The Lummus Co.

National Labor Relations Board - Board Decisions

Dec 31, 1952

101 N.L.R.B. 1628 (N.L.R.B. 1952)

1628 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
THE LUMMIIS COMPANY and INTERNATIONAL ASSOCIATION OF MACHIN-
ISTS, LODGE 1276. Case No. 39-CA-215. December 31, 1950
Decision and Order
On May 13, 1952, Trial Examiner Lloyd Buchanan issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. Thereafter, the Respondent filed
exceptions to the Intermediate Report and a supporting brief. The
Respondent's request for oral argument is denied, as the record, in-
cluding the exceptions and brief, adequately presents the issues and
the positions of the parties.
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 Herzog and Members Murdock and Peterson].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds 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
this case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner, with the following additions,
modifications, and corrections'
For the reasons given below, we agree with the Trial Examiner that
the Respondent refused to hire V. C. Reneau and O. F. Tucker, because
they were not members of, or referred for employment by, the United
Brotherhood of Carpenters and Joiners of America, AFL, Local
Union No. 1423 (hereinafter called the Carpenters). We believe, as
did the Trial Examiner, that this conclusion is warranted by the facts
establishing (1) the Respondents' maintenance of a discriminatory
hiring policy and the application of such policy to Reneau and
Tucker; and (2) without regard to the existence of the said hiring
policy, the independent discriminatory refusal of the Respondent to
hire Reneau and Tucker.
As the Trial Examiner pointed out, there is no record showing that
the Respondent was contractually obligated to pursue a hiring policy
which conditioned employment (for the work here involved) upon
1In the Intermediate Report, the Trial Examiner made the inadvertent statement that
the complaint alleged the acts committed by the Respondent to be "all in violation of
Section 2 ( 6) and (7) of the Act." The complaint, in fact, alleged that the acts described
therein as violative of Section 8 (a) (1) and (3) of the Act were unfair labor practices
affecting commerce within the meaning of Section 2 (6) and (7) of the Act. Accordingly,
we hereby correct the Intermediate Report in this respect.
101 NLRB No. 238.
THE LUMMUS COMPANY 1629
membership in, or referral by, the Carpenters. However, the record
does establish that the Respondent did, in fact, follow a policy of
hiring which required membership in, or referral by, the Carpenters
for the positions involved.
As is noted in the Intermediate Report, the Respondent stated in
a letter addressed to the Board's Subregional Office at Houston, Texas,'
that, in the State of Texas, it followed "the policies and practices of
the recognized bargaining group in the area, which policies and
practices have been recognized and agreed upon between the em-
ployer's group and the various unions." The record reveals that the
"bargaining group in the area," whose "policies and practices" the
Respondent followed, was the South Texas Chapter of the Associated
General Contractors (hereinafter called the Associated). As the
Trial Examiner found, the "policies and practices" of the Associated,
which the Respondent thus followed, included an agreement to be
bound by the "By-Laws and Working Rules" (hereinafter called
By-Laws) of the Carpenters .3
A comprehensive reading of the By-Laws discloses that they impose
discriminatory restrictions upon the hiring of nonmembers of the
Carpenters for "machinery setter" work.4 The restrictions are im-
2 This letter , dated November 2, 1951, and subscribed by the Respondent 's assistant
personnel manager, L . N. Burke, appears to have been written in answer to the Subre-
gional Office 's request for information concerning the Respondent 's employment practices.
At the hearing, Burke testified that the "policies and practices " referred to in the letter
did not include the hiring of new employees . Like the Trial Examiner , we are not per-
suaded by this testimony . Our position is based upon these particular facts: (1) The
letter was written after the Respondent received a copy of the charge which alleged
primarily a refusal to hire Reneau and Tucker. Despite such clear notice of the import-
ance of its hiring policy , the Respondent did not, in the letter , exclude its hiring policy
from the general phrase "policies and practices." ( 2) The Respondent has clearly indi-
cated complete knowledge ( specifically in its answer to the complaint herein) of the
jurisdictional dispute between the Charging Union and the Carpenters, which dispute
concerns hiring primarily . Yet the Respondent made no patent effort to dissociate its
hiring policy from the "policies and practices " of the "bargaining group in the area"
until the hearing , by which time, it seems fair to infer , the Respondent had learned the
legal desirability of denying that its hiring policy was the same as that of a "bargaining
group" which had a hiring agreement with the Carpenters.
' The existence of this agreement is evidenced by an application to the Construction
Industry Stabilization Commission, dated October 25, 1951 , submitted jointly by the
Associated and the Carpenters . The application contains the following paragraph :
"We wish to further state that all negotiations for wages and working conditions between
our Local Union and the South Texas Chapter of the Associated General Contractors have
been on a verbal basis, with letters of confirmation being exchanged on all conclusions
arrived at and that our By-Laws and Working Rules have been accepted by our Bargaining
Agent and any changes which would affect the contractor are always negotiated and
approved by them before insertion in our rules , therefore , no written agreement exists
between us ." In another portion of the application , the Associated is identified as the
"Bargaining Agent."
