Schurr & Finlay, Inc.

National Labor Relations Board - Board Decisions

Oct 29, 1964

149 N.L.R.B. 272 (N.L.R.B. 1964)

272 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
maintained by it for a period of 60 consecutive days thereafter, in conspicuous
places including all places where notices to employees are customarily posted.
Reasonable steps shall be taken to insure that said notices are not altered, de-
faced, or covered by any other material.
(d) Notify the said Regional Director, in writing, within 20 days from the date
of the receipt of this Trial Examiner's Decision, what steps it has taken to comply
therewith.8
8 In the event that this Recommended Order be adopted by the Board , this provision
shall be modified to read "Notify the said Regional Director , in writing , within 10 days
from the date of this Oi der, what steps the Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Board, and in order to conduct our labor relations in compliance with the National
Labor Relations Act, we notify you that:
WE WILL NOT unlawfully discourage you from being members of United
Papermakers and Paperworkers , AFL-CIO, or any other union.
WE WILL NOT in any way discriminate against you because you file charges
or give testimony under the National Labor Relations Act.
WE WILL NOT violate any of the rights you have under the National Labor
Relations Act to join a union of your own choice or not to engage in union
activities.
WE WILL offer reinstatement to Gene L. Marsh, Donald Drew, and Robert
W. Brock , and will give them and Robert Palmer and Sheldon Hall backpay
due them.
UNIVERSAL PACKAGING CORPORATION,
Employer.
Dated------------------- By-------------------------------------------(Representative) (Title)
NOTE.-We will notify Marsh, Drew, and Brock, if presently serving in the
Armed Forces of the United States, of their right to full reinstatement upon
application in accordance with the Selective Service Act and the Universal Military
Training and Service Act of 1948, as amended, after discharge from the Armed
Forces.
This notice must remain posted for 60 consecutive days from the date of
posting, and must not be altered , defaced , or covered by any other material.
Employees may communicate directly with the Board's Regional Office, 24
School Street , Boston , Massachusetts , Telephone No. 523-8100 , if they have any
question concerning this notice or compliance with its provisions.
Schurr & Finlay, Inc. and International Brotherhood of Elec-
trical Workers, Local No. 769, AFL-CIO
International Union of Operating Engineers, Local 428, AFL-
CIO and Richard Delmar and Wayne M. Boore
International Union of Operating Engineers , Local 428, AFL-
CIO and International Brotherhood of Electrical Workers,
Local No. 769, AFL-CIO. Cases Nos. 28-CA-1024, 28-CB-285,
and 28-CB-287. October 29, 1964
DECISION AND ORDER
On July 27, 1964, Trial Examiner Wallace E. Royster issued his
Decision in the above-entitled proceeding,, finding that Respondents
149 NLRB No. 30.
SCHURR & FINLAY, INC. 273
had engaged in and were engaging in certain unfair labor practices
and recommending that they cease and desist therefrom and take cer-
tain affirmative action, as set forth in the attached Trial Examiner's
Decision. Thereafter, the Respondent Company and the Respondent
Union filed exceptions to the Trial Examiner's Decision and support-
ing briefs.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
these cases to a three-member panel [Chairman McCulloch and Mem-
bers Leedom and Brown].
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 Trial
Examiner's Decision, the exceptions and briefs, and the entire record
in these cases, and hereby adopts -the findings, conclusions, and rec-
ommendations of the Trial Examiner with the modification noted
below.1
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the Board hereby adopts , as its Order, the Order recom-
mended by the Trial Examiner and orders that Respondent , Schurr
& Finlay, Inc., its officers , agents, successors , and assigns , and Re-
spondent, International Union of Operating Engineers , Local 428,
AFL-CIO, its officers ; agents, representatives, successors , and as-
signs, shall take the action set forth in the Trial Examiner's Recom-
mended Order, with the following modifications :
1. Paragraph 2(a) in the Recommended Order relating to Re-
spondent Schurr & Finlay , Inc., is amended to read :
"Withdraw and withhold recognition from the Engineers as the col-
lective-bargaining representative of any of Respondent 's employees
I The Trial Examiner found , and we agree , that the Respondent Company violated Sec-
tion 8(a) (2), (3), and (1) of the Act by telling employees on October 16, 1963, at a time
when Respondent Union was not entitled to recognition as bargaining representative of
Respondent Company ' s employees , that if they did not join the Respondent Union, they
would be replaced . In view of this finding, we deem it unnecessary to decide whether, as
found by the Trial Examiner , the Respondent Company's conduct was also unlawful under
the Act because under the law of Arizona, where the unfair labor practices took place,
agreements that employees must join a union are not permitted . Cf. Local 1625 v.
