatively failed to do. Accordingly, it is recommended that that part of the
complaint with respect to actual employment of workers be dismissed which alleges
that the Respondent Company violated Section 8(a)(3) and ( 1) of the Act and
that the Respondent Union violated Section 8(b) (2) and ( 1) (A) by being parties
to an agreement which required the Company to hire only persons who were
members of the Union.
However, there still remains to be resolved an important aspect of this case and
that is the Union's refusal to permit its member , Hender, to inspect the out-of-work
list upon which his name was registered . "When an issue relating to the subject
matter of a complaint is fully litigated at a hearing , the Trial Examiner and the
Board are expected to pass upon it even though it is not specifically alleged to be an
unfair labor practice in the complaint ." Monroe Feed Stores, 112 NLRB 1336,
1337.'10
The prime purpose of the Act is to protect employees . ii If the rights of em-
ployees are being disregarded , it is important that those rights be restored by af-
firmative remedial action and the cause therefor eradicated . Section 10(c) of the
Act accords the Board power to take affirmative action to effectuate the policies of
the Act. And one of these policies is to see that the rights of an individual em-
ployee are not infringed upon by employers , by unions , or by both . "The National
Labor Relations Board is not just an umpire to referee a game between an employer
and a union . It is also a guardian of individual employees. Their voice, though
Enterprise Industrial Piping Company, 117 NLRB 995 ; Construction Specialties Company,
102 NLRB 1542, enfd. 208 F . 2d 170 (CA. 10 ) ; George D. Auehter Company, et al,
,102 NLRB 881, SS5, enfd. 209 F . 2d 273 (CA. 5).
8 N L R B v Consolidated Edison Co of New York, Inc, 305 U S 197, 229.
N L R B. v Columbian Enameling d Stamping Co, 306 U.S 292, 299.
zu This matter was litigated also within the purview of the principle enunciated in
Martell Mills Corporation , 118 NLRB 618, 619, footnote 3, Climax Spinning Company,
101 NLRB 1193 , 1194, footnote 2; Premier Worsted Mills, 85 NLRB 985 , footnote 2,
enfd. 183 F 2d 256 ( C.A. 4) ; Clearfield Cheese Company , Inc, 106 NLRB 417, 424,
-citing N L .R.B. v. Albert Armato, at al., 199 F. 2d '800, 804 (C.A. 7) ; N.L.R.B. v . Syracuse
Stamping Company, 208 F 2d 77 , 80 (CA. 2).
n N L R.B. v. Hymie Schwartz, d/b/a Lion Brand Manufacturing Company, 146 F. 2d
773, 774 (C.-A. 5) ; Brown v. National Union of Marine Cooks and Stewards, et al.
(Matson Nav igation and American President Lines ), 104 F. Supp. 685, 690 . S. Rept. 105,
80th Cong ., 1st sess., p. 50 where it was stated : "We believe that the freedom of the
individual workman should be protected from duress by the union as well as from duress
by the employer."
1260 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
still and small, commands a hearing." 12 As an individual applicant for employ-
ment, Header's interest in knowing his position on the out-of-work list in directly
related to whether he was receiving his allocable share of available jobs for which
he was qualified. Then, too, where obtaining a referral is dependent on the worker
being registered on the union's out-of-work list-this is such a right which should
be protected in the event he is discriminated against in the union's administration of
the list,13 as depriving an applicant for employment the right to obtain a job con-
stitutes a serious injury to his right to pursue a trade or craft and an injury to this
right by discriminatory means is grave enough to warrant relief in vindication of
this right. In order to give effect to the broad purposes of the Act, one of which is
"to promote and protect rights of individual employees to be free from coercion or
interference" 14 it would seem that the situation presented in this situation comes
within the range of rights which Congress intended to protect. Any infringement
of this right is not sanctioned by law.
This refusal to permit Hender to examine the out-of-work list in January of 1958
assumes particular significance when it is considered that a union meeting was held
in July 1957 to consider a new referral system as "it was the general feeling among
the men that a lot of fellows weren't working often enough. It seemed like there
was partiality in the jobs being taken . Too many fellows were being out of work
too long." 15 As a result of this situation being discussed at the meeting, the mem-
bers of the Respondent Union voted to establish a new referral system whereby the
employer would contact the union office which, in turn, would select from the top,
of the register the craftsman qualified for the job based upon his period of un-
employment as determined by the date the applicant registers his availability for
employment and refer him to the jobsite of the contractor where his services were
required. This criteria used for determining the registrant's standing on the out-
of-work list, namely, his length of unemployment, is the keystone of the referral
system and whether the allocation of opportunities for employment is maintained
on a fair basis for registered applicants depends on whether the list is maintained
on a nondiscriminatory basis.
