Mountain Pacific Chapter

National Labor Relations Board - Board Decisions

Dec 14, 1957

119 N.L.R.B. 883 (N.L.R.B. 1957)

MOUNTAIN PACIFIC CHAPTER 883
that the delivery and ' pickup of suburban freight by Central, freight handled or to
be handled by Spencers' employees, involved crossing the primary picket line at each
freight terminal, and since the record otherwise clearly demonstrates that the
purpose of the Respondent was to induce the employees of Central to refuse to
perform services only at the loading or unloading docks used by the Spencers, I
find that the Respondent did not violate Section 8 (b) (4) (A) and (B) of the Act.
Accordingly it will be recommended that the complaint be dismissed in its entirety.
Upon the basis of the foregoing findings of facts and upon the entire record in
the case, I make the following:
CONCLUSIONS OF LAW
1. Herbert A. Spencer and Lee K. Spencer, copartners, doing business under the
trade names of U & Me Transfer and Palm Beach Transfer, are engaged in commerce
within the meaning of Section 2 (6) and (7) of the Act.
2. Respondent is a labor organization within the meaning of Section 2 (5) of
the Act.
3. The allegations of the complaint that Respondent has engaged in unfair labor
practices within the meaning of Section 8 (b) (4) (A) and (B) of the Act have not
been sustained.
[Recommendations omitted from publication.]
Mountain Pacific Chapter of the Associated General Contractors,
Inc., The Associated General Contractors of America, Seattle
Chapter, Inc., and Associated General Contractors of America,
Tacoma Chapter and International Hodcarriers , Building
and Common Laborers Union of America, Local No. 242, AFL-
CIO and Western Washington District Council of International
Hodcarriers, Building and Common Laborers Union of Amer-
ica, AFL-CIO and Cyrus Lewis, Charging Party. Cases Nos.
19-CA-1374, 19-CB-4?4, and 19-CB-445. December 14, 1957
DECISION AND ORDER
On December 11, 1956, Trial Examiner Herman Marx issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent Local 24-2 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. The Trial Examiner
also recommended that the complaint be dismissed as to all other
Respondents. Thereafter the General Counsel filed exceptions to the
Intermediate Report and a supporting brief.
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and brief, and the entire record in
the case, and hereby adopts the findings, conclusions, and recommen-
dations of the Trial Examiner only to the extent consistent herewith'
and as specifically indicated in an Opinion which shall hereafter
be issued.
119 NLRB No. 126.
884 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(1) In the absence of any exceptions, we adopt the Trial Examiner's
conclusion that the Respondent Union's threats and promises of bene-
fits and inducements to Charging Party Lewis to get him to withdraw
his charge in this case violated Section 8 (b) (1) (A) of the Act.
(2) In disagreement with the Trial Examiner and for reasons to
be set forth in the Opinion to issue hereafter, we conclude that the
Respondent Employers have violated Section 8 (a) (3) and (1) of the
Act, and the Respondent Unions have violated Section 8 (b) (2) and
(1) (A) of the Act, by executing and maintaining in effect the hiring
provisions of their contract.'
(3) Also in disagreement with the Trial Examiner, we find that
the implementation of the unlawful contract in the rejection of Lewis'
continuous applications for employment was an unfair labor practice,
and that the Respondent Unions thereby violated Section 8 (b) (2)
and (1) (A) of the Act and the Respondent Employers thereby
violated Section 8 (a) (3) and (1) of the Act.'
THE REMEDY
Having found that the Respondents, and each of them, have violated
the Act, we shall order that they cease and desist therefrom and take
certain affirmative action in order to effectuate the policies of the Act.
It has been found that the Respondents discriminated against
Cyrus Lewis. The nature of the employment situation in this industry
is such that no order of reinstatement is possible. Furthermore, as
indicated above, this record does not specify the number of instances
or the amounts of actual loss of employment by Lewis. Accordingly,
the amounts of back pay due him shall be computed in compliance
proceedings. The back-pay period shall begin March 15, 1956, when
Lewis appeared at the Unions' hiring hall in search of employment.'
We shall order the various Respondents to notify Charging Party
Lewis that they have no objection to his immediate employment.'
The back-pay liability of any Respondent shall be tolled 5 days after
it serves such written notice on Charging Party Lewis. Back pay
shall be computed in accordance. with the formula stated in F. ITT.
Woolworth Company, 90 NLRB 289.
As only the charge against Respondent Local 242 was filed within 6 months of the
execution of the contract in question , our finding against the other Respondents is limited
to the maintenance of the hiring provisions of the contract rather than their execution.
Our remedial action herein is in no way affected by this difference.
2 Member Murdock concurs in the finding of a violation with respect to Lewis for the
reasons indicated in his attached opinion.
3 As the Trial Examiner did not find that the Respondents discriminated against Lewis.
the period from the date of the Intermediate Report to the date of the Order herein shall,
in accordance with our usual practice, be excluded in computing the amonnt of back pay
due him . Utah Construction Co. . 95 NLRB 196.
4'The Babcock & Wilcox Company, 110 NLRB 2116.
MOUNTAIN PACIFIC CHAPTER
ORDER
885
Upon 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:
I. The Respondents Mountain Pacific Chapter of the Associated
General Contractors, Inc.; The Associated General Contractors of
America, Seattle Chapter, Inc.; and Associated General Contractors
of America., Tacoma Chapter, and their officers, agents, successors,
and assigns, shall :
(a) Cease and desist from :
(1) Performing, maintaining, or otherwise giving effect to pro-zn :n
visions of any agreement with the Respondent Unions or any other
labor organization, which unlawfully condition the hire of applicants
for employment, or the retention of employees in employment with
any employer, upon clearance or approval by the Respondent Unions
or any other labor organization, except as authorized by the proviso
to Section S (a) (3) of the Act.
(2) In any like or related manner encouraging membership in the
Respondent Unions, or in any other labor organization, or otherwise
interfering with, restraining, or coercing employees in the exercise of
rights guaranteed in Section 7 of the Act. except in a manner per-
mitted by Section 8 (a) (3) of the Act.
(.b) Take the following affirmative action, which the Board finds
will effectuate the policies of the Act :
(1) Make whole Cyrus Lewis for any loss of pay he may have
suffered by reason of the discrimination against him, as provided in
the section herein entitled "The Remedy."
(2) Preserve and make available to the Board or its agents upon
request, for examination and copying, all payroll records, social-
security payment records, timecards, personnel records and reports,
and all other records necessary to analyze the amounts of back pay
due under the terms of this Order.
(3) Post at their offices, and at the offices of each employer mem-
ber of the Respondents, in conspicuous places, including all places
where notices to employees or prospective employees are customarily
posted, copies of the notice attached hereto marked "Appendix A." 5
Copies of said notice, to be furnished by the Regional Director for
the Nineteenth Region, shall, after being duly signed by representa-
tives of Mountain Pacific, Seattle and Tacoma Chapters, be posted
by them immediately upon receipt thereof and maintained by them
r, In 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,"
886 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for sixty (60) consecutive days thereafter. Reasonable steps shall
be taken by Respondent Associations and their employer members to
insure that said notices are not altered, defaced, or covered by any
other material.
(4) Notify Cyrus Lewis and the Respondent Unions, in writing,
that they have no objection to his employment, or to the employment
of any other employees who are not members of the Respondent
Unions or any other labor organization.
(5) Notify the Regional Director for the Nineteenth Region in
writing, within ten (10) days from the date of issuance of the Opinion
herein, what steps they have taken to comply herewith.
TI. The Respondents International Hodcarriers, Building and
Common Laborers Union of America, Local No. 242, AFL-CIO, and
Western Washington District Council of International Hodcarriers,
Building and Common Laborers Union of America, AFL-CIO, and
their officers, representatives, and agents, shall:
(a) Cease and desist from:
(1) Performing, maintaining, or otherwise giving effect to provi-
sions of any agreement with the Respondent Employers or with any
other employer within the meaning of the Act, which unlawfully con-
dition the hire of applicants for employment, or the retention of
employees in employment with any employer upon clearance or
approval by the Respondent Unions, except as authorized by the
proviso to Section 8 (a) (3) of the Act.
(2) Causing or attempting to cause the Respondent Employers,
or any other employer, to discriminate against employees or appli-
cants for employment in violation of Section 8 (a) (3) of the Act.
(3) In any like or related manner restraining or coercing em-
ployees in the exercise of the rights guaranteed in Section 7 of the
Act, except in a manner permitted by Section 8 (a) (3) of the Act.
(b) Take the following affirmative action, which the Board finds
will effectuate the policies of the Act :
(1) Make whole Cyrus Lewis for any loss of pay he may have
suffered by reason of the discrimination against him, as provided in
the section herein entitled "The Remedy."
(2) Notify Cyrus Lewis and the Respondent Employers, in writing,
that they have no objection to his employment, or to the employment
of any other employees who are not members of the Respondent
Unions or any other labor organization.
(3) Post at their offices in conspicuous places, including all places
where notices to employees or prospective employees are customarily
posted, copies of the notice attached hereto marked "Appendix B." 6
Copies of said notice, to be furnished by the Regional Director for the
6 See footnote 5, above.
MOUNTAIN PACIFIC CHAPTER 887
Nineteenth Region, shall, after being duly signed by representatives
of the Respondent Unions, be posted by them immediately upon re-
ceipt thereof and maintained by them for sixty (60) consecutive days
thereafter. Reasonable steps shall be taken by them to insure that
said notices are not altered, defaced, or covered by any other material.
(4) Notify the Regional Director for the Nineteenth Region in
writing, within ten (10) days from the date of issuance of the Opinion
herein, what steps they have taken to comply herewith.
MEMBER MURDOCK, dissenting in part and concurring in part :
Contrary to the majority, the main issue in this case is not a thresh-
old matter. For more than 7 years it has been well-established Board
law, judicially approved in every circuit court of appeals in which the
issue was raised, that an exclusive nondiscriminatory hiring hall is not
per se unlawful.' Now for the first time, in a sweeping decision ignor-
ing all Board and court precedents, the majority holds that such a con-
tract is unlawful. The importance and far-reaching consequences
of the majority's decision cannot, in my opinion, be overestimated.
