The H. K. Ferguson Co.

National Labor Relations Board - Board Decisions

Aug 18, 1959

124 N.L.R.B. 544 (N.L.R.B. 1959)

544 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
thereof is to force or require Joseph P . Cuddigan , Inc., or any other employer
or person to cease doing business with E. Turgeon Construction Co., Inc., or
any other company or person.
LOCAL 476, UNITED ASSOCIATION OF JOURNEYMEN
AND APPRENTICES OF THE PLUMBING AND PIPE-
FITTING INDUSTRY OF THE UNITED STATES AND
CANADA, AFL-CIO,
Labor Organization.
Dated--- ---------------- By-------------------------------------------
(Representative ) ( Title)
Dated------------------- By-------------------------------------------
(WILLIAM O' BRIEN, Buseness Agent)
This notice must remain posted for 60 days from the date hereof, and must not be
altered, defaced , or covered by any other material.
The H. K. Ferguson Company and Herbert F. Roberts and United
Brotherhood of Carpenters and Joiners of America , AFL-CIO,
The Tuscaloosa and Vicinity District Council of Tuscaloosa
and Selma, Alabama, and Carpenters and Millwrights Local
Union No. 1337, Parties to the Contract
United Brotherhood of Carpenters and Joiners of America,
AFL-CIO, The Tuscaloosa and Vicinity District Council of
Tuscaloosa and Selma, Alabama , and Carpenters and Mill-
wrights Local Union No. 1337 and Herbert F . Roberts and
The H . K. Ferguson Company, Party to the Contract. Cases
Nos. 15-CA-1025 and 15-CB-195. August 18, 1959
DECISION AND ORDER
On April 30, 1959, Trial Examiner Alba B. Martin issued his Inter-
mediate Report in the above-entitled proceeding finding that the
Respondents had engaged in and were engaging in certain unfair
labor practices and recommending that they cease and desist there-
from and take certain affirmative action as set forth in the copy of
the Intermediate Report attached hereto. Thereafter, the Respond-
ents filed exceptions to the Intermediate Report. A brief in support
of its exceptions was also filed by the Respondent Company.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Chairman Leedom and Members Rodgers and
Jenkins].
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 Inter-
mediate Report, the exceptions and brief, and the entire record in the
124 NLRB No. 70.
THE H. K. FERGUSON COMPANY 545,
case, and hereby adopts the Trial Examiner's findings, conclusions,,
and recommendations.'
ORDER
Upon the entire record in the case, and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that:
A. Respondent The H. K. Ferguson Company, Cleveland, Ohio,
its officers, agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Maintaining, enforcing, or giving any effect to any agreement,
understanding, or practice with United Brotherhood of Carpenters
and Joiners of America, AFL-CIO, The Tuscaloosa and Vicinity
District Council of Tuscaloosa and Selma, Alabama, Local Union
1337, or any other labor organization, which gives exclusive control
over the employment of employees to a labor organization, or which
requires membership in or referral from a labor organization as a
condition of employment, except as authorized in the proviso to Sec-
tion 8 (a) (3) of the Act.
(b) Encouraging membership in United Brotherhood of Carpen-
ters and Joiners of America, AFL-CIO, or any of its subordinate
unions, or any other labor organization of its employees, by discrimi-
nating in regard to hire or tenure of employment or any term or con-
dition of employment, except to the extent permitted by the proviso
to Section 8(a) (3) of the Act.
(c) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the rights guaranteed in Section 7 of
the Act, except to the extent that such rights may be affected by an
agreement requiring membership in a labor organization as a condi-
tion of employment as authorized in Section 8(a) (3) of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Jointly and severally with Respondents United Brotherhood,
District Council and Local 1337, make whole Herbert F. Roberts,
Morris Grace, W. R. Vice, N. T. Steadham, E. M. Peacock, J. E.
Mathers, B. S. Irvin, and Robert Hartman for any loss they may
have suffered as a result of the discrimination against them in the
I In his Intermediate Report, the Trial Examiner concluded that all eight discriminatees
were acceptable to the Company for reemployment. Elsewhere, however, the Trial Ex-
aminer apparently credited Business Agent Goodman 's testimony to the effect that
Goodman had , in fact , been told by a company representative that one of these eight,
Vice , was not acceptable . Assuming that Goodman had been so informed by the Company,
this does not affect our finding of discrimination against Vice on the part of the Union
since it is clear from the record that Goodman ' s denial -of a referral to Vice was based on
the latter ' s refusal to return to work on January 2 , 1957, in opposition to Goodman's
wishes . Again assuming that the Company had informed Goodman that Vice was not
acceptable , such action does not free the Company from the consequences of its having
delegated complete control of the hiring process to the Union.
525543-60-vol. 124-36
546 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
manner set forth in the section of the Intermediate Report entitled
"The Remedy."
(b) Jointly and severally with said three Respondents reimburse
all millwrights and millwright apprentices who worked at the
Demopolis project for moneys illegally exacted from them in the
manner and to the extent set forth in the section of the Intermediate
Report entitled, "The Remedy."
(c) Preserve and make available to the Board or its agents upon
request, for examination and copying, all payroll records, social se-
curity payment records, timecards, personnel records and reports, and
all other records necessary to compute the amount of back pay due
the above-named eight employees and the moneys illegally exacted
from them and other employees.
(d) Post at its offices and at all of its construction projects within
the territorial jurisdiction of Respondent United Brotherhood and
Respondent District Council copies of the notice attached hereto
marked "Appendix A." 2 Copies of said notice, to be furnished by the
Regional Director for the Fifteenth Region (New Orleans, Louisiana),
shall, after being duly signed by Respondent Company's representa-
tive, be posted by Respondent Company immediately upon receipt
thereof, and be 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 by
Respondent Company to insure that said notices are not altered, de-
faced, or covered by any other material.
(e) Post at the same places and under the same conditions as set
forth in (d) above, and as soon as they are forwarded by the Regional
Director, copies of Respondent United's notice, Respondent District
Council's notice, and Respondent Local's notice herein, marked "Ap-
pendix B," "Appendix C," and "Appendix D."
(f) Notify the Regional Director for the Fifteenth Region, in writ-
ing, within 10 days from the date of this Order, what steps it has
taken to comply herewith.
B. Respondent United Brotherhood of Carpenters and Joiners of
America, AFL-CIO, its officers, representatives, and agents, shall:
1. Cease and desist from :
(a) Maintaining, enforcing, or giving any effect to any agreement,
understanding, or practice with The H. K. Ferguson Company, or
any other employer over whom the Board would assert jurisdiction
which gives exclusive control over the employment of employees to it
or any of its subordinate units or which requires membership in or
referral from it or any 'of its subordinate units as a condition of em-
n 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,"
THE H. K. FERGUSON COMPANY 547
ployment, except as authorized by the proviso to Section 8(a) (3) of
the Act.
(b) Causing or attempting to cause Respondent Company, or any
other employer over whom the Board would assert jurisdiction to
discriminate against employees or applicants for employment in vio-
lation of Section 8 ( a) (3) of the Act.
( c) In any other manner, restraining or coercing employees or
applicants for employment in the exercise ' of the rights guaranteed in
Section 7 of the Act, except to the extent that such rights may be
affected by an agreement requiring membership in a labor organiza-
tion as a condition of employment as authorized in Section 8(a) (3)
of the Act.
. 2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act.
(a) Jointly and severally with Respondent Company, Respondent
District Council, and Respondent Local 1337, reimburse the above-
named eight employees for any loss they may have suffered as a re-
sult of the discrimination against them in the manner set forth in the
section of the Intermediate Report entitled, "The Remedy."
(b) Jointly and severally with Respondent Company, Respondent
District Council , and Respondent Local 1337 , reimburse all mill-
wrights and millwright apprentices who worked at the Demopolis
project for moneys illegally exacted from them in the manner and to
the extent set forth in the section of the Intermediate Report entitled,
"The Remedy."
(c) Preserve and make available to the Board or its agents upon
request, for examination and copying, all dues, initiation fees, assess-
ments, permit fees, "dobie" and other records necessary to compute
the moneys illegally exacted from employees of Respondent Company.
(d) Post at its offices, in conspicuous places, including all places
where notices to members are customarily posted, copies of the notice
attached hereto marked "Appendix B." 3 Copies of said notice, to
be furnished by the Regional Director for the Fifteenth Region, shall,
after being duly signed by Respondent United's representative, be
posted immediately upon receipt thereof and be maintained by Re-
spondent United for 60 consecutive days thereafter . Reasonable steps
shall be taken by Respondent United to insure that said notices are
not altered, defaced, or covered by any other material.
(e) Mail to the Regional Director signed copies of Appendix B,
for posting by Respondent Company as provided , above herein . Copies
of said notice, to be furnished by the said Regional Director, shall,
after being signed by Respondent United's representative , be forth-
with returned to the Regional Director for such posting.
8 See footnote 2, supra.
548 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(f) Notify the Regional Director for the Fifteenth Region, in
writing, within 10 days from the date of this Order, what steps it
has taken to comply herewith.
C. Respondent District Council, The Tuscaloosa and Vicinity Dis-
trict Council of Tuscaloosa and Selma, Alabama, its officers, repre-
sentatives, and agents, shall:
1. Cease and desist from:
(a) Maintaining, enforcing, or giving any effect to any agreement,
understanding, or practice with The H. K. Ferguson Company, or
any other employer over whom the Board would assert jurisdiction.
which gives exclusive control over the employment of employees to it
or any of its affiliated locals or which requires membership in or
referral from it or any of its affiliated locals as a condition of employ-
ment, except as authorized by the proviso to Section 8(a) (3) of
the Act.
(b) Causing or attempting to cause Respondent Company or any
other employer over whom the Board would assert jurisdiction to
discriminate against employees or applicants for employment in vio-
lation of Section 8(a) (3) of the Act.