Schermerhorn, 375 U . S. 96. We note , as did the Trial Examiner , that no contract union-
security provision is involved . We also agree with the Trial Examiner that the Respond-
ent Company further violated Section 8 ( a) (2) and ( 1) by recognizing and entering into
an agreement with Respondent Union on October 17, 1963 , and that, in view of the Re-
spondent Company's unlawful assistance to the Respondent Union, Section 8(f) affords
no protection to such conduct by the Respondent Company. Oilfield Maintenance Co. Inc.,
et al ., 142 NLRB 1384 . In order to remedy the above violation , we shall order that the
Respondent Company withhold recognition from the Respondent Union until such time as
the Respondent Union is certified as collectiveabargaining representative of the employees
in the unit. Wilbur F. Disney , An Individual, d/b/a Disney Roofing & Material Co.,
et al., 145 NLRB 88.
770-076-65-vol . 149-19
274 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
unless and until such labor organization shall be certified as such
representative by the Board."
2. Add the'following as paragraph 2(d) in the Trial Examiner's
Recommended Order relating to Respondent Schurr & Finlay, Inc:.,
and as paragraph 2(b) to the Order relating to Respondent Interna-
tional Union of Operating Engineers, Local 428, AFL-CIO, and re-
number the subsequent paragraphs accordingly :
"Notify Delmar and Boore if presently serving in the Armed Forces
of the United States of their right to immediate employment upon
application in accordance with the Selective Service Act and the Uni-
versal Military Training and Service Act of 1948, as amended, after
discharge from the Armed Forces."
3. Delete the second indented paragraph of the notice and substi-
tute the following :
WE WILL withdraw and withhold recognition from Interna-
tional Union of Operating Engineers , Local 428, AFL-CIO, and
cease giving effect to our contract dated October 17, 1963, with
that organization, unless and until such labor organization shall
be certified as representative by the Board.
4. Add the following paragraph immediately below the signature
line of each of the notices entitled "Appendix A" and "Appendix B":
EVE WILL notify the above-named employees if presently serv-
ing in the Armed Forces of the United States of their right to
immediate employment upon application in accordance with the
Selective Service Act and the Universal Military Training and
Service Act of 1948, as amended, after discharge from the Armed
Forces.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
On October 28, 1963,3 Richard Delmar and Wayne M. Boore, individuals, filed
a charge against International Union of Operating Engineers , Local 428, AFL-
CIO, herein called the Engineers . On November 4, International Brotherhood of
Electrical Workers, Local No. 769, herein called the IBEW , filed a charge against
Schurr & Finlay, Inc., herein called the Respondent or Respondent Employer, and
another against the Engineers.
Thereafter on December 24 the Regional Director of the National Labor Rela-
tions Board ordered the cases consolidated and issued a complaint against the
Respondent and the Engineers alleging, in essence, that the Respondent had threat-
ened its employees with discharge and other reprisals if they did not become
members of the Engineers ; that the Respondent had unlawfully aided and assisted
the Engineers ; and that the Respondent had denied employment to Delmar and
Boore because they refused to join or assist the Engineers . As to the Engineers,
the complaint alleges that it had threatened to cause Respondent to discriminate
against nonmembers of the Engineers and caused the Respondent to refuse employ-
ment to Delmar and Boore. By separate answers, the Respondent and the Engi-
neers have denied the commission of unfair labor practices.
1 All dates mentioned are in 1963 except'as otherwise stated.
SCHURR & FINLAY, INC.' 275
Pursuant to due notice, this matter was tried before Trial Examiner Wallace E.
Royster in Phoenix, Arizona, on February 24, 25, and 26, 1964, with all parties
represented. Upon the basis -of the record in this matter, from my observation of
the witnesses, and giving consideration to the briefs filed with me, I make the.
following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT EMPLOYER
The Respondent is a California corporation with a place of business at Scottsdale,
Arizona. It has been engaged nearby in the construction of electrical transmis-
sion lines and allied electrical projects. During the 12-month span preceding the
issuance of the complaint, the Respondent performed services having -a value of
more than $50,000 in States other than the State of Arizona, and during the same
period performed national defense work for the U S. Corps of Engineers valued at
more than $200,000. The Respondent admits, and I find, that it is and has been at
all times material herein an employer engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.
H. THE LABOR ORGANIZATIONS INVOLVED
The IBEW and the Engineers are labor organizations within the meaning of
Section 2(5) of the Act. Since October 17, the Engineers has been party to a
collective-bargaining agreement with the Respondent covering certain of Respond-
ent's employees in Arizona.
III. THE UNFAIR LABOR PRACTICES
In late September 1963, the Respondent began operations near Phoenix, Arizona,
in fulfillment of its contract with the Bureau of Reclamation to erect towers and to
string power transmission lines in that area. Some time before beginning work,
Robert Schurr, president and active manager of the Respondent, told an agent of
the IBEW that he intended to operate "open shop," that is, he intended not to
contract with any labor organization. Among those first hired was C. P. Ander-
son, a lineman of long experience and wide repute. Schurr put him to work about
October 1 with the understanding that as the work progressed Anderson might
become a foreman. Schurr was aware that Anderson was a member of the IBEW.