Not only does it silently overrule all previous decisions of the Board,
but it is contrary to decisions of the. Ninth, Sixth, and Third Circuit
Courts of Appeals.' I have in other decisions during the past year
expressed my concern that the majority was apparently bypassing
precedent in hiring-hall cases.9 What seemed implicit in those deci-
sions is made explicit here. I do not believe that the legality of hiring
halls can be decided today by a majority of this Board as though no
other decision of the Board or of the courts existed in this area. . The
correct rule of law with regard to exclusive hiring halls, deriving from
the Board's decisions in National Union of Marine Cooks and Stew-
ards (Pacific American Shipowners Association), supra, and Hunkin-
Conkey Construction Company, supra, can be found in decisions of
three circuit courts of appeals.
In Eichleay Corporation v. N. L. R. B., 206 F. 2d 799, 803, the Court
of Appeals for the Third Circuit stated the principle as follows :
We agree with Eichleay that "The factor in a hiring-hall
arrangement which makes the device an unfair labor practice
is the agreement to hire only union members referred to the em-
ployer." Del E. Webb Construction Co. v. N. L. R. B., 8 Cir.,
1952, 196 F. 2d 841, 845. A referral system is not per se improper,
absent evidence that the union unlawfully discriminated in sup-
plying the company with personnel. N. L. R. B. v. 'Swinerton,
4 National Union of Marine Cooks and Stewards ( Pacific American Shipowners Associa-
tion ), 90 NLRB 1099 ; Hunkin-Conkey Construction Company, 95 NLRB 433. See, also,
court decisions cited below.
See decisions cited below.
See my dissenting opinions in The Marley Company, 117 NLRB 107, 115-122 ; Koppers
Company, Inc., 117 NLRB 1863, 1872-1877.
888 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
9 Cir., 1953, 202 F. 2d 511; Hunkin-Conkey Construction Co.,
95 N. L. R. B. 433 (1951).
In the Swinerton case , supra, at page 514, the Court of Appeals for
the Ninth Circuit held that the burden of proving discrimination by
the union in the administration of a referral system was on the General
Counsel :
An employer violates § 8 (a) (3) and (1) of the Act if he
requires membership in a labor organization as a condition prece-
dent to employment. N. L. R. B. v. Cantrall, 9 Cir., 1953, 201 F.
2d 853 [C. A. 9]. The Board has contended that adoption of a
system of union referral or clearance also violates the Act absent
a "guarantee that the union does not discriminate against non-
members in the issuance of referrals." We do not believe Na-
tional Union of Marine Cooks and Stewards, 90 N. L. R. B. 1099,
(1950), supports this view. Although it was there noted that
the provisions of an applicable labor contract prohibited such
discrimination, the Board did not indicate that a referral
system was per se improper absent a "guarantee" of nondiscrim-
ination. Such a rule would in practical effect shift the burden
of proof on the question of discrimination from the General
Counsel of the Board to the respondent. The rule which we deem
proper was recognized by the Board in Hunkin-Conkey Const.
Co., 95 N. L. R. B. 433 (1951), where it was said that an agree-
ment that hiring of employees be done only through a particular
union's office does not violate the Act "absent evidence that the
union unlawfully discriminated in supplying the company with
personnel." 95 N. L. R. B. at 435. Cf. Del E. Webb Const. Co. v.
N. L.R. B., 8 Cir., 1952,196 F. 2d 841, 845. [Emphasis supplied.]
The doctrine of the above cases has been cited with approval by the
Court of Appeals for the Sixth Circuit in N. L. R. B. v. F. H. McGraw
and Company, 206 F. 2d 635, 640.
It should, it seems to me, be perfectly clear from the decided cases
that the Union under this contract was not free to pick and choose
on any basis it sees fit. The law requires that an exclusive hiring
hall be administered in a nondiscriminatory manner. The real issue
here is whether, as the Court of Appeals for the Ninth Circuit pointed
out, the burden of proof on the question of discrimination will be
shifted from the General Counsel to the Union administering a hiring
hall. In the instant case the majority presumes that the Union will
administer an otherwise lawful contract in an unlawful manner.
This presumption is made conclusive unless the contract includes
objective criteria which will explain and justify the exclusive aspect
MOUNTAIN PACIFIC CHAPTER 889
of hiring-hall referrals. Only thereafter, I take it, will the burden of
proof be shouldered by the General Counsel to establish that the
Union nevertheless administered the contract in a discriminatory man-
ner. But the statute places the burden of proof squarely on the
General Counsel to establish in every case that a respondent before
this Board has engaged in an unfair labor practice. The majority,
indeed, admits that the statute does permit an exclusive hiring hall,
pointing to the salutary objective served by such institutions
and a statement by Senator Taft that the closed-shop provision of
the Taft-Hartley Act was not aimed at the hiring hall of the type
administered in the maritime industry. But the majority would add
something new to the law as understood by Senator Taft. The major-
ity now says that a nondiscriminatory hiring hall, which the Board,
the courts, and Senator Taft regarded as perfectly legal, runs counter
to the express proscription of the statute unless objective standards
are included in the hiring-hall contract. If the majority is right
in the conclusion that mere exclusive referral by a union constitutes
discrimination within the meaning of Section 8 (a) (3), then the
Board, the courts, and Senator Taft must have been wrong. If a
hiring hall results in unlawful discrimination because, as the majority
finds, the union is arbitrary master and is contractually guaranteed
to remain so, I fail to see how the inclusion of objective criteria in
the contract can remove the element of discrimination or the encour-
agement of union membership. Under any circumstances the em-
ployer would have surrendered all hiring authority and the union
would be free under the contract to refer or not to refer applicants
regardless of any expressed objective criteria. I am as much con-
cerned as is the majority that purported nondiscriminatory hiring
halls be nondiscriminatory in fact. But I do not believe that this
Board has the power to hold, on the one hand, that such conduct by a
union and an employer is lawful, but on the other hand, that it is
unlawful unless the contract contains words indicating an intention
by the union to administer the contract lawfully. This is as much as
to say that an employer violates Section 8 (a) (3) of the Act merely
by discharging a union member unless at the same time he states that
the discharge is for economic reasons. My understanding of the law
is that the General Counsel must prove by a preponderance of the
testimony that the discharge was intended to encourage or discourage
union membership. Absent such proof, no unfair labor practice' has
been committed whether or not economic reasons were assigned by
the employer for the discharge at the time it occurred. My view of
the law in this respect is so well settled that it needs no citation of
authority. In my opinion, the majority's novel approach to the
890 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
hiring-hall issue amounts to nothing more than a finding that an other-
wise lawful contract is unlawful unless the parties agree to include
words expressing their lawful motivation. To my knowledge this is
the first time that the Board or any court has found an unfair labor
practice solely on the ground that the respondent failed to express a
lawful motivation at the time the alleged unfair labor practice
occurred.
While the majority states that its decision is not to be taken as
outlawing all hiring-hall arrangements, I must note that the require-
ment of objective criteria does not provide unions and employers with
a precise test of a lawful contract. The majority holds that the
standards for referral of applicants are matters primarily for the
employer and the union to negotiate and settle so long as they fall
within the majority's notion of typical objective standards. But the
majority is free in the very next case to hold that the union and the
employer have incorporated insufficient objective criteria or that the
criteria adopted by the parties is not, in the majority's opinion, typi-
cal. Thus, wholly apart from the adverse impact of this decision on
contracts which have been already made in good faith in accord with
preexisting Board and court law, the majority's decision means, in
effect, that the parties to future collective-bargaining agreements,
faithfully following the majority's rule as to the type of provisions
which they must include in their hiring-hall contract, may neverthe-
less be found to have violated this statute because they guessed wrong.
In my opinion the statement of Senator Taft, quoted in the major-
ity's decision, is entirely accurate and directly supports existing Board
and court precedents. The last sentence of the quoted statement is
particularly applicable to the majority's conclusion that the presence
of objective criteria in a hiring-hall contract is indispensable to its
legality. "Neither the law [Taft Hartley Act] nor these decisions
[Board and court decisions relating to hiring halls] forbid hiring
halls, even hiring halls operated by the unions, as long as they are not
so operated as to create a closed shop with all of the abuses pos-
sible under such an arrangement, including discrimination against
employees, prospective employees, members of union minority groups,
and operation of a closed union." [Emphasis supplied.] Nothing in
Senator Taft's statement suggests or permits the conclusion that hir-
ing halls without objective criteria are somehow evil and contrary
to the statute, but that hiring halls with such criteria are perfectly
lawful as the majority finds. Senator Taft was in agreement with
previous Board and court decisions to the effect that where the Gen-
MOUNTAIN PACIFIC CHAPTER 891
eral Counsel had proved that an ostensible nondiscriminatory hiring.
hall was, in fact, operated as a closed shop or in an otherwise discrimi-
natory manner, the practice was unlawful. I find my self entirely in;
accord with these precedents and Senator Taft.
I would therefore find that, the contract in this case is not per se
unlawful, but that the Union's discriminatory practices under it are
unlawful, including the coercion and discrimination as to Lewis.
Mountain Pacific, Seattle, and Tacoma Chapters of the Associated
General Contractors of America, Inc., 117 NLRB 1319.
APPENDIX A
NOTICE TO ALL EMPLOYEES OF AND APPLICANTS FOR EMPLOYMENT
WITH ASSOCIATED GENERAL CONTRACTORS OF AMERICA, INC., MOIIN-
TAIN PACIFIC, SEATTLE, AND TACOMA CHAPTERS, AND THEIR CON-
STITUENT MEMBERS
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 notify you that :
WE WILL NOT perform, maintain, or give effect to the provisions
of any agreement with International Hodcarriers, Building and
Common Laborers Union of America, Local No. 242, AFL-CIO,
Western Washington District Council of International Hodcar-,
riers, Building and Common Laborers Union of America, AFL-
CIO, or with any other labor organization, which unlawfully
conditions the hire of applicants for employment, or the retention
of employees in employment with any employer, upon clearance
or approval by the aforementioned labor organizations, except as
authorized by Section 8 (a) (3) of the Act.