Whenever the union can deny registrants the right to see the out-of-work list,
there is always present the potential means whereby the union can take advantage
of the situation by creating a condition which may result in future discrimination
and thus encourage union adhesion or union membership.18 Workmen who have
registered for employment through a union hiring hall are entitled, when the union
has such potential means of discriminating against them, to look to the Board for
protection under the circumstances herein revealed. Refusing to permit registrants
to see the list presents a situation from which it can be inferred that not only is the
union 's motive discriminatory but also what is intended by such action.17 Moreover,
it is a reasonable inference that the normal effect of permitting a union the right to
deny registrants access to the list is to enforce obedience to union discipline and
deprive registrants of the right of questioning union authority. The natural and
probable consequence of such a situation would be to encourage nonunion regis-
trants to join the union and union members to retain their membership. This is
not sanctioned by the law.18
If the union can refuse to permit registrants to see the out-of-work list, obviously
it places in the union's hands a potential economic power that could be manipulated
in a manner which would adversely affect the registrants . The fair implications of
that union potentiality which could easily be abused to require union membership
should require that applicants for employment be given whatever means are reason-
12 Shoreline Enterprises of America, Inc. v. N.L.R.B., 262 F. 2d 933, 944 (C.A. 5).
'9 See Chaffee, the Internal Affairs of Associations, 43 Harvard Law Review 993, 1000,
1001; Beater William Steele v. Louisville & Nashville Railroad Co., etc. 323 U.S. 192;
The Detroit Edison Company, et al ., 123 NLRB 225.
>s Brown V. National Union of Marine Cooks and Stewards , et al. (Matson Navsgataon
and American President Lines), supra.
15 Testimony of Budd Olsen.
iB Acme Mattress Company, Inc, 91 NLRB 1010, 1012, 1013. New York State Em-
ployers Association, Inc., 93 NLRB 127-129.
17 The subjective intent of a union in such a situation is extremely difficult, if not im-
possible to prove, so that it is permissible to arrive at certain conclusions by drawing
reasonable inferences. See N.L R.B. v. Link-Belt Company, 311 U.S. 584, 597.
1B See The Radio Officers' Union of the Commercial Telegraphers Union, AFL (A. H. Butt
Steamship Company) v. N L.R.B., 347 U.S. 17, 40, at seq.
McCORMICK CONSTRUCTION COMPANY 1261
ably appropriate to protect their rights on the out-of -work list . In order , therefore,
to provide built-in -safeguards to assure applicants for employment of their inaliena-
ble right to employment without discrimination , they should be granted the right to
inspect the list. By according registrants the right of inspection , it will not only
insure the compilation , maintenance , and administration of the list in such a manner
as to minimize the possibilities of discrimination , but it will also furnish registrants
with a means of self-help to protect themselves against possible attacks on their
economic life. To permit the union unfettered control over the list is to accord
to it the opportunity to put in jeopardy the registrants ' rights and to compromise
the beneficial features of a nondiscriminatorily administered referral system.
It would appear , therefore, that for a referral system to operate in such a manner
as to guarantee the registrants a fair system of job rotation , it should be inherently
necessary for the union to publicize the list by affording inspection of it to regis-
trants. If the union refuses arbitrarily , summarily , and peremptorily to permit
registrants to examine the list, it is a reasonable inference that it is covering up
something . This indicates bad faith and thereby casts doubt upon its good faith in
administering the list . This, it is believed , is a reasonable inference upon which
to premise the conclusion that the Respondent Union 's out-of-work list was being
administered in a discriminatory manner when Hender , the Charging Party, was
denied the right to examine the list. Persuasive evidence of this inference and its
concomitant conclusion that the refusal to allow Hender to see the list was pre-
sumptively discriminatory , is evidenced by the dissatisfaction of the Respondent
Union's members with the manner in which the list was administered prior to July
1957 , when the membership voted to change the then existing referral system in
order to assure a fairer distribution of available employment . See page 1260, supra.