On October 16, Respondent's foreman, Ed Gibbons, notified all employees
(about 12) that they were expected to attend a meeting that night at the hall of the
Engineers. All did so. President Schurr was there with officers of the Engi-
neers. William Gray, the business manager of the Engineers, explained some of the
advantages of membership in his organization and said that the total cost would
come to $244. This evoked expressions of consternation from some of the em-
ployees. Schurr said that he would help the employees in meeting this financial.
requirement and about that time it was suggested that the Engineers officials and
Schurr withdraw so that the employees could discuss the matter among them-
selves. Before this departure, according to the testimony of C. P. Anderson, Gray
said that he would like for the men unanimously to decide for membership in the
Engineers. Schurr commented at this point, still according to Anderson, that he
would help the men to decide; that he had two men coming from Colorado2 to,
work; and that he could get more from the same source if the men were recalci-
trant. In the absence of Schurr and Gray but with Foreman Gibbons present, all,
of the men but Anderson applied for membership in the Engineers. Anderson.
explained that an agent of the Engineers filled out his application for him but that,
not having his glasses with him, he could not read it and postponed signing for
that reason. He did sign the next day and sent his application along with a check
for $69 to the Engineers.- This remittance represented 3 months' dues. Anderson
never paid the initiation fee of $175.' On October 17, Gibbons asked him more
than once if he had signed the application but added that Anderson did not have
to do so. -
Jerry Johnson, who was first employed by the Respondent on October 9 and who
was then not a member of a labor organization, testified that at the invitation of
Foreman Gibbons he attended the meeting at the Engineers' hall in the evening of
IIt was Anderson's understanding that the Colorado men were members of Engineers.
276 DECISIONS OF NATIONAL LABOR RELATIONS BOAIW
October 16. According to Johnson, after the employees were informed by Busi-
ness Manager Gray about the benefits that membership in the Engineers would
afford and the cost of obtaining membership, a suggestion was made that the men
be left to themselves to decide what they should do. Before leaving the room,
Johnson testified, Schurr said that he would "like to have a hundred percent on
this", that he had two other men coming from Colorado "under the Operating
Engineers"; and that "if we don't have some kind of answer on this tonight, I'll
bring other men in to take your place here." Schurr added that he would pay the
initiation fee of $175. The Engineers' representatives, along with Schurr and
Gibbons, then left the room. Gibbons, however, returned in a few minutes and
urged that the employees join. The men shortly thereafter executed applications
for membership. The next day, October 17, Schurr signed a memorandum of
agreement with the Engineers recognizing that organization as the bargaining
representative for Respondent's employees, and undertaking to obtain needed help
though the Engineers' hiring hall.
Schurr explained in his testimony that about October 14 or 15 he visited the
office of the Engineers and spoke with William Gray about hiring crane operators
and "Cat skinners" through the Engineers. Gray indicated that there would be no
problem in supplying Schurr's needs and quieted Schurr's voiced fears that the
Engineers would raise objection to the retention on Respondent's payroll of em-
ployees who were not members of the Engineers. But Schurr was not yet content,
he testified, for he thought it at least to be possible that his employees would view
any relationship between their employer and the Engineers with some unease;
would perhaps speculate that such a liaison presaged their loss of employment. To
allay these suspected, but to him never articulated, fears, Schurr asked Gray to tell
Respondent's employees that the Engineers had no plan to do them wrong. Gray
agreed to do so and hence the meeting at the Engineers' office was arranged.
Schurr conceded that he offered to aid in the payment of initiation fees but explained
that this offer was limited to those employees who had worked for him at other
locations and was not extended generally. Schurr was unable sensibly or credibly
to explain his further testimony that he hoped even during the course of the
October 16 meeting that his employees would not join the Engineers. He denied
that he asked the men to join the Engineers, denied that Gray had said anything
of like meaning, and testified that he said nothing at the meeting about bringing
in men from Colorado. " Schurr testified freely, however, that he was aware of
activity by agents of the IBEW among his employees, that he knew that another
local of the Engineers was supplying linemen to contractors in Colorado, and that
Gray had agreed to supply him with a list of qualified linemen who were or might
be willing to come to Respondent's employ from Colorado. Schurr conceded that
he supplied some of his employees with money which presumably was used to pay
Engineers fees. None of these advances has been repaid.
The evidence strongly supports the complaint's assertion that the Respondent
unlawfully assisted the Engineers. It is of no consequence whether Gray, as An-
derson testified, or Schurr, as Johnson recalled it, said that it was hoped all the men
would join. That was the obvious reason for the meeting and the employees could
hardly have failed to understand that. Schurr admittedly offered to assist at least
some employees financially in obtaining membership and his testimony that he
hoped none would join is wholly incredible. Finally, I credit Anderson and John-
son who testified that the employees were threatened with the importation of work-
men from Colorado to replace them if they did not align themselves with the
Engineers . Schurr's testimony to the extent it denies such threats is not cred-
ited . Schurr desired an arrangement with the Engineers not alone to provide the Re-
spondent with a source of labor but also to forestall any successful claim to repre-
sentation by the IBEW. Schurr testified that "the job had been overrun by IBEW
people trying to sell them what they had to offer ...."