WE WILL NOT in any like or related manner encourage member-
ship in the aforementioned labor organizations, or in any other
labor organization, or otherwise interfere with, restrain, or coerce
employees in the exercise of the rights guaranteed them in Section
7 of the Act, except in a manner permitted by Section 8 (a) (3)
of the Act.
WE WILL make whole Cyrus Lewis for any loss of pay suffered
as a result of the discrimination against him.
All our employees and prospective employees are free to become,
to remain, or to refrain from becoming or remaining, members of the
above-named Unions or any other labor organization, except to the
892 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
extent that this right may be affected by an agreement in conformity
with Section 8 (a) (3) of the Act.
MOUNTAIN PACIFIC CHAPTER, THE ASSO-
CIATED GENERAL CONTRACTORS OF
AMERICA, INC.,
Employer.
Dated-- -------------- By-------------------------------------
(Representative ) ( Title)
SEATTLE CHAPTER, THE ASSOCIATED GEN-
ERAL CONTRACTORS OF AMERICA, INC.,
Employer.
Dated---------------- By-------------------------------------
(Representative ) (Title)
TACOMA CHAPTER, THE ASSOCIATED GEN-
ERAL CONTRACTORS OF AMERICA, INC.,
Employer.
Dated--------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not he altered, defaced. or covered by any other material.
APPENDIX B
NOTICE To ALL EMPLOYEES OF AND APPLICANTS FOR EMPLOYMENT
WITH ASSOCIATED GENERAL CONTRACTORS OF AMERICA, INC., MOUN-
TAIN PACIFIC, SEATTLE, AND TACOMA CHAPTERS, OR THEIR CON-
STITUENT MEMBERS
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 notify you that :
WE WILL NOT perform , maintain, or give effect to the provisions
of any agreement with Mountain Pacific Chapter, Seattle Chap-
ter, or Tacoma Chapter, of The Associated General Contractors
of America, Inc., or with any other employer, which unlawfully
condition the hire of applicants for employment, or the retention
of employees in employment with any employer, upon clearance
or approval by any labor organization, except as authorized by
Section 8 (a) (3) of the Act.
WE WILL NOT cause or attempt to cause the above-named Em-
ployers or any other employer to discriminate against employees
MOUNTAIN PACIFIC CHAPTER 893
or applicants 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 the rights guaranteed them in Sec-
tion 7 of the Act, except in a manner permitted by Section
8 (a) (3) of the Act.
WE WILL make whole Cyrus Lewis for any loss of pay suffered
as a result of the discrimination against him.
INTERNATIONAL HODCARRIERS , BUILDING AND
COMMON LABORERS UNION OF AMERICA,
LOCAL No. 242 , AFL-CIO,
Labor Organization.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
WESTERN WASHINGTON DISTRICT COUNCIL,
INTERNATIONAL HODCARRIERS , BUILDING
AND COMMON LABORERS UNION OF AMERICA,
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.
OPINION
March 27, 1958
On December 14, 1957, the Board issued a Decision and Order in
the above-entitled proceeding,' finding that the Respondents had
engaged in certain unfair labor practices and ordering them to cease
and desist therefrom and to take certain affirmative action. Member
Murdock dissented from that Decision and Order. However, the
Board expressly provided that an opinion in this matter would issue
at a later date. That opinion follows.
1. In the absence of any exceptions, we adopt the Trial Examiner's
conclusion that the Respondent Union's threats and promises of bene-
fits and inducements to Charging Party Lewis to get him to withdraw
his charge in this case violated Section 8 (b) (1) (A) of the Act.
2. The Employers named respondents herein are three chapters
of the Associated General Contractors of America (AGC) in the
State of Washington, who jointly with Western Washington District
1119 NLRB 883.
894 DECISIONS OF NATIONAL LABOR. RELATIONS BOARD
Council and Local 242 of the Hodcarriers executed a contract con-
taining, in pertinent part, the following provisions :
(a) The recruitment of employees shall be the responsibility
of the Union and it shall maintain offices or other designated
facilities for the convenience of the Employers when in need of
employees and for workmen when in search of employment.
(b) The Employers will call upon the Local Union in whose
territory the work is to be accomplished to furnish qualified
workmen in the classifications herein contained.
(c) Should a shortage of workmen exist and the Employer
has placed orders for men with the Union, orally or written,
and they cannot be supplied by the Union within forty-eight
(48) hours . the Employer may procure workmen from other
sources.
The Respondents do not, nor could they, argue that this contract
does not make employment conditional upon union approval, for a
more complete and outright surrender of the normal management
hiring prerogative to a union. could hardly be phrased in contract
language. The fact that the agreement limits the union's exclusive
control to a 48-hour period after a request for employees is imma-
terial, for if unqualified exclusive delegation of hiring to a union is
unlawful, the vice is not cured by a reversion back to the employer
of the hiring privilege after the union is unable to enjoy the power
conferred upon it.2
The basic question herein is whether the written contract, apart
from all other evidence in the case, is itself unlawful because of the
exclusive hiring-hall provisions it contains. We hold the hiring-hall
provisions of this contract to be unlawful. For purposes of our deci-
sion, therefore, it is unnecessary to determine whether there is suffi-
cient evidence apart from the contract to support the allegation of
discriminatory practices in hiring.'
Significantly, the contract is silent as to methods or criteria to be
followed by the Union in performing its function as hiring agent.
Under this contract and hiring hall, 'the Union is free to pick and
choose on any basis it sees fit. Not only do the Employers have no
2 In any event , in an industry like general contracting , characterized by short-term
hirings of individual workmen who form a general pool of employees serving a large
number of separate employers, control of the period immediately following the ever-
rising need for new hirings is tantamount to perpetual control.
3 The Union admitted that in doing the hiring for the Employers it always hires its
members in preference to nonmembers , and that whenever a member is not immediately
available , it attempts to locate one, and only failing in the search does it ever refer a non-
union member to any assignment . If the contract were not unlawful on its face, we would
deem the record as a whole ample to support a factual inference that the Employers in
fact hired hodcarriers and common laborers through this union hall and that the Respond-
ents in fact hired such employees on behalf of the contractors in the closed - shop manner
which the Union admitted.
MOUNTAIN PACIFIC CHAPTER 895
voice in the selection of applicants, but, for all the Employers know
or care, the Union's purpose. in selecting some and rejecting others
may be encouragement towards union membership, or towards adher-
ence to union policies, matters which, were they the basis for direct
employer selection, would constitute clear discriminations within the
meaning of Section 8 (a) (3) of the Act.
From the standpoint of the working force generally-those who,
for all practical purposes, can obtain jobs only through the grace of
the Union or its officials-it is difficult to conceive of anything that
would encourage their subservience to union activity, whatever its
form, more than this kind of hiring-hall arrangement. Faced with
this hiring-hall contract, applicants for employment may not ask
themselves what skills, experiences, or virtues are likely to win them
jobs at the hands of AGC contracting companies. Instead their
concern is, and must be : What, about themselves, will probably
please the Unions or their agents? How can they conduct themselves
best to conform with such rules and policies as Unions are likely
to enforce? In short, how to ingratiate themselves with the Union,
regardless of what the Employer's desires or needs might be.
Although Section 8 (a) (3), in words, outlaws discrimination
which encourages union "membership," more is intended than a
literal membership requirement.4 The contract or hiring arrange-
ment need not explicitly, limit employment to union members to be
unlawful. The statutory phrase "encourage membership in a labor
organization" is not to be minutely restricted to enrollment on the
union books; rather, it necessarily embraces also encouragement
towards compliance with obligations or supposed obligations of
union membership, and participation in union activities generally.
It follows that specific or direct proof of such unlawful encourage-
inent is not an indispensable element in every case. If the employ-
er's conduct-whether caused by a union or not-is of a kind that
"inherently encourages or discourages union membership," 5 it is for
this Board to draw the inference of illegality from such conduct
alone. This follows the common law rule that a man is held to
intend the foreseeable consequences of his action.
That encouragement to union membership may be inferred in situa-
tions where employers discriminate against employees at the request
of a union is now authoritatively established. In the Radio Officers'
case, two men were denied jobs solely because of a union's action.
They were union members and, despite absence of direct affirmative
evidence that the discrimination encouraged membership in a union,
the Supreme Court held that "it was eminently reasonable for the
i A. Cestone Company , 118 NLRB 669 ; Acme Mattress Company, 91 NLRB 1010, enfd.
192 F. 2d 524 (C. A. 7).
5 Radio Officers ' Union v. N. L. it. B., 347 U. S . 17, 45.
896 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Board to infer encouragement of union membership . . . ." It is
with this basic principle in mind that we judge this case and all ex-
clusive hiring halls of this unrestricted and arbitrary type.6
Here the very grant of work at all depends solely upon union spon-
sorship, and it is reasonable to infer that the arrangement displays
and enhances the Union's power and control over the employment
status. Here all that appears is unilateral union determination and
subservient employer action with no aboveboard explanation as to
the reason for it, and it is reasonable to infer that the Union will be
guided in its concession by an eye towards winning compliance with
a membership obligation or union fealty in some other respect. The
Employers here have surrendered all hiring authority to the Union
and have given advance notice via the established hiring hall to the
world at large that the Union is arbitrary master and is contractually
guaranteed to remain so. From the final authority over hiring vested
in the Respondent Union by the three AGC chapters, the inference of
encouragement of union membership is inescapable.1
However, we do not read the statute as necessarily requiring elimi-
nation of all hiring halls and their attendant benefits to employees
and employers alike.' The vice in the contract here considered and
its hiring hall lies in the fact of unfettered union control over a]] hir-
ing, and our decision is not to be taken as outlawing all hiring halls.
We agree with Senator Taft, the principal proponent of the 1947
Taft-Hartley amendments, who stated that Section 8 (b) (2) was not
intended to put an end to all hiring halls, but only those which amount
to virtually closed shops.'
° See also The Lemmas Company, 101 NLRB 1628 , where the Board said , ". . . the
Respondent's requirement that job applicants obtain approval from the Carpenters as a
condition of employment is itself a discriminatory hiring condition within the meaning of
Section 8 (a) (3) of the Act."