(c) In any other manner restraining or coercing employees or appli-
cants for employment in the exercise of the rights guaranteed in See-
tion 7 of the Act, except to the extent that such rights may be affected.
by an agreement requiring membership in a labor organization as a.
condition of employment as authorized in Section 8(a) (3) of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Jointly and severally with Respondent Company, Respondent
United Brotherhood, and Respondent Local 1337, reimburse the above-
named eight employees for any loss they may have suffered as a result
of the discrimination against them in the manner set forth in the
section of the Intermediate Report entitled "The Remedy."
(b) Jointly and severally with Respondent Company, Respondent
United Brotherhood, and Respondent Local 1337, reimburse all mill-
wrights and millwright apprentices who worked at the Demopolis
project for moneys illegally exacted from them in the manner and to
the extent set forth in the section of the Intermediate Report entitled
"The Remedy."
(c) Preserve and make available to the Board or its agents upon
request, for examination and copying, all dues, initiation fees, assess
ments, permit fees, "dobies" and other records necessary to compute
the moneys illegally exacted from employees of Respondent Company.
(d) Post at its offices, and at the meeting places of each of the
three local unions within its jurisdiction, in conspicuous places, in-
cluding all places where notices to members are customarily posted,
THE H. X. 1'ERGUSON COMPANY 540
copies of the notice attached hereto marked "Appendix C." 4 Copies
of said notice, to be furnished by the Regional Director for the Fif-
teenth Region, shall, after being duly signed by Respondent District
Council's representative, be posted immediately upon receipt thereof
and be maintained by Respondent District Council for 60 consecutive
days thereafter. Reasonable steps shall be taken by Respondent Dis-
trict Council to insure that said notices are not altered, defaced, or
covered by any other material.
(e) Mail to the Regional Director signed copies of Appendix C, for
posting by Respondent Company as provided above herein. Copies
of said notice to be furnished by the said Regional Director shall,
after being signed by Respondent District Council's representative,
be forthwith returned to the Regional Director for such posting.
(f) Notify the Regional Director for the Fifteenth Region, in writ-
ing, within 10 days from the date of this Order, what steps it has
taken to comply herewith.
D. Respondent Local Union 1337, its officers, representatives, and
agents, shall:
1. Cease and desist from :
(a) Maintaining, enforcing, or giving effect to any agreement,
understanding, or practice with The H. K. Ferguson Company or
any other employer over whom the Board would assert jurisdiction
which gives exclusive control over the employment of employees to it
or which requires membership in or referral from it as a condition of
employment, except as authorized by the proviso to Section 8(a) (3)
of the Act.
(b) Causing or attempting to cause Respondent Company or any
other employer over whom the Board would assert jurisdiction to dis-
criminate against employees or applicants for employment in viola-
tion of Section 8(a) (3) of the Act.
(c) In any other manner restraining or coercing employees or
applicants for employment in the exercise of the rights guaranteed
in Section 7 of the Act, except to the extent that such rights may be
affected by an agreement requiring membership in a labor organiza-
tion as a condition of employment as authorized in Section 8(a) (3)
of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Jointly and severally with Respondent Company, Respondent
United Brotherhood, and Respondent District Council, reimburse the
above-named eight employees for any loss they may have suffered as
a result of the discrimination against them in the manner set forth in
the section of the Intermediate Report entitled "The Remedy."
4 See footnote 2, supra.
550 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) Jointly and severally with Respondent Company, Respondent
United Brotherhood, acid Respondent District Council, reimburse all
millwrights and millwright apprentices who worked at the Demopolis
project for moneys illegally exacted from them in the manner and to
the extent set forth in the section of the Intermediate Report entitled
"The Remedy."
(c) Preserve and make available to the Board or its agents upon
request, for examination and copying, all dues, initiation fees, assess-
ments, permit fees, "dobie" and other records necessary to compute
the moneys illegally exacted from employees of Respondent Company.
(d) Post at its office and meeting hall in Tuscaloosa, Alabama, in
conspicuous places, including all places where notices to members are
customarily posted, copies of the notice attached hereto marked "Ap-
pendix D." 5 Copies of said notice, to be furnished by the Regional
Director for the Fifteenth Region shall, after being duly signed by
Respondent Local 1337's representative, be posted immediately upon
receipt thereof and be maintained by Respondent Local 1337 for 60
consecutive days thereafter. Reasonable steps shall be taken by Re-
spondent Local 1337 to insure that said notices are not.altered, defaced,
or covered by any other material.
(e) Mail to the Regional Director signed copies of Appendix D,
for posting by Respondent Company as provided above herein. Copies
of said notice to be furnished by the said Regional Director, shall,
after being signed by Respondent Local 1337's representative, be forth-
with returned to the Regional Director for such.posting.
(f) Notify the Regional Director for the Fifteenth Region, in writ-
ing, within 10 days from the date of this Order, what steps it has
taken to comply herewith.
5 See footnote 2, supra.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that :
WE WILL NOT maintain, perform, or enforce any agreement,
understanding, or practice with United Brotherhood of Carpen-
ters and Joiners of America, AFL-CIO, or any of its subordinate
District Councils or Locals, or any other labor organization,
which gives exclusive control over the employment of employees
to a labor organization, or which requires membership in or re-
THE H. K. FERGUSON COMPANY 551
ferral from a labor organization as a condition of employment,
except as authorized in the proviso to Section 8 (a) (3) of the Act.
WE WILL NOT encourage membership in United Brotherhood of
Carpenters and Joiners of America, AFT,-CIO, or in any other
labor organization of our employees, by discriminating in regard
to hire or tenure of employment or any term or condition of em-
ployment, except to the extent permitted by the proviso to Sec-
tion 8(a) (3) of the Act.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of the rights guaranteed
them in Section 7 of the Act, except to the extent that such rights
may be affected by an agreement requiring membership in a labor
organization as a condition of employment, as authorized in
Section 8(a) (3) of the Act.
WE WILL reimburse all our millwrights and millwright appren-
tices at our Gulf States Paper Corporation project at Demopolis,
Alabama, for all dues, initiation fees, assessments, permit fees,
and/or "dobies" they were unlawfully required to pay to United
Brotherhood of Carpenters and Joiners of America, or any of
its subordinate District Councils or Local Unions, as a result of
the unlawful hiring provisions in our contracts with the afore-
mentioned labor organization dated April 3, 1956, and January 3,
1957, and our practices under these contracts at the aforemen-
tioned project.
WE WILL make whole Herbert F. Roberts, Morris Grace, W. R.
Vice, N. T. Steadham, E. M. Peacock, J. E. Mathers, B. S. Irvin,
and Robert Hartman for any loss of pay suffered by them as a
result of the discrimination practiced against them.
All our employees are free to become or remain, or to refrain from
becoming or remaining, members in good standing of United Brother-
hood of Carpenters and Joiners of America, or any of its subordinate
District Councils or Local Unions or any other labor organization,
except to the extent that this right may be affected by an agreement
in conformity with Section 8(a) (3) of the National Labor Relations
Act.
THE H. K. FERGUSON COMPANY,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
.552 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX B
.NOTICE TO ALL MEMBERS OF UNITED BROTHERHOOD OF CARPENTERS
AND JOINERS OF AMERICA , AFL-CIO, AND TO ALL EMPLOYEES OF,
AND APPLICANTS FOR EMPLOYMENT WITH, THE H . K. FERGUSON
COMPANY
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended , we hereby notify you that :
WE WILL NOT maintain, perform, or enforce any agreement,
understanding, or practice we may have with The H. K. Ferguson
Company or any other employer over whom the Board will
assert jurisdiction , which gives exclusive control over the employ-
ment of employees to us or any of our subordinate District
Councils or Local Unions, or which requires membership in or.
referrals from us or any of our subordinate District Councils or
Local Unions as a condition of employment , except as authorized
in the proviso to Section 8(a) (3) of the Act.
WE WILL NOT cause or attempt to cause The H. K. Ferguson
Company, or any other employer over whom the Board will assert
jurisdiction to discriminate against employees or applicants for
employment in violation of Section 8(a) (3) of the Act.
WE WILL NOT in any other manner restrain or coerce employees
or applicants for employment in the exercise of the rights guar-
anteed in Section 7 of the Act , except to the extent that such
rights may be affected by an agreement requiring membership in
a labor organization as a condition of employment as authorized
in Section 8(a) (3) of the Act.
WE WILL reimburse all millwrights and millwright apprentices
of The H. K. Ferguson Company, at its Gulf States Paper Cor-
poration project at Demopolis , Alabama, for all dues, initiation
fees, assessments, permit fees , and/or "dobies" they were unlaw-
fully required to pay to us or to any of our subordinate District
Councils or Local Unions , as a result of the illegal hiring provi-
sions in our contracts with The H . K. Ferguson Company dated
April 3, 1956, and January 3, 1957, and our practices under these
contracts at the aforementioned project.
WE WILL make whole Herbert F. Roberts, Morris Grace, W. R.
Vice, N. T. Steadham , E. If. Peacock , J. E. Mathers, B. S. Irvin,
THE H. K. FERGUSON COMPANY 553
and Robert Hartman for any loss of pay suffered by them as a
result of the discrimination practiced against them.
UNITED BROTHERHOOD OF CARPENTERS AND
JOINERS 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.
APPENDIX C
NOTICE TO ALL MEMBERS OF UNITED BROTI-IERI3OOD OF CARPENTERS
AND JOINERS OF AMERICA , AFL-CIO, WITHIN THE JURISDICTION
OF THE TUSCALOOSA AND VICINITY DISTRICT COUNCIL, OF TUSCA-
LOOSA AND SELMA, ALABAMA , AND TO ALL EMPLOYEES OF, AND APPLI-
CANTS FOR EMPLOYMENT WITH, THE H . K. FERGUSON COMPANY
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended , we hereby notify you that:
WE WILL NOT maintain , perform, or enforce any agreement,
understanding , or practice we may have with The H. K. Fergu-
son Company or any other employer over whom the Board will
assert jurisdiction, which gives exclusive control over the employ-
ment of employees to us or any of our affiliated Local Unions, or
which requires membership in or referrals from us or any of our
affiliated Local Unions as a condition of employment , except as
authorized in the proviso to Section 8(a) (3) of the Act.