Assuming that the IBEW activity was not of a character to place the Respondent
on notice that it would immediately be faced with a claim of representative status
from that organization and that the Respondent with a purpose to obtain a supply
of qualified employees sought an arrangement with the Engineers to accomplish
this, it may be that it was free to do so by reason of Section 8(f) of the Act even
though none of its employees had expressed in any fashion a desire for representa-
tion by the Engineers . The extension of recognition to the Engineers and the
agreement to channel employment through that organization would perhaps have
been permissible. But the right granted to employers and labor organizations in
the construction industry to make such prehire agreements is limited to situations
where the contracting union is one "not established, maintained, or assisted by any
SCHURR & FINLAY, INC. 277
action defined in Section 8(a) of this Act as an unfair labor practice." The
Engineers does not qualify under this test. It was a stranger to Respondent's
employees before the October 16 meeting. Not content merely to impose a bar-
gaining representative upon its employees, the Respondent, by threatening their
continuity of employment, forced them to apply for membership in the Engineers.
Of course this was a flagrant act of assistance as well as discrimination and by
its commission the Respondent violated Section 8(a)(3), (2), and (1) of the
Act. I so find.
At the October 16 meeting, the men were told that if they did not join the
Engineers they would be replaced. As I have found, this threat on the part of
the Respondent was a violation of the Act. Although there is no evidence that
any representative of the Engineers said anything of like import on this occasion,
its business manager and other agents were present and if by no more than their
silence on this point expressed agreement. The men were told effectively that their
employer and the Engineers had an arrangement whereby only members of the
Engineers could retain employment. I find that in the circumstances described the
Engineers became party to an arrangement conditioning continued employment
upon membership in the Engineers. Of course such a requisite of membership
was unlawful not alone because Engineers was an organization not entitled to
recognition as bargaining representative by the Respondent but also because no
requirement of union membership affecting employment is permissible under Ari-
zona law. The Respondent and the Engineers were cooperating on this occasion
to herd the employees into the Engineers and their success is attributable at least in
part to the fact that fears of unemployment were engendered. 'I think that the
situation described differs in no material respect from that in which an employer
and a union formally execute a contract unlawfully requiring union membership as
a condition of employment. The effect upon employees is not distinguishable. I
find, therefore, that by its involvement with the Respondent in bringing this threat
to the employees the Engineers united with the Respondent to cause or attempt to
cause the Respondent to discriminate against employees in violation of Section
8(a)(3) of the Act. The fact that the Respondent was wholly willing is not
material. I find therefore that on the occasion of October 16, in respect to the
requirement of membership in the Engineers as a condition of employment, the
Engineers engaged in unfair labor practices within the meaning of Section
8(a) (2) of the Act.
About October 4 or 5, Richard Delmar and Wayne Boore asked Schurr for work
representing to him that they were experienced linemen . Schurr said that he
would have need for linemen soon and took their names. At Schurr's request each
wrote in Schurr's notebook his name, address, and the name of his last employer.
Both Delmar and Boore were members of the IBEW working out of the hiring
hall operated by that organization. Both, in the asserted belief that their IBEW
membership would lessen their opportunity to obtain employment with the Re-
spondent, sought to mask this circumstance by naming, as their last employers,
entities for which they had not in fact worked.
They returned to the construction site on October 17. Schurr told him, he
testified, that they probably would be hired but that he did not yet need them.
Delmar testified, without contradiction and I credit him, that Schurr told them that
he had made an agreement with the Engineers; that they would have to join that
organization. At Schurr's suggestion, the two met him later that day at the
Engineers' office where Schurr introduced them to a representative of the Engi-
neers, Wallace Godfrey.3 Godfrey explained the operation of the hiring hall and
asked them if they were members of any labor organization. They assured him
that they were not. Godfrey said, according to the credited and undenied testi-
mony of Delmar and Boore, that he was glad of that for the Engineers had some
"IBEW men on our books" but that none of them would be referred by the
Engineers to the Respondent or to any employer. Godfrey said that employment
with the Respondent could be gained only through the hiring hall and that at
some point both would have to pay $244 to the Engineers although payment could
be spread over a 12-week period. Godfrey told the men that they probably would
be referred to work as soon as a crane was available to the Respondent at the
construction site. The two men signed registration cards and left. -
3 On this occasion, but out of the presence of Delmar and Boore, Scharr signed the
agreement with Engineers. The contract does not require that employees join the En-
gineers. Presumably, because of Arizona law, such a condition would not be lawful.
278 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
By telling Delmar and Boore that they must join the Engineers if they became
employed by the Respondent and by asserting a purpose to deny dispatch to
members of the IBEW at a time when Engineers was the sole avenue of referral
for work with the Respondent , the Engineers restrained and coerced Delmar and
Boore in the exercise of their right under Section 7 of the Act to be and remain
members of the IBEW and to refrain from joining the Engineers without imperil-
ing their opportunities for employment. The Engineers thus committed unfair
labor practices within the meaning of Section 8 (a) (1) (A) of the Act.
