Turner Construction Co.

National Labor Relations Board - Board Decisions

Dec 16, 1954

110 N.L.R.B. 1860 (N.L.R.B. 1954)

1860 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
TURNER CONSTRUCTION COMPANY and CARL M. FISHER
INTERNATIONAL UNION OF OPERATING ENGINEERS , LOCAL 917, AFL and
CARL M. FISHER . Cases Nos. 10-CA-1982 and 10-CB-215. Decem-
ber 16,1954
Decision and Order
On August 6, 1954, Trial Examiner Ralph Winkler issued his Inter-
mediate Report in the above-entitled proceeding, finding that the
Respondents had not engaged in the unfair labor practices alleged in
the complaint, and recommending that the complaint be dismissed in
its entirety, as set forth in the copy of the Intermediate Report at-
tached hereto. Thereafter, the General Counsel filed exceptions to the
Intermediate Report together with a supporting brief, and the Re-
spondents filed briefs in support of the Intermediate Report.
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 Interme-
diate Report, the exceptions and briefs, and the entire record in the
case, and hereby adopts the findings, conclusions, and recommenda-
tions contained in the Intermediate Report only to the extent that they
are consistent with the following :
1. The Trial Examiner found that the Respondent Company had
not discriminated against Fisher, in violation of Section 8 (a) (3) and
(1) of the Act, and that the Respondent Union had not caused or at-
tempted to cause the Company to discriminate against Fisher, in vio-
lation of Section 8 (b) (1) (A) and (2) of the Act. The General
Counsel excepts to these findings. We find merit in the exceptions.
The facts as found by the Trial Examiner and as shown by the
record may be briefly stated as follows :
On May 10, 1954, the Respondent Company hired Ridge through
the Union to operate its high lift tractor at its construction project in
Chattanooga, Tennessee. On May 12, Ridge having proved unsatis-
factory, the Company's project superintendent, Kube, determined to
replace him. Kube was told by his assistant, Stewart, that Carl
Fisher, a member of the Union, was available and that he was qualified
to fill the job.' However, Kube chose to call the Union's business
agent, Jones, on the same day and in effect told Jones that he (Kube)
was prepared to hire Fisher unless the Union had someone else avail-
able. Jones offered to dispatch another operator whom Kube agreed
to hire, although Kube, so far as the record shows, had no basis for
determining, and made no effort to determine, the qualifications of
1 Fisher had worked for about 4 weeks on the Company' s project as a high lift tractor
operator in the employ of a subcontractor of the Company . His work had been super-
vised by Stewart.
110 NLRB No. 237.
TURNER CONSTRUCTION COMPANY 1861
the Union's nominee as compared with those of Fisher. Upon learn-
ing that the job had been filled in this manner, Fisher called upon
Jones, who told Fisher : "You're not even listed out of work... .
'That's the reason you're not entitled to it, one reason . . . the other
reason is that they've [sic] got men that's been out of work three or
four months. . . . I've got four experienced highlift operators and
I'll send them all on the job before you'll get it." 2
Jones added that it "looked like there'd been a little finagling going
on up there" and "that the Union did not allow anyone to go out and
get jobs of their own."
As already stated, the Trial Examiner found no violation of the
Act by the Company or the Union. With respect to the Company, the
Trial Examiner reasoned (1) that it was not necessarily unlawful for
an employer to call upon a Union for personnel and (2) that the Com-
pany's motivation in this case was not unlawful because Kube's rea-
son, as he testified, for calling the Union on May 12 to obtain a re-
placement for Ridge was because he felt responsible for the Union's
failure to send out a qualified operator in the first instance.'