WE WILL NOT cause or attempt to cause The H. K . Ferguson
Company, or any other employer over whom the Board will assert
jurisdiction to discriminate against employees or applicants for
employment in violation of Section 8(a) (3) of the Act.
WE WILL NOT in any other manner restrain or coerce employees
or applicants for employment in the exercise of the rights guar-
anteed in Section 7 of the Act, except to the extent that such
rights may be affected by an agreement requiring membership in
a labor organization as a condition of employment as authorized
in Section 8(a) (3) of the Act.
WE WILL reimburse all millwrights and millwright apprentices
of The H. K. Ferguson Company at its Gulf States Paper Cor-
poration project at Demopolis , Alabama, for all dues, initiation
fees, assessments, permit fees , and/or "dobies" they were unlaw-
fully required to pay to us or to any of our affiliated Local
554 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Unions, as a result of the illegal hiring provisions in our con-
tracts with The H. K. Ferguson Company dated April 3, 1956,
and January 3, 1957, and our practices under these contracts at
the aforementioned project.
WE WILL make whole Herbert F. Roberts, Morris Grace, W. R.
Vice, N. T. Steadham, E. M. Peacock, J. E. Mathers, B. S. Irvin,
and Robert Hartman for any loss of pay suffered by them as a
result of the discrimination practiced against them.
THE TUSCALOOSA AND VICINITY DISTRICT COUNCIL
OF TUSCALOOSA AND SELMA, ALABAMA,
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.
APPENDIX D
NOTICE TO ALL MEMBERS OF MILLWRIGHTS LOCAL UNION No. 1337
AND TO ALL EMPLOYEES OF9 AND APPLICANTS FOR EMPLOYMENT
WITH, THE H. K. FERGUSON COMPANY
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify you that :
WE WILL NOT maintain, perform, or enforce any agreement,
understanding, or practice we may have with The H. K. Fergu-
son Company, or any other employer over whom the Board will
assert jurisdiction, which gives exclusive control over the employ-
ment of employees to us or which requires membership in or re-
ferrals from us as a condition of employment, except as author-
ized in the proviso to Section 8(a) (3) of the Act.
WE WILL NOT cause or attempt to cause The H. K. Ferguson
Company, or any other employer over whom the Board will
assert jurisdiction to discriminate against employees or appli-
cants for employment in violation of Section 8(a) (3) of the Act.
WE WILL NOT in any other manner restrain or coerce employees
or applicants for employment in the exercise of the rights guar-
anteed in Section 7 of the Act, except to the extent that such
rights may be affected by an agreement requiring membership in
a labor organization as a condition of employment as authorized
in Section 8(a) (3) of the Act.
WE WILL reimburse all millwrights and millwright apprentices
of The H. K. Ferguson Company at its Gulf States Paper Cor-
poration project at Demopolis, Alabama, for all dues, initiation
THE H. K. FERGUSON COMPANY 555
fees, assessments, permit fees, and/or "dobies" they were unlaw-
fully required to pay to us, as a result of the illegal hiring pro-
visions in our contract with The H. K. Ferguson Company
dated April 3, 1956, and January 3, 1957, and our practices under
these contracts at the aforementioned project.
WE WILL make whole Herbert F. Roberts, Morris Grace, W. R.
Vice, N. T. Steadhain, E. M. Peacock, J. E. Mathers, B. S. Irvin,
and .Robert Hartman for any loss of pay suffered by them as a
result of the discrimination practiced against them.
MILLWRIGHTS LOCAL UNION No. 1337,
Labor Organization.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
This proceeding , with all parties represented , was heard before Alba B. Martin,
the duly designated Trial Examiner, in Tuscaloosa, Alabama, on November 19
and 20, 1958, on complaint of the General Counsel and answers of The H. K. Fergu-
son Company, the Respondent Company, and the United Brotherhood, the District
Council, and Local Union No. 1337, the Respondent Unions. The issues litigated
were whether Respondent Company and the Respondent Unions were parties to
unlawful hiring agreements, arrangements, understandings, or practices requiring
membership and/or referrals from the Respondent Unions as a condition of employ-
ment as millwrights at Respondent Company's project in Demopolis, Alabama (re-
ferred to herein as the Demopolis project); and whether eight named individuals
were denied employment by Respondent Company because they did not have re-
ferrals from Respondent United Brotherhood, Respondent District Council, or
Respondent Local. The General Counsel contended that Respondent Company has
violated Section 8(a) (1) and (3) and Section 2(6) and (7) of the Act; I and that
Respondent Unions'have violated Section 8(b)(1)(A) and 8(b)(2) and Section
2(6) and (7) of the Act. The General Counsel and Respondent Company filed
briefs, which have been carefully considered.
Upon the entire record and my observation of the witnesses, I hereby make
the following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENT COMPANY
The H. K. Ferguson Company, an Ohio corporation with its principal office in
Cleveland , Ohio , is engaged in general construction and related work in the State
of Ohio, and in several of the States of the United States. In the course and conduct
of its business operations during the year 1957, which period is representative of all
times material herein , Respondent Company received in excess of $10,000,000 for
services performed for customers located in various States other than the State of
Ohio. During the same period of time, Respondent Company performed construc-
tion services for the Gulf States Paper Corporation at Demopolis, Alabama (the
Demopolis project), which services were valued in excess of $1,000,000. In con-
nection with this project, Respondent Company purchased materials and supplies
valued in excess of $500,000 which were shipped to the project from points outside
the State of Alabama. I find that the Respondent Company is engaged in commerce
within the meaning of the Act and that assertion of jurisdiction is warranted.
' The National Labor Relations Act, as amended , 61 Stat. 136.
556 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
II. THE LABOR ORGANIZATIONS INVOLVED
All of the Respondent Unions, the United Brotherhood , the District Council, and
the Local Union , are labor organizations and are affiliated with one another.
III. THE UNFAIR LABOR PRACTICES
At Respondent Company's request, Business Manager Goodman of Respondent
District Council, supplied millwrights to Respondent Company for its Demopolis
project. The controlling issue in the proceeding is whether Respondent Company
voluntarily and unilaterally used the District Council as a source of skilled labor,
or whether its use of the District Council was controlled by contracts, understand-
ings, arrangements , or practices which gave control over the selection of millwrights
for employment at the Demopolis project to Respondent District Council, thereby
maintaining and using an exclusive hiring arrangement which did not include the
safeguards required under the Board's Mountain Pacific 2 decision.
A. The contracts
The Demopolis project began in about January 1956, and ended in November or
December 1957. The events of particular concern herein occurred in late December
1956 and early January 1957.
On April 3, 1956, Respondent Company and Respondent United Brotherhood
entered into a written contract which contained no duration clause and which pre-
sumptively continued until it was superseded by another written contract dated
May 31 , 1958 . (The legality of the latter contract is not in issue under the com-
plaints or the General Counsel's contentions.)
In pertinent part the 1956 contract set forth that Respondent Company agreed
"to recognize the jurisdictional claims of the United Brotherhood ...." Respond-
ent Company agreed further-
to work the hours , pay the wages and abide by all lawful rules and regulations
established or agreed upon by the United Brotherhood . and the recognized
bargaining agency of the locality in which any work of our Company is being
done, with respect to members of the United Brotherhood employed by our
Company. (Emphasis supplied.)
No change is to be made in the hours and wages in any locality, and no
conditions imposed other than are enforced on all Local firms.
The contract provided further that-
in consideration of the foregoing , the United Brotherhood . . . agreed to fur-
nish competent Journeymen as requested and, further , that no stoppage of work
or any strike of its members, either collectively or individually , shall be
entered into pending any dispute being investigated and all peaceable means
taken to bring about a settlement.
The parties hereto agree that in the event any provisions of this Agreement
are held unconstitutional or be void as in violation of any laws, rules or regula-
tions, nevertheless , the remainder of the Agreement shall remain in full force
and effect unless the parts so found to be void are wholly inseparable from re-
maining portions of this Agreement.
In November and again in late December 1956, the millwrights at the Demopolis
project walked off the job in an effort to get higher wages. All pertinent testimony
establishes that all directly concerned considered the going rate per hour for mill-
wrights too low. Nothing but wages was in dispute. On January 2 , 1957, effective
the following day, Respondent Company and Respondent United Brotherhood en-
tered into the following "memo of understanding":
In order to avoid any further disputes over wages on the above -named project
the following understanding is reached which will be a supplement to the
International agreement signed by the above parties and the working rules of
the Tuscaloosa and vicinity district council of carpenters.
1. The rate of pay of Journeyman Millwrights will be $3 per hour.
2. This agreement is for the duration of the above -stated project.
3. All other provisions of the International agreement and the Tuscaloosa
District Council working rules shall apply on this project.
4. This agreement is to be effective as of January 3, 1957.
2 Mountain Pacific Chapter of the Associated General Contractors, Inc., et at., 119
NLRB 883, 893.
THE H. K. FERGUSON COMPANY 557
Respondent District Council's "Trade Rules" in effect at all times of concern
herein until November 1, 1958, provided in part that "in no case shall a member or
steward be discharged for upholding these Bylaws and Trade Rules. . . ... Respond-
ent District Council's bylaws in effect at all times of concern herein until Novem-
ber 1, 1958, provided in part: "No member of the United Brotherhood . . . in this
District shall work for a nonunion carpenter, nor shall he work for a contractor
who employes a nonunion carpenter nor shall he be allowed to work on any job
where laborers perform work requiring the skill, knowledge or ability of a carpenter
to perform."
