The Marley Co.

National Labor Relations Board - Board Decisions

Jan 29, 1957

117 N.L.R.B. 107 (N.L.R.B. 1957)

TTIE MARLEY COMPANY 107
,truckc@rivers, and plant clerical employees, but excluding office clerical
employees, professional employees, guards, watchmen, and super-
visors 6 as defined in the Act, constitute a unit appropriate for the pur-
pose of collective bargaining within the meaning of Section 9 (b) of
the Act.
[Text of Direction of Election omitted from publication.]
e As discussed above, we are also excluding as supervisors, J. B. O'Neal, T. J. Chapman,
J. E. Williams. and J. E. Harris.
The Marley Company and Laurence Moore and Kenneth Divan
Local 269, United Brotherhood of Carpenters and Joiners, AFL-
CIO 1 and Laurence Moore and Kenneth Divan
United Brotherhood of Carpenters and Joiners of America, AFL-
CIO and Laurence Moore and Kenneth Divan. Cases Was. 13-
CA-1827,13-CB 352, and 13-CB-381. January 29,1957
DECISION AND ORDER
On June 10, 1955, Trial Examiner Stephen S. Bean issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondents, namely, The Marley Company, hereinafter called
the Company, and Local 269, United Brotherhood of Carpenters and
Joiners, AFL-CIO, hereinafter called the Local, 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 Intermediate Report attached
hereto. The Trial Examiner also found that Respondent Marley had
not engaged in certain other alleged unfair labor practices, and that
Respondent United Brotherhood of Carpenters and Joiners of
America, AFL-CIO, hereinafter called the International, had not
violated the Act, as alleged in the complaint, and recommended that
these allegations be dismissed. Thereafter, the General Counsel and
Respondent Local filed exceptions to the Intermediate Report. The
General Counsel also filed a brief in support of its exceptions and
Respondent Marley was permitted to file a reply brief.2
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and the briefs, and the entire record
in the case, and hereby adopts the findings, conclusions, and recom-
a The AFL and CIO having merged subsequent to the hearing in this proceeding, we are
amending the identification of the affiliation of the Unions accordingly.
9 This reply brief was accepted by the Board on August 8, 1955.
117 NLRB No. 28.
108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
mendations of the Trial Examiner with the following corrections,'
additions, and modifications.
The heart of this entire proceeding is the refusal by The Marley
Company to hire,two employees, Moore and Divan, in September
1954. Because the Company refused to hire them for the expressed
reason that Local 269 had not cleared them for employment, and
because the responsible agent of this Local Union refused to permit
them to start work at the Marley project, these two employees filed
charges against both Union and Company. Both the International
and its Local 269 are named Respondents.
The Trial Examiner found, as the record clearly shows, that at the
time of these events, there was in effect an underlying written con-
tract between the Company and the Respondent International, and a
further agreement for exclusive hiring between the Company and
Local 269. Because he believed that the underlying contract was
entirely lawful, the Trial Examiner eliminated it from his colisidera-
tion of the case and recommended dismissal of the complaint as to
the International. He nevertheless concluded, on the basis of the
local exclusive hiring agreement, that the Company and Local 269
committed unfair labor practices in joining to cause discrimination
in employment against Moore and Divan.
In his exceptions, the General Counsel contends that the Interna-
tional contract in fact establishes closed-shop conditions of employ-
ment wherever The Marley Company operates and that therefore the
complaint ought not be dismissed as against the International Union.
For the reasons stated below, we find merit in this exception. There-
fore, while we agree with the Trial Examiner's ultimate conclusion
of violations of Section 8 (a) (3) and 8 (b) (2) of the Act by the
Respondents, we deem it unnecessary to decide whether, absent the
existence of the closed-shop employment agreement, the record in this
case would suffice to support the Trial Examiner's recommendations.
On September 1, 1942, the International and The Marley Company
entered into a signed contract, still in effect, which provides as follows :
We, the firm of The Marley Company AGREE to recognize
the jurisdiction claims of the United Brotherhood of Carpenters
and Joiners of America, to work the hours, pay the wages and
abide by the rules and regulations established or agreed upon by
the United Brotherhood of Carpenters and Joiners of America
of the locality in which any work of our company is being done,
and employ members of the United Brotherhood of Carpenters
and Joiners.
The only other provisions contained in this single-page contract are
(1) that hours, wages, and other conditions of employment should
We note and correct the following inadvertent omission in the Intermediate Report :
The record shows that Respondent Company maintains its warehouse in Kansas City,
Kansas.
THE MARLEY COMPANY 109
never be different that those "enforced on all local firms," and (2)
that there would be no strikes.4
By its express terms, this agreement binds the Company to employ
members of the Carpenters International and to adhere, in any of
its operations wherever undertaken, to the "rules and regulations" of
the locals of the International. More precisely, it makes the rules
and regulations established by the local of any particular area deter-
minative of working conditions. The fact that the working rules
of Local 269 were thus incorporated into the contract by reference,
makes them no less a part of the contract than if they had been
physically embodied in the document itself.' Whether or not this
contract-,makes employment conditional upon union adherence beyond
the limitations set up out in the proviso to Section 8 (a) (3) of the
statute, turns therefore upon the provisions of these explicit working
rules. We believe that the Trial Examiner erroneously concluded that
they do not make outright membership in the union a sine qua non
of initial hiring.
In pertinent part, the working rules of Local 269 provide :
... All foremen on the work must carry a card in the U. B....
No member of 269 [Respondent Local] shall work for any con-
tractor or owner who employs on his work in any locality non-
union carpenters. . . . Any contractor to be considered fair to
the Union must employ at least one Journeyman Carpenter mem-
ber of the United Brotherhood of Carpenters and Joiners of
America on jobs of four hours or more. . . . Any contractor,
to, be recognized as a union contractor, must employ at least
one union carpenter on all jobs. . . . Any contractor may take
an apprentice on trial for two weeks, providing the applicant
holds a permit from the Union or Business Agent, and if after
such trials, conditions are satisfactory, he shall be required to
make application to become a member. . . . All men employed
to do any work in Article 4 [cabinet work, bench work, assembly
work, lay out work, machine work, saw filing, knife grinding,
auto trick, mill trucky, maintenance of machine work, build-
ing and tending dry kiln] shall be members of Local No. 269,
U. B. of C & J of A. . . . Duties of shop steward [of millmen]
will be to see that the agreement is carried out by both parties;
having charge of the union label and be responsible for the use
of same.... All Mill, Cabinet or Fixture work installed or
4 Section 102 of the Act does not preserve the validity of the 1942 agreement. All the
contract calls for is recognition of the Union and adherence to rules and regulations to be
established later unilaterally. The agreement contains no substantive terms as to wages,
hours, and other conditions of employment. Congress did not intend to accord the im-
munity of Section 102 to a contract such as this, and certainly not in perpetuity. Consoli-
dated Western Steel Corporation, et al., 108 NLRB 1041, at 1043.
5 Philadelphia Iron Works, Inc., 103 NLRB 598.
110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
erected in the jurisdiction of Local Union No. 269 shall bear
the Label of the United Brotherhood of Carpenters and Joiners
of America or come from mill where No. 269 holds jurisdiction.
The Board has already deemed working rules , orally established
as conditions of employment as outlawed by the statute, even though
they reveal fewer limitations on the freedom of hiring than those
set out above . In Carpenters Local Union No. 1028, United Brother-
hood of Carpenters, Joiners of America, etc.," it appeared only that
the union bylaws provided that ( 1) no carpenter shall work on prem-
ises where nonunion carpenters are employed ; ( 2) there shall be a
foreman possessing a union working card on jobs where three or more
carpenters are employed ; and (3 ) a foreman who permits other than
members of the union to do carpenter work shall be disbarred from
his job as foreman , As the Board found the existence of a closed
shop in that case, despite its more limited working rules prohibitions,
we can do no less here. We find , therefore ,, that in carrying out its
contract at Oakwood , Illinois , in 1954, the Company operated under
a closed-shop contract with the Respondent International , and that
thereby it violated Section 8 ( a) (3) and (1) and the Respondent In-
ternational violated Section 8 (b) (2) and 8 (b) (1) (A) of the
statute , as alleged in the complaint.
As to this aspect of the case , the Respondent International defends
primarily on the ground that the record contains no direct evidence
of enforcement of its closed -shop contract . It is not disputed, how-
ever , that the agreement is and has continuously been in existence. It
is also a fact, on this record , that in keeping with the requirements of
that contract, every carpenter at work on the Company's Oakwood
project was a member of the Union.7 Nor does it appear in this record
that any of the parties engaged in any conduct inconsistent with the
agreed upon closed -shop conditions . On the contrary , as will appear
below , their dealing at the Oakwood project effectively implemented
the basic contract 's scheme of surrendering to the Union the right to
determine all conditions of employment , including hiring . III any
event , the Board , with court approval , has consistently held that main-
tenance of an unlawful contract, apart from its enforcement is
violative of the Act.8
e 111 NLRB 1025, enforced 232 F . 2d 454 (C. A. 10).