Neither was dispatched to work for the Respondent although others in linemen
classifications were. Schurr told the two about October 24, they testified, that he
intended to hire them and that they would be brought to work within a very few
days. This never developed. Finally in late November, Delmar asked Schurr why
it was that he could not get employment with the Respondent. Schurr answered
that both Delmar and Boore had falsified their employment history and that they
had not been hired for that reason. Delmar admitted to Schurr that he had not
worked for Rose Construction Company as he had claimed upon the occasion of
first applying for work and explained that he had practiced this deception because
he was a member of the IBEW; that had he truthfully stated the name of his last
employer, Schurr would have been aware of that circumstance. Schurr said that
membership in the IBEW was not disqualifying . Schurr testified that he then told
Delmar to write to him giving the names of his most recent employers and that
if inquiry of them satisfactorily established Delmar's qualifications , he would be
hired. Delmar testified that he gave the names of these employers during the
course of the conversation; that Schurr said that Delmar would be called to work,
probably in 2 or 3 days. Delmar did not communicate again with the Respondent
and he has never been employed.
Schurr testified that when he first spoke with Delmar and Boore in early October,
he formed the opinion that both were experienced linemen. About October 15,
according to Schurr , he telephoned the Engineers ' local in Denver in an effort to
learn if either man had worked in Colorado. The Denver local agreed to supply
this information to the Engineers in Phoenix which could , if it desired, make it
available to Schurr. On October 17, when the men again inquired about employ-
ment, Schurr still intended to hire them when the progress of the job permit-
ted. Schurr conceded that at his suggestion the two men met him at the Engi-
neers' hiring hall where he introduced them to Godfrey . Schurr explained that he
did this in order that the men might be registered at the hiring hall and, thus be
available for dispatch upon his request . He did not deny, however, the testimony
of Delmar that he then said that membership in the Engineers was a requisite to
employment . Schurr testified that he later learned from the Engineers that neither
Delmar nor Boore had been dispatched by the Denver local . This meant to Schurr
that both had misinformed him about their previous employment. According to
Schurr, he , did not see Boore again and had no contact with Delmar until the
occasion in late November when Delmar admitted giving the false information
about where he had worked. Schurr never requested their dispatch and says that
he refrained from doing so because he was never supplied with truthful and
verifiable information about their employment history.
Schurr never inquired of Morrison -Knudsen or Rose Construction about either of
them .4 He confined his investigation to the matter of dispatch from the Denver
local of the Engineers. When he learned that neither had worked out of that local
he lost interest in employing them. He explained that he sought this information
solely to learn if Boore or Delmar had worked as linemen in Colorado. He
learned that as far as the Denver local had information they had not. If he had
only that desire, it seems certain to me that he would have sought this information
from their claimed most recent employers . But he did not.
Linemen with Engineers ' affiliation were not plentiful in Phoenix. On October
17, Godfrey told Delmar and Boore that only five or six were registered at the
Phoenix hiring hall and that all of them were working. So unless Schurr was to
obtain his needs in this category from the IBEW he had to look elsewhere. The
record clearly indicates that he expected to obtain men with the needed skills and
preferred union affiliation from Colorado.
As the Respondent never asked that either Delmar or Boore be, dispatched from
the Engineers for employment , failure to dispatch does not without more establish
the allegation that the Engineers caused the Respondent to refuse employment to
them. I think that the allegation is not established otherwise . Engineers learned
4 Delmar claimed , untruthfully, to have worked for Rose, Boore for Morrison -Knudsen.
SCHURR & FINLAY, INC. 279
that neither of the men had worked out of the Denver local and may have enter-
tained deep-seated suspicions that the two were IBEW members seeking to subvert
the purpose of Engineers to deny such aliens the use of the hiring hall. That
such a purpose existed is established by the undenied and credited testimony of
Delmar and Boore concerning their conversation with Godfrey. So it may be
highly unlikely that Engineers would have honored any request by the Respondent
for the dispatch of Delmar or Boore. Perhaps Engineers prevailed upon the
Respondent not to ask for them but there is no evidence which can be said, in
my opinion, preponderately to establish that this is so.
Why, then, did not Schurr request their dispatch? Certainly he encouraged
them to believe that he would do so. Schurr said that he was deterred by the fact
that neither had worked for the employers they named to him, leaving him unable
to check on their competency. This explanation is not wholly convincing for I
think is can be gleaned from Schurr's testimony that he was pretty well satisfied by
talking to them that they knew their business. He may have suspected that they
were IBEW members and when he'found that they had not worked where they said
they had, his suspicions in that respect probably were fortified.