B. The general practice under the 1956 and 1957 contracts
At the Tuscaloosa project the parties used a referral system, the referrals being
issued by W. E. Goodman, business agent of Respondent District Council, and being
presented at the project when the applicant millwrights first reported for work. Mill-
wright Superintendent John C. Harvey credibly testified that when he went to work
for Respondent Company in that capacity in September 1956, the project manager
of the Demopolis project, F. C. Paterson, Jr., "told me I would get my men through
the Tuscaloosa Local." Harvey testified when he needed millwrights he "first talked
to Mr. Paterson. Then, I called Mr. Goodman in Tuscaloosa." Tuscaloosa is about
60 miles from Demopolis. A number of General Counsel's witnesses testified that
when they first presented themselves at the personnel office at the entrance to the
project they showed their referrals to one Betty Garrett,3 following which and
following her preparation of employment documents, they went into the project.
Millwright Superintendent Harvey testified that the new employees did not have to
show the referrals to him, but that they showed them to the union steward in
Harvey's presence. Other testimony showed that Harvey sometimes asked to see
the referrals or if they had referrals. Harvey testified that to his knowledge no mill-
wrights were hired who did not have a referral. Harvey customarily checked the
toolboxes of the new millwrights to be sure that the men had the proper tools to do
the work. Harvey testified no men were sent to him who were not qualified to do the
work. Goodman, who served as the District Council's business agent during the
entire Demopolis project up until July 1, 1957, and who customarily visited the proj-
ect about once a week, testified that to his knowledge three men were hired at the
gate without referrals from him. (A list of millwright and millwright apprentice
employees who were hired on this project, which list was supplied by Respondent
Company under subpena, discloses that during the project prior to July 1, 1957,
Respondent Company hired 192 millwrights.) Asked the purpose of the referral
card, Business Agent Goodman, who signed the referrals to the Demopolis project,
testified at first that "I don't believe I have that knowledge." Then in substance he
testified that the referral card was an introductory card to the Company. As is seen
more particularly below, in a number of instances millwrights who had been work-
ing for the Company until they walked off the job a few days before, were given
referrals to return to work-showing that in practice the purpose of the referral
card was not to introduce a new man to the Company.
In late November 1956, the approximately 24 millwrights then working on the
Demopolis project walked off the job in the protest over what they considered a low
hourly wage-$2.571/2 an hour. After remaining off the job for a few days, most
of the millwrights returned to work, relying on the assurance of Business Agent
Goodman and Blaine T. Durham, an International representative of Respondent
United Brotherhood who works principally in the State of Alabama, that they
would try to get the men a wage increase. Goodman told the men they had a con-
tract which set the wage scale and all they could do was to "apply" to the Company
for more money. On this occasion Respondent Company accepted them back to
work and gave termination papers recommending rehiring to three millwrights from
Macon, Georgia, who did not return to work at this time.
s Mrs. Betty Garrett worked for Respondent Company from almost the beginning until
the end of the project. At first she served as secretary to the personnel manager of the
project, but when he left in October 1956 no personnel manager was named to succeed
him and in January her title changed from secretary to personnel assistant-with no
change in duties. From October 1956 on, she alone occupied the small building at the
gate to the project, referred to as the personnel office. Although nothing would have
stopped men from walking onto the project without presenting referrals to Mrs. Garrett,
in practice the referrals were first shown to her in the personnel office. After the de-
parture of the personnel manager she took her orders 'from the chief accountant and from
Project Manager Paterson.
558 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A few days before Christmas 1956, the millwrights then on the job, through their
union steward notified Project Manager Paterson that they were going to walk off
the job because they had not gotten a wage increase. Paterson assembled the mill-
wrights, asked them to stay on the job a week, during which he would try to get
them an increase, told them in substance that he knew their wage rate was lower
than that of other crafts on the job of comparable skills. According to the credited
testimony of R. P. McCracken, who impressed me as a credible witness, Paterson
also told the men that if he could not get a raise for them he would not blame them
for leaving the job and that if, after they left, a raise came through and the men
wanted to return, the Company would be glad to have them all back. In sub-
stance this testimony was corroborated by witnesses Robert Hartman and Herman
McGilberry. Paterson pointed out that before the men could get a raise his superiors
in the Ferguson Company would have to be contacted at the home office and also
the Gulf States Paper Company for whom the Demopolis project was being carried
on. Paterson also pointed out that there was an agreement setting the wage rate and
that the men would have to do something about that part of it.
After working about a week, on Friday, December 28, 1956, the millwrights again
walked off the job, no raise having come through by that time. Some advance
notice having been given the Company, on the way out, after checking in all the
company equipment they had, the men picked up termination papers which had been
prepared and which indicated that they were discharged. Two of the millwrights,
Steadham and Grace, testified in substance that the termination papers indicated
that the Company would rehire the men. On this occasion approximately 20 to 30
millwrights walked out. Insofar as the record shows only the union steward re-
mained on the job. Twenty-one were released by the Company on December 28 and
one on December 29. There is some indication in the testimony that the millwrights
walked off after they had been told that Project Manager Paterson had said that he
could not get a raise for them.
When Paterson heard about the walkoff at about the time it occurred, he sent a
wire to Business Agent Goodman in Tuscaloosa requesting that Goodman send
50 millwrights to the job the following Monday, December 31, 1956. Goodman did
not receive this wire until Monday, when he first went to his office following a short
Christmas vacation the previous week from Tuesday, Christmas Day, on. Goodman
testified that there were not 50 millwrights in the area. After receiving the telegram
Goodman tried to contact those millwrights who had walked off the previous Friday
and who lived around Tuscaloosa, and also got in touch with the local in Sheffield,
Alabama, and ascertained that there were about 17 idle millwrights in that local who
were available. He tried to persuade the local men to return to work on Wednesday
morning, January 2, Tuesday being the New Year's Day holiday. Goodman gave
R. P. McCracken, a foreman, referrals signed by Goodman for a number of the
former employees, and gave some referrals directly to the former employees them-
selves. At the hearing Goodman's point was in substance that these. referrals were
good for January 2 only, but McCracken's referral, which is in evidence, does not
so state. It is dated "1-2-57," but nothing on the referral indicates that the man
would have to report to work on that particular day or the referral would be
canceled.
According to the credited testimony of R. P. McCracken, on December 31, at the
office of Respondent District Council where Goodman had his office, McCracken
met a group of millwrights from the Sheffield local who indicated to him that they
were going to work at Demopolis. McCracken tried to persuade them not to go to
work there on the ground that a group of millwrights had just quit work down there
trying to increase the wage rate. Some of the Demopolis men and also some of
the local men who had just quit, went to Demopolis that day, but none reported for
work at the Company.
Insofar as this proceeding is concerned the project was shut down on New Year's
Day. On January 2, 1957, a group of the old millwrights who had quit their jobs
December 28, appeared at the gate of the project with their referrals. Steward
Hartman, who was at work, came out to the gate and told them that Millwright
Superintendent Harvey was not on the job. This was Harvey's birthday and he had
taken the day off. Thereafter none of the former employees presented their re-
ferrals or asked to go back to work that day. As R. P. McCracken explained it
in testifying:
The superintendent there is the one that lays out the work for us; the superin-
tendent is the one that give us the work. The company pays out the money,
but if we're not' having any work to do, no superintendent there, we are just
spending out a bunch of money.'
THE H . K. FERGUSON COMPANY 559
A number of men from the Sheffield local did present their referrals and did go to
work that day. A list of millwright and millwright apprentice employees prepared
for the Company, which is in evidence, shows that nine new employees began work-
ing for the Company on that day, and other evidence indicates that they were the
men, or at least some of them, from Sheffield.
Learning in a telephone conversation with Betty Garrett that the former em-
ployees had been at the gate but had not gone to work, and having learned from
another telephone conversation that Hartman had tried to prevent the Sheffield
men from going to work, Goodman went to the Demopolis project and relieved
Hartman of his stewardship, appointing one of the Sheffield men, Dewberry, in
Hartman's place as steward. Then Goodman witnessed the negotiation of the
supplemental agreement between Respondent Company and Respondent United
Brotherhood, which was negotiated at the project by Project Manager Paterson for
the Company and Henry W. Chandler for the United Brotherhood-Durham and
Goodman also being present. As has been noted above, in this agreement the
parties raised the rate of pay of journeymen millwrights to $3 per hour.
In an 11-page statement prepared by the General Counsel in the presence of
Paterson during the investigation of this proceeding several months before the hear-
ing, which statement Paterson refused to sign , appears the statement:
Goodman was present when I signed the agreement with Chandler and I be-
lieve I said: "When the hell are you going to send the men back?" He said:
"I'll have them back tomorrow."
Having read the statement at the hearing Paterson testified that the statements in
it were substantially correct, but that he did not remember the truth or falsity of
the sentences in it quoted above. Paterson allowed that Goodman "already had
had a telegram. It would seem obvious that the fact that he had come down there,
that possibly we did discuss the return of the men, but what happened or what we
said I have no recollection." Paterson stated, however, that be never did tell
Goodman or anyone else that he would not rehire any of the millwrights who had
previously walked off the job. In substance Goodman denied discussing the old
men with Paterson, but he admitted that shortly after the signing of the agreement
on January 2, he had a discussion with Bill Bullock, the mechanical superintendent
who was above Millwright Superintendent Harvey in the Company hierarchy, about
the possibility of the former millwrights return to work. Bullock said that all of the
old men were acceptable to the Company except one apprentice millwright. From
the statements set forth in this paragraph, I conclude only that Goodman learned
during the course of this day that all of the former millwrights were completely
acceptable to the Company except one, who was an apprentice.
During the course of this day, January 2, Goodman learned also that none of
the previous employees had returned to work that morning and that not very many
of the Sheffield men had reported either and that the Company was in need of
millwrights. Whereupon he called his office and requested Financial Secretary
Stone of Local Union 1337 to telephone the Chattanooga local and ask them to
send down some 30 millwrights. Later that day he learned that the Chattanooga
local would comply with the request.