' The local affiliation of several carpenters does not appear in the record . However,
although the constitution of the International Brotherhood , received in evidence , does not
clearly reveal the existence of membership in the International independently of member-
ship in any of its locals , it does show that membership In any of its locals or district
councils is tantamount to International membership.
8 N. L. R. B. v. F. if. McGraw and Co., 206 F. 2d 635 , at 639 (C. A. 6) ; Red Star
Express Lines of Auburn , Inc. v. N. L. R. B ., 196 F. 2d 78 , at 81 (C. A. 2) ; N. L. R. B. Y.
Gaynor News Company, Inc ., 197 F. 2d 719 ( C. A. 2) ; affirmed 347 U . S. 17; Gottfried Bak-
ing Co ., 210 F. 2d 772 (C. A. 2).
See also N. L. R. B. V. Eichieay Corporation, et el., 230 F . 2d 64 ( C. A. 6), In which the
Court of Appeals for the 6th Circuit reversed a Board finding based on the mere exist-
THE MARLEY COMPANY 111
It was within the framework of this overall unlawful discrimina-
tion and hiring that the Union caused the Company to refuse jobs to
Moore and Divan in September 1954. As set out in detail in the Inter-
lnediate Report, the Company arranged with local 269 that no car-
penters would be permitted to work at the Oakwood project unless
acceptable to the Local. On this point the record leaves no room for
doubt. Construction Superintendent Bowen told Cowdin, superin-
tendent of another company, when the latter tried to place some of his
extra carpenters, that he, Bowen, was hiring all men through Local
269. Bowen also told Moore and Divan that they would have to obtain
permits from Business Agent Hirschberger of Local 269, before they
could work. Hirschberger in turn told the two applicants that they
could not go to work without permits, that they could not choose their
own jobs but Hirschberger would do it for them. In the end, when
Moore and Divan appealed once again to Superintendent Bowen for
work, the latter dispelled any remaining doubt as to where the hiring
authority lay when he said that the matter of their hire was up to the
Local. All this superimposed upon the express and written contractual
obligation of the Company not to hire nonmembers of the Union.
That a closed-shop contract so effectively implemented by outright
surrender of the right to hire to the union itself is entirely and com-
pletely unlawful hardly needs citation of authority." With the agree-
ment and practice so clearly outlawed, it follows that any direct dis-
crimination against single applicants for employment made pursuant
to the very terms of the agreement, in each and every instance also con-
stituted a separate and direct violation of the proscriptions of the
statute.10
It would be unrealistic to say, as the Respondents apparently sug-
gest, that the arrangements and the events at the Oakwood project
bore no relationship to the master agreement between the Company
and the Carpenters International. Such a view requires a finding that
despite its overall contract, the International did not intend to have
it carried out when the Company in fact took on employees-the very
operations which the contract by its terms was intended to govern.
Conversely, it would also mean that the Local in turn ignored the con-
ence of a closed-shop agreement . In reversing the Board , however, that court relied ex-
pressly on the special fact that in that case "all of the conduct of both employer and
union has been, with strict circumspection , entirely in accord with the law." Clearly,
therefore , the court's decision in that case was based entirely upon the particular circum-
stances therein and did not intend to question the general principle, approved by that
same court in the McGraw case, that the continued existence of an unlawful contract
in and of itself violates the Act. Thus there is a very substantial distinction between the
Eachleay case and the facts here . Instead of acting "with strict circumspection , entirely
in accord with the law ," The Marley Company and the Carpenters Union arranged in 1954
for Local 269 to have full freedom and authority to put in effect the discriminatory hiring
practices established in the 1942 contract
ON. L R . B. v. F. H . McGraw and Company, supra ; N. L. R. B . v. Eichleay Corpora-
ltion, 206 F . 2d 799 (C. A 3).
10 Ebasco Services Incorporated, 107 NLRB 617.
112 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tract made on its behalf by its parent body. Instead, the two agree-
ments, one nationwide with the parent union, and the other areawide
with the Local, dovetailed so precisely as to reveal a single compre-
hensive scheme for complete evasion of the statutory ban on all closed
shops.
We also reject, as did the Trial Examiner, the assertion that this
case presents no more than a desire by The Marley Company to hire
workmen, and its search for them at the hall of Local 269, with that
Local merely agreeing to furnish employees. Such a lawful inten-
tion is hardly consistent with the Company's refusal to hire Moore and
Divan directly at the project. Nor would this view explain the re-
quirement for clearance by Local 269 before the Company would put
any man to work. Indeed, the express closed-shop contract in effect
here makes totally inapposite any other decisions, either of this Board
or of the courts, involving other types of hiring arrangements, and in
which the allegations of illegality rest on indirect or circumstantial
proof.
Accordingly, we find, as alleged in the complaint, that by maintain-
ing and enforcing their unlawful employment agreement, including
the exclusive hiring arrangement, the Respondent International and
Local 269 violated Section 8 (b) (2) and 8 (b) (1) (A) of the Act
and the Respondent Company violated Section 8 (a) (3) and 8 (a)
(1) of the Act; that by refusing to hire Moore and Divan, the Re-
spondent Company violated Section 8 (a) (3) and 8 (a) (1) of the
Act; and that by attempting to cause and causing the Company to
refuse to hire Moore and Divan, Local 269 violated Section 8 (b) (2)
and8 (b) (1) (A) of the Act.
ORDER
Upon the entire record in this case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that :
I. The Respondent, The Marley Company, Kansas City, Missouri,
and its officers, agents, successors, and assigns, shall :
(a) Cease and desist from :
(1) Encouraging membership in Respondent United Brotherhood
of Carpenters and Joiners of America, AFL-CIO, and its Local 269
by refusing to hire employees, unless they have obtained referral slips
from, or have been cleared or approved for employment by Respondent
Local 269, United Brotherhood of Carpenters ,and Joiners of America,
AFL-CIO, or by discriminating against them in any other manner
in regard to their hire or tenure of employment or any term or condi-
tion of employment, except to the extent permitted by Section 8 (a)
(3) of the Act.
THE MARLEY COMPANY 113
(2) Performing, enforcing, or giving effect to, at any of its projects
within the jurisdiction of such Local 269, including its project at
Oakwood, Illinois, the closed-shop provisions of its current written
collective-bargaining agreement with United Brotherhood of Car-
penters and Joiners of America, AFL-CIO, and its current oral under-
standing with Local 269 of said United Brotherhood, or entering into
or enforcing any extension, renewal, modification, or supplement
thereof, or any superseding agreements with the said labor organiza-
tions, containing union-security provisions, except as authorized by
the proviso to Section 8 (a) (3) of the Act.
(3) In any like or related manner interfering with, restraining, or
coercing its employees or prospective 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 permitted by Section
8 (a) (3) of the Act.
(b) Take the following affirmative action which the Board finds
will effectuate the policies of the Act :
(1) Jointly and severally with Respondent Local 269, United
Brotherhood of Carpenters and Joiners of America, AFL-CIO, make
Laurence Moore and Kenneth Divan whole in the manner set forth
in "The Remedy" section of the Intermediate Report.
(2) Preserve and make available to the Board or its agents upon
request, for examination and copying, all payroll records, social-
security payment records, timecards, personnel records and reports,
and all other records necessary to analyze the amounts of back pay
due and the rights of employment under the terms of the Order.
(3) Post at its office in Kansas City, Missouri, and at all projects
now being operated by it within the jurisdiction of Local 269, at
which carpenters and millwrights are employed, copies of the notice
attached hereto marked "Appendix A." 11 Copies of said notice to be
furnished by the Regional Director for the Thirteenth Region, shall,
after being duly signed by the Respondent Company's representative,
be posted by it immediately upon the receipt thereof, and conspicu-
ously maintained by it for sixty (60) consecutive days thereafter in
all places where notices to employees are customarily posted. Reason-
able steps shall be taken by the Respondent Company to insure that
said notices are not altered, defaced, or covered by other material.
(4) Notify the Regional Director for the Thirteenth Region, in
writing, within ten (10) days from the date of this Order, as to what
steps the Respondent Company has taken to comply herewith.
11 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."
423784--57-vol. 117-9
114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
H. The Respondent Local 269, United Brotherhood of Carpenters
and Joiners of America, AFL-CIO, and its officers, representatives,
agents and assigns shall:
(a) Cease and desist from :
(1) Causing or attempting to cause the Respondent, The Marley
Company, its officers, agents, or assigns, or any other employer to,
refuse to hire employees unless they have obtained referral slips from,
or have been cleared by, it or to discriminate against them in any other
manner in regard to their hire or tenure of employment or any term
or condition of employment, except to the extent permitted by Section
$ (a) (3) of the Act.
(2) In any like or related manner restraining or coercing employees
of The Marley Company, its successors or assigns, or of any other
employer, 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 permitted by Section 8 (a) (3) of the Act.
(b) Take the following affirmative action which the Board finds.
will effectuate the policies of the Act :
(1) Jointly and severally with Respondent, The Marley Company,,
make Laurence Moore and Kenneth Divan whole in the manner set
forth in "The Remedy" section of the Intermediate Report.
