Pipe Fitters Local Union No. 392, Etc.

National Labor Relations Board - Board Decisions

Mar 22, 1962

136 N.L.R.B. 492 (N.L.R.B. 1962)

492 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the employment relationship , which he may have suffered by reason of the
discrimination against him.
All our employees are free to become , remain, or refrain from becoming or re-
maining members of any labor organization , except as that right may be affected
by an agreement requiring membership in a labor organization as a condition of em-
ployment, authorized in Section 8(a)(3) of the Act, as amended . We will not dis-
criminate in regard to hire or tenure of employment, or any term or condition of
employment, against any employee because of membership in or activity on behalf
of any labor organization.
SAFEWAY STORES, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof, and must not be
altered, defaced, or covered by any other material.
Pipe Fitters Local Union No. 392 , United Association of Journey-
men and Apprentices of the Plumbing and Pipe Fitting Indus-
try of the United States and Canada , AFL-CIO [Alto Products,
Inc.] and Ivan H. Lewis. Case No. 9-CB-873. March 22, 1962
SUPPLEMENTAL DECISION AND ORDER
On February 23, 1961, the Board (Members Leedom and Fanning
dissenting) issued its original decision 1 in the above-entitled pro-
ceeding, finding that the Respondent had violated Section 8 (b) (1) (A)
and (2) of the Act by the maintenance of, and participation in, an
exclusive hiring arrangement and practice whereby Alco Products,
Inc., hired only pipefitter employees referred or cleared by the Re-
spondent Union; and by causing the Company to withhold employ-
ment from the Charging Party, Ivan H. Lewis, because he was not
a member of the Respondent Local.
Respondent has filed a motion for further reconsideration in view
of the Supreme Court's decision in Local 357, International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and Helpers of Amer-
ica (Los Angeles-Seattle Motor Express) v. N.L.R.B., 365 U.S. 667.
In Local 357, International Brotherhood of Teamsters, etc., supra,
decided after the Board's decision in the instant case, the Supreme
Court rejected the Board's Mountain Pacific doctrine," under which
exclusive hiring arrangements, in order to be regarded as lawful, were
required to contain certain specific provisions relating to selection and
referral of applicants for employment. As the instant case involves
an exclusive hiring arrangement held to be unlawful because of its
failure to conform to the requirements of the Mountain Pacific
1 Pipe Fitters Local Union No 392, United Association of Journeymen and Apprentices
of the Plumbing and Pipe Fitting Industry of the United States and Canada, AFL-CIO
(Alto Products , Inc ), 130 NLRB 663
2 See Mountain Pacific Chapter of the Associated General Contractors , Inc, et al.,
119 NLRB 883, 893
136 NLRB No. 46.
PIPE FITTERS LOCAL UNION NO. 392, ETC. 493
decision , we hereby grant the Respondent 's motion for further
reconsideration.
The record shows that beginning in 1954 Alco Products hired 200 to
300 pipefitters through referral by the Respondent Union. In a few
instances Alco Products arranged to hire applicants who were not
referred by the Respondent Union, but in all such instances Alco sent
the applicants to Respondent for clearance before they began working.
In April 1959 the superintendent of Alco Products interviewed
Ivan H. Lewis, the Charging Party, and sent him to the Respondent
with a letter of introduction stating that Lewis was to be hired by
Alco. Lewis was a member of another Pipefitters' Local Union but
was not a member of the Respondent Local. When Lewis sought a
clearance from the Respondent for the job with Alco Products, Re-
spondent 's business agent and assistant business agent refused to grant
him clearance , giving as their reason the fact that "local men were
loafing."
Upon reconsideration, the Board has determined that it will dismiss
the complaint herein. Member Fanning would dismiss the complaint
for the reasons expressed in his dissent in the original decision in this
case. Thus, he adheres to his position that the evidence does not show
the existence of an exclusive hiring arrangement between Respondent
and the Employer.
Member Leedom, who j oinecl Member Fanning in his earlier dissent,
agrees with Member Fanning's position. Moreover, Member Leedom
would find that, even assuming, as the Board majority originally
found, the existence of an exclusive hiring arrangement, the evidence
does not establish that the terms of the arrangement were discrimina-
tory, or that Ivan H. Lewis was discriminatorily deprived of employ-
ment by the Respondent. Accordingly, Member Leedom agrees to
dismiss the complaint.
Member Rodgers, viewing the facts of this case in the light of the
Supreme Court's decision in Local 357, International Brotherhood of
Teamsters, etc., supra, concurs in dismissing the complaint.
On the above facts of the case, and in the absence of direct evidence
so to indicate, the record does not establish that eligibility for referral
by the Respondent Local was conditioned on membership in the Local,
or that the Respondent 's officials refused to give Lewis a referral or
clearance because he was not a member of the Respondent. It appears
that the reasons stated by Respondent 's agents for refusing to clear
or refer Lewis are as susceptible of a nondiscriminatory interpretation
as a discriminatory interpretation . Thus, the statements of Respond-
ent's agents could have meant merely that Lewis , to be referred or
cleared by the Respondent, had to wait his turn behind other men,
who were already waiting for referral to jobs. In fact, Lewis himself
494 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
testified that as of the time of the hearing he was still not a member
of the Respondent Local, but that Respondent had later referred him
to a job.
[The Board dismissed the complaint.]
CHAIRMAN MCCULLOCH and MEMBER BROWN took no part in the
consideration of the above Supplemental Decision and Order.
Barker's East Main Corporation and Barker 's Supermarket,
Inc. and Retail Employees ' Union, Local 919, R .C.I.A., AFL-
CIO. Cases Nos. 1-CA-3284, 1-CA-3378, and 1-CA-3404. March
23, 1962
DECISION AND ORDER
On September 27, 1961, Trial Examiner Thomas F. Maher issued
his Intermediate Report in the above-entitled proceeding, finding that
the Respondent ' had engaged in certain unfair labor practices alleged
in the complaint, and recommending that it cease and desist there-
from and take certain affirmative action, as set forth in the Inter-
mediate Report attached hereto. The Trial Examiner also found that
the Respondent had not engaged in certain other unfair labor prac-
tices alleged in the complaint, and recommended that these allegations
be dismissed. Thereafter, the General Counsel and the Charging
Party filed exceptions to the Intermediate Report. The General Coun-
sel filed a supporting brief. No exceptions were filed by the
Respondent 2
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Rodgers and Fanning].
The Board has reviewed the rulings made by the Trial Examiner at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Intermedi-
ate Report, the exceptions and brief, and the entire record in the case,
and hereby adopts the findings, conclusions, and recommendations of
the Trial Examiner with the following modifications :
The dismissal of the complaint as to John Dubb : We predicate our
dismissal of the complaint as to John Dubb solely upon the Trial Ex-
' As in the Intermediate Report, Respondents are collectively referred to in singular.
2 On December 21, 1961, and while the matter was under consideration, the General
Counsel filed with the Board a motion to reopen and remand the proceeding for further
hearing before a Trial Examiner for the purpose of taking oral testimony of James
D'Agostino, Jr., and Dominic D'Agostino on matters set forth in their affidavits attached
to the General Counsel's motion. This motion was granted on January 9, 1962. There-
after, on March 12, 1962, the General Counsel moved the Board to vacate its order of
January 9, 1962. There being no objection to this motion, it was granted by the Board
on March 16, 1962.
136 NLRB No. 50.