Early the following morning, January 3, 1957, Business Agent Goodman tele-
phoned Betty Garrett at the personnel office on the project and told her that "all of
the referrals he had issued were voided and new ones were being issued." Although
Goodman testified to a different version of this conversation, Mrs. Garrett impressed
me as a more creditable witness than Goodman and her testimony as quoted above
is credited. As the former employees reported for work that morning-and there
must have been a sizable group , according to the credited testimony of R. P.
McCracken-Mrs. Garrett refused their referrals and said that she could not accept
them, that they had all been canceled. On the witness stand, Mrs. Garrett admitted
that as the old men came in to go to work that day, she gave them Goodman's
message to the effect that the referrals were canceled. In substance, she gave the
same reason to Union Steward Hartman, when he came in to inquire why the old
men were not being hired.
W. E. Simmons, a member of Respondent Local 1337 and a member of Respond-
ent District Council for some 5 or 6 years prior to June 1957, impressed me as a
very honest and credible witness, and his testimony was uncontradicted. According
to Simmons ' credited testimony, on about January 3, 1957, he overheard a conversa-
tion between Business Agent Goodman and some of the former employees con-
cerning Goodman's canceling their referrals. As the reason why he canceled their
referrals, Goodman told these men that he canceled them because "you didn't go
back to work when I told you to go to work." Then they got into what Simmons
560 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
characterized as a "racket" or a "cuss fight." During the conversation, Goodman
also told the men that "they was not going back on that job while he was business
agent or as long as he could keep them off." On behalf of his stepson, Morris Grace,
who was one of the group being thus addressed by Goodman, Simmons the follow-
ing day spoke with Millwright Superintendent Harvey. Simmons asked Harvey if
Harvey would put his stepson and any of the others back to work if they could "get
in there," and Harvey replied that "he would take every one of them if they would
refer them back in here, every man I had." When Simmons told Goodman what
Harvey had said-presumably soon thereafter-Goodman replied "Well, I am not
going to send any of them down there this time anyhow . . . I don't know as I ever
will." According to the credited testimony of Morris Grace, several times thereafter
Grace spoke to Goodman presumably about receiving a referral, and he did not re-
ceive any up until February 1, 1957, when Grace had a serious automobile accident
and was thereafter incapacitated. During one of these occasions Goodman told
Grace "that the Company didn't want none of the men back that was involved in the
walkout down there."
Foreman Herman McGilberry was on vacation with the permission of Millwright
Superintendent Harvey from December 21, 1956, until January 3, 1957, on which
day he reported to Harvey at about 11 o'clock in the morning and told him that he
would return to work the next day-and Harvey approved. According to McGilberry,
shortly thereafter he overheard Goodman tell a group of the former employee mill-
wrights standing out in the road presumably at the entrance to the project, that he
was riot going to let any of the former employees go back on the job. McGilberry
spoke up and told Goodman that he had just talked with Harvey who had said that he
could go back to work. Goodman replied, "I'm not going to let you go back to work
either." The following day when McGilberry reported to Harvey to go to work, he
was not allowed to keep his job because, as Harvey testified, "Mr. Goodman told
me that Mr. McGilberry was involved in that walkout as much as anybody else and
he wanted him off the job." When Harvey asked his superior, Mechanical Superin-
tendent Bullock, what to do about it, Bullock replied that "if Mr. Goodman re-
quested for that man to leave, to put it on his termination slip that was why he was
terminated and let him go." So Harvey caused the following to be put on
McGilberry's termination notice dated January 3, 1957, which is in evidence: "Re-
quested not to be put back to work by Mr. Goodman of Tuscaloosa Local." While
trying to save his job that morning, at Harvey's suggestion, McGilberry went to see
Bill Jennings , who was in charge of all construction on the project and was the top
man in the hierarchy on the project under Project Manager Paterson. Jennings told
him to tell the job steward that Jennings wanted to talk with him and that Jennings
wanted McGilberry returned to work. McGilberry then told Harvey that he had
talked with Jennings and then located the newly appointed union steward, Dewberry.
Presumably he told Dewberry what Jennings had said. Dewberry said "Mr. Goodman
has given orders for you not to go back to work, not to be put back to work."
McGilberry asked if Dewberry had told Jennings that and Dewberry replied that
he had 4
Goodman denied that he ever talked with anybody about McGilberry's termina-
tion. He testified further that on January 5, 1957, McGilberry asked Goodman for
a referral to that job and Goodman replied that he would give him one but that he
did not have any call for men just now. Goodman added "You get me a written
statement that they want you back on that job as a foreman and I will be glad to do
what I can to get you back." Goodman did not attempt to explain why, if he did
not have control of hiring at the project, McGilberry should furnish him with a
written statement from the Company that the Company wished to employ McGilberry
as a foreman.
On Saturday, January 5, 1957, R. P. McCracken went to Birmingham, Alabama,
looking for work, and while there he saw Blaine T. Durham, international repre-
sentative of the United Brotherhood. Durham asked McCracken why he was not
working at Demopolis. McCracken replied "Mr. Goodman won't let us work down
there," to which Durham replied "You go and tell Mr. Goodman I said let you go
back; he can't keep you off the job." McCracken returned to Tuscaloosa and told
Goodman what Durham had said. Goodman replied "Durham ain't running this
end of it. I am running this end, and when I get room for you boys, I will send
you down there."
On Monday morning, January 7, 1957, a committee of the former employees
talked with Project Manager Paterson in his office at the Demopolis project. The
4 The findings in this paragraph are based upon the testimony of McGilberry and Mill-
wright Superintendent Harvey and McGilberry 's termination notice, which is in evidence.
THE H. K. FERGUSON COMPANY 561
committee's purpose was to try to get the old men back to work. According to
R. P. McCracken, Paterson said that there was nothing he could do about it, that
he had ordered men from Goodman and he was the one to send them down and
"I have to use whoever he sends. I am not going to call them in personally."
Robert Hartman testified that when the committee told Paterson that Goodman had
said Paterson would not hire them, Paterson replied "Mr. Goodman is a liar. I want
you down here and he won't give any of you referrals and I can't hire you unless he
does." Paterson denied altogether having any meeting with any committee of the
former millwrights to discuss their possible return to the job. As Paterson was a
frequently unresponsive and sometimes evasive witness, and a witness who did not
impress me as having a clear remembrance concerning some of the events about
which he testified, I do not credit his denial in this instance. To be noted is that
the versions of both Hartman and McCracken have Paterson placing the control of
the employment of millwrights in Goodman rather than in the Company. As
McCracken had a clearer memory of the events concerning which he was testifying
than did Hartman, and as McCracken impressed me generally as more certain of
his testimony than did Hartman, I credit the testimony of McCracken concerning
what Paterson said to the employee committee on this occasion.
At about this time, probably on January 7, some eight of the former employees,
including McCracken and Herbert F. Roberts, signed their names to a telegram to
the Respondent United Brotherhood asking for an investigation as to why they were
being kept off the job. At a union meeting on Tuesday night, January 8, pre-
sumably of Local 1337, Business Agent Goodman read that telegram to the meet-
ing and said in substance that as far as he was concerned, the men who had signed
that telegram were done and finished in this area.
In substance, Goodman's position was that as the former employees came to him
and asked for referrals-the large group of them came he believed on January 4,
Goodman told them that there were no openings at the present but that he would
keep any who wished to be kept on a list and would refer them to the job as soon
as there were any openings. It is true that from time to time after the crisis had
passed, Goodman gave referrals to some of the old employees and they presented
the referrals and went to work.
C. The refusal to hire eight individuals
Herbert F. Roberts, Morris Grace, W. R. Vice, N. T. Steadham, E. M. Peacock,
J. E. Mathers, and B. S. Irvin were among the millwrights who walked out of the
Demopolis project on December 28 in protest against the existing hourly wage.
(Vice was an apprentice millwright.) Robert Hartman quit at noon on January 2
in protest over being relieved of his stewardship on the job.
Following the December 28 walkout, Respondent Company began to hire new
millwrights on January 2, when it hired 10. On January 3 it hired 11. On Janu-
ary 4 it hired 11. On January 7 it hired nine. The next millwright hired was on
February 1, when one man was taken on. The next was on February 12 when
three were hired, and the next on the following day when one millwright was hired.
As has been seen above, immediately after the walkout Project Manager Paterson
ordered 50 millwrights from Goodman. This number was never reduced. Yet dur-
ing January 2, 3, 4, and 7, during which none of the former employees were per-
mitted to return to work, the Company hired only 41 millwrights, leaving 9 va-
cancies yet to be filled. Between January 7 and February 1 none of these nine
vacancies were filled, even though during this period Goodman knew the Company
needed men and that the eight men named in the complaints and named above wanted
to return to work, and even though Paterson knew generally, after his conversation
with the employees on January 7, that the former employees who wanted to return
were being kept from returning by Goodman.
On January 3, Roberts asked Goodman for a referral at the jobsite, and Goodman
refused his request on the ground that Roberts was one of the "fellows who walked
out." Again on January 5 Goodman refused him a referral. Roberts was one of
those who signed the telegram to the United Brotherhood asking for an investigation
of the Tuscaloosa situation, one of those whom Goodman announced were done in
the area at the union meeting January 8. It is clear from this evidence that Roberts
was kept from returning to the job by Goodman's refusal to give him a referral.
Grace was one of the former employees who had a referral on January 2 but
who did not present himself to the Company for employment. He was one of those
who presented his referral to Betty Garrett the following day and was turned away
on the ground that his referral had been canceled. That evening he was among those
told by Goodman that the latter had canceled their referrals because "you didn't go
525543-60-vol. 124-37
562 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
back to work when I told you to go to work." Grace was the stepson on whose
behalf his stepfather, W. E. Simmons, the following day, January 4, asked Millwright
Superintendent Harvey if Harvey would take him back-Harvey replying that he
would take all the old men back, including Grace, if they would get referrals from
Goodman. It is clear that Grace was not returned to work because he lacked a
referral and that Goodman withheld a referral.