(2) Post at its office in Danville, Illinois, and all locations where
notices to members are customarily posted, copies of the notice attached
hereto marked "Appendix B." 12 Copies of said notice, to be furnished
by the Regional Director for the Thirteenth Region, shall, after being
duly signed by a representative of the Respondent Local, be posted by
it immediately upon receipt thereof and conspicuously maintained by
it for a period of sixty (60) consecutive days thereafter in all places
where notices to members are customarily displayed. Reasonable
steps shall be taken by Respondent Local to insure that said notices
are not altered, defaced, or covered by other material.
(3) Notify the Regional Director for the Thirteenth Region in
writing, within ten (10) days from the date of this Order, as to what
steps the Respondent Local has taken to comply herewith.
III. Respondents, United Brotherhood of Carpenters and Joiners
of America, AFL-CIO, and Local 269, United Brotherhood of Car-
penters and Joiners of America, AFIr-CIO, their respective officers,
representatives, and agents shall :
(a) Cease and desist from :
(1) Performing, enforcing, or giving effect to the closed-shop pro-
visions of the current written collective-bargaining agreement between
the United Brotherhood of Carpenters and Joiners of America,
AFL-CIO, and The Marley Company, and the current oral hiring
understanding between said Local 269 and The Marley Company,
128ee footnote 11.
THE MARLEY COMPANY 115
or entering into or enforcing any extension , renewal , modification or
supplement thereof or any superseding agreements containing union-
security provisions , except as authorized by,the proviso to Section
8 (a) (3) of the Act.
(3) In any like or related manner restraining or coercing em-
ployees of The Marley Company , its successors or assigns , or of any
other employer , 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 permitted by Section 8 (a) (3) of the Act.
(b) Take the following affirmative action which the Board finds
will effectuate the policies of the Act :
(1) Post at their business offices and all locations where notices to
members are customarily posted, within the jurisdiction of said Local
269, copies of the notice attached hereto marked "Appendix C." 13
Copies of said notice, to be furnished by the Regional Director for the
Thirteenth Region, shall , after being duly signed by the respective
representatives of the Respondent International and Respondent
Local 269, be posted by them immediately upon receipt thereof and
conspicuously maintained by them for a period of sixty ( 60) consecu-
tive days thereafter . Reasonable steps shall be taken to insure that
said notices are not altered , defaced, or covered by other material.
(2) Notify the Regional Director for the Thirteenth Region in
writing within ten (10 ) days from the date of this Order as to what
steps the said Respondents International and Local 269 have taken
to comply herewith.
MEMBER MURDOCK , dissenting :
In this decision the majority finds that two employees , Moore and
Divan , were unlawfully denied employment in September 1954,
because of the existence of an alleged closed-shop agreement signed by
the Employer and the International in September 1942. Absent this
agreement, the majority will not say whether or not the Local and
the Employer violated Section 8 ( b) (2) and 8 (a) (3), respectively,
when the Employer 's superintendent , Bowen, told Moore and Divan
that he would not hire them without a permit from the Local. There
are, as I see it, two main questions posed by the majority 's decision :
(1) Is the 1942 contract an unlawful agreement unprotected by
Section 102 of the Act? (2) Were Moore and Divan denied employ-
ment pursuant to the terms of this contract ? The majority answers
both of these questions in the affirmative . In view of the state of the
record and the serious consequences that flow from the majority's
answer to the second question , I shall discuss this issue first.
Neither the charge nor the complaint in this case alleges that
Moore and Divan were denied employment pursuant to the terms of
' See footnote 11
116 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the 1942 contract between the International and the Employer.
Paragraph 4 of the complaint alleges an unlawful closed-shop con-
tract between these two parties only. Paragraphs 5 (a) and 6 (a) of
the complaint allege "an unlawful agreement or arrangement"
between the Employer and Respondent Local only which required
employees seeking to do carpentry work to obtain a referral slip from
the latter as a condition precedent to employment . Paragraphs 5 (b)
and 6 (b) of the complaint allege, respectively , that the Employer
refused to employ Moore and Divan , and the Local only caused such
refusal, because of the failure of these employees to obtain referral
slips from the Local . Paragraph 11 of the complaint reads as
follows :
11. The acts of the Respondent Employer set forth in para-
graphs 4 and 5, above , and each of them, constitute unfair labor
practices affecting commerce within the meaning of Section 8
(a) (1) and ( 3) and Section 2 (6) and (7) of the Act; and the
acts of the Respondent International set forth in paragraph 4,
above, and each of them , and the acts of the Respondent Local
set forth in paragraph 6, above, and each of them , constitute
unfair labor practices affecting commerce within the meaning of
Section 8 (b) (1) (A) and (2) and Section 2 (6) and ( 7) of the
Act.
This case was tried by the General Counsel and defended by the
Employer, the International , and the Local on the theory set forth
above in the complaint, to wit, that Moore and Divan were denied
employment pursuant to an arrangement between the Employer and
the Local only, without reference to the 1942 contract between the
International and Employer , which was alleged as an entirely sepa-
rate unfair labor practice affecting the latter Respondents only. The
Trial Examiner, following the issues as framed in the complaint and
litigated at the hearing, found that : (1) The 1942 contract was not
unlawful ; (2) the arrangement between the Employer and the Local
only was unlawful ; and (3 ) Moore and Divan were unlawfully denied
employment pursuant to this latter arrangement.
Thus, it is clear that the Respondents in this case were never on
notice that they would be required to defend themselves against
charges that Moore and Divan were denied employment in September
1954, because of a 12-year-old contract between the Internationl and
the Employer, the existence of which was unknown to the Local. In
finding that Moore and Divan were denied employment pursuant to
the 1942 contract rather than the arrangement between the Local and
Bowen, the majority, in my opinion , is proceeding contrary to well-
established law and is denying the Respondents in this case their
constitutional guarantee of due process . As the Court of Appeals for
THE MARLEY COMPANY 117
the Seventh Circuit has said in N. L. R. B. v. Bradley Wash f ountain
Co., 192 F. 2d 1441149:
Of course anyone charged with violation of the law is entitled to
know specifically what complaint he must meet and to have a
hearing upon the issue presented, and, were what we have said in
this respect the only factual or legal question involved, we would
necessarily agree with respondent's position. There is a denial
of procedural due process of law when the issues are not clearly
defined and the employer is not fully advised of them. Consoli-
dated Edison Company of New York v. N. L. R. B., 305 U. S.
197, 59 S. Ct. 206, 83 L. Ed. 126. The Board has recognized the
necessity of specific charges in its Statements of Procedure 12
Fed. Reg. 5651; 13 Fed. Reg. 4871, wherein it is provided that the
complaint shall state "the facts relating to the alleged violations
of law."
The majority's findings based upon facts not alleged in the com-
plaint or litigated at the hearing is clearly an infringement of the most
elementary concepts of procedural justice. Of substantial, if not
equal, importance is the majority's implicit reversal of the Trial Ex-
aminer 's credibility findings with regard to the testimony of Union
Representative Hershberger and Superintendent Bowen. The former
testified that he did not know of the existence of the 1942 contract
when in 1954 he agreed to supply Bowen with carpenters for the Oak-
wood project. Bowen testified that his arrangement with Hersh-
berger consisted of nothing more than an oral understanding that
the latter would supply such workmen as needed. The testimony of
these witnesses is neither denied nor controverted on the record.
Crediting and relying upon the uncontradicted testimony of these wit-
nesses, the Trial Examiner found that the 1942 contract had nothing
to do with the "real dispute in this case," i. e., the denial of employ-
ment to Moore and Divan. This dispute, the Trial Examiner held,
"arose not from the maintenance and enforcement of the `employing
members clause' contained in the contract with the International
Union-which contract according to Hershberger he was unaware of
and which clause according to Bowen was never under consideration
during their dealings-but, as alleged in the portion of the complaint
dealing with the Local, from an arrangement between the Local and
the Company requiring the obtaining of referral slips from the Local
as a condition precedent to employment."
The majority does not explicitly find that Hershberger and Bowen
were lying in their above testimony or that the Trial Examiner was
wrong in crediting them. The necessary effect, however, of the ma-
jority's reasoning and conclusion is to do just that. It would be "un-
realistic," the majority finds, to say that there was no "relationship"
between the 1942 contract and the arrangement in 1954 between Hersh-
118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
berger and Bowen; the Local could not have "ignored the contract
made on its behalf by its parent body"; the 1942 contract and the 1954
arrangement between the Employer and the Local reveals "a single
comprehensive scheme for complete evasion of the statutory ban on
all closed shops." Elsewhere the majority agrees with the Trial Ex-
aminer's ultimate conclusions only because of the existence of the 1942
contract and without passing on the legality of the arrangement be-
tween Bowen and Hershberger upon which alone the Trial Examiner
relies in finding a violation. I must therefore interpret what the
majority has done to mean that the testimony of both Heershberger
and Bowen is discredited. and the Trial Examiner's contrary findings
are reversed. This the majority does without reference to, or ap-
plication of, the standards for reversing a Trial Examiner's credibility
findings set forth in Standard Dry Wall Products, Inc., 91 NLRB
544, 545.