7It is not necessary , as the Respondents apparently contend, that any discrimination
provided for in the contract must be shown in fact to have occurred before the agreement
itself be declared unlawful . The very existence of the contract and its proscribed pro-
union provisions exert a prohibited coercive effect upon the employees or, as here, appli-
cants for employment . The Board , with court approval , has consistently held that mainte-
nance of an unlawful contract , apart from its enforcement , violates the Act . Red Star-
Express Lines v. N. L. R. B., 196 F. 2d 78 , 81 (C. A. 2 ) ; N. L. R. B. v. Gaynor News
Company, 197 F . 2d 719 ( C. A. 2), affd . 347 U. S. 17.
8 See S. Rept. 1827 , 81st Cong ., 2d sess., Committee on Labor and Public Welfare. It
was to eliminate wasteful, time -consuming , and repetitive scouting for jobs by individual
workmen and haphazard uneconomical searches by employers that the union hiring hall
as an institution came into being. It has operated as a crossroads where the pool of em-
ployees converges in search of employment and the various employers ' needs meet that
confluence of job applicants . In some industries such basic hiring with the assistance of
the union has served to excuse conduct which runs counter to the express proscriptiol.a
of the statute which we must enforce.
° S. Rept . 1827 , supra. Mr. Taft said :
The majority report proceeds upon the erroneous assumption that unless the closed-
shop prohibition of the Taft -Hartley Act is removed for maritime unions , such unions
cannot continue to have hiring halls in that industry , but must go back to a com-
plete open shop , or even recruitment by "crimps " and "shape -up." The National
Labor Relations Board and the courts did not find hiring halls as such illegal, but
MOUNTAIN PACIFIC CHAPTER 897
The basis for a union's referral of one individual and refusal to
refer another may be any selective standard or criterion which an em-
ployer could lawfully utilize in selecting from among job seekers.
We believe, however, that the inherent and unlawful encourage-
ment of union membership that stems from unfettered union control
over the hiring process would be negated, and we would find an en
agreement to be nondiscriminatory on its face, only if the agreement
explicitly provided that :
(1) Selection of applicants for referral to jobs shall be on a non-
discriminatory basis and shall not be based on, or in any way affected
by, union membership, bylaws, rules, regulations, constitutional pro-
visions, or any other aspect or obligation of union membership, pol-
icies, or requirements.
(2) The employer retains the right to reject any job applicant re-
ferred 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, in-
cluding the safeguards that we deem essential to the legality of an
exclusive hiring agreement.
If, in the operation of a hiring hall that comports with these re-
quirements and is therefore lawful on its face discriminatory acts
occur, they are, of course, violations of the statute, both by the union
which refers or refuses to refer on a discriminatory basis, and by the
employer who has delegated the hiring authority to the union. The
employer is in pari delicto, and is as responsible as the union for any
deviation from the nondiscriminatory hiring-hall procedure. Any
employee or would-be employee who believes himself a victim of dis-
criminatory practices by a union party to an otherwise lawful hiring
hall will, of course, have the right to file a charge against both the
union and the employer or employers party to the contract in
question.
We recognize that a procedure requiring application for employ-
ment through a union tends to encourage union membership-in fact, it
gives to unions a ready forum for organizational activities. However,
appraisal of the statute as a whole and the large body of decisional law
based upon it shows that there are many literal forms of encourage-
ment to union membership that are not prohibited. The better rep-
resentation a union affords, the more successful it is in wresting eco-
merely certain practices under them . The Board and the court found that the
manner in which the hiring halls operated created in effect a closed shop in violation
of the law. Neither the law nor these decisions forbid hiring halls, even hiring halls
operated by the unions, as long as they are not so operated as to create a closed
shop with all of the abuses possible under such an arrangement , including discrimina-
tion against employees, prospective employees, members of union minority groups,
and operation of a closed union.
. 476321---58-vol. 119-58
898 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
nomic advantage from the employer for the employees, the more it will
attract members to it; i. e., "encourage union membership." Clearly
such encouragement alone does not always violate Section 8 (a) (3) ;
a line must be drawn between lawful and unlawful encouragement. In
some instances, Congress itself draws that line. For example, a dis-
charge for lack of membership in a union is, standing alone, a viola-
tion of the Act, and the union causing the discharge violates Section 8
(b) (2). But this same encouragement is not violate of the Act when
pursuant to a contract with proper provisions. The Board has also
drawn a line not expressly required by statute. Discharge of a striker
is normally unlawful discouragement of union activity. But when the
contracting parties have agreed to a no-strike clause, the striker may
lawfully be discharged despite the inevitable discouragement from
union adherence."' We would draw a similar line between the type of
unfettered arbitrary hiring hall present here and one including the
safeguards set forth above. The first case, revealing an unexplained
and autocratic union fiat, fully warrants an inference of unlawful
encouragement despite the absence of literal membership requirement;
the latter situation, with its assurances to would-be employees of
selection based on objective criteria and specifically rejecting union
membership or adherence as a basis for selection, effectively rebuts any
inference of unlawful union encouragement, and therefore does not
support an inference of illegality.
For the reasons expressed above, we find, contrary to the Trial
Examiner, that the hiring provisions of the contract between the Re-
spondent Employers and the Respondent Unions, which contain none
of the safeguards that could serve to rebut the inference that they en-
courage membership in the Respondent Unions, are unlawful. Ac-
cordingly, we conclude that the Respondent Employers have violated
Section 8 (a) (3) and (1) of the Act, and the Respondent Unions
have violated Section 8 (b) (2) and (1) (A) of the Act, by executing
and maintaining in effect the hiring provisions of their contract.ll
3. We also find, contrary to the Trial Examiner, that the imple-
mentation of the unlawful contract in the rejection of Lewis' con-
tinuous applications for employment was an unfair labor practice by
both the Union and Employer Respondents. He was a clear victim
of the unlawful hiring system being carried on.
As the Intermediate Report sets forth, Lewis was dropped from
membership in the Respondent Local 242 for nonpayment of dues
about 1950. Starting about March 15, 1956, he came to the hiring hall
and asked for work, but was told none was available. During the next
10 Shell Oil Company, Inc., 77 NLRB 130G.
It As only the charge against Respondent Local 242 was filed within 6 months of the
execution of the contract in question, our finding against the other Respondents is limited
to the maintenance of the hiring provisions of the contract rather than their execution.
Our remedial action herein is in no way affected by this difference.
MOUNTAIN PACIFIC CHAPTER 899
7 or 8 weeks he returned to the hiring hall several times each week
.seeking work, but was repeatedly told there was no work, despite the
fact that other hodcarriers were being dispatched to jobs on many oc-
casions during the same period. He attempted to persuade the Union
to reinstate him during this period, with the hope that he might avail
himself of the hiring hall, but was told by Allman, Local 242's cor-
responding secretary and dispatcher, and Buchanan, its financial
secretary and busines representative, that the Union "wouldn't take
any new members." On one occasion, on May 9, 1956, Lewis obtained
a job directly from a contractor, not a member of any AGC Chapter.
Business Representative Buchanan came to the project and told the
contractor that he would place a picket line at the project unless he
hired only union members.
Five days later, on May 14, when Lewis appeared once again at the
office of the Union and asked Allman to dispatch him, Allman told
Lewis that the Union was not going to give him "a damned thing,"
and that he should "get out and stay out." On May 17, Lewis was the
first hodcarrier at the hiring hall, but was not sent on a job although
a number of hodcarriers reported to the hiring hall, and were dis-
patched during the day. Thereafter, Lewis was actually dispatched
to ,jobs on a number of occasions, with a clear indication from the
Union's representatives that they hoped this would induce him to
-withdraw the charges he had filed against the Union.
As an old-time member of the Union, and aware of the established
hiring-hall arrangement, Lewis, of course, went to the Union to apply
for work. Had he gone directly to one of the Respondent Employers
he would unquestionably have been rejected summarily and referred
to the union hall for clearance, for that is precisely what the contract
obligated each employer to do. It matters not, therefore, which of
the two parties to the illegal contract he first approached. His un-
lawful exclusion from employment was a joint act by both Respond-
'ents.12 It is equally immaterial that there is no evidence now before
us that on the particular days when he was rejected there were job
openings with the Respondent Employers, or current requests for re-
ferrals in the hands of the union officials pursuant to the contract.
The Board and the courts have held that neither unavailability of
work or lack of application for a particular job serves as a defense
to a discriminatory hiring policy when it is clear that no job would
be prcf£ered in any event." At best, questions respecting what work
12 As indicated above, even were the particular hiring agreement here involved a lawful
one, the Respondent Employers , having delegated hiring authority to the Union , would be
in par! delieto and equally responsible with the Union for any particularized discrimina-
tion, as happened to Lewis here, that the Union perpetrated:
'3 Daniel Hanana Drayage Compa7v4,/, Inc., 84 NLRB 458; enfd. 185 F. 2d 1020 (C. A. 5) ;
Peabright Construction Company, 108 NLRB 8; J. R. Cantrall, et al., 96 NLRB 786,
enfd. 201 F, 2d 853 (C. A. 9), cert. denied 345 U. S. 996; N. L. R. B. v. Swinerton and
Walberg, 202 F. 2d 511 (C. A. 9).
900 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was in fact available and unlawfully denied Lewis are matters for
investigation in the compliance stage of this proceeding in deter-
mining the amount of back pay due him pursuant to our remedial
order.
We find, accordingly, that the Respondent Unions violated Sec-
tion 8 (b) (2) and (1) (A) of the Act, and the Respondent Em-
ployers violated Section 8 (a) (3) and (1) of the Act, with respect
to Lewis.
MEMBER FANNING took no part in the consideration of the above
opinion.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
This proceeding was initiated by three charges filed by Cyrus Lewis with the
National Labor Relations Board (also referred to below as the Board). The first
was filed on May 11, 1956, in Case No. 19-CB-424 against the Respondent, Inter-
national Hodcarriers, Building and Common Laborers Union of America, Local
No. 242, AFL-CIO (also referred to herein as Local 242); the second on August 7,
1956, in Case No. 19-CA-1374 against the Respondents, Mountain Pacific Chapter
of the Associated General Contractors, Inc., The Associated General Contractors of
America, Seattle Chapter, Inc., and Associated General Contractors of America,
Tacoma Chapter (also referred to herein collectively as the AGC Chapters or the
Chapters, and respectively as the Mountain Pacific Chapter, the Seattle Chapter,
and the Tacoma Chapter);' and the third on September 13, 1956, in Case No.