Needless to say, we agree with the Trial Examiner that it is not
necessarily unlawful for an employer to hire an employee with knowl-
edge of his union membership. It is however, well settled that it is
unlawful for an employer to hire 1 employee rather than another be-
cause the employee hired is a union member' or for an employer,
as between 2 union members, to hire 1 because he alone is sponsored
by the Union .5 In the case at bar it is clear to us, and is in effect ad-
mitted by the Company through Kube, that Kube was prepared to
hire Fisher and would have hired him but for the fact that the Union,
when given an opportunity to approve Fisher, pointedly refrained
from doing so and proposed that the Company hire another. So far
as the record shows, Kube did not even know the name of the oper-
ator the Union proposed to dispatch and made no inquiry as to his
qualifications. Yet he agreed to accept this operator sight unseen in
preference to Fisher, an operator of proven competence. Under these
circumstances, the conclusion is inescapable that Kube hired the
Union's nominee in preference to Fisher, not because the former was
better qualified than Fisher or because of some other nondiscrimina-
tory factor, but solely because the other operator was sponsored by the
2 The quoted statements are recited in Fisher's uncontradicted version of his conversa-
tion with Jones. The Trial Examiner made no credibility findings with regard to other
portions of Fisher's testimony which were in conflict with that of other witnesses. As no
basis appears for discrediting Fisher, at least where he is not contradicted , we credit his
testimony regarding his conversation with Jones.
8 Kube testified , and we find , that Ridge had been dispatched by the Union under a mis-
apprehension induced by Kube as to the type of vehicle Ridge was to operate.
4 E. g., Bickford Shoes, Inc., 109 NLRB 1346.
5 Radio Officers' Union of the Commercial Telegraphers Union, AFL v. N. L. R. B., 347
U. S. 17.
1862 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union and Fisher was not. Under the decision of the Supreme Court
in the Radio Officers' case, supra, discrimination by an employer
against an employee (whether or not a union member) because he is
not sponsored by a union suffices to establish a violation of Section 8
(a) (3) and (1) of the Act.
In the Radio Officers' case the facts were strikingly similar to those
in this case at bar. There, as here, the employer decided not to hire a
union member after the union refused to approve him. There, as here,
the union's refusal was based on the fact that the job applicant did
not have sufficient seniority on its list of unemployed members. In-
finding in that case that the union had caused the employer to dis-
criminate in violation of Section 8 (a) (3) (and had thereby vio-
lated 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) encourages 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 perform obligations or supposed obligations
of membership" and that encouragement of union membership is a.
"natural and foreseeable consequence of any employer discrimina-
tion at the request of a union."
Therefore, we find that, by refusing to hire Fisher because he lacked
the endorsement of the Union, the Company discriminated against
him in violation of Section 8 (a) (3) and (1) ; that, by withholding its
endorsement of Fisher because of its job rotation policy, the Union
attempted to and did cause the Company to violate Section 8 (a) (3) ;
and that, by such conduct, the Union violated Section 8 (b) (2) and
8 (b) (1) (A) of the Act.
. Contrary to the Trial Examiner, we deem it immaterial that, in
acquiescing in the Union's choice of a replacement for Ridge, the Com-
pany's motive was to make amends to the Union for not having given
it a proper description of the job when Ridge was dispatched. It hav-
ing been established that the Company refused to hire Fisher because
of lack of union sponsorship, we find that, as encouragement of union
membership was a natural and foreseeable result of the Company's
conduct, the accomplishment of that result was intended by the Com-
pany and was at least one of the Company's motives. The fact that
the Company may have had other lawful motives is no defense under
the Act. The Board and courts have frequently rejected the conten-
tion by an employer that, in yielding to a union's demand that he dis-
criminate in hiring or discharging employees, he was acting for legiti-
TURNER CONSTRUCTION COMPANY 1863
mate business reasons or under strong economic pressure.6 No reason
appears in the case at bar for giving any more weight to the motive
ascribed to the Company by the Trial Examiner.