If a union is administering the list in a nondiscriminatory manner, it should not
object to its being shown to registrants . However, under the circumstances in this
case, refusing to show registrants the out-of-work list is, in itself , and without more,
an unlawful labor practice and it is not necessary to show actual discrimination.
Such a conclusion is consonant with the purposes and policies which underlie the
Board's decision in the Mountain Pacific case ,'9 that employees must be protected
from job coercion while at the same time permitting the operation of union hiring
halls. The conduct in that case and the rationale upon which the Board found the
operation of a referral system to be illegal there , is applicable to and encompasses
the situation presented in this case where an applicant for employment whose name
is listed on the out-of-work list of registrants is refused permission by the Union to
examine the list. In the Mountain Pacific case, the Board held that unions and
employers can agree to operate under exclusive hiring arrangements provided they
set forth in their contract certain safeguards or criteria to be followed by the union
in performing its function as hiring agent and which will constitute notice to appli-
cants for employment that the union does not have unilateral control of the employ-
ment relationship . The Board listed the following as among the safeguards to be
included in the agreement:
(1) Selection of applicants for referrals to jobs shall be on a nondiscrimina-
tory basis and shall not be based on , or in any way affected by, union member-
ship, bylaws, 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 essential to the legality of an exclusive hiring agreement.
The above requirements were not intended to be all -inclusive as the Board was
merely promulgating the minimal requirements and leaving the myriad situations
that might arise in the future to the development of a body of law on an adjudi-
catory case-by-case basis which would be shaped in accordance with experience, as
every situation which might conceivably arise in the future could not be anticipated.
Implicit in and encompassed by the safeguards established by the Mountain Pacific
case is the concept that if a union is granted the right to administer the out -of-work
list, it owes a correlative obligation to the registrants to permit them to see the list
1° 119 NLRB 883, 893.
1262 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in order to insure their rights. Paying lipservice to objective criteria or standards
is not enough. The question is, Are they being applied in a nondiscriminatory
manner? In order to ascertain this the union should be required to allow registrants
to examine the out-of-work list in order to determine this for themselves. This
purpose is included within the objectives sought to be accomplished by the safeguard,
supra, which provides:
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
essential to the legality of an exclusive hiring agreement. [Emphasis supplied.]
If the Union should deny this right to the registrant:
... it is reasonable to infer . [that it] displays and enhances the Union's
power and control over the employment status.20
and such a refusal is indeed significant as:
... it is difficult to conceive of anything that would encourage [the] sub-
servience [of job applicants] . . . more .. ?i
than such action on the part of the union.
Moreover, where the employer is a party to a contract which is patently legal, the
employer is not thereby absolved from a finding of engaging in unfair labor prac-
tices, if, in fact, the power of referral is being exercised by the union in a discrimina-
tory manner.22 In such a situation, the employer is responsible for the manner in
which the referral system is operated, solely by being a party to the contract.
The Board as early as 1950 23 held lawful a contract which provided that the
referral system was to be administered without discrimination and that the em-
ployer had the right to reject any employee referred by the union . These two
requisites have been embodied in the safeguards set out in Mountain Pacific, supra.
The purpose of the third requirement of posting is to bring to the attention of
applicants for referral, the applicable standards and procedures of the referral sys-
tem in order that they can read them, and in the instant case, in order that the
registrants on the out-of-work list can see for themselves whether the list is being
administered in a nondiscriminatory manner . This third requirement, as well as
the underlying overall objectives of Mountain Pacific, clearly are intended to en-
compass the situation presented by the case at bar. Affording applicant employees,
who are the prime concern of the Act,24 the substantive means of inspecting the
union's out-of-work list, whereby they can implement their abstract right to be pro-
tected from discrimination, furthers the purposes sought to be accomplished in
Mountain Pacific by giving registrants the practical assurance of self-executing
built-in safeguards.
Granting the union carte blanche by permitting it to deny registrants access to-
the out-of-work list, which comes within the "unfettered control" of the referral
process condemned in Mountain Pacific,25 not only "constitutes an inherent and
unlawful encouragement of union membership .. " 26 but it also encourages poten-
tial discrimination since viewed from the realities of the situation it is a reasonably
calculated means to bring about economic pressure on the registrants in order, per-
haps, to achieve illegal objectives. Permitting registrants to inspect the list, however,
would minimize, and perhaps eliminate, this potentiality by incorporating this built-in
safeguard. Otherwise the union can unilaterally determine who should be referred
with no standards being established as to which registrant should be selected. This
would be contrary to the concept that the union's function should be limited solely
to the ministerial duty of maintaining and compiling the list in uniformity with
standards that would require it to refer first the registrant who has been longest
20 119 NLRB 883, at page 896.