In what appears to be a curious contradiction to the majority's find-
ing that the 1942 contract was the essential element resulting in dis-
crimination against Moore and Divan, the majority concludes that
only Local 269 violated Section 8 (b) (2) by causing the Employer
to deny employment to these employees. I must point out, however,
that Local 269 was not a party to the 1942 contract and is therefore in
the anomalous position of remedying a wrong which the International
is found to have committed while the latter escapes entirely the neces-
sary consequences of its own acts. If the majority believes that this
result satisfies due process for all of the Respondents, then I submit
that the majority is again mistaken. Due process requires not only
that the International but all parties to this proceeding be furnished
with notice of, and an opportunity to litigate fully, all facts alleged to
constitute an unfair labor practice.
The majority does not, as it cannot, specifically affirm the Trial Ex-
aminer's finding that the oral arrangement between Hershberger
and Bowen providing for the referral of carpenters by the Local was
itself unlawful. It is now well established by both Board and court
decisions that an employer may agree to hire employees only through
a union hiring hall if the union's referral system is not discriminatory
in practice or efiect.14 The record in this case shows that the Local's
referral system was fair and eminently reasonable. Carpenters who
had been longest unemployed were referred first.15 Moore and Divan
it National Union of marine Cooks and Stewards (Pacific American Shipowners Asso-
ciation), 90 NLRB 1099; Hunkin-Conkey Construction Company, 95 NLRB 433; N. L. R. B.
v. Swsnerton and Walberg Company, 202 F. 2d 511 (C. A. 9) ; N. L. R. B. v. F. H. McGraw
and Company, 206 F. 2d 635 ( C A. 6) ; Eiehleay Corporation v. N. L. R. B., 206 F. 2d
799 (C. A 3)
'S' As the Court of Appeals for the Sixth Circuit has held in N. L . R. B. Y. Turner Con-
struction Company, 227 F. 2d 498 , 501 (C. A. 6 ), affirming my dissenting opinion in that
case, 110 NLRB 1860, it is absurd to find a union violates Section 8 (b) (2) of the Act
because it does not refer one employee who demands referral to a particular job rather
than the employee who would normally be referred under a rotation system of referral.
THE MARLEY COMPANY 119
were both members of the Local in good standing. The dispute in this
case arose when Hershberger referred two other union members for
employment at the Oakwood project because they had been out of
work longer. Moore and Divan were referred to jobs some distance
further from their homes. Thus, the real dispute in this case so
far as the Local is concerned involves nothing more than an intra-
local squabble among union members for jobs closest to their homes.
While the majority most carefully refrains from making any findings
expressly in conflict with the court and Board decisions cited above,
its strained interpretation of the impact of a 12-year-old pre-Taft
Hartley contract with the International on the informal arrangement
between Hershberger and Bowen, the discrediting of the undenied
and credited testimony of these witnesses that the 1942 contract had
nothing to do with this arrangement, and the order that the Local
but'not the International must make Moore and Divan whole for loss
of pay would seem to be an affirmance not_ merely of the Trial Ex-
aminer's ultimate conclusions but of his finding, contrary to the de-
cisions cited above, that the oral arrangement was itself unlawful
and the real cause for the denial of employment to Moore and Divan
at-the Oakwood project.,
Assuming the validity of every other contention of the majority,
there is still no basis for finding that Moore and Divan were denied
employment because the International or the Local or both were enforc-
ing a closed-shop agreement. These employees were members of the
Local in good standing. Nothing in its working rules or regulations
would preclude their employment by the Employer. It is therefore
apparent that the Employer would not have been acting contrary to
the 1942 contract, even as interpreted by the majority, if Moore and
Divan were hired in preference to employees referred by' the Locale
But the Local's rotation plan, designed to assure fairness in treatment
of employees requesting referral to carpentry jobs, was not included
in its rules and regulations. It was, as the General Counsel necessarily
concedes, pursuant to this rotation plan rather than a closed-shop con-
tract that the Charging Parties did not get the jobs they wanted.
Turning the facts around, the majority insists, regardless of the state
of the record and the General Counsel's concession, that Moore and
Divan were denied employment because of a closed-shop contract
under which they were entirely eligible for employment.
I pass now to the question whether the 1942 contract between the
International and the Employer can be found unlawful under this
statute. As the Trial Examiner found, the contract on its face pro-
vides that the Employer will employ members of the International.
There is no contention that this clause is itself unlawful. The con-
tract also provides that wages, hours, and conditions of employment
shall be those prevailing in the area in which the contract may be
120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
operative. The majority finds further that the contract incorporated
by reference the rules, and regulations of Local 269 and sets forth at
length a number, but; not all, of the conditions of employment con-
tained in such rules and regulations. Thus it is clear that this con-
tract, as interpreted by the majority, is not merely a contract for
recognition and the employment of members of the International, but
contains detailed and extensive provisions relating to wages, hours,
and conditions of employment for employees represented by the Inter-
national and its various locals. The contract has never been renewed
or extended. Section 102 of this Act provides as follows :
SEC. 102. No' provision of this title shall be deemed to make
an unfair labor practice any act which was performed prior to
the date of the enactment of this Act which did not constitute an
unfair labor practice prior thereto, and the provisions of Section
8 (a) (3) and Section 8 (b) (2) of the National Labor Relations
Act as amended by this title shall not make an unfair labor prac-
tice the performance of any obligation under a collective-bargain-
ing agreement entered into prior to the date of the enactment of
this Act, or (in the case of an agreement for a period of not more
than one year) entered into on or after such date of enactment,
but prior to the effective date of this title, if the performance of
such obligation; would not have constituted an unfair labor prac-
tiee under Section 8 (3) of the National Labor Relations Act
prior to the effective date of this title, unless such agreement was
renewed or extended subsequent thereto.
The majority takes the position that the 1942 contract is not pro-
tected by the above;' section of the Act on the ground that the "agree-
ment contains no substantive terms as to wages, hours, and other con--
ditions of employment." The majority makes this finding while hold-
ing at the same time and for purposes of finding this contract unlawful
that the extensive substantive conditions of employment contained in
the Local's rules and regulations are "no less a part of the contract
than if they had been physically embodied in the document itself."
Thus, the International is in the unfortunate position of finding that
its contract, lawful on its face, is unlawful because it incorporates by
reference substantive terms and conditions of employment contained
in the Local's rules and regulations. Conversely, however, the ma-
jority holds that the contract is not protected by the specific guarantee
of Section 102 because it does not physically embody these substantive
terms of a normal collective-bargaining agreement. In my opinion,
the contrary findings of the majority cancel each other out. Either
the contract is, as the Trial Examiner found, lawful and needs no pro-
tection from Section 102 or it is a complete and effective instrument
of collective bargaining requiring adherence to detailed provisions
THE MARLEY COMPANY 121
relating to hours, wages, and conditions of employment and comes
within the definition of a "collective-bargaining agreement" within
the meaning of this section of the Act. Consolidated Western Steel
Corporation, et al., 108 NLRB 1041, 1043, upon which the majority re-
lies, is obviously distinguishable. There the contract on its face pro-
vided merely for recognition and a closed shop arrangement. It did
not contain, nor did the Board find that it incorporated by reference,
substantive terms as to wages, hours, and other conditions of
employment.
Moreover, even apart from the provisions of Section 102, this con-
tract would appear to afford no basis for finding an unfair labor
practice under a most recent decision of the Court of Appeals for
the Sixth Circuit, N. L. R. B. v. Eichleay Corp., 230 F. 2d 64 (C. A. 6).
There a contract signed by the Eichleay Corporation and the Inter-
national in 1952 contained, unlike the contract here, a closed-shop
provision on its face and had been executed at a time when such a
provision was unlawful under this Act. The contract reposed in the
national headquarters of the signatory parties. There, as here, none
of the officials of the company at the project or of the local union
were aware of the existence of such a contract. There, as here, the
dispute arose because an individual charged that he had been denied
employment because he could not obtain clearance or referral from
the local union. There, as here, the charge could not be sustained
without reliance upon the national contract. The Trial Examiner
in that case recommended that the complaint be dismissed in its
entirety (110 NLRB 1295, 1299), holding that a referral system is
not discriminatory per se absent evidence of unlawful discrimination
by the union. The Board (110 NLRB 1295) reversed the Trial Ex-
aminer's finding that the existence of the contract was not unlawful,
but did not, however, hold that the charging party had been denied
employment pursuant to the terms of this contract on the ground that
it would be "unrealistic" to believe witnesses credited by the Trial
Examiner, citing Standard Dry Wall Products, Inc., supra. Enforce-
ment of the Board's order was denied by the Court of Appeals for the
Sixth Circuit. The court held :
The mere existence of a closed shop agreement executed in
prior years, unknown to any of the officials of the unions or em-
ployers in charge of employment, cannot be held to be an un-
fair labor practice when, as in this case, all of the conduct of both
employer and union has been, with strictest circumspection, en-
tirely in accordance with the law.