There is no direct evidence that Schurr learned of the IBEW membership of
Delmar and Boore in October, but I think that his failure to hire them is explicable
on no hypothesis other than that he had such knowledge. Schurr was under
contract with the Engineers; an arrangement he had sought, obviously, to insulate
the Respondent from claims to bargaining status by IBEW and to obtain a source
of labor at wage rates less than those demanded by the IBEW. Schurr had
threatened his employees with replacement if they did not join the Engineers and
had told Delmar and Boore that such membership was essential if they were to
work for him. It is not believable that in this happy relationship with the Engi-
neers he was not aware of the purpose of that organization, as expressed by God-
frey to Delmar and Boore, to deny employment opportunity to members of the
IBEW. That was Respondent's purpose also. When it developed that neither Del-
mar nor 'Boore was known to the Denver local he decided that a deception was
being practiced upon him; not in respect to competency, for he was almost, if not
entirely, satisfied on that score, but as to union membership or lack of it. He had
been pleased to learn that the Engineers could supply him with linemen for he had
not been aware that men with such skills could be obtained from that source. He
appears to have learned that in Colorado a number of linemen had Engineers
affiliation. But if an experienced lineman had not worked in Colorado, it then
became a good bet that he was an IBEW member. Delmar and Boore were
linemen ; they had not worked in Colorado; ergo they were IBEW members. So
they were not hired.
I find that the Respondent refused to hire Delmar and Boore on or about October
24, 1963, because of a belief that they were members of the IBEW. By the refusal
the Respondent discouraged membership in the IBEW and encouraged member-
ship in the Engineers. The Respondent thereby engaged in the commission of
'unfair labor practices within the meaning of Section 8(a) (3) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent and the Engineers set forth in section III above,
,occurring in connection with the operations 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 the Respondent Employer and the Engineers have engaged
in unfair labor practices , it will be recommended that each cease and desist there-
from and take certain affirmative action designed to effectuate the policies of the
Act
Having found that the Respondent Employer unlawfully extended recognition to
and contracted with the Engineers, thus assisting that labor organization , it will
be recommended that the Respondent withdraw recognition from the Engineers
and cease giving effect to the contract of October 17 or any supplement, extension,
or renewal thereof.
Because the Respondent told its employees that membership in the Engineers
was a 'condition of employment, thus unlawfully coercing them in the exercise of
xights guaranteed in Section 7 of the Act , it will be recommended that all em-
280 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployees of the Respondent who paid any sums to the Engineers in response to this
threat be reimbursed by the Respondent Employer and the Engineers jointly for all
such outlays with interest at the rate of 6 percent per annum. Additionally it will
be recommended that the Respondent Employer offer immediate employment to.
and make whole Richard Delmar and Wayne M. Boore for whatever loss of earn-
ings may be attributable to the discriminatory refusal of the Respondent to hire
them as linemen on or about October 24. Backpay shall be computed in the
manner established by the Board in F. W. Woolworth Company, 90 NLRB 289, and,
shall bear interest at the rate of 6 percent per annum.
As to the Engineers, it will be recommended that, when as here, it is the
exclusive avenue to hire, it cease and desist from threatening to refuse dispatch to-
the Respondent or to any employer engaged in commerce to all IBEW members,
and to cease forcing employees to apply for membership in Engineers as a condi-
tion of employment with the Respondent Employer or with any other employer
engaged in commerce.
Upon the basis of the foregoing findings of fact and upon the entire record in,
the case, I make the following:
CONCLUSIONS OF LAW
1. The Respondent Employer is engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. The Engineers and IBEW are labor organizations within the meaning of
Section 2(5) of the Act.
3. By recognizing and entering into,a contract with the Engineers, the Respond-
ent has interfered with, restrained, and coerced employees in the exercise of rights.
guaranteed in Section 7 of the Act and has assisted the Engineers in violation of
Section 8(a)(1) and (2) of the Act.
4. By telling employees that they must obtain membership in the Engineers a&
a condition of employment, the Respondent has discriminated in regard to hire or
tenure of employment to encourage membership in the Engineers and has thu&
engaged in unfair labor practices within the meaning of Section 8(a)(1), (2),
and (3) of the Act.
5. By refusing to give employment to Richard Delmar and Wayne M. Boore
because of a belief that they were members of the IBEW, the Respondent has
unlawfully discriminated against them in violation of Section 8(a)(1) and (3) of
the Act.
6. By telling applicants for employment that they must join the Engineers as
a condition of employment with the Respondent Employer and by saying that
members of the IBEW would not be dispatched to work from Engineers' hiring
hall, the Engineers has restrained and coerced employees in violation of Section
8(b)(1)(A) of the Act.
7. By conduct designed to inform employees that they must join the Engineers
to retain their employment, the Engineers has caused or attempted to cause an-
employer to discriminate against employees in violation of Section 8(a)(3) of the
Act and has thereby violated Section 8(b)(2) of the Act.
8. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law and
upon the entire record in the case, I recommend that:
A. Schurr & Finlay, Inc., Scottsdale, Arizona, its officers, agents, successors, and'
assigns, shall:
1. Cease and desist from:
(a) Giving effect to the October 17 contract with the Engineers, or any modifi-
cation, renewal, or extension thereof.