19-CB-445 against the Respondent, Western Washington District Council of
International Hodcarriers, Building and Common Laborers Union of America,
AFL-CIO (also described herein as the District Council). On September 20, 1956,
pursuant to the Board's Rules and Regulations, Series 6, the Regional Director for
the Nineteenth Region of the Board duly entered an order consolidating the three
cases. Based upon the charges, the General Counsel of the Board issued a complaint
on September 20, 1956, alleging that Local 242, the District Council, and the AGC
Chapters had engaged in and were engaging in unfair labor practices within the
meaning of the National Labor Relations Act, as amended (61 Stat. 136-163), also
referred to below as the Act. Each of the said Respondents has been duly served
with a copy of the charge applicable to it, of the order of consolidation, and of the
complaint.
With respect to the claimed unfair labor practices, the complaint alleges, in sum,
that the AvC Chapters have interfered with, restrained, and coerced employees ,in
the exercise of rights guaranteed them by Section 7 of the Act, thus violating Section
8 (a) (1) of the Act; that Local 242 and the District Council, as labor organiza-
tions, have caused employers to discriminate against Lewis and others in violation
of Section 8 (a) (3), thus violating Section 8 (b) (2) of the Act; and that by
such conduct the said labor organizations have restrained and coerced employees
in the exercise of rights guaranteed them by Section 7, thus violating Section 8
(b) (1) (A) of the said Act.
Each of the Respondents has filed an answer in which it denies the commission
of the unfair labor practices imputed to it in the complaint.
Pursuant to notice duly served upon all parties, a hearing was held before me,
as duly designated Trial Examiner, on October 26 and 27, 1956, at Seattle, Wash-
ington. Each of the parties, with the exception of Lewis, was represented by
counsel at the hearing. The parties were afforded full opportunity to be heard,
examine and cross-examine witnesses, adduce evidence, file briefs, and submit oral
argument. I reserved decision on a motion, made after the close of the evidence
by Local 242 and the District Council, to dismiss the allegations of the complaint
'Based upon a stipulation of the parties, filed with me subsequent to the hearing, I
amend the record, including the caption of this proceeding, to show the correct names of
the Chapters which are those set out above. The stipulation is hereby made a part of
the record.
MOUNTAIN PACIFIC CHAPTER 901
applicable to them. The findings and conclusions made below dispose of the
motion. The General Counsel and the Seattle and Tacoma Chapters have filed
briefs which have been read and considered. The other parties have waived their
right to file briefs.
Upon the entire record, and from my observation of the witnesses, I make the
following:
FINDINGS OF FACT
1. NATURE OF THE BUSINESS OF THE AGC CHAPTER; THEIR STATUS AS EMPLOYERS;
JURISDICTION
Each of the AGC Chapters is a corporate association of employers who are
engaged, as contractors, in the construction business and have their principal places
of business in the western part of the State of Washington. The respective principal
offices of the Mountain Pacific and Seattle Chapters are located in Seattle, Wash-
ington. The Tacoma Chapter maintains its principal office in Tacoma, Washington.
Each of the Chapters, for and on behalf of its members, perorms the function
of negotiating and entering into collective-bargaining agreements with labor or-
ganizations. These agreements prescribe wages, hours, and conditions of employ-
ment affecting individuals employed by such members. The Chapters customarily
negotiate and enter into such agreements jointly, conducting the negotiations through
a group of individuals made up of members of a labor committee maintained by
each of the Chapters. This procedure was followed in 1955 in negotiating a
collective-bargaining agreement currently in effect between the AGC Chapters and
the District Council. (More specific reference will be made to this contract below.)
By reason of the representative status of the AGC Chapters and their joint pro-
cedures in negotiating and executing collective-bargaining agreements, the Chapters
and their members constitute a single employer within the meaning of Section 2
(2) of the Act. The assertion of jurisdiction over the subject matter of this pro-
ceeding may thus properly be based upon the operations in, or affecting, interstate
commerce of members of any or all of the Chapters.2
in 1955, members of the Seattle Chapter performed construction work of the
aggregate value of $26,586,361 for enterprises which annually ship goods valued
in excess of $100,000 in interstate commerce. During that year, members of the
Seattle Chapter performed work of the aggregate value of $23,431,353, under
contract with the United States Government, on installations directly related to the
national defense. In 1955, also, members of the Seattle Chapter performed con-
struction work of the total value of $20,773,717 on construction projects located
outside the State of Washington. The aggregate dollar volume of construction
work performed by members of the Tacoma Chapter in 1955 in each of the three
,categories set forth above for members of the Seattle Chapter amounted to
approximately one-third of the dollar volume of work performed by members of
the Seattle Chapter in each such category. At the time of the hearing in this
proceeding, a member of the Mountain Pacific Chapter was engaged in construc-
tion work on installations directly related to the national defense, and located
outside the State of Washington, under a contract with the United States Govern-
ment providing for the payment of $6,000,000 for the work required by the
agreement.3
In sum, members of the AGC Chapters have been, at all times material to this
proceeding, engaged in interstate commerce within the meaning of the Act; the
operations of the AGC Chapters and their members have affected, and affect, such
commerce; 4 the Board has jurisdiction over this proceeding; and the assertion of its
jurisdiction will effectuate the policies of the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
The District Council is comprised of various local unions, including Local 242,
affiliated with the International Hodcarriers, Building and Common Laborers of
2Insulation Contractors of Southern California, Inc., 110 NLRB 638, and cases cited.
3 The record contains additional evidence that members of the Mountain Pacific Chapter
engage in operations affecting interstate commerce of sufficient scope to meet criteria
promulgated by the Board for the exercise of its jurisdiction. It is unnecessary to deal
with such evidence, since the figures given above amply warrant the assertion by the
Board of jurisdiction over this proceeding.
4 Maytag Aircraft Corp., 110 NLRB 594 ; Insulation Contractors of Southern California,
Inc., supra; and Jonesboro Grain Drying Cooperative, 110 NLRB 481.
902 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
America, AFL-CIO (also referred to below as the International). The% District
Council, on behalf of Local 242 and other affiliates of the International, has,
negotiated and entered into collective-bargaining agreements with the AGC Chapters,
prescribing wages, hours of employment, and other working conditions of em-
ployees of members of the Chapters. One such agreement, to which additional
reference will be made later, is currently in effect. Local 242 admits to member-
ship employees of members of the Chapters and represents such employees for.
the purposes of collective bargaining. Both the District Council and Local 242 are
labor organizations within the meaning of Section 2 (5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Prefatory statement
On December 30, 1955, the AGC Chapters, "acting for and on behalf of their
members," jointly entered into an agreement with the District Council, prescribing
wages, hours of employment, and other working conditions of individuals employed'
by members of the Chapters. The District Council negotiated and entered into
the contract for and on behalf of various affiliates of the International, including
Local 242. By its terms, the agreement became effective on January 1, 1956, and
is to remain in effect (subject to various provisions for modification not relevant-
here) until at least December 31, 1958.
One of the issues in this proceeding focuses upon the legality of Section 6 of the-
contract, which provides:
6. To maintain employment, to preserve workable labor relations, to proceed'
with private and public work, the following accepted prevailing practices shall
continue to prevail in the hiring of workmen:
(a) The recruitment of employees shall be the responsibility of the-
Union 5 and it shall maintain offices or other designated facilities for the
convenience of the Employers when in need of employees and for work-
men when in search of employment.
(b) The Employers will call upon the Local Union in whose territory
the work is to be accomplished to furnish qualified workmen in the class-
ifications herein contained.
(c) Should a shortage of workmen exist and the Employer has placed'
orders for men with the Union, orally or written, and they cannot be-
supplied by the Union within forty-eight (48) hours, Saturdays, Sundays.
and holidays excluded, the Employer may procure workmen from other
sources.
(d) Either party to this Agreement shall have the right to reopen
negotiations pertaining to Union security by giving the other party thirty
(30) days written notice, when there is reason to believe that the laws,
pertaining thereto have been changed by Congressional Amendments,.
Court Decisions, or governmental regulations.
The membership of Local 242 consists of approximately 1,700 building and
common laborers and some 70 hodcarriers. Since the execution of the agreement
with the AGC Chapters, as well as for many years prior thereto, Local 242 has.
maintained a hiring hall at its office in Seattle for the purpose of dispatching laborers
and hodcarriers to jobs at the request of employers engaged in the construction,
industry within the territorial jurisdiction of the Union. Members of Local 242
seeking dispatch as laborers sign a registry book maintained by the Union at its.
office, are given a number, and are usually sent to jobs by the organization's dis-
patcher in numerical rotation, unless an employer requests the assignment of a
specific individual, in which event, the workman so requested is sent to the job in-
volved. Laborers who are not members may also register, but they place their
names in a different part of the registry book and are dispatched in numerical
rotation only after all available members who hold registry numbers have been
dispatched. Local 242 has no systematized procedure for dispatching hodcarriers.
No registry is maintained for them. In some cases, the dispatcher assigns an
available hodcarrier because he has been out of work longer than others; in other
situations, those awaiting assignment at the office decide among themselves who
is to be dispatched. Generally, if an available hodcarrier wishes it, he will be
5 The term "Union," as used In the agreement, refers to the District Council and the
local unions to which the contract is applicable. In that connection, see the opening
paragraph of the agreement (General Counsel's Exhibit No. 4).
MOUNTAIN PACIFIC CHAPTER 903
chosen for dispatch to a job with a contractor for whom he has worked before, and,
as in the case of laborers, the Union will dispatch a hodcarrier member to a job,
without regard to other factors, if an employer requests the assignment of the in-
dividual. Local 242 has had occasion to dispatch hodcarriers who are not mem-
bers of the organization, but the practice has been to do so only on occasions when
no members are available for dispatch. In connection with the hiring-hall practices
described above, it may be noted that the dispatcher is obligated, under the terms
of the International 's constitution , to do all in his "power to procure employment
for such brothers [members] as may desire situations in preference to any and all
non-union men."