The majority attempts to distinguish the above case from the instant
case on the ground that here "The Marley Company and the Carpen-
ters Union arranged in 1954 for Local 269 to have full freedom and
122 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
authority to put in effect the discriminatory hiring practices estab-
lished in the 1942 contract ." But the majority has specifically refused
to find that , absent the 1942 contract , the arrangement between Bowen
and Hershberger was in any manner unlawful . There is, of course,
not a scintilla of evidence, nor does the majority point to any, that The
Marley Company and the International made any arrangement of any
kind in 1954 as to any practices of Local 269. The majority must as-
sume what I find , that the oral arrangement between Bowen and
Hershberger was "entirely in accordance with the law." Otherwise,
the majority would appear to be holding indirectly what it does not
hold directly , that a nondiscriminatory referral system is, contrary to
Board and court decisions , unlawful . I am entirely satisfied that the
EichZeay case and the instant case are indistinguishable and that the
mere existence of an ancient pre-Taft Hartley contract , lawful on its
face, is not an unfair labor practice. -
For these reasons I dissent.
MEMBER BEAN took no part in the consideration of the above Deci-
sion and Order.
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 you that :
WE WILL NOT encourage membership in United Brotherhood
of Carpenters and Joiners of America, AFL-CIO, and its Local
269, by refusing to hire employees, unless they have obtained re-
ferral slips from, or have been cleared or approved for employment
by, Respondent Local 269, United Brotherhood of Carpenters
and Joiners of America, AFL-CIO, or by discriminating against
them in, any, other manner in regard to their hire or tenure of
employment or any term or condition of employment, except to
the extent permitted by Section 8 (a) (3) of the Act.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce our employees or prospective 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
permitted by Section 8 (a) (3) of the Act.
WE WILL NOT perform, enforce, or give effect to the closed-shop
provisions of our current written collective-bargaining agreement
with United Brotherhood of Carpenters and Joiners of America,
AFL-CIO, and our current oral understanding with Local 269
of said United Brotherhood of Carpenters and Joiners of Amer-
ica, AFL-CIO, or enter into or enforce any extension, renewal,
modification, or supplement thereof, or any superseding agree-
THE MARLEY COMPANY 123
ments with the said labor organizations, containing union-security
provisions, except as authorized by the proviso to Section 8 (a)
(3) of the Act.
WE WILL jointly and severally with Local 269, United Brother-
hood of Carpenters and 'Joiners of America, AFL-CIO, make
Laurence Moore and Kenneth Divan whole for any loss of money
they may have suffered as a result of the discrimination against
them.
THE MARLEY 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.
APPENDIX B
NOTICE TO ALL MEMBERS OF LOCAL 269, UNITED BROTHERHOOD OF
CARPENTERS AND JOINERS OF AMERICA, AFL-CIO
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 notify you, our members, that :
WE WILL NOT cause or attempt to cause The Marley Company,
its officers, agents, or assigns, or any other employer, to refuse to
hire employees unless they have obtained referral slips from, or
have been cleared by, us, or to discriminate against them in any
other manner in regard to their hire or tenure of employment or
any term or condition of employment, except to the extent per-
mitted by Section 8 (a) (3) of the Act.
WE WILL NOT in any like or related manner restrain or coerce
employees of The Marley Company, its successors or assigns, or of
any other employer, 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 permitted by Section 8 (a) (3) of the
Act.
WE WILL jointly and severally with The Marley Company make
Laurence Moore and Kenneth Divan whole for any loss of money
they may have suffered as a result of the discrimination against
them.
LOCAL 269, 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 of posting,
and must not be altered, defaced, or covered by any other material.
124 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX C
NOTICE TO ALL MEMBERS OF LOCAL 269, UNITED BROTHERHOOD OF
CARPENTERS AND JOINERS OF AMERICA, AFL-CIO, AND UNITED
BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, AFL-CIO
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 notify you, our members, that :
WE WILL NOT perform, enforce, or give effect to the closed-shop
provisions of the current written collective-bargaining agreement
between the United Brotherhood of Carpenters and Joiners of
America, AFL-CIO, and The Marley Company, and the current
oral hiring understanding between said Local 269 and The Marley
Company, or enter into or enforce any extension, renewal, modi-
fication, or supplement thereof or any superseding agreement con-
taining union-security provisions, except as authorized by the
proviso to Section 8 (a) (3) of the Act.
WE WILL NOT in any like or related manner restrain or coerce
employees of The Marley Company, its successors or assigns, or
of any other employer, 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 permitted by Section 8 (a) (3) of the
Act.
LOCAL 269, UNITED BROTHERHOOD OF CARPENTERS
AND JOINERS OF AMERICA, AFL-CIO,
Labor Organization.
Dated---------------- By-------------------------------------
(Representative )' ( Title)
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 of posting,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
These proceedings , brought under Section 10 (b) of the National Labor Relations
Act as amended ( 61 Stat . 136), herein called the Act , and consolidated by order
of the General Counsel ,' were heard in Danville, Illinois, on May 3, 1955. A con-
1 The General Counsel of the National Labor Relations Board and his representative at
the hearing will be referred to, as the General Counsel , the National Labor Relations
Board, as the Board ; The Marley Company, a corporation, as the Company ; Local 269,
United Brotherhood of Carpenters and Joiners, A F. L., as the Local ; United Brother-
hood of Carpenters and Joiners of America , A. F. L., as the Union ; and Laurence Moore
and Kenneth Divan, individuals , as the Charging Parties.
THE MARLEY COMPANY 125
solidated complaint based on separate charges duly filed and served was issued
against the Respondents, Company, Local, and Union, on April 15, 1955.
The complaint against the Company alleged in substance that in violation of Section
8 (a) (1) and 8 (a) (3) of the Act, (1) since September. 1942 it maintained and
enforced an unlawful agreement between itself and the Union providing that it
shall require membership in the Union as a condition of securing and retaining
employment for those employees performing work within the jurisdictional claims
of the Union; (2) on or about September 15, 1954, and continuing until the work
on a project it undertook for Illinois Light and Power Company at Oakwood, Illi-
nois, was completed, the Company maintained and enforced an unlawful agreement
or arrangement with the Local which required employees seeking to do carpentry
work for it at this project to obtain referral slips from the Local as a condition
precedent to employment; and (3) on or about September 21, 1954, it failed and
refused to employ the Charging Parties, because of their failure to procure referral
slips from the Local.
The complaint against the Local alleged in substance, that in violation of Section
8 (b) (1) (A) and 8 (b) (2) of the Act, (1) on or about September 15, 1954, and
continuing until the Company's work on the Illinois Light and Power project was
completed, it maintained and enforced an unlawful agreement or arrangement with
the Company which required employees seeking to do work for the Company at
this project to obtain a referral slip from the Local as a condition precedent to employ-
ment ; and (2), on or about September 20, 1954, it caused the Company to refuse
to employ the Charging Parties because of its refusal to issue referral slips to them.
The complaint against the Union alleged that in violation of Section 8 (b) (1)
(A) and 8 (b) (2) of the Act it maintained and enforced since September 1, 1942,
an unlawful agreement between itself and the Company providing that the Company
shall require membership in it as a condition of securing and retaining employment
for those employees performing work within the Union's jurisdictional claims.
The Company filed an answer in which it denied the commission of the unfair
labor practices alleged and averred that the Charging Parties inquired about employ-
ment at the project in question but that at the time it had no work available for them.
The Local and the Union filed separate answers in which they denied the commis-
sion of the unfair labor practices alleged.
At the opening of the hearing the Company moved orally to dismiss the complaint
for the reasons that it failed to set forth any violation of the Act and was not sub-
stantiated by the charges. On its face, the complaint alleges facts which, if found
to be true, constitute violations of the Act. Also there is a reasonably clear relation-
ship between the conduct set forth as the basis of the charge and the amended
charge-which does not supplant the charge-and the allegations of the complaint.
Accordingly I denied the motion to dismiss. A brief was received from the General
Counsel on May 31, 1955, and from the Company on June 1, 1955.
Upon the entire record of the case, and from my observation of the witnesses,
I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT COMPANY
The Company is a corporation duly organized and existing under the laws of the
State of Delaware , maintaining its general offices in Kansas City, Missouri, and
factories and warehouses in Kansas City, Louisville , Kentucky ; Stockton , California;
and Houston , Texas. It is engaged in the business of manufacturing and constructing
cooling towers and dricoolers throughout the United States. During the course and
conduct of its business in the year 1953, the Company rendered services valued in
excess of $ 13,500,000 of which amount , in excess of $12,150,000 was for services
rendered by it outside the State of Missouri , and it purchased materials valued
in excess of $5,000,000 , of which amount in excess of $1,000 ,000 was for materials
shipped to its Kansas City, Kansas, factory from and through other States of the
United States than the State of Kansas.