(b) Requiring membership in the Engineers as a condition of employment or
discriminating against applicants for employment because they are not members of
the Engineers or believed to be members of the IBEW, or in any other manner
interfering with, restraining, or coercing employees in the exercise of their right
to self-organization, to form labor organizations, to join or assist the IBEW or any
other labor organization, to bargain collectively through representatives of their
own choosing, and to engage in concerted activities for the purposes of collective-
bargaining or other mutual aid or protection, or to refrain from any or all such=
activities.
SCHURR & FINLAY, INC., 281
2. Take the following affirmative action which I find will effectuate the policies
.of the Act:
(a) Withdraw and withhold recognition from the Engineers as the collective-
bargaining representative of any of Respondent's employees until such time as
that labor organization may lawfully become entitled to recognition.
(b) Jointly and severally with the Engineers make whole any and all employees
who have at any time on or since October 16 paid initiation fees, dues, or assess-
ments to the Engineers because of any requirement that they obtain membership in
the Engineers as a condition of employment in the manner set forth in that section
of this Decision entitled "The Remedy."
(c) Offer immediate employment as linemen to Richard Delmar and Wayne M.
Boore and make them whole for any loss of earnings suffered by them by reason of
,the refusal of the Respondent to employ them as linemen on or about October 24.
(d) Preserve and, upon request, make available to the Board or its agents, for
-examination and copying, all payroll records, social security payments records,
timecards, personnel records and reports, and all other records relevant or necessary
,to a determination of the amounts due by reason of forced employee payments to
the Engineers, or as backpay to Delmar and Boore.
(e) Post at the construction project where Delmar and Boore were refused em-
ployment, and at any field offices maintained by the Respondent in Arizona, copies
of the attached notice marked "Appendix A." 5 Copies of that notice, to be fur-
nished by the Regional Director for Region 28, shall, after having been duly
signed by Respondent's representative, be posted immediately upon receipt thereof,
and be maintained by it for a period of 60 consecutive days thereafter, in conspic-
uous places, including all places where notices are customarily posted. Reasonable
steps shall be taken by the Respondent to ensure that said notices are not altered,
defaced, or covered by any other material.
(f) At the same places and under the same conditions as set forth above, as soon
as forwarded by the Regional Director, post copies of the notice attached marked
"Appendix B."
(g) Deliver to the Regional Director for Region 28 signed copies of the notice
attached marked "Appendix A" for posting by the Engineers at its business office
'in Phoenix, Arizona.
(h) Notify the Regional Director for Region 28, in writing, within 20 days
from the date of receipt of this Decision, what steps it has taken in compliance 6
B. International Union of Operating Engineers, Local 428, AFL-CIO, its offi-
^cers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Giving effect to the contract with Schurr & Finlay, Inc., dated October 17,
1963, or any extension, modification, or renewal thereof, and holding out that it
is the exclusive source of referral for employment with Schurr & Finlay, Inc.
(b) Telling employees of Schurr & Finlay, Inc., or applicants for employment
with that entity, that membership in the Engineers is a requisite to employment.
(c) Conditioning dispatch to employment with Schurr & Finlay, Inc., or under
an exclusive hiring arrangement, to any other employer engaged in commerce,
upon nonmembership in International Brotherhood of Electrical Workers, Local
No. 769, AFL-CIO.
(d) Causing or attempting to cause Schurr & Finlay, Inc., to discriminate
against employees in violation of Section 8(a) (3) of the Act.
(e) In any other manner restraining or coercing employees of Schurr & Finlay,
Inc., in the exercise of rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action which I find will effectuate the policies
of the Act:
(a) Jointly and severally with Schurr & Finlay, Inc., make whole any and all
employees of Schurr & Finlay, Inc., who at any time on or since October 16 have
paid to Engineers fees, dues, or assessments because of any requirement that they
- 5In the event this Recommended Order be adopted by the Board, the words "a Decision
and Order" shall be substituted for the words "the Recommended Order of a Trial Ex-
aminer " In the further event that the Board's Order be enforced by a decree of a
'nited States Court of Appeals, the words "a Decree of the United States Court of
Appeals, Enforcing an Order" shall be substituted for the words "a Decision and Order."
G In the event this Recommended Order be adopted by the Board, this provision shall
'be modified to read: "Notify said Regional Director, in writing, within 10 days from the
.date of this Order, what steps Respondent has taken to comply herewith "
282 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
obtain membership in the Engineers as a condition of employment with Schurr &
Finlay, Inc., in the manner set forth in that section of this Decision entitled "The
Remedy." -
(b) Post at its business office in Phoenix, Arizona, copies of the notice
attached marked "Appendix B." 9 Copies of this notice, to be furnished by the
Regional Director for Region 28, shall, after being duly signed by a representa-
tive of the Engineers, be posted immediately upon receipt thereof, and be main-
tained by it for 60 consecutive days thereafter, in conspicuous places, including all
places where notices to members are customarily posted.