4 For the purposes of this proceeding , the Trial Examiner used the term "machinery
setter" as definitive of the work which the Carpenters state "millwrights" are qualified
to perform . Thus, as to qualifications and job performance , he treated the terms
"machinery setter" and "millwright" as synonymous . For the purposes of clarity, the
term "machinery setter" herein refers to that category of work so defined in the Inter-
mediate Report, and the job for which the individual complainants , Reneau and Tucker,
applied.
1630 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
posed by those By-Laws' provisions which (1) forbid members of the
Carpenters to work with nonmembers, without special union permis-
sion; 5 and (2) require "millwright" foremen (who customarily possess
the power to hire and fire in the construction industry in this area)
to be members of the Carpenters and to hire only members of the
Carpenters for any work within the jurisdiction of the Carpenters
(including "machinery setter" work) .6
Thus, the Associated was bound by agreement to abide by the pro-
visions of the By-Laws and effectuated their provisions through fore-
men who were given the authority to hire and fire. Because the
By-Laws provide that "millwright" foremen must be members of the
Carpenters, it is reasonably inferable that they were, in fact, members
of this union.
We find, upon the foregoing, that the Associated's acceptance of
the Carpenters' By-Laws, as a basis of conducting operations, had the
effect of imposing upon employees, and prospective employees, the
requirement of membership in, or clearance by, the Carpenters as a
condition of employment.
The Respondent's conformance to these discriminatory practices is
established, not only by Burke's admission as related above, but also
by the specific record evidence set forth below. This evidence shows
that, in its daily operations, the Respondent actually imposed upon
its employees and prospective employees membership in, or referral
by, the Carpenters as a condition of employment, and that its hiring
practices were peculiarly geared to, and consistent with, the effectua-
tion of the discriminatory hiring scheme contemplated by the
By-Laws.
The Respondent's imposition of the discriminatory membership or
referral requirements upon employees is supported by these facts :
(1) T. M. Brown, the Respondent's general craft foreman, interro-
gated the individual complainants, Reneau and Tucker, with respect
to membership in the Carpenters at the time they applied for work; 4
(2) Brown, upon learning that these complainants were not members
of the Carpenters, told them that referral by Echols, the Carpenters'
s See particularly : "Working Rules" relating to "millwrights ," section I ; article VIII,
"Duties of Members," section 2.
6 See particularly : Article II, "Jurisdiction," sections 1 and 2 ; article IX, "Duties of
Foreman ," sections 1 and 10; "By-Laws and Working Rules Governing Millwrights,"
section 22.
4 With regard to the conversations which Reneau and Tucker had with W . H. Wilson
on May 31 and June 1, 1951 , respectively (prior to his official appointment as "millwright"
foreman ), we do not determine whether Wilson's statements are chargeable to the Re-
spondent , or whether they are more than evidentiary proof of the Respondent 's hiring
practice . We do not therefore adopt, or pass upon, so much of the Trial Examiner's
unfair labor practice findings as are predicated upon Wilson's statements to the individual
complainants.
THE LUMMUS COMPANY 1631
business agent," was requisite to employment by the Respondent; and
(3) during all the time here material, the Respondent did not hire
anyone not a member of the Carpenters to do work within the Car-
penters' claimed work jurisdiction for "millwrights."
That the Respondent's hiring procedures were peculiarly geared to,
and consistent with, the effectuation of the discriminatory hiring
scheme contemplated by the By-Laws is established, not only by the
foregoing facts, but also by additional circumstances. In this regard,
it is significant that the Respondent selected W. H. Wilson, a known
member of the Carpenters, to be its craft foreman over the men doing
"machinery setter" work and gave him power to hire and fire its em-
ployees engaged in this craft. It is of further significance that, as is
true in the case of Brown, in the only instances disclosed by the record,
in which Wilson exercised his power to hire and fire, he followed the
provisions of the By-Laws implicitly .9
We find, accordingly, that the Respondent maintained, and applied,
at all times here material, a hiring policy which unlawfully imposed
upon employees, or prospective employees, the requirement of mem-
bership in, or referral by, the Carpenters as a condition of employ-
ment. As a result thereof, the Respondent refused to hire Reneau
and Tucker because they had not complied with the illegal require-
ment. We find, further, that by this conduct the Respondent has
engaged in and is engaging in violations of Section 8 (a) (1) and (3)
of the Act.