Cyrus Lewis, the Charging Party in this proceeding, has been a hodcarrier by
occupation for about 20 years. He became a member of Local 242 in 1943; was
subsequently suspended at one point or another for nonpayment of dues; was rein-
stated in 1947; was suspended again in or about 1949 for. nonpayment of dues; and
was dropped from membership at some point thereafter in 1949 or 1950. He was
unable to work as a hodcarrier much of the time during the next few years because
of physical disability, but from time to time when he felt able to work, he sought
dispatch as a hodcarrier at the Union's hiring hall. On these occasions, the Union
declined to dispatch him.
Lewis' physical condition improved early in 1956,6 and on or about March 15 of
that year he came to the hiring hall and asked Leo Allman, the Union's correspond-
ing secretary and dispatcher, and Robert Buchanan, the organization' s financial
secretary and business representative, to dispatch him to a job. Both Allman and
Buchanan told him that no work was available. Lewis sought work at the hiring
hall 2 or 3 times each week during the next 7 or 8 weeks, and met with the same
result, both Allman and Buchanan telling him repeatedly that there was no work.
Because of climatic and related factors, the period was a slack season for hod-
carriers (as is the spring of each year until about the middle of May). However,
notwithstanding the season and the statements made to Lewis to the effect that no
work was available, hodcarriers were dispatched to jobs from the Union's hiring hall,
some repeatedly, on a substantial number of occasions during the months of March,
April, and May, 1956, while Lewis was at the Union's office seeking, and failing,
to secure dispatch. Contrary to a claim advanced by Allman in his testimony, the
evidence does not credibly establish that the hodcarriers dispatched were specifically
requested by the Employers to whose projects they were sent.?
During the spring of 1956, Lewis made a number of efforts to secure reinstatement
to membership in Local 242, while he was at the Union's hiring hall seeking work.
Thus on April 3, he told Buchanan that he wished to become a member of the
Union, and offered to. "pay some dues." Buchanan suggested that Lewis discuss
his request with Allman. Lewis did so, and Allman stated that he would take no
money from Lewis, that "there weren't any jobs," and that he "wouldn't take any
new members." Buchanan took substantially the same position as Allman on a
number of other occasions when Lewis told Buchanan that he wished to be rein-
stated to membership.
On the morning of May 9, 1956, while on his way home from an unsuccessful
quest for work at the hiring hall, Lewis secured employment for the balance of the
day from a man named Albert Nielsen in connection with the moving of a
building. Nielsen, who is engaged in the business of moving buildings, is not a
member of any of the AGC Chapters. Shortly before quitting time that day,
Buchanan appeared at the project, and observing that Lewis was employed there,.
told Nielsen that he would place a picket line at the project unless Nielsen hired
only union members for the work in progress there. Lewis continued to work
9 Unless otherwise stated, all events described below took place in 1956.
7 Allman stated that as far as he could recall, the only hodcarriers dispatched during
the slack season prior to May 17 were those who were specifically requested by contractors.
However, he later contradicted himself on that score, and at still another point stated
that he could not remember whether, during the period in question, the only hodcarriers
dispatched were those who were specifically requested by contractors. Moreover, at various
points, tangential or unresponsive answers by Allman persuaded me that he was being
evasive. In some instances, Allman made no response to questions put to him, and, upon,
appraisal of his demeanor, it appeared to me that this was attributable to a desire by him
to avoid answering rather than to a lack of understanding of the questions involved. In
contrast, Lewis impressed me as a credible witness, and I have thus based findings herein
on Lewis' testimony with respect to what he observed at the hiring hall and his conversa-
tions and transactions with Allman.
904 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the short period remaining until quitting time and was then paid off by Nielsen who
had planned to employ Lewis at the project only for the day.
On May 14, Lewis went to the office of Local 242 and asked Allman to dispatch
him to a job. Allman replied that he had heard that Lewis had filed a charge
against Local 242; that the Union was not going to give Lewis "a damned thing";
and that the latter was to "get out and stay out." Lewis reported the incident
later that day to a field examiner stationed in the Seattle Regional Office of the
Board. The field examiner thereupon telephoned Buchanan. During the course
of the conversation, Buchanan suggested that the field examiner tell Lewis to
come to the office of Local 242 and inform the Union whether he desired dispatch
as a hodcarrier or a common laborer. (The record does not establish what, if
anything, else was said).
Lewis visited the hiring hall on the morning of the following day and asked
Allman to dispatch him. Allman replied that no work was available, but stated
that he might be able to send Lewis to a job later that day if one turned up, and
that Lewis should "stick around." That morning, also, Buchanan asked Lewis if
lie wished "to take out a number as a common laborer," and Lewis replied that he
preferred to be dispatched to a hodcarrier's job. Lewis was not dispatched on
that day, nor on the following day when he came to the hiring hall and asked
Allman for a job.
Lewis came to the hiring hall again on May 17, arriving there at about 6:45 a. m.
He was the first hodcarrier there. Some 4 or 5 hodcarriers arrived about 15
minutes later. These were dispatched first during the course of the morning,
although Lewis stationed himself at the dispatcher's window as soon as Allman
arrived. After dispatch of the others, Lewis continued to wait for some time
at the Union's office. At about 10:30 a. in., Lewis became aware that Allman
required a hodcarrier for dispatch "for some brick job" at an establishment described
in the record as Todd's Shipyard. Lewis, who was then the only available hod-
carrier at the hiring hall, approached Allman and told him that he wished to be
dispatched to the job. Allman said that the job was not one for a hodcarrier and
that the opening was not at the shipyard. Shortly thereafter, a hodcarrier came
into the union office, and Allman dispatched him to the shipyard. At one point or
another that morning, after various hodcarriers had been dispatched, Lewis tele-
phoned the field examiner mentioned above and reported that he had not been
dispatched and that he had been given no job assignment. The field examiner
thereupon called the hiring hall arid, talking either to Buchanan or Allman, told
one or the other that he had been informed that Lewis "was not being sent out."
Shortly after the call, Allman, stating that he would dispatch Lewis, told the
latter that he wanted him to withdraw the charge. Lewis replied that he would
see what he could do in that regard, and Allman thereupon dispatched him to a
job which lasted a few days.
On May 23, having completed the work to which he had been dispatched, Lewis
presented himself at the hiring hall and asked Allman for another dispatch. The
latter inquired of Lewis whether he had withdrawn the charge, and upon receiving
a negative reply, remarked to Buchanan who was present that "Lewis didn't do
what we told him to do." Buchanan said, ". . the hell with him," and then
Allman told Lewis: "You didn't go down and withdraw the charge like I told
you to so you can get out and stay out as far as I am concerned."
Nevertheless, Lewis came to the hiring hall on the following day and asked Allman
to dispatch him. Allman refused, stating that he had previously dispatched Lewis
on the assumption that the latter would withdraw the charge, and that Lewis would
not be dispatched again until he withdrew it. During the next several weeks, Lewis
repeatedly went to the hiring hall seeking dispatch, but he was unsuccessful.
Allman told him on these occasions that no work was available. On June 13,
however, Allman dispatched him to a job which lasted for about a week.
On June 21, after completion of that job, Lewis made a request of Allman that
he be admitted to membership in Local 242, offering to pay what he understood
to be the required initiation fee. (Lewis had heard that the fee was $37.50, and he
had enough funds on his person to pay that sum.) Allman's reply to the offer was
that he would not take any money from Lewis "until I get a statement from the
Board that you have withdrawn the case."
Several weeks later, on July 11, Allman dispatched Lewis to a job which lasted
until August 6. On August 8, Lewis asked Allman for another dispatch, and
repeated his offer "to pay some money" toward admission to membership in the
Union. Allman again rejected the offer, asserting that he would take no money
MOUNTAIN PACIFIC CHAPTER 905
from Lewis until he received a letter from the Board stating "that the case had
been dropped." Lewis, however, continued to return to the hiring hall for dispatch,
and was sent to a job by Allman some days later. Since then he has been securing
work through the hiring hall with substantial regularity.
On August 18, Lewis made another attempt to become a member of Local 242,
broaching the subject to Allman at the dispatch window in the hiring hall. This
time, unlike the previous occasions, Allman invited Lewis into the office behind
the window for a discussion of the matter. The dispatcher again declined to take
any money from Lewis, but said that he would give Lewis a "slip as good as a
[union membership] book," and that the slip would be valid until the following
September 18. Allman thereupon signed and gave Lewis a printed form bearing
the caption "Official Receipt," and containing an entry signifying that it was to be
valid until September 18. (From the material printed on the form, it is evident
that the Union uses slips of this type to acknowledge payment of initiation fees and
dues by its members.) Lewis remarked that "my business here is to pay some
money," and asked Allman whether he would be required to pay any sum for the
slip. The dispatcher assured him that he would not "have to pay a nickel."
During the following week, Lewis worked at a project to which Allman had
dispatched him. Sometime during the course of the week, Allman visited him
at the project, and asked him whether he had withdrawn the charge. Lewis replied
that he had discussed the subject with the Seattle Regional Office of the Board and
had been informed there that the matter was out of his hands, and that the
charge would not be dismissed.
Allman made another effort to persuade Lewis to withdraw the charge shortly
after the expiration date of the "Official Receipt," visiting Lewis for that purpose
at another project where the latter was employed. In the course of the discussion,
Allman told Lewis that "other cases had been filed against the union"; that "we
have given the boys work and they have withdrawn the cases"; and that he had
come to the project to "see if you would withdraw the case, if you want to keep
working." The dispatcher asked Lewis whether he would "sign a paper" stating
that he wished to withdraw the charge, in order to "prove" that he had "tried to
withdraw" it. Lewis replied that he had been told at the Regional Office that the
matter was out of his hands; that he preferred that Allman "call up and talk to
some officials up there"; and that there was nothing else that he could do about
the matter.