(c) Post at the same places and under the same conditions, as soon as they are
forwarded by the Regional Director, copies of the notice attached marked "Appen-
dix A."
(d) Mail to the Regional Director for Region 28, signed copies of the notice
attached marked "Appendix B" for posting by Schurr & Finlay, Inc.
(e) Notify the Regional Director for Region 28, in writing, within 20 days
from the date of receipt of this Decision, what steps have been taken in
compliance.8
7 Footnote 5, supra.
6 Footnote 6, supra.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify you that:
WE WILL NOT encourage membership in International Union of Operating
Engineers, Local 428, AFL-CIO, or any other labor organizations, by threat-
ening employees with loss of employment unless they obtain such membership.
WE WILL withdraw and withold recognition from International Union of
Operating Engineers, Local 428, AFL-CIO, and cease giving effect to our
contract dated October 17, 1963, with that organization until such time as it
is lawfully entitled to recognition.
WE WILL jointly and severally with International Union of Operating Engi-
neers, Local 428, AFL-CIO, reimburse any employee who has paid fees, dues,
or assessments to that organization on or since October 16, 1963, to insure his
employment with us with interest at the rate of 6 percent per annum.
WE WILL offer immediate employment as linemen to Richard Delmar and
Wayne M. Boore and make them whole for any loss of earnings occasioned to
them by reason of our unlawful refusal to hire them on or about October 24,
1963.
WE WILL NOT by assisting International Union of Operating Engineers,
Local 428, AFL-CIO, or by refusing employment to individuals because of a
belief that they are members of International Brotherhood of Electrical Work-
ers, Local No. 769, AFL-CIO, or in any other manner interfere with, restrain,
or coerce our employees in the exercise of their right to self-organization, to
form, join, or assist any labor organization, to bargain collectively through
representatives of their own choosing, and to engage in concerted activities
for the purposes of collective bargaining or other mutual aid or protection, or\
to refrain from engaging in any or all such activities.
All our employees are free to become, remain, or refrain from becoming mem-
bers of the above-named Unions, or in any other labor organization.
SCHURR & FINLAY, INC.
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date of post-
ing, and must not be altered, defaced, or covered by any other material
Employees may communicate directly with the Board' s Resident Office, Federal
Building, 230 North First Street, Phoenix, Arizona, Telephone No. 261-3717, if
they have any questions concerning this notice or compliance with its provisions.
SHELL OIL CODIPANY 283
APPENDIX B
NOTICE TO ALL MEMBERS OF INTERNATIONAL UNION OF OPERATING ENGINEERS,
LOCAL 428, AFL-CIO, AND TO ALL EMPLOYEES OF SCHURR & FINLAY, INC.
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify you that:
WE WILL NOT announce a policy of refusing to dispatch members of Inter-
national Brotherhood of Electrical Workers, Local No. 769, AFL-CIO, or of
any other labor organization, to Schurr & Finlay, Inc., or to any other employ-
er engaged in commerce for which we have constituted ourselves as the sole
source of referral.
WE WILL NOT tell employees or prospective employees of Schurr & Finlay,
Inc., that they must become our members as a condition of employment or
continued employment.
WE WILL jointly and severally with Schurr & Finlay, Inc., make whole any
employee who on or since October 16, 1963, has paid to us initiation fees,
dues, or assessments because of any requirement to obtain membership in our
organization as a condition of employment or continued employment with
Schurr & Finlay, Inc., with interest at the rate of 6 percent per annum.
WE WILL NOT give effect to our contract of October 17, 1963, with Schurr &
Finlay, Inc., and we will not hold ourselves out as the exclusive source of
referral to employment with Schurr & Finlay, Inc.
WE WILL NOT in any other manner restrain or coerce employees in the
exercise of rights guaranteed in Section 7 of the Act.
INTERNATIONAL UNION OF OPERATING
ENGINEERS, LOCAL 428, AFL-CIO,
Labor Organization.
Dated------------------- By--------------------------------
) e)(Representative
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Resident Office, Federal
Building, 230 North First Street, Phoenix, Arizona, Telephone No. 261-3717, if
they have any questions concerning this notice or compliance with its provisions.
Shell Oil Company and Independent Oil and Chemical Workers
Union of Louisiana . Case No. 15-CA-2143. October 29, 1964
DECISION AND ORDER
On June 28, 1963, Trial Examiner Frederick U. Reel issued his
Intermediate Report in the above-entitled proceeding, finding that
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 attached Intermedi
ate Report. He further found that the Respondent had not engaged
in certain other unfair labor practices alleged in the complaint and
recommended dismissal as to them. Thereafter, the Respondent and
the General Counsel filed exceptions to the Intermediate Report, and
supporting briefs.'
1 The Respondent has requested oral argument . This request is hereby denied because
the record , exceptions, and briefs adequately present the issues and positions of the parties.
149 NLRB No. 22.