21 Id , at page 895.
22 Mountain Pacific, supra; Galveston Maritime Association, Inc , et al., 122 NLRB 692.
= National Union of Marine Cooks and Stewards, etc. (Pacific American Shipowners
Association), 90 NLRB 1099.
24 See footnote 11.
zs See Houston Maritime Association, Inc., et al., 121 NLRB 389.
28 Los Angeles-Seattle Motor Express, Incorporated, 121 NLRB 1629. Cf. Pacific Inter-
mountain Express Company, 107 NLRB 837.
McCORMICK CONSTRUCTION COMPANY 1263,
unemployed and qualified for the job to be filled so long as the union is not given
sole control of the determinative aspects of the referral and employment process.
In fact, the Board has held that where a union is permitted to control seniority,
a presumption arises that it will be exercised in an unlawful manner.27 So too, in
this proceeding, when the Respondent Union improperly refused Hender access to
the out-of-work list, it retained to itself a potentially discriminatory weapon which
could be used against him in such a way as to create a fear in the registrant that
there is this possibility of discrimination notwithstanding assurances to the contrary.
Moreover, the predictable consequences resulting from permitting an arbitrary denial
of access to the out-of-work list are twofold: it furnishes the union with an effective
means of discouraging dissidents, actual or potential; and it precludes opposition to
its leadership by restraining, intimidating, and coercing registrants from questioning
its actions, particularly when the economic reprisals inherent in such a situation are
available to the union vis-a-vis those workers whose livelihood depends, to a great
extent, on referrals from the Union. This is particularly true in the construction
industry where employment practices require the individual worker to find security
with the union through whom he is referred to jobs, rather than with the employer.28
If the union is permitted to continue to arbitrarily refuse registrants the right to
inspect the out-of-work list, this would be tantamount to affording the union the
opportunity to perpetuate the illegal practices proscribed by the Mountain Pacific
case as such a procedure is another device for potentially perpetuating an illegal
referral system. The coercion inherent in this device of arbitrarily refusing regis-
trants access to the out-of-work list constitutes in itself unlawful control of employee
referrals, without reference to the unlawful hiring practice itself, as the union has
the power, under such a right to potentially discriminate against registrants on the
out-of-work list, if and when, it feels disposed to keep reminding registrants, particu-
larly dissident union members, that their livelihood depends upon their obtaining
referrals from the union. An effective means of eliminating this fear of potential
discrimination, which not only restrains and coerces the particular registrant who
is denied access to the list, but also engenders restraint and coercion in other regis-
trants who may hear about this refusal and thus impress upon them the danger
to their welfare and security if they should incur the displeasure of the union-is
by according all registrants the right to inspect the out-of-work list. By this self-
executing built-in safeguard applicants for employment are given the right to protect
themselves from this fear of potential discrimination which is vested in the union.29
It is found, therefore, that a registrant has the right to see the out-of-work list and'
Respondent Union arbitrarily denying this right to Hender was unlawful and violative
of the Act as it was calculated to restrain and coerce him. Moreover, it was a dis-
criminatory and therefore, illegal application of the exclusive hiring hall privilege,
as defined by the Mountain Pacific case, particularly that portion which deals with
the "safeguards" essential to the legality of an exclusive hiring hall arrangement which,
are necessary to rebut the inference that the hiring hall encourages membership in
the union.30 Accordingly, it is found that Respondent Company violated Section,
27 Pacific Intermountain Express Company, 107 NLRB 837, affd. 225 F. 2d 343 (C.A. 8),
and approved by the Court of Appeals for the Fifth Circuit in N.L R.B. v. Dallas General
Drivers, Warehousemen and Helpers, Local Union 745, etc (North East Texas Motor
Lanes, Inc ), 228 F. 2d 702, 706.