In any event, without regard to the Respondent's maintenance of
the above-described illegal hiring policy, we consider Brown's treat-
ment of Reneau and Tucker as sufficient in itself to establish the
Respondent's discriminatory refusal to hire these men, as alleged in
the complaint. For, as is indicated above, Brown advised Reneau
and Tucker, at the time of their initial applications, that membership
9 The By-Laws of the Carpenters , and the circumstances surrounding the Carpenters'
jurisdictional dispute with the International Association of Machinists indicate clearly
that the Carpenters would not refer , for "machinery setter" work, any applicant not a
member of the Carpenters . Because, as found above , the Respondent subscribed to the
conditions attached by the Carpenters for the employment of new personnel , the Re-
spondent's requirement that new employees be referred by the Carpenters was, in fact, a
requirement by the Respondent that "machinery setters" be members of the Carpenters
as a condition of employment . Furthermore , even if it is assumed that the Carpenters
might have referred nonmembers of its union to the Respondent for employment, the
Respondent 's requirement that job applicants obtain approval from the Carpenters
as a condition of employment is in itself a discriminatory hiring condition within the
meaning of Section 8 (a) (3) of the Act . Arthur G. McKee and Company , 94 NLRB 399,
enfd 196 F. 2d 636 (C. A. 5).
9 The Respondent contends that the By-Laws were never "brought to the knowledge of
any responsible official of Respondent." Assuming, arguendo, that the existence of such
knowledge must be shown to hold the Respondent responsible for its acts, the record dis-
closes, in any event , that Brown ( a former member of the Carpenters who, in practice,
assiduously followed the provisions of the By-Laws ) , was unquestionably a responsible
official of the Respondent with extensive supervisory authority over all work of a craft
nature. We find , therefore, that this contention is without merit.
1632 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in, or referral by, the Carpenters was requisite to employment, thus
denying these individuals the opportunity to be considered for work
which the Trial Examiner properly found they were qualified to
perform .10
In reaching the above conclusions, we have considered fully the
Respondent's alternative contentions that no finding of discrimination
can be made as to Reneau and Tucker, because, allegedly, (1) these
individual complainants did not effectively request the Respondent
for employment; and (2) if these complainants did apply for work,
none was available at the time they applied, and therefore they were
required to make further requests for employment.
With respect to the Respondent's first contention, we find, in agree-
ment with the Trial Examiner, that the individual complainants did,
in fact, ask the Respondent for employment through its general craft
foremen, Brown.
Turning to the Respondent's second contention, it is true that work
may not have been immediately available on the dates the said com-
plainants applied therefor. However, we do not consider this im-
mediacy of work element material, because, in our view, the positions
involved were, in fact, available on those dates. The Respondent
could have hired Reneau and Tucker to fill the positions but for the
discriminatory conditions, even though the actual start of their work
might not have been simultaneous with their hiring. This view is
supported by the undisputed fact that the Respondent knew that the
work would begin within approximately 1 week, that it so informed
Reneau and Tucker," and that it granted these men interviews for
the purpose of considering them for hire.
Furthermore, even an assumption that the jobs were not available
when the individual complainants applied will not relieve the Re-
spondent of its liability herein. For, as is well established, where
an employer maintains a generally applicable illegal hiring policy
(as is true here), we will not require job applicants to perform the
futile gesture of reapplying for jobs as a predicate to a finding of
discrimination against the employer.'
The Remedy
As recommended by the Trial Examiner, we shall order the Re-
spondent to make whole Reneau and Tucker for any loss of pay they
10 Utah Construction Co., 95 NLRB 196.
al Reneau and Tucker applied on May 31 and June 1, 1951 , respectively ; the Respondent
hired three "machinery setters" on June 5, 1951.
11 Daniel Hamm Drayage Company , Inc., 84 NLRB 458, enfd. 185 F. 2d 1020 ( C. A. 5) ;
J. R. Cantrall , at al., 96 NLRB 786; see also : Consolidated Builders, Inc., 99, NLRB 972.
THE LUMMUS COMPANY 1633
may have suffered by reason of the above-described discriminatory
action. However, the section of the Intermediate Report entitled
"The Remedy" is modified in this manner :
(1) The Respondent shall make whole Reneau and Tucker for any
loss of earnings suffered by them by reason of the Respondent's dis-
crimination against them, by payment to them of a sum of money
equal to that which they would have earned as wages from the date
of refusal of employment 13 to the date on which employment normally
would have been terminated, absent discrimination, less net earnings
during said period. Said sum shall be computed on a quarterly basis.
The quarterly periods, hereinafter called quarters, shall begin with
the first day of January, April, July, and October. Earnings in one
particular quarter shall have no effect upon the back-pay liability for
any other quarter. We shall also order the Respondent to make
available to the Board, upon request, payroll and other records to
facilitate the checking of the amounts of back pay due.
(2) The Respondent's obligation to post copies of the notice
attached hereto as Appendix A shall be limited, in geographic area,
to such of its respective offices, places of business, construction projects,
equipment or storage yards as are within that part of the State of
Texas within which the members of the South Texas Chapter of the
Associated General Contractors operate under the terms of their
agreement with the Carpenters.
Order
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the Respondent, The Lummus Company,
Houston, Texas, its officers, agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Discouraging membership in International Association of
Machinists, Lodge 1276, or in any other labor organization of em-
ployees or applicants for employment, or encouraging membership
in United Brotherhood of Carpenters and Joiners of America, AFL,
and/or its Local No. 1423, or in any other labor organization of
employees or applicants for employment, by conditioning the employ-
ment of properly qualified applicants for employment upon member-
ship in, or referral by, the said United Brotherhood of Carpenters and
Joiners of America, AFL, and/or its Local No. 1423, or by discrimi-
is For the purposes of computing back pay, June 5 , 1951 , shall be the first day of the
back-pay period , inasmuch as this was the earliest date upon which the individual com-
plainants could have commenced working for the Respondent.