The Company admits that at all times material herein it is and has been engaged
in commerce within the meaning of Section 2 (6) and (7) of the Act, and I so find.
Jonesboro Grain Drying Cooperative , 110 NLRB 481
H. THE RESPONDENT LABOR ORGANIZATIONS INVOLVED
The Union and the Local are labor organizations which admit to membership
employees of Respondent Company.
126 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Ill. THE UNFAIR LABOR PRACTICES
A. The agreement with the Union
On September 1, 1942, the Union and the Company entered into a memorandum
of agreement providing that the Company would "abide by the rules and regulations
established or agreed upon by the United Brotherhood of Carpenters and Joiners
of America of the locality in which any work of our company is being done and
employ members of the United Brotherhood of Carpenters and Joiners." The
agreement is still in effect.
B. The hiring arrangement with the Local
About August 31, 1954, General Luther Bowen, one of the Company's construc-
tion superintendents, arrived at Oakwood, Illinois, near Danville, to assume super-
vision of erecting cooler towers which the Company had contracted to construct
for the Illinois Light and Power Company. The work was completed on December
2, 1954. Bowen brought to the job G. F. Henderson, hired as carpenter foreman
on August 31 and R. C. Henderson, hired as a carpenter on the same date. Both
had worked for the Company in other parts of the country and were experienced in
its special type of operations. They were members of the Union and "checked in
with" Bert Hershberger, business agent for the Local 2 when they arrived at Danville.
Bowen testified that: at the commencement of the Company's operations he dis-
cussed the question of the Company's need of carpenters with Hershberger; Bowen
told Hershberger he would be calling upon him for carpenters; Hershberger told
Bowen he could supply the latter with such men as he requested; whenever Bowen
needed men he telephoned Hershberger for carpenters and they were sent out; he
requested no men by name; the carpenters sent out by Hershberger had a slip of
paper identifying them as the men Bowen had ordered; he employed the services
of the Union more or less as an employment agency-his experience has been that
the men that come through the union hall are skilled-and he knows of no occasion
that Hershberger sent out nonunion men.
Hershberger testified that: Bowen asked him about obtaining carpenters; he
told Bowen he would have some available; thereafter Bowen telephoned him at
various times requesting carpenters, when Bowen called for men he sent him who-
ever was available; to some men he sent to Bowen he gave a note; he believes that
there were some men who went on Bowen's job who did not have identification
but he cannot recall who they were; he has in some instances operated from
a call list wherein the men who had been out of work the longest were sent out
to work first, he does not deny that with respect to the Illinois Light and Power
Company's project he sent men to the Company from a call list; and at various
times on that particular job he did operate from a call list.
The first employee sent to the Company by Hershberger was Allan R. Estock,
a member of the Local and its steward on the job, hired on August 31, 1954, the
same day as the Hendersons went to work.
Thereafter Hershberger sent four persons,3 who I find were members of the Local,
to the Company upon requests from Bowen who hired them on September 14 and
15, 1954.
Passing over, for a moment some of the events which took place during a period
of 6 days between September 15 and 21, 1954, when the Charging Parties intermit-
tently discussed and attempted to discuss with Bowen and Hershberger the matter
of securing employment by the Company and clearance for such employment
from the Union, Hershberger during this time sent 6 more persons,4 who I find
were members of the Local, to the Company upon requests from Bowen who hired
them on September 17 and 20. Thereafter the Company and the Local continued
the same pattern of requests, clearances, and hirings with respect to 9 5 out of the
2 As his second witness, the General Counsel called Hershberger to the stand and re-
quested permission to interrogate him under the provisions of Section 43 B of the Rules of
Civil Procedure. As Hershberger is obviously "a managing agent . . . of [an] association
which is an adverse party," I ruled, over the objections of Respondents, that the General
Counsel might interrogate him by leading questions and contradict and impeach him in all
respects as if he had been called by the adverse party Cf. N. L. R B. v. Garfunkel, et al,
162 F 2d 256, 257.
P. L Gaylen, D F Harper, C V Lutz, and Lloyd Long
J. P Wise, A. E Miller, D. It. Walker, G. G. Zick, K. A. Thornton, and Lester Ponder.
M. R Henry, H E. Farrell, H. J. Walton, C. V. Poynter, M. E. Pearson , J. M. Thomason,
Victor Harkness, W. E. Rickgauer, and J. D. O'Neal.
THE MARLEY COMPANY 127
entire number of 12 carpenters who entered the Company's employ between Septem-
ber 24, 1954, and the date the Company's work was completed in December 1954.
With respect to the 3 employees who were given work although perhaps not hired
pursuant to requests of, and referral by, the Local, I. C. Steele 6 was employed by
Bowen upon the recommendation of employee M. E. Pearson as a millwright,
on October 11, 1954, and worked for the Company until November 16, 1954; C. M.
McAndrews, a member of the Union, not a resident of the area, who had been
working for the Company elsewhere under another superintendent who went on
vacation was, by way of favor, employed by Bowen on November 1, 1954, and
worked until the job was completed; and D. E. Pearson 7 was employed by Bowen
upon the recommendation of M. E. Pearson on November 3, 1954, and worked
for the Company for 19 days. The record is silent as to whether Steele, McAn-
drews, and D. E. Pearson "checked in with" Hershberger before they went to
work with the Company as the Hendersons had done.
C. The refusal to hire the Charging Parties
1. Introduction
Moore and Divan had worked as carpenters for the George A. Fuller Company
at the Illinois Light and Power Company project a year or more before September
1954,8 under Carpenter Superintendent James W. Cowdin who testified their ability
as carpenters was "the best." At one time Cowdin had as many as 40 carpenters
working under him but by September 1954 the Fuller Company's work was de-
creasing and the number of carpenters had been reduced to 15 or 20 and at one
time went down to 7. About September 43, Cowdin told all his remaining car-
penters, including Moore and Divan, that work was running short necessitating an
early partial layoff, that if some of them could find jobs elsewhere it would help
him avoid selecting individuals for layoff and make it easier for everybody if some
of them could locate work with the result that he might not then have to lay off
anyone. Cowdin suggested the Respondent Company, whose work was increasing,
as a source of employment. He had talked to Bowen telling him he (Cowdin)
had as carpenters "the cream of the crop" and stated that if Bowen could put
any of them to work he would appreciate, it. Bowen replied that he was hiring
all men through the Local and said that when Cowdin laid off carpenters he would
hire them through the Local.
2. The applications for employment
Shortly before noon on. Wednesday, September 15, Moore and Divan approached
Bowen on the Company's job site. Moore asked Bowen if he was going to hire
any carpenters and Bowen replied that he was going to hire 4 on Friday, September
17, and 2 more on Monday, September 20. When asked about job chances, Bowen
stated he could use the men but that they would have to get a permit from
Hershberger because he hired his men through the Local. Divan stated he and
Moore were about to be laid off from the George A. Fuller job and asked Bowen
if it would be satisfactory if they finished out the week for Fuller and report for
the two jobs opening on Monday the 20th. When Bowen replied that would be
all right, Divan suggested that Bowen not call Hershberger for men to report on
Monday stating that he and Moore would see Hershberger and procure permits.9
Bowen agreed to this suggestion and arrangement. Bowen asked Moore and Divan
for their names and apparently wrote the names in a book. When the two men
asked what tools the job required, Bowen said that a couple of crescent wrenches
would • be sufficient. On September 18, Divan and Moore each purchased two
such wrenches.
The record does not disclose whether or not Steele was a member of the Union or of the
Local. When questioned as to whether Steele was 6r was not a member of any labor or-
ganization , Bowen replied, "I have no definite proof that he was "
4 The record does not disclose whether or not D. E. Pearson was a member of the Union
or of the' Local. When asked if he knew if he was a member of any labor organization,
•Bowen replied, "I do not."
e Moore testified that he worked continuously for Fuller from May of 1953 until Septem-
ber of 1954.
9 Both Divan and Moore were members in good standing of the Local at this time. How-
ever , Divan was subsequently expelled
128 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Immediately after their interview with Bowen, Divan and Moore reported to
Cowdin that Bowen had told them they could go to work for him on Monday the
20th if they got permission from Hershberger and asked Cowdin to figure up their
time in full on the night of Friday the 17th as they planned to go to work for
the Company on Monday the 20th. Cowdin complied with this request and the
men were paid off in full at the close of work on the 17th.
D. The failure and refusal of the Local to issue job clearances to the
Charging Parties
On the evening of September 15, the day of the employment interview with
Bowen, Divan telephoned Hershberger's residence. Upon being informed by Mrs.
Hershberger that her husband was not at home, Divan left a message for him, which
she said she would convey to Hershberger, that he and Moore were leaving the
George A. Fuller Company's job on the 17th, and were going to work for The
Marley Company on the 20th; that they needed a permit and he wanted to know
if it would be all right for them to go to work without a written permit. Divan
again telephoned the Hershberger residence the 2 following (Thursday and Friday)
evenings but Hershberger was not at home either time. On the following day,
Saturday, Divan went to Hershberger's home at noon and was informed that
Hershberger was out of town. Again on the next day, Sunday, September 19,
Divan went to Hershberger's house but there was nobody at home.