B. Concluding findings
The General Counsel contends that section 6 of the agreement described above
contains provisions that are invalid per se. In that regard, it is alleged in the
complaint that "by continuing [the agreement] in effect," 8 the AGC Chapters have
been interfering with, restraining, and coercing employees in the exercise of rights
guaranteed them by Section 7 of the Act, thus violating Section 8 (a) (1) of the
statute; and the District Council and Local 242 have been causing employer members
of the Chapters to discriminate in violation of Section 8 (a) (3) of the Act, thereby
violating Section 8 (b) (2) and 8 (b) (1) (A) of the Act.9 As the General
Counsel asserts that the contract terms in question are unlawful per se, the validity
of the claim must be tested by reference to the relevant language alone, and without
regard to the contention, also advanced by the General Counsel, that members of
the AGC Chapters have actually discriminated "with respect to the hire of Lewis,"
and that Local 242 caused such discrimination. The claim of actual discrimination
against Lewis, and the question of the responsibility therefor of Local 242, will be
separately considered at another point below.
For support of his position concerning Section 6 of the agreement, the General
Counsel relies upon Pacific Intermountain Express Company, 107 NLRB 837, enfd.
8 The complaint does not allege the execution of the agreement, as distinguished from
its maintenance; as a violation of the Act. So far as the District Council and the AGC
Chapters are concerned, such an allegation is barred by Section 10 (b) of the Act, since
the agreement was executed more than 6 months prior to the filing of the respective
charges against these Respondents.
9 The complaint does not charge that by maintaining Section 6 of the agreement, the
Chapters discriminated in violation of Section 8 (a) (3) of the Act (see paragraph XI of
the complaint), although it alleges that by maintaining the relevant contract provisions,
the District Council and Local 242 have caused members of the Chapters to discriminate
in violation of Section 8 (a) (3).
906 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
as mod. 225 F. 2d 343 (C. A. 8).10 There the Board considered the legality of
certain seniority provisions of two collective-bargaining contracts, one made in 1949
and the other in 1952. The relevant language of the first provided that "any
controversy over the seniority standing of any employees on this list shall be re-
ferred to the Union for settlement." The later agreement contained the same
language, but provided, in addition, that "such determination shall be made without
regard to whether the employees involved are members or not members of the
Union." Overruling a contrary position taken by it in an earlier case (Firestone
Tire and Rubber Company, 93 NLRB 981), the Board held the delegation to the
union of "complete control over the determination of seniority" to be unlawful
per se, and that as a result of agreeing to, and maintaining, the relevant contract
provisions, the employer involved had violated Section 8 (a) (1) and (3), and the
union Section 8 (b) (1) (A) and (b) (2). The Board stated the reasons for its
holding as follows (p. 845) :
The objective standards relevant to a determination of seniority generally
derive from the employment history of the employees involved, and that
information is, as a rule, peculiarly within the knowledge of the employer.
Indeed, the area in which the union is likely to be more informed than the
employer with respect to the employer's employees is that pertaining to em-
ployees' union membership or to the employees' compliance with the union's
constitution, bylaws, or other regulations-subjects, however, which obviously
are not relevant considerations in the implementation of a seniority provision.
We can therefore see no basis for presuming that when an employer delegates
to a union the authority to determine the seniority of its employees, or even
to settle controversies with respect to seniority, such control will be exercised
by the union in a nondiscriminatory manner. Rather, it is to be presumed,
we believe, that such delegation is intended to, and in fact will, be used by
the union to encourage membership in the union. Accordingly, the inclusion
of a bare provision, like that in the 1949 contract, that delegates complete
control over seniority to a union is violative of the Act because it tends to
encourage membership in the union. And because we believe that it will
similarly tend to encourage membership in the union, we also conclude that,
the inclusion of a statement, like that in the 1952 contract, that seniority will
be determined without regard to union membership is not by itself enough
to cure the vice of giving to the union complete control over the settlement of
a "controversy" with respect to seniority.
From his reliance upon the Pacific Intermountain Express case, it is evident that
the General Counsel analogizes the delegation to a union, by contract, of "complete
control" over the resolution of seniority questions to contractual provisions, such
as those involved here,, which vest in a union the exclusive responsibility for the
recruitment of qualified workmen subject only to the qualification that if the union
cannot supply such labor within 48 hours after a request therefor, the employer
may procure it from other sources. The analogy, however, does not survive
scrutiny of the underlying reasons for the Board's holding in the Pacific Inter-
mountain Express case.
In arriving at its result, the Board pointed out that "the objective standards
relevant to a determination of (seniority generally derive from the employment
history of the employees involved, and that information is, as a rule, peculiarly
within the knowledge of the employer"; and that matters such as those related to
union membership, upon which the union is likely to be more informed than an
employer, "are not relevant considerations to the implementation of a seniority
provision." From these factors, the Board "presumed" that the delegation involved
in the cited case was "intended to, and in fact [would], be used by the union to
encourage membership in the union," and held the relevant provision in each
contract to be "violative of the Act because it tends to encourage membership in
the union."
However, the factors which led to the Board's presumption are not present here.
It is common knowledge that the union hiring hall is a traditional feature of many
10 The General Counsel also cites and relies upon the later case of North East Texas
Motor Lines, Inc., et als., 109 NLRB 1147, enfd. as mod. 228 F. 2d 702 (C. A. 5). In that
case, the Board held invalid contractual provisions substantially similar to those involved
in the Pacific Intermountain Express case.
MOUNTAIN PACIFIC CHAPTER 907
industries, including the building trades," and that its use as a source of supply of
labor long antedated the passage of the Act. In that regard, it may be noted that
the hiring hall maintained by Local 242 has been in existence for more than 30
years. It is also a matter of common knowledge that in many industries employers
look to, and rely upon, union hiring halls as convenient and necessary vehicles for the
recruitment of labor. As the evidence in this proceeding establishes, this is true
,of members of the AGC Chapters. (See, in that connection, the testimony of
Wilbur H. Landaas.) Moreover, a union hiring hall also serves as a central point
where workmen may make known their job necessities and secure employment,
relieving them of the need for an expenditure of time, energy, and money in a
search for work at dispersed places. From what has been said, it is evident that,
unlike the data generally needed to resolve questions of seniority, information con-
cerning the availability of individuals for employment is frequently, to say the
least, "peculiarly within the knowledge" of the union rather than of employers seek-
ing workmen, and that such information may serve the convenience and needs of
employers and employees alike. Bearing in mind such factors of industrial and
economic convenience and necessity, I can see no basis for a presumption that a "bare
provision" delegating to a union the responsibility for the recruitment of labor in
the terms expressed in section 6 "is intended to, and in fact will, be used" to
encourage union membership. One could with at least equal logic, I think, presume
that the purpose of such a provision, standing alone, is to meet the industrial and
economic convenience and necessities of employers and those seeking employment.
Upon close scrutiny of the General Counsel's position, what it implies is that one
should indulge a presumption from the naked provisions of section 6, alone, that
the parties thereto intend to, and will, use them for unlawful purposes, despite the
fact that they may also be used for the lawful purpose of furnishing employers with
an advantageous source for the supply of labor, and jobseekers with a convenient
method of securing work. The adoption of such a doctrine would, in my judgment,
run counter to traditional and elementary legal concepts.
What is more, there are authorities that are more to the point than the Pacific
Intermountain Express case. In Pacific American Shipowners Association, 90 NLRB
1099, the Board considered the legality of a contract proposal that "all unlicensed
personnel" be secured through a union's hiring hall. The proposal included a pro-
hibition against discrimination on the basis of union membership. The Board held
that the proposal was not unlawful, pointing out that "the provision contained in the
proposal that personnel be secured through the offices of the Respondent [the union]
does not, on its face, require discrimination because of union affiliation" (ibid. p.
1101). The case of Pacific Marine Firemen, etc., 107 NLRB 593, decided a few
weeks before the Pacific Intermountain Express case, also involved a contract pro-
vision requiring employers to secure all personnel in various classifications "from
and through the offices" of a labor organization, and prohibiting discrimination be-
cause of membership or nonmembership in the union. While the Board did not
expressly pass upon the legality of the agreement, there is a clear implication in its
decision that it proceeded upon the assumption that the contract was lawful, for in
connection with the remedy it formulated relating to a discriminatory application
of the union's hiring hall, it went so far as to provide that the union's "obligation to
maintain a nondiscriminatory hiring hall shall be limited to such times as it acts
as the exclusive source of supply of the personnel . . ." (ibid. p. 594, footnote 2).
To be sure, the provisions in both cases, in contrast to section 6, contained express
prohibitions against discrimination on the basis of union membership. But it seems
to me that hiring-hall provisions which are not stated in discriminatory terms do not
become discriminatory simply because of the omission of an express prohibition
against discrimination. In that regard, it may be noted that the Board in the Pacific
American Shipowners case appears to have considered the statement of such a pro-
hibition as an added, rather than the controlling, reason for its conclusion that the
hiring provision there involved was not unlawful. The sum of the matter is that
the long-standing precedent of the Pacific American Shipowners decision is applicable
here, and that the distinguishable holding of the Pacific Intermountain Express case
is inapposite. Hence, I do not agree that the provisions of section 6 of the agreement
between the AGC Chapters and the District Council are invalid per se, and I find
11 Contractual provisions relating to union hiring halls, and the validity of their appli-
cation, have been considered by the Board in many cases. See, among others, for example,
American Pipe and Steel Corporation, 93 NLRB 54; Pacific American Shipowners Associa-
tion, 90 NLRB 1099; Waterfront Employers of Washington, 98 NLRB 284; and Pacific
Coast Marine Firemen, etc. (Pacific Maritime Association), 107 NLRB 593.