1634 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
nating in any other manner in regard to the hire and tenure of
employment of employees, or any term or condition of their employ-
ment, except insofar as such activity may be affected by an agreement,
authorized in Section 8 (a) (3) of the Act, requiring membership in
a labor organization as a condition of employment.
(b) In any manner interfering with, restraining, or coercing em-
ployees or applicants for employment in the exercise of the right to
self-organization, to form labor organizations, to join or assist Inter-
national Association of Machinists, Lodge 1276, or any other labor
organization, to bargain collectively through representatives of their
own choosing, and to engage in other concerted activities for the pur-
pose of collective bargaining or other mutual aid or protection, or to
refrain from any or all such activities, except to the extent that such
right may be affected by an agreement, authorized in Section 8 (a) (3)
of the Act, requiring membership in a labor organization as a condi-
tion of employment.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Make whole V. C. Reneau and O. F. Tucker for any loss of pay
they may have suffered by reason of the Respondent's discrimination
against them, in the manner set forth in the section of the Decision
herein entitled "The Remedy."
(b) Upon request, make available to the National Labor Relations
Board or its agents, for examination and copying, all records neces-
sary to analyze the amounts of back pay due under the terms of this
Order.
(c) Post at its office and warehouse in Houston, Texas, and any and
all other offices and projects located within the geographic confines
of the area described in the section of the Decision herein entitled
"The Remedy," and mail to V. C. Reneau and O. F. Tucker, copies of
the notice attached hereto and marked "Appendix A." 14 Copies of
such notice, to be furnished by the Regional Director of the Sixteenth
Region, shall, after being duly signed by the Respondent's representa-
tive, be posted by the Respondent immediately upon receipt thereof,
and be maintained by it for sixty (60) consecutive days thereafter, in
conspicuous places, including all places where notices to its employees
are customarily posted. Reasonable steps shall be taken to insure
that said notices are not altered, defaced, or covered by any other
material.
14 In the event 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 LUMMUS COMPANY 1635
(d) Notify the Regional Director for the Sixteenth Region, Fort
Worth, Texas, within ten (10) days from the date of this Order, what
steps the Respondent has taken to comply herewith.
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, we hereby notify our employees and applicants for
employment that :
WE WILL NOT discourage membership in INTERNATIONAL Asso-
CIATION OF MACHINISTS, LODGE 1276, or in any other labor organi-
zation, or encourage membership in UNITED BROTHERHOOD OF
CARPENTERS AND JOINERS OF AMERICA, AFL, AND/OR ITS LOCAL
No. 1423, or in any other labor organization of employees or
applicants for employment, by conditioning the employment of
properly qualified applicants for employment upon membership
in, or referral by, the said UNrrED BROTHERHOOD OF CARPENTERS
AND JOINERS OF AMERICA, AFL, AND/OR ITS LOCAL No. 1423, or by
discriminating in any other manner in regard to the hire and
tenure of employment of our employees, or any term or condition
of their employment, except insofar as such activity may be af-
fected by an agreement, authorized in Section 8 (a) (3) of the
Act, requiring membership in a labor organization as a condition
of employment.
WE WILL NOT in any manner interfere with, restrain, or coerce
our employees or applicants for employment, in the exercise of
their right to self-organization, to form labor organizations, to
join or assist INTERNATIONAL ASSOCIATION OF MACHINISTS, LODGE
1276, or any other labor organization, to bargain collectively
through representatives of their own choosing, and to engage in
other concerted activities for the purpose of collective bargain-
ing or other mutual aid or protection, or to refrain from any or
all such activities, except to the extent that such right may be
affected by an agreement, authorized in Section 8 (a) (3) of the
Act, requiring membership in a labor organization as a condition
of employment.
WE WILL make whole V. C. Reneau and O. F. Tucker for any
loss of pay suffered as a result of our discrimination against them.
All of our employees are free to become, remain, or to refrain from
becoming or remaining, members in good standing in INTERNATIONAL
242305-53-104
1636 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ASSOCIATION OF MACHINISTS, LODGE 1276, OR UNITED BROTHERHOOD OF
CARPENTERS AND JOINERS OF AMERICA, AFL, AND/OR ITS LOCAL No.
1423, 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 Act.
THE LUMMUS COMPANY,
Employer.
By ------------------------------
(Representative) (Title)
Dated --------------------
This notice must remain posted for sixty (60) days from the date
hereof, and must not be altered, defaced, or covered by any other
material.