Steadham asked Goodman for a referral during the period the Chattanooga men
were coming in and receiving referrals, which was roughly between January 3 and 7.
At first Goodman refused on the ground that he did not need any men. Later the
same day, according to the credited testimony of Steadham, Goodman told Steadham
to go to the local at Demopolis and Goodman would see about getting him onto the
job in a few days. Steadham cleared into the Demopolis local, paid a month's dues
and was given by Financial Secretary Seale of the local a working card for January
issued by Respondent District Council. He stayed around Demopolis for about
2 weeks during which he asked Seale each day if Goodman had sent a referral,
which he had not, and during which several times he went to the entrance gate of
the project with his tools ready to go to work and was stopped by the guard, pre-
sumably for want of a referral. (Mrs. Garrett testified that the one guard always on
duty at the gate "would answer the questions (of people who came up to him) and
direct them to where they wanted to go, to the main office or to my office.") Dur-
ing this 2-week period Steadham never received a referral and never went back
to work.
Peacock telephoned Goodman several times asking for a referral beginning about
January 2 or 3 and ending sometime in April 1957. Goodman's replies were that
he had called other locals for men, or had all the men he needed just then. Good-
man was antagonistic because Peacock had been among those who had "quit up
there." In April Goodman told Peacock he could put him to work in September.
Never after December 28, 1956, did Peacock receive a referral to the Demopolis
job. Peacock was telephoning Goodman from Macon, Georgia, but it is clear on
the record that he was available to return to Demopolis and return to work from at
least January 3 through January 7, during which there were nine vacancies unfilled.
Mathers 5 and Irvin were both at the jobsite trying to get back to work during
the week beginning December 31, 1956, when the Sheffield and Chattanooga men
were receiving referrals and going to work. They spoke to Millwright Superintendent
Harvey, who told them to get a referral from Goodman. When they reported
Harvey's word to Goodman, the latter replied that they were "through down there."
About 5 or 6 weeks later Goodman gave them referrals and they returned to work.
Hartman, as has been seen above, was one of the committee of millwrights who
called on Project Manager Paterson on January 7 to try to get the former employees
back to work-Paterson replying, as found above, "I have to use whoever he
[Goodman] sends. I am not going to call them in personally." Under the circum-
stances of this case, this was Hartman's application to return to work. It is clear
that he was not returned to work because he did not have Goodman's approval.
Vice first went to work for Respondent Company in November 1956. To get the
job he first went to the jobsite and talked with, among others, Mrs. Betty Garrett,
who told him that "you had to have a referral card from the business agent to go to
work here." Goodman sent him to Financial Secretary Seale of the Demopolis
local. An apprentice, Vice then went to "school" for 2 weeks, after which Seale
handed him a referral slip from Goodman, with which he got a job. After walking
out December 28 with the other millwrights, one day the following week he was at
the jobsite when Goodman refused referrals to the former employees. Goodman's
stated reason was that they had "crossed" him. Although later Goodman told Vice
he would get a referral because he was an apprentice, Vice never received one.
In substance Goodman testified that Mechanical Superintendent Bullock told him
that all the former employees were acceptable to the Company except Vice, who
did not work but just stood around wiping his wrench with a rag; and that in slough-
ing off Vice, Goodman gave him a "pretty good reason." Vice's testimony, which
was uncontradicted, did not give any reason except as stated above. Under all the
circumstances of the case I find that Vice was deprived of a referral and a job in
implementation of the unlawful hiring contract and arrangement and for the same
reasons as the other former employees-as found below.
B The list of millwrights prepared by Respondent Company lists "blathers, S. E." and
"J. E. Mathis." Tinder the circumstances it is clear that the person who testified and
whose name the court reporter caught as "J. E. Mathis" was in fact the J. E. Mathers who
previously worked for the Company and who walked out with the other millwrights on
December 28.
THE H. K. FERGUSON COMPANY 563
D. Conclusions
1. Under well-established law concerning savings clauses the 1956 master contract
between Respondent Company and Respondent United Brotherhood imposed closed-
shop provisions not permitted under the amended Act and was an exclusive hiring
agreement.
As written, this contract incorporated by reference all lawful rules and regula-
tions of the Respondent District Council, which the record shows was the "recognized
bargaining agency" for the Demopolis area. In meaning this was the same as
though it had been written: "All rules and regulations except any which are un-
lawful." As has been seen above, the District Council's bylaws prohibited any mem-
ber of the United Brotherhood from working for a "nonunion carpenter" or from
working "for a contractor who employs a nonunion carpenter," and its trade rules
provided that "in no case shall a member or steward be discharged for upholding
these Bylaws and Trade Rules. . . Thus the bylaws and trade rules established
closed-shop conditions which were unlawful. As the master contract did not specify
what were the lawful rules and regulations it was incorporating, employees reading
the contract could not know what unlawful provisions of the bylaws and trade rules,
if any, were being excluded, and would disobey any of them at their peril. Under
the circumstances the use of the word "lawful" in the contract did not neutralize the
unlawful provisions in the bylaws and trade rules which were being incorporated
into the contract. The word "lawful" as used in the contract was in the nature of
a general savings clause, and was as ineffective as was the savings clause of the con-
tract in excluding from the contract the closed-shop provisions of the bylaws and
trade rules.6
2. The area practice revealed in the record was related to and pursuant to and
under the authority of the master agreement. As had been seen above, in talking to
employees concerning the wage problem both Paterson and Goodman referred to the
contract. As has been seen, in solving the strike and wage question, at his request
Goodman was assisted by a representative of the United Brotherhood and also the
parties to the master agreement negotiated and executed another agreement for local
application which referred to itself as a "supplement to" the master agreement. The
exclusive hiring practice of the parties at the Demopolis project did not change after
the execution of this 1957 supplemental agreement, and Project Manager Paterson
who negotiated and signed it for the Company, testified in substance that no change
except wages was intended by it. Under these circumstances it is clear that at the
Demopolis project the parties gave exclusive control over hiring of millwrights to
Goodman under the color of authority of the master contract. Indeed, under the
circumstances of this case, it is unrealistic to suggest that the arrangements of the
District Council's business agent at the project have no relationship to the master
agreement between the United Brotherhood and the Company. Rather I find, in
keeping with Board precedent,7 that the 1956 master agreement and the unlawful
hiring agreement, arrangement, understanding, or practice at the area level of the
Demopolis project, "dovetailed so precisely so as to reveal a single comprehensive
scheme for complete evasion of the statutory ban on all closed shops." Under the
circumstances the United Brotherhood was as responsible as was the Respondent
District Council for the unlawful practices followed at this project.
3. Irrespective of whether the practice revealed in the record was related to the
master agreement, Respondent United was responsible for it as a cosponsor of it_
United's constitution and laws required, among other things, that "Members who .
become foremen, must comply with Union rules and hire none but members of the
United Brotherhood." Although John C. Harvey, a member of a "millwrights local,"
and therefore of the United, was above the rank of foreman, as millwright super-
intendent he obeyed the requirements of the United's constitution and hired only
union members. As the practice at the Demopolis project imposed closed-shop
employment conditions, which was what United's constitution and the District
Council's bylaws contemplated, I find that United was cosponsor of the unlawful
hiring-hall arrangement and is liable for the unfair labor practices committed under
it. Galveston Maritime Association, Inc., et al., 122 NLRB 692 and cases cited in
footnote 14 thereof. See, also, Enterprise Industrial Piping Company, 117 NLRB 995.
4. Irrespective of whether the 1956 master contract was unlawful as written, it
9 Cf. Argo Steel Construction Company , 122 NLRB 1077, and cases cited in footnotes
7 and 8 thereof ; News Syndicate Company, Inc., 122 NLRB 818 ; Honolulu Star-Bulletin,
Ltd., 123 NLRB 395.
7 Cf. The Morley Company, 117 NLRB 107 ; Mechanical Handling Systems, Ineorpcrated,
122 NLRB 396.
564 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and its 1957 supplement were clearly unlawful as enforced and administered at the
local level in the Tuscaloosa-Demopolis area, where they were clearly regarded as
exclusive hiring contracts, as establishing closed-shop conditions, and as giving un-
fettered control over the hiring of millwrights at the Demopolis project to Business
Agent Goodman. The record is replete with actions and statements which impel
this conclusion.
Thus, of the 192 millwrights who worked on the project, all but possibly 3 were
hired upon referral from Goodman. As has been seen above, Project Manager
Paterson told Superintendent Harvey to get his millwrights through the Tuscaloosa
local and Harvey always got them through Business Agent Goodman. Harvey knew
of no millwrights hired except through Goodman, and no millwrights referred by
Goodman were refused by Harvey. That the referral card was more than an intro-
ductory and was, in fact, a device for keeping control of hiring in the business
agent, was shown by the fact that the former millwrights, who were completely
acceptable to the Company, were not allowed to go to work without a referral from
Goodman. Even a foreman, McGilberry, was not allowed to return to work because
Goodman vetoed him. Project Manager Paterson expressed helplessness about get-
ting the former employees back to work without Goodman's approval, saying "I have
to use whoever he sends." Mrs. Garrett, who took at least some of her orders di-
rectly from Paterson and who presided over the personnel office at the gate and
there received all applicants on behalf of the Company, was certainly held out by
the Company to have authority to process or not to process applicants for hire.
Thus, she had either authority or apparent authority to reject the former employees
when they presented themselves for work on and after January 3, and Paterson in
effect ratified her rejection of them when on January 7 he refused to step in on their
behalf-even though, as of that date, Goodman had supplied only 41 of the 50 mill-
wrights requested of him a few days before and there were still 9 vacancies. In
addition to the above there is much other evidence establishing that the final say-so
as to what millwrights should work on the project was in Goodman. Conclusive
proof of this is that when, after the December 28 walkout, a number of former
millwrights asked Harvey to take them back, Harvey told them that he would if
they could get referrals from Goodman. Also there were several cases of men who
tried to get back on the job and were refused, and then later received referrals from
Goodman and were accepted on the job and put back to work. Also there were at
least two cases where new applicants first asked Harvey or Betty Garrett for a job
and he or she sent them to Goodman for a referral before putting them to work.