908 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that by the mere fact of "continuing [the-agreement] in effect," the Respondents have
not violated any of the provisions*of the Act.12
As noted earlier, apart from his claim that section 6 of the contract contains pro-
visions-that are invalid per se, the General Counsel contends that in applying these
provisions, Local 242 caused members of the AGC Chapters to discriminate against
Lewis in violation of Section 8 (a) (3) in that the Union failed and refused to dis-
patch him for employment by members of the Chapters because he was not a mem-
ber of the organization. Preliminary to a resolution of the issue, it may be noted
that the General Counsel advances no claim that Local 242 caused Nielsen (who
is not a member of any of the Chapters) to discriminate against Lewis. Nor does
the complaint include an allegation that Local 242 caused Todd's Shipyard to dis-
criminate against Lewis. (There is no evidence that the firm is a member of any
of the Chapters.) 13 However, Buchanan's conversation with Nielsen, and Allman's
failure to dispatch Lewis to Todd's Shipyard, are relevant to the question whether
Local 242 has maintained a discriminatory policy of giving preferment in dispatch
at its hiring hall to union members over those who are not members, and whether
that policy has been applied to Lewis.
In that regard, Allman gave testimony to the effect that he never discriminated
in dispatching Lewis on the basis of the latter's lack of membership in Local 242,
asserting also that on the occasion when Lewis was sent to a job on May 17, he was,
dispatched to "about the first" opening to become available for a hodcarrier at the
hiring hall in the spring of 1956. I do not credit this testimony.14 The evidence
establishes, as Buchanan in effect conceded, that it is the Union's policy to give
preference in dispatch to its members. What is more, as Allman admitted, he is
bound by the terms of an obligation he has taken, as an incident of the office he
holds, to do all in his "power to procure employment for such brothers as may desire
situations in preference to any and all non-union men." I have no doubt that All-
man repeatedly applied this policy to Lewis prior to the latter's dispatch on May 17'
and referred union members to jobs in preference to Lewis because the latter was,
not a member of Local 242. Moreover, it is clear that Allman applied a carrot-and-
stick procedure to Lewis to coerce him into withdrawing the charge he had filed
against Local 242, refusing to dispatch Lewis on May 14 because he had filed the
charge; then a few days later dispatching him in order to induce him to withdraw
it; thereafter resorting to a policy of refusing to dispatch Lewis, and of rejecting his
offers to become a member, because he had not withdrawn the charge; later furnish-
ing Lewis with the "Official Receipt," obviously with a view to inducing him to.drop
the charge; and finally visiting Lewis at a project where be was at work and solicit-
ing him to sign a paper that he wished to drop the charge, while intimating to Lewis
that he would not be dispatched again unless the charge were withdrawn.
Despite the discriminatory treatment accorded Lewis by Local 242, the record
will not support a finding that any members of the AGC Chapters (or, for that
matter, any other employer) discriminated "with respect to the hire of Lewis," as
the complaint alleges, and that Local 242 caused such discrimination, within the
meaning of the Act. The heart of the matter is that there is no evidence in the
record that any member of any of the AGC Chapters sought or requisitioned any
labor at or through the office of Local 242 at any time since the effective date of the
contract. Moral convictions that such requisitions were made will not suffice, for
they are no substitute for evidence.
12 Trial Examiner Martin S. Bennett recently held to the contrary in a case involving
the same contractual provisions, the AGC Chapters, the District Council, and a local
affiliate of the latter. See Mountain Pacific, Seattle, and Tacoma Chapters of the Asso
ciated General Contractors of America, Inc., et als., 117 NLRB 1319.
131t may be observed in passing, also, that no evidence was offered that either Nielsen
or Todd's Shipyard is engaged in interstate commerce or in operations affecting such
commerce.
14 Nor do I credit Allman's claim that he rejected Lewis' request for dispatch to the
Todd job on May 17 because, according to Allman, the job required a man of smaller
physical proportions than Lewis. When Lewis asked for the job, Allman gave no such
reason for declining to dispatch him. Moreover, Lewis' undisputed version of his con-
versation with Allman on the occasion in question is that Allman told him that the job
opening available was not at the shipyard. It may also be noted that in a written state-
ment given to a representative of the General Counsel, Allman denied dispatching any
hodcarrier to Todd's Shipyard on May 17. Because of the foregoing, as well as other
infirmities in Allman's testimony, I am persuaded that the reason he now advances for
refusing to dispatch Lewis to the shipyard is an afterthought.
MOUNTAIN PACIFIC CHAPTER 909
However, the General Counsel takes the position in his brief, as he did, in effect,
at the hearing, that "the determination of the extent of the discrimination" is a matter
for the compliance stage of the proceeding. As support for his position, the General
Counsel cites International Union of Operating Engineers, Local No. 12, AFL (Asso-
.ciated General Contractors, Southern California Chapter), 113 NLRB 655, enfd. as
mod., 237 F. 2d 670 (C. A. 9). That case is inapposite , for the Board made express
findings that the employers there involved actually requisitioned labor from a hiring
hall maintained by a union under the terms of a collective-bargaining agreement
(113 NLRB 655, 659). With that as a background, the Board found that the union
had discriminated against a given individual in job referrals from the hiring hall,
and concluded that the extent to which he "was injured by the unlawful system of
preferences" could "properly be settled in the compliance stage of the proceeding"
(ibid. p. 663). The General Counsel's position, and his reliance upon the cited case,
beg the question, for what is at issue here is not "the determination of the extent of
the discrimination," but whether the evidence will support a finding of discrimina-
tion; whatever its extent, by members of the AGC Chapters. The underlying theory
of the General Counsel's case is that by force of section 6 of the agreement, the
,Chapters, as agents for their members, delegated to the District Council and its
affiliates, including Local 242, the responsibility for dispatching workmen for employ-
ment by such members, and that in the exercise of the authority delegated to it,
Local 242 caused members of the Chapters to discriminate against Lewis. There is
-no doubt, as pointed out earlier, that Local 242 discriminated against Lewis, but
there can be no finding that it discriminatorily exercised the authority delegated to it
.by members of the AGC Chapters if there is no evidence that at any time since the
effective date of the agreement, any of these members sought or requisitioned labor
from Local 242, the agency through which Lewis sought job referrals. The critical
.fact is that there is no such evidence, and however one may condemn the treatment
accorded Lewis by Local 242, and desire to do him moral justice, one must not blind
.himself to deficiencies in the evidence.15
For the reasons stated above, I shall recommend that the complaint be dismissed
in its entirety with respect to the AGC Chapters and the District Council, and that
.so much of it be dismissed as alleges that Local 242 caused members of the Chapters
.to discriminate against Lewis.
I reach a different result, however, in connection with the coercive efforts of
Local 242 to induce Lewis to withdraw the charge he filed against that organization.
The absence of evidence that the hiring hall maintained by Local 242 has been used
by any members of the Chapters does not negate the fact that the maintenance of
the hall was in effect embraced within the terms of a contract made between the
District Council, on behalf of Local 242 and other unions, and organizations of
employers whose operations affect commerce within the meaning of the Act, and
,that Local 242 used the hall as a means of coercing Lewis. The several threats made
to Lewis that he would not be dispatched unless he withdrew the charge embraced
the implication that he would not be referred to jobs upon any requisitions submitted
by members of the Chapters under the terms of section 6 of the contract. Accord-
ingly, I find that as a result of each instance, described above, when Lewis was dis-
patched in order to induce him to withdraw the charge, and of each occasion, out-
lined above, when Local 242, whether through Buchanan or Allman or both, told
Lewis in effect- that he would not be dispatched or given employment through the
hiring hall because he had filed the charge or that he would not be dispatched or
given employment through the hiring hall unless the charge were withdrawn, Local
242 restrained and coerced Lewis in the exercise of rights guaranteed him by Sec-
tion 7 of the Act, and thereby violated Section 8 (b) (1) (A) of the statute.16
15 In the course of a discussion of the state of the record, the General Counsel made the
observation at the hearing that Local 242 "kept no records of these incoming requisitions
for hod carriers ." Without deciding or implying that the state of the union 's records has
a material effect upon the issue at hand, it may be noted in passing that there is no proof
that Local 242 keeps no records of such "incoming requisitions," although there is evi-
dence that it maintains no registry for hodcarriers seeking job referrals . Moreover, it
does not appear that members of the AGC Chapters keep no records of such requisitions
for labor as they may have occasion to submit to unions or that such members are unable
to give evidence on the subject of requisitions submitted to Local 242 . The General
Counsel has apparently chosen to submit the case upon the theory that evidence of such
requisitions is unnecessary to support a finding that members of the AGC Chapters have
.discriminated against Lewis , and that Local 242 has caused such discrimination.
I'D. D . Bean & Sons Co., 79 NLRB 724 (and cases cited at p . 725,.footnote 6).
910. DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The unfair labor practices of Local 242 set forth in section III, above , occurring
in connection with the operations of the AGC Chapters 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 com-
merce and the free flow of commerce.
V. THE REMEDY
Having found that Local 242 has violated Section 8 (b) (1) (A) of the Act,
I shall recommend below that the said Local 242 cease and desist from its unfair
labor practices and take certain affirmative action designed to effectuate the policies.
of the Act.
Upon the basis of the foregoing findings of fact, and on the entire record in this.
proceeding , I make the following:
CONCLUSIONS OF LAW
1. The AGC Chapters are, and each of them is, an employer within the meaning:
of Section 2 (2) of the Act.
2. The District Council and Local 242 are, respectively , labor organizations within
the meaning of Section 2 (5) of the Act.
3. By restraining and coercing employees in the exercise of rights guaranteed them
by Section 7 of the Act, as found above, Local 242 has engaged in and is engaging
in unfair labor practices within the meaning of Section 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.]
Irving Taitel , Ruth Taitel and Jerome Taitel , d/b/a I. Taitel.
and Son , a partnership and General Teamsters , Chauffeurs and
Helpers Union , Local No. 298, I. B. T. & H. of A.1 Case No..
13-CA-2196. December 14, 1957
DECISION AND ORDER
On March 13, 1957, Trial Examiner W. Gerard Ryan 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 Inter-
mediate Report attached hereto. Thereafter, the Respondent and
the General Counsel filed exceptions to the Intermediate Report, and
the Respondent filed a supporting brief.'
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Members Murdock, Rodgers, and Bean].
' The Board having been notified by the AFL-CIO that it deems the Teamsters' cer-
tificate of application revoked by convention action, the identification of this union is
hereby amended.
e The Respondent requested oral argument. The request is denied, as the record with
the exceptions and brief adequately presents the issues and the positions of the parties.
119 NLRB No. 124.