Early the following morning, September 20, the day he and Moore expected to
go to work for the Company, Divan reached Hershberger by telephone at his home
and told him that he and Moore were ready to go to work for The Marley Company
and asked him if they could get their permits or, in order to save time running into
Danville and back, go to the job without permits. Hershberger replied that they
could neither get permits nor go to work without them and that he had already
sent two men to the Company in their place. When Divan protested that he and
Moore had the job and were supposed to go to work for the Company that morning,
Hershberger repeated that he had already sent two men in their places and said
that he would see Divan later.
Thereupon, Divan went with Moore to Hershberger's office at the union hall
in Danville and Moore asked Hershberger how it came about that he and Divan
had not been sent out to the Company's job where they were supposed to go that
morning. Hershberger replied that he was going to tell Moore something, that
Moore and Divan were not going around picking their own jobs. He reiterated
that he had already sent two men to the Company in Divan's and Moore's places
When Moore informed him that Divan had told Mrs Hershberger that he and
Moore were going to work for the Company and would like to get work permits
and that Mrs. Hershberger had said she would tell her husband, Hershberger
asserted that he did not care, that Moore and Divan were not going to work where
they pleased but that he would send them out to jobs where he pleased. When
Moore replied that one business agent had been fired for doing that, Hershberger
rejoined that Moore could tear down working conditions if he wanted to but that
he was rotating work and sending to jobs men who had been out of work the
longest."
As Divan and Moore started to leave the office Hershberger said there might be
job openings in Decatur, Illinois," whence Wayne Kaiser, foreman for Millinger
Contracting Company, had telephoned that he needed carpenters. Hershberger
wrote Kaiser's name on a piece of paper, handed it to Moore and the interview
ended."
i0 Although it is clear that Hershberger had sent Thornton and Ponder to the job that
very morning, Hershberger's version of this conversation was that as near as he could
recall it Divan and Moore ordered him to send them and told him he was going to send
them to The Marley Company for work ; that was the first he knew about the Company
needing them in particular that day ; he had no occasion to know that the Company called
for them ; he could not force a man down a contractor's throat; and he could not send
men to a company where an employer was not employing anybody.
11 Decatur is about 80 miles away from the Charging Parties' homes ; Fuller's and the
Company's work at the Illinois Light and Power project was 3 to 5 miles from their
residences.
12 The Charging Parties succeeded in getting jobs from Millinger on September 24, the
same day as two other members of the Local, Henry and Farrell, obtained work from the
Company through Hershberger They worked on the job in Decatur for 2 or 3 weeks until
they were recalled by Geoi ge A. Fuller Company through the Local
THE MARLEY COMPANY 129
E. The Company's refusals to employ the Charging Parties without job clearances
from the Local
Upon leaving Hershberger's office Divan and Moore, after consulting counsel,
immediately proceeded to the Board's Regional Office in Chicago. Acting upon
advice received there, they returned to Danville and the following morning Tuesday,
September 21, went to see Bowen at the Company's job site. Moore told Bowen
that he and Divan had been prepared to report for work the preceding day but
they had run into the obstacle of Hershberger's refusal to give them permission to
work. Moore then asked Bowen if he would hire him and Divan without a permit.
Bowen replied that he absolutely would not hire them, that the matter of their hire
was up to the Local; that Hershberger took care of hiring for him and that he
could not put them to work under any circumstances without a permit."
F. Contentions-Conclusions
1. The claim that the Union and the Company maintained and enforced an
unlawful hiring agreement
It is the General Counsel's contention that Respondent Union, i. e., United
Brotherhood of Carpenters and Joiners of America, A. F. L., was responsible for
a discriminatory hiring arrangement. The only allegation that the Union com-
mitted unfair labor practices is that it maintained and enforced an agreement
providing that the Company, "shall require membership in the Respondent Inter-
national ( the Union ) as a condition of securing and retaining employment."
The General Counsel relies upon two aspects of the 1942 contract to establish his
contention that the Union and the Company have acted in an allegedly unlawful
manner, •i. e., (1) the agreement therein that the Company shall abide by the rules
of the Local; and (2) the agreement therein that the Company shall employ
members of the Union.
Turning first to the second phase, it is my opinion that the agreement to employ
members of the Union is not violative of the Act. Insofar as the Charging Parties
are concerned, they were members of the Union's Local and it is obvious that they
could not have been denied employment because of nonmembership. Although
it was shown to my satisfaction that 23 of the total number of 25 employees who
were hired by the Company between August 31 and November 3, 1954, were mem-
bers of the Union or of the Local, it was not proven, and I cannot infer, although
one may suspect, that 2 of them 14 who were hired were members of either.
The phrase to "employ members of the United Brotherhod of Carpenters and
Joiners" does not bind the Company to hire union members exclusively. Although
this record definitely establishes the fact that most of the carpenters the Company
hired were members of the Union or of the Local, it does not conclusively appear
that all hired were such members. Since the 1942 contract does not require that
only members of the Union shall be employed, the clause in question appears to be
lawful on its face. In Eichleay Corp. v. N. L. R. B., 206 F. 2d 799 (C. A. 3), the
court held that the factor in a contract with respect to hiring which makes it an
unfair labor practice in violation of the Act is the agreement to hire "only" union
members referred to the employer. Thus, the court said (803) :
We agree with Eichleay that "The factor in a hiring-hall arrangement which
makes the device an unfair labor practice is the agreement to hire only union
members referred to the employer." Del E. Webb Construction Co. V.
N. L. R. B., 8 Cir., 1952, 196 F. 2d 841, 845.
So far as the Union, as distinguished from the Local, is concerned the record does
not establish the maintenance of any understanding that only its members shall be
employed.15 Moreover, the real dispute in this case arose not from the maintenance
,and enforcement of the "employing members clause" contained in the contract with
the Union-which contract according to Hershberger he was unaware of and which
clause according to Bowen was never under consideration during their dealings-
but, as alleged in the portion of complaint dealing with the Local, from an arrange-
11 Questioned as to whether he told the Charging Parties he would absolutely not put
them to work without a referral slip, Bowen obliquely replied "It has been customary
to hire men through the Union and it is a customary thing to get an identification slip
of some kind "
14 Steele and D E. Pearson See footnotes 6 and 7, supra.
15 American Pipe and Steel Corporation, 93 NLRB 54, 55
423784-57-vol. 117-10
130 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ment between the Local and the Company requiring the obtaining of referral slips
from the Local as a condition precedent to employment.
Reverting now to the contract agreement that the Company shall abide by the
rules of the Local, the General Counsel submits that by virtue of this agreement
being enforced in conjunction with article 5 of the Local's Working Rules provid-
ing that "all men employed (to do any cabinet work, bench work, assembly work,
lay out work, machine work, saw filing, knife grinding ) shall be members of the
Local," as well as in connection with certain of the Local's bylaws and one section
of the Union's constitution, a closed shop resulted. The emphasized bylaws concern
apprentices holding permits from the Local, foremen being union members, mem-
bers not working for contractors employing nonunion carpenters, the having of at
least 1 union member on jobs lasting 4 or more hours and installing fixtures bearing
the union label: the cited section of the constitution proscribes the use of the
union label where other than members of the Union are employed. None of these
five bylaws nor the provision in the constitution warrant, much less require, a find-
ing that membership in the Union is a sine qua non of employment by the Company.
It was the General Counsel's burden to prove by a fair preponderance of the sub-
stantial evidence that an agreement expressed in the words of the crucial article 5
that "all men employed ... shall be members," was maintained and enforced.
As has been pointed out, it was not shown that all men employed by the Company
at the Illinois Light and Power Company project were members of the Union.
In the face of Hershberger's undenied testimony that he was unfamiliar with the
1942 contract, that he and Bowen never discussed the bylaws and Working Rules
of the Local and that he never gave Bowen a copy of them, it can scarcely be found
that the General Counsel has sustained the burden of proving by the weight of sub-
stantial evidence that on the basis of the maintenance and enforcement of an
agreement deriving from the correlation between the two documents, none but
members of the Union were employed. There is on the other hand, (as will be
pointed out later in the ensuing subsection of this report) substantial evidence that
the actual reason applicants failed to procure jobs was because of a cause quite apart
from the maintenance and enforcement by the Union and the Company of any rule
requiring union membership. In the absence of any evidence that Hershberger and
Bowen deprived anyone of the opportunity to work for the Company because of
nonmembership in the Union and the lack of proof that any action on their part
stemmed from any prior agreement between the Union and the Company, I am
unable to find under the facts of this case that the Union and the Company be-
tween each other have, as alleged, maintained and enforced an unlawful agreement
since 1942. Cf. Mohawk Valley and Vicinity District Council, etc. (Grow Con-
struction Co., Inc.) 109 NLRB 522.