Nor do we agree with the Trial Examiner that the Union may not
be found to have caused the Company to discriminate against Fisher,
in the absence of threats, promises, or an unlawful hiring hall arrange-
ment. In Subgrade Engineering Co.,7 a majority of the Board re-
jected the contention that a request by a union for discriminatory
action, unaccompanied by threats or promises, was not sufficient to
establish a violation of Section 8 (b) (2).6 In the Radio Officers' case,
supra, the refusal of the union to grant clearance to the complainant
was deemed sufficient to establish that it had caused the discrimination
against him. In the instant case, although put on notice by Kube that
he was prepared to hire Fisher if the Union had no objection, the
Union nevertheless proposed the hiring of another. It is clear, and we
find, that but for this action by the Union the Company would have
hired Fisher, and that the Company's failure to hire Fisher was the
intended and foreseeable result of the Union's action. Under these
circumstances, we find that the Union attempted to and did cause the
Company to pass over Fisher in favor of its own candidate, thereby
violating Section 8 (b) (2) and 8 (b) (1) (A) of the Act.
THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondents set forth above, occurring in con-
nection with the operations of the Respondent Company, 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.
THE REMEDY
Having found that the Respondents engaged in unfair labor prac-
tices, the Board will order them to cease and desist therefrom and to
take affirmative action designed to effectuate the policies of the Act.
It has been found that on May 12, 1954, the Respondent Company
discriminated against Carl Al. Fisher, thereby encouraging member-
ship in the Respondent Union and interfering with, restraining, and
coercing Fisher in the exercise of rights guaranteed by the Act.
6 Bickford Shoes, Inc ., 109 NLRB 1346 ; N. L. R. B. v. Star Publishing Co., 97 F. 2d 465,
470 (C. A. 9) ; Wilson & Co. v. N. L. R. B., 123 F. 2d 411, 417 (C. A. 8) ; N. L. R. B. v.
Gluck Brewvng Co., 144 F. 2d 847, 853 (C. A. 8) ; N. L. R. B. v. Hudson Motor Car Co.,
128 F 2d 528, 533 (C. A. 6).
7 93 NLRB 406, enfd. 216 F. 2d 161 (C. A. 8).
8 There the Board based its finding of a violation upon the union 's request coupled with
the fact that the union was the source of the employer's labor supply . In the case at bar,
the record shows , and we find , that the Company had recruited all its operating engineers
on the project involved in this case through the Union.
1864 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Having found that both Respondents are responsible for the dis-
crimination suffered by Fisher, the Board will order that they jointly
and severally make him whole for any loss of pay he may have suffered
by payment to him of a sum of money equal to the amount he normally
would have earned during the period of the discrimination against
him,' less his net earnings 10 during that period. The computations
shall be made on a quarterly basis in the manner established by the
Board in F. W. Woolworth Company, 90 NLRB 289, 291-299. The
Board will further order that the Respondent Company (unless its
Chattanooga project has been completed) offer to Fisher immediate
employment in the position for which he applied on May 12, 1954,
or in a substantially equivalent position," and that the Respondent
Union notify the Respondent Company and Fisher in writing that it
has no objection to the employment of Fisher. The Union's back-pay
liability will in no event continue beyond the expiration of 5 days after
such notice is given.12 It will also be ordered that the Respondent
Company make available to the Board upon request payroll and other
records to facilitate the determination of back pay.
CONCLUSIONS OF LAW
1. International Union of Operating Engineers, Local 917, AFL,
is a labor organization within the meaning of Section 2 (5) of the
Act.
2. By discriminating in regard to the hire and tenure of employ-
ment of Carl M. Fisher, thereby encouraging membership in the Re-
spondent Union, the Respondent Company has engaged in and is
engaging in unfair labor practices within the meaning of Section 8
(a) (3) of the Act.
3. By interfering with, restraining, and coercing Carl M. Fisher,
in the exercise of rights guaranteed by Section 7 of the Act, the Re-
spondent Company has engaged in and is engaging in unfair labor
practices within the meaning of Section 8 (a) (1) of the Act.
4. By causing the Respondent Company to discriminate against
Carl M. Fisher in violation of Section 8 (a) (3) of the Act, the Re-
spondent Union has engaged in and is engaging in unfair labor
practices within the meaning of Section 8 (b) (2) of the Act.