Intermediate Report and Recommended Order
The complaint herein, as amended at the hearing, alleges that the Respondent
has violated Section 8 (a) (3) of the National Labor Relations Act, as amended,
61 Stat. 136, by refusing to employ V. C. Reneau and 0. F. Tucker, and Section
8 (a) (1) of the Act by said alleged acts, by interrogation of employees con-
cerning union membership and activities, and by restraint and coercion of
employees; all in violation of Section 2 (6) and (7) of the Act. The answer
denies the allegations of unfair labor practice, and includes various statements
and affirmative defenses, which will be considered, infra.
A hearing was held before me at Corpus Christi, Texas, from March 25 to 28,
1952, inclusive. Pursuant to leave granted to all parties, a brief was there-
after filed by the Respondent.
Upon the entire record in the case and from my observation of the witnesses,
I make the following :
FINDINGS OF FACT
I. THE RESPONDENT' S BUSINESS AND THE LABOR ORGANIZATIONS INVOLVED
It was admitted and I find that the Respondent, a Delaware corporation with
its principal office in the City of New York, is engaged at various places through-
out the United States and in foreign countries in the designing, engineering,
and construction of petroleum refineries and chemical and alcohol plants ; that
it performs services and sells materials on a multistate basis throughout the
United States and in foreign countries ; and that between and about January 1
and November 22, 1951, it performed services for Taylor Refining Company at
Corpus Christi, Texas, the situs of the instant case, valued at more than $500,000.
It was agreed and I find that the Respondent is engaged in commerce within
the meaning of the Act.
It was admitted and I find that International Association of Machinists, Lodge
1276, and United Brotherhood of Carpenters and Joiners of America, Local No.
1423, AFL, are labor organizations and admit to membership employees of the
Respondent.
II. THE UNFAIR LABOR PRACTICES
At the outset I note a basis for sympathy for the Respondent in its statement
that it has been harassed by the jurisdictional battle between the Carpenters
THE LUMMUS COMPANY 1637
and the Machinists. The existence of a possibility of settlement of such a battle'
may exacerbate an employer's feeling of frustration. But neither the quarrel
between the unions nor the failure to settle it warrants action in violation of
the Act.
The Carpenters is not a party to this action. While a violative practice is
claimed, General Counsel did not undertake to prove nor does he allege the
existence of an agreement between the Respondent and the Carpenters to en-
gage in that practice.
The testimony shows that millwrights and machinists are qualified to do the
work herein considered and for which, as found, infra, Reneau and Tucker ap-
plied. Further, although the answer alleges a distinction between the work
of machinists 2 and that of millwrights, the very jurisdictional contest described
in the answer is based on the performance and ability to perform the same
work. (Wilson, who had been a machinist for many years, joined the Carpenters
in 1947; in 1948, on his first job as a millwright, he was given by Echols 8 a
referral slip which introduced him as a journeyman millwright. He testified
that as a machinist he "was capable of setting equipment or doing any work
outside.") The difference between the two job classifications as they appear
in this case appears to be based on affiliation, whether with the Carpenters'
or the Machinists. Although the term is not altogether convenient, "machinery
setters" will be used to describe generally those who are qualified to do the
work, and without distinction based on affiliation.
All machinery setters employed on the job herein have in fact been members
of the Carpenters. Whether or not this fact indicates a practice and intent
to exclude nonmembers, as urged by General Counsel, need not be determined.
There is sufficient evidence bearing directly on the more limited issue whether
Reneau and Tucker were refused employment because they were not members
of the Carpenters.
In 1950 Reneau several times discussed with Taylor's superintendent the
matter of employment to set machinery on the job. At those times the contract
for such work had not yet been let, and Reneau in the meantime found employ-
ment elsewhere. He again spoke to Taylor's superintendent on May 31, 1951,
and was referred to Brown, the Respondent's general craft foreman. Before
speaking with Brown, Reneau met Wilson, whom he had known for some time.
Although he testified that he did not in haec verba ask Wilson for a job as
a millwright, Reneau testified that he asked Wilson how the job was going,
that Wilson told him that he understood more men were to be hired the follow-
ing week and that he would like to see Reneau on the job, and that Wilson then
took him to see Brown, who he described as the man with full authority to
hire and fire. Leaving aside for the moment the question of authority, it is
1 Cf. The Smith & Winchester Mfg. Co , 98 NLRB 1089.
In this connection , I note that the answer distinguishes between inside machinist
work and construction work . There is a recognized category of outside machinist, and
Reneau and Tucker are in that category in addition to whatever other classification their
experience warrants.
8 Echols is the Carpenters' business agent.
4 Millwrights are affiliated with and part of the Carpenters . The term "carpenters" as
herein used embraces millwrights.
5 A letter from Burke, the Respondent's assistant personnel manager, indicates that the
Respondent follows "the policies and practices " agreed upon between the Carpenters and
the South Texas Chapter of the Associated General Contractors . This is an admission
in the face of Burke's testimony that such policies and practices are followed with respect
to rates of pay and working conditions , but not hiring. The admission together with the
Carpenters ' By-Laws and Working Rules indicates a general hiring practice which is
discriminatory within the meaning of the Act.