2. The claim that the Company and the Local maintained and enforced an unlawful
hiring agreement or arrangement
As appears in section III, B, above, when Bowen arrived in Danville late in
August 1954, he told Hershberger he would call upon him for carpenters and Hersh-
berger said he would supply them; thereafter Hershberger selected from a call list,
identified, and sent carpenters to Bowen as the latter requested them; Bowen used
the Local as a hiring hall and employed at least 20 out of a total of 25 carpenters
procured through Hershberger and 2 of the remaining 5 "checked in" with Hersh-
berger; Bowen told Cowdin he hired all men through the Local and when Cowdin
laid off carpenters he would hire them through the Local; Bowen told the Charging
Parties on September 15 that he could use their services but they would have to get
a permit from Hershberger because he hired carpenters through the Local: Hersh-
berger told the Charging Parties on September 20 that, they could not get permits
nor go to work without them, they were not picking their own jobs, were not going to
work where they pleased, he would send them to jobs where he pleased, and he was
rotating work by sending to jobs men who had been out of work the longest; and
Bowen told the Charging Parties on September 21, that he absolutely would not
hire them and could not hire them without permits from the Local, the matter of
their hire was up to the Local and Hershberger took care of hiring for him.
It is apparent from the above facts that Respondent Local through its business
agent , entered into and maintained and enforced an unlawful oral agreement or
arrangement with Respondent Company, requiring as a condition precedent to
employment referral or clearance of job applicants by the Local.16
Accordingly I conclude that by this unlawful agreement and the practice pursuant
thereto, Respondent Local violated Section 8 (b) (2) and (1) of the Act and that
16 109 NLRB 522, supra.
THE MARLEY COMPANY 131
by its adoption of such agreement and participation in such practice Respondent
Company violated Section 8 ( a) (3) of the Act.
The fact, if it be a fact, that 3 17 out of 25 employees may have procured jobs in
disregard of the practice of first having either procured clearance or referral slips
from Hershberger, thus disclosing that possibily the unlawful arrangement was not
universally adhered to during the 3 months while the Company 's operations in Oak-
wood were in progress , proves no more than that the agreement may have been
honored more in the observance than in the breach.
3. The claim that the Company unlawfully refused to employ the
Charging Parties
As appears above, in section III, C and E , Bowen told Cowdin that when
the latter laid off employees he would hire them through the Local , that he told
the Charging Parties he could use them but they would have to get a permit from
Hershberger because he hired through the Local and that it would be all right if
they finished out their jobs with Fuller and reported to him for work September 20.
On the strength of Bowen 's statement , the Charging Parties purchased tools needed
for the Company's work , thus indicating their belief that Bowen was going to put them
to work. When on September 21, they reported to Bowen, who had hired two em-
ployees endorsed by Hershberger in their stead , that Hershberger had refused them
permission to work for the Company , Bowen stated that he could not put them to
work under any circumstances in the absence of such permission.
It is well settled that it is unlawful for an employer, as between two union members,
to hire one because he alone is sponsored by a union.18
It is clear to me that Bowen was prepared to hire Moore and Divan on September
20 and would have hired them had it not been for the fact that Hershberger refused
to clear them but approved two others instead . So far as the record shows, Bowen
knew nothing about the qualifications of the two men (Thornton and Ponder) 19 who
were dispatched to him , but accepted them although he had informed Moore and
Divan-with respect to whom Cowdin who testified they were "the best ," had told
him his carpenters were the cream of the crop-they might report to work. Were
not these circumstances sufficient to render inescapable the conclusion that Bowen
hired Hershberger's nominees rather than the Charging Parties solely because the
former two were sponsored by the Local and the latter two were not, all doubt con-
cerning the discriminatory nature of the refusal to hire are dispelled by Bowen's
statement that under no circumstances would he or could he hire the Charging Parties
without Hershberger 's approval.
The Company ( and apparently the Local as well ) contend that the Company had
no work available for Moore and Divan when they applied , for the second time,
after Thornton and Ponder had been designated and hired . The fallacy under-
lying this contention is twofold : (1) They would have been hired on September 20
to fill the two jobs which Bowen had previously told them were available had it not
been for Hershberger's conduct in referring two other employees in their stead and
(2) in any case, the discrimination against them did not depend on the availability
of jobs since upon the communication to them of the existence of the discriminatory
hiring policy, any further job application , as was proved by their rejection on Sep-
tember 21 , would have been futile.
In summary then, I find that by refusing to hire Moore nad Divan because they
lacked the endorsement of the Local , the Company discriminated against them in
violation of Section 8 (a) (3) and (1) of the Act , and that encouragement of union
membership was a natural and foreseeable result of such conduct . Turner Con-
struction Company, 110 NLRB 1860.
4. The claim that the Local unlawfully caused the Company to refuse to employ
the Charging Parties
As abundantly appears in section III , D, and elsewhere above, the Local's refusal
to give clearances to Moore and Divan was based on Hershberger's assertion to them
"It is worthy of note that 2 of these 3 men were the last to be employed, that only 2
others were hired later than the third and that the 3 worked for the Company for an
average of less than 22 working days each
18 Cf Radzo Onlcers' Union v. N. L. R. B , 347 U. S 17, where as here the employer
decided not to hire a union member after the union refused to approve him
19 It is worthy of note that these men were "terminated" in September after 8 days and
2 other men were hired the next day while all but 1 of the remaining 23 carpenters re-
mained in the Company's employ through various dates subsequent to the middle of
November until shortly before, or until the date of, the job's completion.
132 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that he selected for jobs, members who had been unemployed the longest. The
testimony of the Charging Parties in this regard was consistent with Hershberger's
own testimony that he has in some instances operated from a call list wherein the
men who had been out of work the longest were sent out to work first, that he
does deny that with respect to the Company 's project he sent men to the job from a call
list and that at various times on that particular job he did operate from a call list.
In the Radio Officers case ( footnote 18, supra) the basic facts were quite similar
to those in the instant case. There, as here, the employer declined to hire a union
member whom the union had refused to approve . There, as here , the Union 's refusal
was based on the theory that others were higher on the call list than were the referral
seekers. In finding in Radio Officers that the Union had caused the employer to
discriminate in violation of Section 8 (a) (3) (and had thereby violated Section 8
(b) (2) of the Act) the Board majority said in part : ". . . discrimination aimed at
compelling obedience to union rules ( in this case the job rotation principle) en-
courages membership in a labor organization no less than discrimination designed
to combat dual unionism."
In affirming the Board, the Supreme Court found that the purpose of the Union
in causing the discrimination by the employer was "to encourage members to per-
form obligations or supposed obligations of membership " and that encouragement of
union membership is a "natural and foreseeable consequence of any employer dis-
crimination at the request of a union ." Thus in Radio Officers, the refusal of the
union to grant clearance to the complainant was deemed sufficient to establish a
violation of Section 8 (b) (2). In the instant case although Bowen had told Moore
and Divan he would hire them if Hershberger granted them job clearances , the latter
refused to refer them and endorsed two others whom the Company promptly hired.
As has been stated , but for this action by the Local the Company would have hired
the Charging Parties. It follows that the Company's failure to employ them was
the intended and foreseeable result of the Local 's action.
Under these circumstances and all the pertinent facts, I find, in conclusion, that
the Local attempted to cause and did cause the Company to cast aside Moore and
Divan in favor of its own nominees , thereby violating Section 8 (b) (2) and 8 (b)
(1) (A) of the Act.
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. Respondent Union and Respondent Local are labor organizations within the
meaning of Section 2 (5) of the Act.
2. Respondent The Marley Company has engaged in unfair labor practices within
the meaning of Section 8 (a) (1) and (3) of the Act.
3. Respondent Local 269, United Brotherhood of Carpenters and Joiners , A. F. L.,
has engaged in unfair labor practices within the meaning of Section 8 (b) (2) and
8 (b) (1) (A) of the Act.
4. Respondent United Brotherhood of Carpenters and Joiners of America , A. F. L ,
has not engaged in unfair labor practices as alleged within the meaning of Section
8 (b) (2) and 8 (b) (1) (A ) of the Act.
The aforesaid unfair labor practices having occurred in connection with the
operations of the business of Respondent , The Marley Company as set forth in
section I , above, have a close, intimate , and substantial relation to trade, traffic, and
commerce among the several States, and substantially affect commerce within the
meaning of Section 2 (6) and (7) of the Act.
THE REMEDY
Having found that the Respondents , Company and Local , engaged in certain unfair
labor practices, I shall recommend that they cease and desist therefrom and that they
take certain affirmative action designed to effectuate the policies of the Act , as more
fully defined in the section below.
I shall recommend , among other things, that the Respondents , Company and Local,
jointly and severally make the Charging Parties whole for any loss of pay they may
have suffered by reason of the discrimination against them by payment to each of
them of a sum of money equal to that which each normally would have earned
during the period from September 20, 1954, until the date each normally would
have been laid off by the Company in the absence of unfair labor practices, less his
net earnings during such period. Back pay shall be computed in accordance with
the formula established in F. W. Woolworth Company, 90 NLRB 289.
[Recommendations omitted from publication.]