5. The 1956 contract, and the 1957 supplement, as written and as interpreted,
enforced and administered in the Tuscaloosa-Demopolis area, provided, at the very
least, for a hiring-hall arrangement without including the safeguards necessary under
the Board's Mountain Pacific 8 decision to make the hiring arrangement lawful.
Thus, (a) selection of applicants for referral to jobs was not made on a non-
discriminatory basis; (b) Respondent Company did not retain the right to reject any
job applicant referred by the District Council; (c) insofar as the record reveals, the
parties did not post any notices concerning the functioning of the system which
included a statement of the necessary safeguards.
6. Assuming, as found above, that as written or as enforced, the 1956 contract
was an exclusive hiring agreement without the Mountain Pacific safeguards, the
record establishes that the eight named discriminatees were excluded from employ-
ment 9 on and after January 3 in implementation of the unlawful agreement, and
were victims of its, the responsible parties thereby violating the Act.
7. Assuming, however (contrary to the findings above), that the hiring-hall agree-
ment was lawful because it was not exclusive, the record establishes that the eight
named former employees were discriminated against by Goodman for reasons con-
nected with union membership or obligations, Respondent District Council thereby
violating the Act. Thus, on and after January 3 Goodman refused these eight men
referrals for the same reason or reasons that he refused the other former em-
ployees-because they had had referrals for January 2 but had not used them,
because they had "crossed" him, because if he issued to them referrals it would em-
barrass him with other locals from whom he had ordered millwrights, because they
8 Supra, footnote 2.
9 Although Peacock and Roberts did not after December 28 apply directly to the Com-
pany for employment, the record establishes that if they had they would have been re-
ferred to Goodman for a referral before being put to work. The Board has held that
under such circumstances it makes no difference which of the two parties, the Company
or the District Council, an applicant first approached, that his unlawful exclusion from
employment was a joint act -by both Respondents. 119 NLRB 883, 889.
THE H. K. FERGUSON COMPANY 565
had sent a telegram to the United Brotherhood asking in effect that Goodman be
investigated , because he wanted to show them he was the "boss." Each of these
reasons imposed obligations which the business agent in effect required be met before
he would issue the former employees another referral : To receive a referral the
former employees must report for work on a day for which a previous referral was
given , they must not "cross" the business agent or embarrass him in his relations
with other locals , they must not ask the United Brotherhood to investigate him and
they must acknowledge that he is the "boss." Each of these obligations being actual
or apparent union requirements for referrals , the discrimination practices against
these eight employees tended to encourage or discourage union membership, Re-
spondent Unions thereby causing or attempting to cause the Comany to discriminate
against these eight employees in violation of Section 8(a) (3) of the Act, Respondent
Unions thereby violating Section 8(b)(2) and (1) (A).10 Knowing that the former
employees including these eight were acceptable to the Company and that the
former employees were being denied referrals while the new men from Sheffield
and Chattanooga were receiving them , Respondent Company necessarily knew that
the old men were being denied referrals for reasons connected with union member-
ship or obligations . By condoning Goodman's conduct and refusing to employ the
eight applicants under these circumstances , Respondent Company violated Section
8(a)(1) and (3) of the Act. George D. Auchter Company, et al., 102 NLRB 881,
enfd. 209 F . 2d 273 (C.A. 5).
To be noted is that Respondent Company could have used the 7 named mill-
wrights and presumably also Vice, the apprentice , during January when it asked for
50 men and received only 41. To be noted also is that by about January 7 Goodman
must have known and Project Manager Paterson could have learned that no more
men were coming from the Sheffield or Chattanooga locals. Failure thereafter by
Goodman to give or send referrals to them , for the reasons set forth above, was
discriminatory treatment of them designed to make them more subservient to his
wishes and his control and his interpretation of the terms and conditions under
which they could work on the project.
To be noted further is that none of the discriminatees were deprived of a referral
or of a job because he had gone on strike in contravention of the no-strike clause of
the contract between the Company and the United Brotherhood . The record estab-
lishes that in November when all of the millwrights struck for several days , both the
District Council and the Company approved their rehire without reference to the
no-strike clause. Again , after the December 28 strike , Goodman issued referrals to
a sizable group of the strikers to report to work , as he said , on January 2; and
none of Respondent Company's officials took the position , then or at the hearing,
that any of the strikers were unacceptable because they had violated the no-strike
clause. In fact , insofar as the record shows no official of the Company ever men-
tioned the no-strike clause to any of the strikers . Further, on both occasions the
strikers were given discharge papers which indicated that they would be rehired.
In substance , Respondent Company urges as a defense the unavailability of some
of the discriminatees , who left the Demopolis and Tuscaloosa area and /or ceased
trying to get a job at the Demopolis project when they became convinced that to do
so was futile . As has been seen above there were jobs for the seven millwrights dur-
ing the first week or two after the strike while they were still seeking jobs and
before they had abandoned hope and left the area. As they were entitled to jobs
at this time , we do not get to the problem of their rights being diminished by their
later possible unavailability.
The record does not show a specific job opening for an apprentice millwright,
Vice, after the December 28 strike. The Board has held that "-
It is equally immaterial that there is no evidence that on the particular days
when he (the discriminatee ) was rejected there were job openings with the
Respondent Employers . . 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
proffered in any event.
8. The next question is whether Respondent Local 1337 is responsible for Good-
man's unlawful conduct. On the entire record I conclude that it is . The District
10 Cf. International Longshoremen's and Warehousemen's Union, et al. (Pacific Maritime
Association), 121 NLRB 938: Daugherty Company, Inc.. 112 NLRB 986, 989.
n Mountain Pacific Chapter, etc., 119 NLRB 883, 899. See, also, cases cited in foot-
note 13 thereof. See, also, United Association of Journeymen & Apprentices, etc.
(J. S. Brown-E. F. Olds), 115 NLRB 594-596.
566 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Council's bylaws which imposed closed-shop conditions, as found above, provided
in section 1 as follows:
These By-Laws shall apply to all Local Unions and members of the United
Brotherhood . . ., and shall replace and supersede all Local Union By-Laws
in this District.
The record establishes that these bylaws, as well as the trade rules, were approved by
Local 1337 as well as the United Brotherhood, and in fact, that they were written
by a committee consisting of representatives of only Local 1337. In approving
these documents, including their unlawful closed-shop provisions, Respondent Local
1337 signified in advance its approval of the enforcement of the closed-shop provi-
sions. The bylaws made clear that it was the business agent of the District Council
who was to enforce the closed-shop provisions, for they provided that-
Any member of the United Brotherhood coming into this District shall be re-
quired to deposit his clearance card with the Business Manager or [sic] the
District Council before going to work under penalty of ten dollars fine upon
conviction. However, any member coming into this District who wishes to
leave his card in his home local shall before going to work pay in foreign dues
to the Business Manager a sum equal to one month's dues plus any assessments
that are legally levied by this Union and in effect. [Emphasis added.]
Thus, in approving the bylaws and the trade rules the Respondent Local made the
business manager of the District Council its own agent as well as the District
Council's for the purpose of enforcing the closed-shop provisions. Under these
circumstances Goodman's actions under the contract and the unlawful provisions of
the bylaws and trade rules incorporated into the contract, were imputable to
Local 1337.
9. As has been found above, Respondent United Brotherhood was responsible
for the maintenance and enforcement of the 1956 agreement 12 and the general
practice under it by Respondent District Council within its jurisdictional area. The
remaining question is for what chronological period violations the complaint could
be properly issued against United.
The United was first named as a party respondent in the second amended charge
against the unions, which was served on the United on July 17, 1957. Without
question under Section 10(b) of the Act, the complaint was properly issued against
the United for all violations beginning 6 months before July 17, which was
January 17, including the enforcement of the contract and the general practice on
the project after that date, and including the refusal to refer the former employees
after that date, when the Company still had 9 vacancies in its order for 50 millwrights.
In substance, the General Counsel contends that Respondent United Brotherhood
became a party respondent prior to the service of the first charge upon it, on the
theory that earlier service of the earlier charges upon the District Council was serv-
ice upon the United because the District Council was a mere administrative arm of
the Brotherhood. The General Counsel urges the further theory that as the United
was a cosponsor with the District Council of the unlawful hiring contract and
practices under it, Business Agent Goodman, who performed the practices, was an
agent of the United as well as of the District Council, so that earlier service of the
earlier charges upon him was service upon United. Both of these theories over-
look the fact that the earlier charges made no accusations against the United
Brotherhood and that Section 10(b) requires service of the charge upon the per-
son "against whom such charge is made." All of the charges were filed by the same
individual, who was a member of United Brotherhood, knew the difference between
the parent body and the District Council, and chose to file the original and first
amended charges against only the Local and the District Council-and not the
United. Flere the earlier charges were made against Respondent Local and Re-
spondent District Council and were not made against Respondent United Brother-
hood, and no theory of agency or administrative arm or cosponsorship could have
apprised United that it was being accused of violations-thereby making it a proper
party respondent-until a charge naming it as the culpable party was filed against it.
Under these circumstances I find and hold that the complaint could properly be
issued against United only for violations on and after January 17, 1957, the be-
ginning of the 6-month period prior to the filing of a charge against it and the
service of the charge against it upon it.