1638 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
clear that Reneau did in fact ask both Wilson and Brown for a job. Wilson
had worked with Reneau and knew what he could do. It is understandable
that under the circumstances Reneau and Wilson spoke in general terms con-
cerning the need for additional men. It would indeed have been strange had
Reneau said, "You know I'm a millwright and machinist, and would like that
kind of a job." In fact, after Wilson's introduction, Reneau spoke in general
terms even to Brown, whom he had not previously known. The question of
experience was not raised by the latter ; the requirement of membership in
the Carpenters was. The extent to which Reneau's qualifications were con-
sidered appears to have been limited by Wilson's recommendation on introduc-
ing him to Brown, that he was "a mighty good man."
Reneau testified that he told Brown he'd like to go to work, and that the
latter told him he would have to get a Carpenters referral earl. I credit this
testimony despite Brown's denial and his testimony that he merely "greeted
[Reneau] and made him feel welcome and talked to him a few minutes." I do
not believe that Reneau was satisfied to pass the time of day and to be treated'
like a visiting dignitary.
With what may be called Brown's anticipatory refusal to employ Reneau, the
latter's experience as a machinery setter need not be considered. But it is to
be noted that he testified credibly that he has "done plenty of that work" which
Lummus was doing at Taylor.
Tucker applied at the gate on June 1, 1951, was permitted to, enter, and saw
Wilson, whom he described as the pusher on the job and who he thought was a
supervisor. He told Wilson that he was experienced and had set "plenty of
machinery." Wilson referred to Brown as the boss on the job but, according
to Tucker, stated that there was no use in seeing him until Tucker had gotten
a card from the Carpenters. But Tucker nevertheless waited to see Brown, to
whom he introduced himself. They discussed Tucker's experience, and Brown
then gave him Echols' business card, with the advice that Tucker tell Echols
that Brown had sent him. Tucker was applying for a job, as he made clear
to both Wilson and Brown, his prospective foremen; this was no abstract dis-
cussion, and I do not credit Wilson's testimony that, although they discussed
the need for men on the job, Tucker asked "if there would be a chance of getting
in the millwright organization," but "didn't say anything about a job on the
Taylor job." According to Wilson, Tucker was coy or backward (I did not
find him so) as he avoided or missed asking for a job, telling Wilson only "that
he was trying to find a job." Wilson denied telling Tucker that there was no
use seeing Brown, and testified that he introduced Tucker to Brown (although
there would appear to be no reason for such introduction or further discussion
if Tucker's inquiry was directed only toward the method of attaining member-
ship in the Carpenters). Nor do I credit Brown's testimony that, without ask-
ing for a job, Tucker inquired how he could get in touch with Echols, whereupon,
still without reference to employment on the job, and only to assist Tucker,
Brown found that he had one of Echols' cards and gave it to him. Brown
testified variously that Tucker did not and probably did ask for a job ; he ap-
peared otherwise to be quite confused and his recollection uncertain.
As noted on the record, Tucker's experience was not as impressive as Reneau's ;
but that issue was not explored ° as both Wilson and Brown pointed to member-
ship in the Carpenters (or Millwrights) as a sine qua non for employment.
While the determination of Tucker's ability was admittedly reserved, Wilson
assured him that there was "not much doubt" about his passing the test, and
"Tucker mentioned several jobs on which he had erected machinery for a short time.
THE LUMMUS COMPANY 1639
pointed out that he, Wilson, was on the Carpenters' examining board. Denied
an opportunity to take the test unless he applied to the Carpenters, and in-
formed by both Brown and Wilson that he could not get a job unless he were
sent out by the Carpenters, Tucker was thus denied employment.
Aside from the proof that both Reneau and Tucker are experienced ma-
chinery setters, I find that the refusals to employ them was not based on any
lack or claim of lack of experience.
Wohadlo, the Respondent's office manager on the job, testified that he hired
craft and other employees. The procedure as he described it included his
preparation of a requisition for men at Brown's request, approval by Prince,
the superintendent, and then the actual appearance of the prospective employees
after a call to Echols or when Wilson brought them in. It is clear that a
necessary step in the hiring procedure was either direct referral by the Car-
penters or recommendation by Wilson.
It may be, as Wohadlo testified, that when jobs were not available, applica-
tions were received and filed for future reference. But it is clear from the
testimony hereinafter described concerning the hiring of three men on June 5
after they had previously sought out Wilson at his home, that the system which
Wohadlo described was not exclusive and that both Reneau and Tucker followed
a method recognized on that type of job generally and by the Respondent
specifically.' Neither at the gate nor by the foreman was Reneau or Tucker
told that application must be made at the office : they did not progress that far.
Whether or not by agreement, there is no question about the effectiveness of
Wilson's and Brown's recommendations and consequently of the Respondent's
acceptance of the Carpenters' control of hiring. Whatever the legal effect of
approval of prospective employees by foremen on the job, and whether or not
employees were "hired'" before the office procedures were completed, the hiring
practice included prior approval by a supervisor on the job and referral by the
Carpenters.' Such approval and referral were conditioned, by the By-Laws and
Working Rules, on membership in the Carpenters, and the approval was with-
held from Reneau and Tucker because they were not members of the Carpenters.