28 See The Detroit Edison Company, at al., 123 NLRB 225.
29 See Local 911, International Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America (Wand Corporation), 122 NLRB 499, where the Board held that
Section 8(b) (2) not only outlaws discriminatory objectives which are sought to be accom-
plished by indirect pressures but also certain methods of seeking that objective. In the
case at bar, the union's objective in refusing access to registrants of the out-of-work list
was to retain to itself a potentially discriminatory means of creating fear in any regis-
trant who should incur the displeasure of the union. It might be pertinent to note here
that the Board in Curtis Brothers, Inc., 119 NLRB 232, stated at page 246 • ". . . the
problem in the instant case is not `which section?' is involved but `has the Act been
violated at all?' "
20 Joint Council of Teamsters No 37, et al (J. A. Jones Construction Company, et al,
d/b/a Jones-Tompkins), 122 NLRB 514; Houston Maritime Association, Inc., at al.,
supra; Los Angeles-Seattle Motor Express, Incorporated, supra.
1264 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
8 (a) (1) and (3) of the Act , since it must share the onus of any resultant unlawful
practices on the part of the Respondent Union regardless of whether it was aware
of the manner in which the Union was administering its referral list; 31 and the
Respondent Union by refusing Hender the right to see the out-of-work list violated
Section 8 (b)i(1)(A) and ( 2) of the Act 32
THE REMEDY
Having found that the Respondents have violated the Act, it shall be recommended
that they cease and desist therefrom and take certain affirmative action in order to
effectuate the policies of the Act.
It has been found also that the Respondents discriminated against Joseph Hender.
Therefore, it shall be recommended that the Respondent Company and Respondent
Union jointly and severally make whole Hender for any loss of pay, if any, there
was suffered as a result of the discrimination against him.33 The backpay, if any,
shall be computed in accordance with the formula promulgated in F. W. Woolworth
Company, 90 NLRB 289.
It will be recommended , also, that the Respondents maintain, preserve , and make
available for the Board or its agents upon request, for examination and copying, all
referral lists , out-of-work lists, and all other records necessary to analyze and
determine the amount of money, if any should be found due Hender after said
referral lists and out-of-work lists have been examined.
CONCLUSIONS OF LAW
1. The Respondent Union is a labor organization within the meaning of Section
2(5) of the Act.
2. The Respondent Company is an Employer engaged in commerce within the
meaning of Section 2 (2) (6) and (7) of the Act.
3. By restraining and coercing Joseph Hender in the exercise of rights guaranteed
him by Section 7 of the Act, and by denying him the right to examine the out-of-
work lists compiled, maintained , and administered by the Respondent Union, the
,Respondent Company, as a party to a collective-bargaining agreement with the
Respondent Union , has discriminated with respect to the hire and tenure of Joseph
Hender, thereby engaging in unfair labor practices within the meaning of Section
8(a)(3) and (1) of the Act.
4. By causing and attempting to cause Respondent Company to discriminate
against Joseph Hender in violation of Section 8(a)(3) of the Act by its refusal to
permit Hender to examine the out-of-work list, Respondent Union has engaged in
and is engaging in unfair labor practices within the meaning of Section 8(b)(2) and
8(b)(1)(A) of the Act.
5. By interfering with , restraining , and coercing its employees in the exercise
,of the rights guaranteed by the Act, the Respondent Company has engaged and is
.engaging in unfair labor practices within the meaning of Section 8(a)( I) of the Act.
6. By refusing to permit Joseph Hender to examine its out-of-work list thereby
preventing him from determining whether he was being discriminated against,
Respondent Union has restrained and coerced Joseph Hender in the exercise of
,rights guaranteed to him by the Act and has thereby engaged in and is engaging in
unfair labor practices within the meaning of Section 8(b)(1) (A) of the Act 34
7. The foregoing unfair labor practices affect commerce within the meaning of
the Act.
[Recommendations omitted from publication.]
'I N L.R B v. Philadelphia Iron Works, Inc, et al., 211 F. 2d 937 ( C.A. 3). See also
The Detroit Edison Company , at al, 123 NLRB 225.
as Section 8(b)(2) contains two separate proscriptions and prohibits a union from
.causing employer discrimination as well as from discriminating itself against employees
in any way that affects "hire or tenure of employment or condition of employment" Ir-
respective of any correlative employer action.
"Proof of financial loss is not necessary to establish a violation . Local 610 , United
Brotherhood of Carpenters , etc. (V. G. Cameron, d/b/a Cameron Store Futures), 122
NLRB 476.
si See Pacific Intermountain Express Company, 107 NLRB 837, '843.