10. The proof sustained the allegations in the complaints that by their agree-
ments and acts Respondents unlawfully caused the employees at the Demopolis
2 This contract was executed prior to the 6-month period under Section 10(b) of the Act.
THE H. K. FERGUSON COMPANY 567
project to pay dues, initiation fees , assessments , and/or permit fees to the unions as
a condition of employment . The constitution and laws of the United Brotherhood
contained elaborate requirements concerning just what members who work in other
jurisdictions than their own should pay for working permits, monthly dues, initiation
fees, and assessments . As has been set forth above, the bylaws of the District
Council required "before going to work" within its jurisdiction either the depositing
of a clearance card or payment of foreign dues plus any assessments , to the business
manager. Further, Peacock paid a month's dues, presumably to Local 1337, before
receiving his first referral ; Steadham , from a local in Mobile, Alabama , had to pay
a "dobie"-foreign dues of $4 per week , as the price of employment at the Demopolis
project ; Mathers and Irvin had to join one of the three locals within the District
Council, presumably Local 1337, as the price of employment. On the entire record
I hold that by requiring employees to pay dues , initiation fees, assessments , permit
fees and/or "dobies " in order to obtain job referrals and employment and retain
employment at the Demopolis project, Respondent Company further violated Sec-
tion 8 ( a)(3) and ( 1) and Respondents United Brotherhood , District Council and
Local further violated Section 8(b)(1) (A) and (2) of the Act. Argo Steel Con-
struction Company, 122 NLRB 1079; Millwrights' Local 2232, United Brotherhood
of Carpenters etc. (Farnsworth & Chambers, Inc.), 122 NLRB 300.
11. Final conclusions : On the basis of the entire record considered as a whole
I hold that by maintaining and enforcing closed-shop hiring-hall agreements and
practices giving exclusive control over the employment of millwrights at the
Demopolis project to the District Council, at all times of concern herein Respondent
District Council and Respondent Local 1337 have violated Section 8(b)(1)(A)
and 8 (b)(2), and Respondent Company has violated Section 8(a)(1) and (3) ;
and at all times on and after January 17 , 1957, Respondent United Brotherhood
has violated Section 8 (b) (1) (A) and 8 (b) (2) of the Act.
In implementation of the unlawful agreements and practices found above, dis-
criminatorily by denying referrals to the eight former employees named in the
complaints , and by refusing them employment knowing that they had been dis-
criminatorily denied referrals , at all times on and after January 3 , 1957, Respond-
ent District Council and Respondent Local 1337 have violated Section 8(b) (1) (A)
and 8 ( b)(2) and Respondent Company has violated Section 8(a)(1) and ( 3); and
at all times on and after January 17 , 1957 , Respondent United Brotherhood has
violated Section 8(b)(1)(A) and 8 (b)(2) of the Act.
By requiring all millwrights and millwright apprentices at the Demopolis project
to pay dues , initiation fees, and/or "dobies" in order to obtain job referrals and em-
ployment and to retain employment at the Demopolis project, Respondent Company
has further violated Section 8(a) (3) and ( 1) and Respondents United Brotherhood,
District Council, and Local 1337 have further violated Section 8(b) (1) (A ) and (2)
of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondents set forth in section III, above , occurring in
connection with the operations of Respondent Company described in section I, above,
have a close , intimate , and substantial relation to trade, traffic , and commerce among
the several States, and tend to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
V. THE REMEDY
Having found that certain of the Respondents have engaged in the unfair labor
practices set forth above, I recommend that they cease and desist therefrom and that
they take certain affirmative action designed to effectuate the policies of the Act.
As the agreements and practices of Respondents Company, United Brotherhood,
District Council, and Local prevented Herbert F. Roberts, Morris Grace, W. R. Vice,
N. T. Steadham, E. M. Peacock, J. E. Mathers, B. S. Irvin, and Robert Hartman
from being employed on the Demopolis project on and after January 7, 1957, the
date when no more men were due from Sheffield or Chattanooga and there were
still nine vancancies, I recommend these four Respondents jointly and severally make
each of these employees whole for any loss he may have suffered as a result thereof
by paying to each of them an amount equal to that which he would have earned as
a millwright (in the case of Vice, as an apprentice millwright) from January 7, 1957
(in the case of Respondent United, from January 17, 1957), until the employee
was again hired on the Demopolis project ( as in the case of Mathers and Irvin),
or until Respondent Company ceased using millwrights at or near the end of the
Demopolis project, less the net earnings of each during said period (Crossett Lum-
568 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ber Company, 8 NLRB 440, 497-498), said back pay to be computed on a quarterly
basis in the manner established by the Board in F. W. Woolworth Company, 90
NLRB 289. As provided in the Woolworth case, I recommend further that Re=
spondent Company make available to the Board on request payroll and other records,
in order to facilitate the checking of the amount of back pay due.
Furthermore, as I find that dues, initiation fees, assessments, permit fees, and/or
"dobies" were collected under the illegal 1956 contract and the practice of the parties
under it, as the price employees paid in order to obtain or retain their jobs, it would
not effectuate the policies of the Act to permit the retention of the payments which'
have been unlawfully exacted from the employees. In addition therefore, I recom-
mend that Respondents Company, United Brotherhood, District Council, and Local,
jointly or severally, refund to all millwrights and millwright apprentices employed
at the Demopolis project, the dues, initiation fees, assessments, permit fees, and/or
"dobies," paid by the employees as a price for their employment. Respondents'
liability for reimbursement shall include the period beginning 6 months prior to the
filing and service of the initial charge against each Respondent and shall extend to
all such moneys thereafter collected during the remainder of the project until its
completion in November or December 1957. These remedial provisions are appro-
priate and necessary to expunge the coercive effect of Respondents' unfair labor
practices. United Association of Journeymen & Apprentices of Plumbing & Pipe
Fitting Industry (J. S. Brown-E. F. Olds Plumbing & Heating Corporation), 115
NLRB 594, 597-602; Broderick Wood Products Company, 118 NLRB 38, enfd.
261 F. 2d 548 (C.A. 10); Los Angeles-Seattle Motor Express, Incorporated, 121
NLRB 1629; Lakeland Bus Lines, Incorporated, 122 NLRB 281; Indianapolis and
Central Indiana District Council, et al. (Mechanical Handling Systems, Incorpo-
rated), 122 NLRB 396; Argo Steel Construction Company, 122 NLRB 1077;
Carpenters' District Council of Rochester, et al. (Rochester Davis-Fetch Corpora-
tion), 122 NLRB 269.
In substance, Respondent Company contends that the General Counsel should not
be permitted to request the Brown-Olds remedy because of certain steps taken by
Respondents during 1958 to eliminate unlawful security clauses from their 1958
master agreement. The Board has said, "The remedy to be applied for the correc-
tion of unfair labor practices lies within the exclusive discretion of the Board. We'
believe that where an employer and a union have flagrantly ignored the closed-
shop prohibitions of the Act, the Brown-Olds remedy is required." Argo Steel'
Construction Company, supra. Further, in attempting to adjust the case-against
the Company by settlement prior the issuance of the complaint against it, the Gen-
eral Counsel pointed out that if the case was settled the full application of the
Brown-Olds remedy might be avoided. The case was not settled. Under all the
circumstances, as found above the Brown-Olds remedy is appropriate and necessary
at this time.
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. The H. K. Ferguson Company is engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. United Brotherhood, District Council, and Local 1337 are labor organizations
within the meaning of Section 2(5) of the Act.
3. By maintaining and enforcing closed-shop hiring-hall agreements and prac-
tices giving exclusive control over the employment of millwrights at the Demopolis
project to the District Council, Respondent Company has violated Section 8(a)(1)
and (3) and Respondents United Brotherhood, District Council, and Local 1337
have violated Section 8(b)(1)(A) and 8(b)(2) of the Act.
4. In implementation of the unlawful agreements and practices found above, by
discriminatorily denying referrals to the Demopolis project to Herbert F. Roberts,
Morris Grace, W. R. Vice, N. T. Steadham, E. M. Peacock, J. E. Mathers, B. S.
Irvin, and Robert Hartman, Respondents United, District Council, and Local 1337
have violated Section 8(b)(1)(A) and 8(b)(2) of the Act; and. by refusing them
employment knowing that they had been discriminatorily denied referrals, Respond-
ent Company has violated Section 8(a) (1) and (3) of the Act.
5. By requiring all millwrights and millwright apprentices at the Demopolis
project to pay dues, initiation fees, assessments, permit fees, and/or "dobies" in
order to obtain job referrals and employment and to retain employment, Respondent
MICHIGAN SCRAP COMPANY 569
Company has violated Section 8(a)(3) and ( 1) and Respondents United, District
Council, and Local 1337 have violated Section 8 (b) (1) (A) and (2) of the Act.
6. 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.]
David Goldstein , Leonard Goldstein and Manny Goldstein, Co-
Partners, d/b/a Michigan Scrap Company and Chauffeurs,
Teamsters and Helpers Local Union No. 7, International
Brotherhood of Teamsters , Chauffeurs , Warehousemen and
Helpers of America, Ind . Cases Nos. 7-CA-2003 and 7-CA-006.
August 18, 1959
DECISION AND ORDER
On May 18, 1959, Trial Examiner Louis Libbin issued his Inter-
mediate Report in the above-entitled proceeding, finding that the Re-
spondents had engaged in and were engaging in certain unfair labor
practices, and recommending that they cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. The Trial Examiner also found that
the Respondents had not engaged in certain other unfair labor prac-
tices as alleged in the complaint and recommended that the allegations
of the complaint relating thereto be dismissed. Thereafter, the Re-
spondents and the General Counsel filed exceptions to the Intermedi-
ate Report and supporting briefs.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in cormection with this case to a three-
member panel [Chairman Leedom and Members Rodgers and
Jenkins].
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 Inter-
mediate Report, the exceptions and briefs, and the entire record in
this case and hereby adopts the findings, conclusions, and recommen-
dation of the Trial Examiner.
ORDER
Upon the basis of the entire record in this case, and pursuant to
Section 10(c) of the National Labor Relations Act, as amended, the
National Labor Relations Board hereby orders that the Respondents,
David Goldstein, Leonard Goldstein and Manny Goldstein, Co-
:Partners, d/b/a Michigan Scrap Company, Benton Harbor, Michi-
gan, their agents, successors, and assigns, shall:
124 NLRB No. 74.