The initial barrier having proved impenetrable (except on a condition which
the Act does not sanction), it would have been futile to approach the last in
the light of the Respondent's practice and the custom in the trade ; it was
certainly unnecessary for Reneau and Tucker to test 10 the personnel depart-
ment in view of the discrimination at the prior stage. (The evidence indicates
that those seeking employment were, on approval by the foreman, referred to
the personnel office. Reneau and Tucker were not so referred.)
4 Wilson himself and another employee hired at about the same time, Clark, were brought
into the office by Brown . Wohadlo testified that they had not applied "directly" to him;
he met them when they were brought in and hired. Wilson testified that he had previously
spoken with Brown, who promised to and did call him.
$ Wilson testified that Brown hired him. This indicates at least the impression prevalent
and the actual importance of the foreman 's approval.
9 While the answer alleges "that construction work such as that done by the Respondent
upon the job in question, has always been done by members of the Carpenters ' Union,"
the Respondent denies that it followed a closed shop practice in hiring. It is clear, how-
ever, that it "was following the procedures common in the industry " ( N. L. R. B . v. Guy
F. Atkinson Co., et at., 195 F. 2d 141 ( C. A. 9), and without authority . Official notice
may be taken of the long standing jurisdictional dispute between the Carpenters and the
Machinists . The Respondent 's method will not settle that dispute . That the decision
in this case will not either is no reason for not upholding the law. The issues here are
clear , and a determination must be made thereof . The jurisdictional dispute remains for
disposition elsewhere.
"To say that they should have is to discriminate against them in favor of those who
were sponsored by the foremen and by them brought to Wohadlo.
1640 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We come now to the question whether the refusals to receive or approve
Reneau and Tucker are chargeable to the Respondent . It Is admitted that
Brown was a supervisor at all times herein referred to and that Wilson was
on and after June 5, 1951. There is no proof that Wilson was a supervisor
before that date.
When three applicants made requests of Wilson before he became foreman, he
promised to "give them a job or try to get them on the job" when he was pro-
moted according to the promise made to him. The only different circumstance
noted to distinguish these men from the two alleged discriminatees herein is that
the latter were not members of the Carpenters : Echols did not have their name,
address, and telephone number. On June 5, when he was promoted, Wilson
called Echols and asked him to send the three men, naming them .U
Wilson effectively recommended the employment of these other men, and I
find that the Respondent is chargeable with his discrimination against Tucker.
Although jobs were not available until June 5, Wilson discriminated against
Tucker on June 1.12 when he insisted on referral by the Carpenters, and against
both Reneau and Tucker on June 5, when he failed to call them 13 However,
Wilson's discrimination is chargeable to the Respondent only as of June 5 since
he was not a supervisor before that date.
In short, the Respondent, through Brown, discriminated against Reneau and
Tucker on May 31 and June 1, respectively, and through Wilson on June 5.
(The practice of calling Echols for men continued thereafter, as the Respondent's
witnesses testified. Wilson stated that as foreman he understood that men
would be called out and hired through the Carpenters Hall in accordance with
Carpenters' rules and regulations.)
It may help in understanding the situation to point out that Brown and
Wilson were acting in a dual capacity. Fully aware of the Carpenters By-Laws
and Working Rules, and as members of the Carpenters, their obligations under
those rules, they acted for the Carpenters in hiring or recommending the hire
of new men while at the same time representing the Respondent. The latter
was fully aware of this system ; it installed and recognized it. In any event, it
is responsible for the acts of its supervisors.
The restraint and coercion alleged by General Counsel, being statements that
to obtain employment Reneau and Tucker would have to get clearance from and
become members of the Carpenters, and any interrogation concerning membership
in the Carpenters are merged with and part of the discriminatory acts found
herein.
There is no evidence of any plot among Reneau, Tucker, and the Machinists,
or that Reneau or Tucker did not act in good faith when they applied ; nor
does the Respondent press this defense.
u Wilson explained this procedure by stating that be did not have their telephone
number (although he had promised to employ them) ; Echols did. Whatever the reason,
Wilson constituted Echols a one-man hiring hall. In the light of the Carpenters' rules, we
may conclude that at this "hiring hall" restrictive practices were followed. But in any
event, and as noted above, when Reneau and Tucker were directed to Echols, membership
and referral were stressed . Since the statement and imposition of such requirements by
the Respondent 's supervisors was unlawful , whether or not referrals were in fact made
is immaterial except as corroboration. It appears clearly enough from Brown's testimony
that all of the men in this classification were sent out by the Carpenters ; the important
element is the referral of each, not whether they were given referral slips.
? Arthur G. McKee d Company, 94 NLRB 399.
38 There is no proof of discrimination by Wilson when he referred Reneau to Brown on
May 31. But he was guilty of discrimination against both Reneau and Tucker on June 5,
when he followed the method which he had previously determined upon of calling Echols
for men. Neither Reneau nor Tucker would be referred by Echols under the By-Laws
and Working Rules.
THE LUMMUS COMPANY 1641
Finally, it is to be noted that the issues herein are not moot because the work
involved has been completed, or because the amounts due Reneau and Tucker
may be small. What those amounts are is left for agreement or compliance
proceedings.
III. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section II, above, occurring in
connection with the operations described in section I, above, have a close, intimate,
and substantial relation to trade, traffic, and commerce among the several
States, and tend to lead to labor disputes burdening and obstructing commerce
and the free flow of commerce.
IV. THE REMEDY
Since it has been found that the Respondent has engaged in and is engaging
in certain unfair labor practices affecting commerce, I shall recommend that
it cease and desist therefrom and take certain affirmative action in order to..
effectuate the policies of the Act.
It has been found that the Respondent, by refusing to employ Reneau and
Tucker, discriminated against them in regard to their hire and tenure of em-
ployment in violation of Section 8 (a) (3) of the Act. Since the project has
been completed, I shall make no recommendation of employment thereon ; but I
shall recommend that the Respondent make them whole for any loss of pay
they may have suffered by reason of the discriminatory action afore-mentioned
by payment to each of them of a sum of money equal to that which he would
normally have earned less his net earnings," which sum shall be computed 15
on a quarterly basis during the period from the discriminatory refusal to employ
to the date of a proper offer of reinstatement. It is also recommended that the
Board order the Respondent to make available to the Board upon request payroll
and other records necessary to facilitate the checking of the amount of back
pay due.18
The unfair labor practices found herein indicate a purpose to limit the
lawful concerted activities of the Respondent's employees. Such purpose is
related to other unfair labor practices, and it is found that the danger of
their commission is reasonably to be apprehended. A broad cease-and-desist
order will therefore be recommended, prohibiting infringement in any manner
upon the rights guaranteed in Section 7 of the Act.
The Board has in a similar case 17 directed its order against all of the respond-
ent's operations, although directing that notices be posted only in the locality
involved. Elsewhere,"B it has limited the application of the order to the branch
of the respondent's business involved in the proceeding. General Counsel has
in this case suggested "that at the very least the order should cover the activities
of the Respondent in and about the State of Texas." In view of the peripatetic
nature of the Respondent's activities, and since the instant contract has been
completed,19 while on the other hand the Respondent's actions in other parts of
14 Crossett Lumber Company , 8 NLRB 440. See also Republic Steel Corporation v.
N. L. R. B., 311U.S 7.
Pf F. W. Woolworth Company, 90 NLRB 289.
19 Ibid.
AT Arthur G. McKee and Company, supra. See also N. L. R. B. v. United Mine Workers
of America, Dist. 23, et at., 195 F 2d 961 (C. A. 6).
S F. W. Woolworth Company, 90 NLRB 289.
19 Wohadlo testified that work was begun on December 17, 1950, and the contract terms
met on October 22, 1951, but that there was additional work until about November 22,
1951.
1642 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the United States have not been considered herein, the recommendations made
will be addressed to the Respondent in its operations within the State of Texas.3°
Upon the basis of the above findings of fact and upon the entire record in the
case, I make the following :
CONCLUSIONS OF LAW
1. International Association of Machinists, Lodge 1276, and United Brother-
hood of Carpenters and Joiners of America, Local No. 1423, AFL, are labor
organizations within the meaning of Section 2 (5) of the Act.
2. By discriminating in regard to the hire and tenure of employment of V. 0.
Reneau and O. F. Tucker, thereby encouraging membership in the Carpenters,
the Respondent has engaged in and is engaging in unfair labor practices within
the meaning of Section 8 (a) (3) of the Act.
3. By such discrimination, thereby interfering with, restraining, and coercing
its employees in the exercise of rights guaranteed in Section 7 of the Act, the
Respondent has engaged in and is engaging in unfair labor practices within the
meaning of Section 8 (a) (1) of the Act.
4. The aforesaid 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 in this volume.]
ao The Respondent maintains a branch office and a warehouse in Houston , Texas.
'.L'E%AS FOUNDRIES , INC. and INTERNATIONAL MOLDERS & FOUNDRY
WORKERS UNION OF NORTH AMERICA, AFL. Case No . 16-CA-362.
December 31, 1952
Decision and Order
On February 29, 1952, Trial Examiner Arthur Leff issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices, and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. The Trial Examiner also found
that the Respondent had not engaged in certain other unfair labor
practices alleged in the complaint and recommended the dismissal of
those allegations. Thereafter, the Respondent, the Union, and the
General Counsel filed exceptions to the Intermediate Report and sup-
porting briefs. The Respondent also requested oral argument. This
request is hereby denied because the record, the exceptions, and briefs,
in our opinion, adequately present the issues and the positions of the
parties.
The Board 1 has reviewed the rulings made at the hearing and
finds that no prejudicial error was committed. The rulings are hereby
1 Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the
Board has delegated its powers in connection with this case to a three -member panel
rMembers Houston , Styles , and Peterson].
101 NLRB No. 249.