5. By restraining and coercing Carl M. Fisher in the exercise of
the rights guaranteed in Section 7 of the Act, the Respondent Union
9 This period will begin on May 12, 1954, and will in no event continue beyond the date
of the completion of the Company's Chattanooga project.
10 For the manner of computing net earnings , see Crossett Lumber Company, 8 NLRB
440, 498
11 See The Chase National Bank of the City of New York, San Juan, Puerto Rico , Branch,
65 NLRB 827, 829
12 In computing back pay, we shall, in accord with our usual practice , exclude the period
between the date of the Intermediate Report and the date of the Decision and Order.
TURNER CONSTRUCTION COMPANY 1865
has engaged in and is engaging in unfair labor practices within the
meaning of Section 8 (b) (1) (A) of the Act.
6. The aforesaid unfair labor practices are unfair labor practices
affecting commerce within the meaning of Section 2 (6) and (7) of
the Act.
Order
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that :
1. The Respondent, Turner Construction Company, its officers,
agents, successors, and assigns, shall :
(a) Cease and desist from:
(1) Encouraging membership in the Respondent Union, or in
any other labor organization of its employees, by refusing to hire
employees, unless they have been cleared or approved by the Re-
spondent Union or by discriminating against them in any other man-
ner in regard to their hire or tenure of employment or any term or
condition of their employment, except to the extent permitted by
Section 8 (a) (3) of the Act.
(2) In any other 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 requiring membership in a
labor organization as a condition of employment, as authorized 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) Offer Carl M. Fisher, unless its Chattanooga project has been
completed, immediate employment in the position for which he ap-
plied on May 12, 1954, or in a substantially equivalent position.
(2) Upon request, make available to the National Labor Relations
Board, or its agents, for examination and copying, all payroll records,
social-security payment records, timecards, personnel records and
reports, and all other records necessary to an analysis of the amount
of back pay due in accordance with this Order.
(3) Post at its construction offices in Chattanooga, Tennessee, and
vicinity, if any, copies of the notice attached hereto marked "Appen-
dix A.713 Copies of the notice, to be furnished by the Regional Di-
rector of the Tenth Region as the agent of the Board, shall be posted
by the Respondent Company immediately upon their receipt, after
being duly signed by an official representative of the Company. When
v In the event that this Order is enforced by a decree of a United States Court of Ap-
peals , 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."
1866 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
posted, they shall remain posted for sixty (60) consecutive days there-
after in conspicuous places. Reasonable steps shall be taken by the
Respondent Company to insure that these notices are not altered,
defaced, or covered by any other material.
(4) Notify the Regional Director for the Tenth Region, in writing,
within ten (10) days from the date of this Order, what steps it'has
taken to comply herewith.
2. The Respondent, International Union of Operating Engineers,
Local 917, AFL, its officers, representatives, agents, successors, and
assigns, shall :
(a) Cease and desist from :
(1) Causing or attempting to cause the Respondent Company, its
officers, agents, successors, or assigns, to discriminate against employ-
ees or prospective employees in violation of Section 8 (a) (3) of the
Act.
(2) In any other manner restraining or coercing employees or
prospective employees of the Respondent Company in the exercise of
the rights guaranteed in Section 7 of the Act, except to the extent that
such rights may be affected by an agreement requiring membership
in a labor organization as a condition of employment, as authorized
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) Notify Carl M. Fisher and the Respondent Company immedi-
ately in writing, that it has no objection to Fisher's employment.
(2) Post at its business offices and meeting halls in Chattanooga,
.Tennessee, copies of the notice attached hereto marked "Appendix
B." 14 Copies of the notice, to be furnished by the Regional Director
of the Tenth Region as the agent of the Board, shall be posted by the
Respondent Union immediately upon their receipt, after being duly
signed by an official representative of the Union. When posted, they
shall be maintained by it for a period of sixty (60) consecutive days
thereafter. Reasonable steps shall be taken by the Union to insure
that these notices are not altered, defaced, or covered by any other
material.
(3) Mail signed copies of the notice attached to this Decision as
Appendix B to the Regional Director of the Tenth Region, for post-
ing, the Respondent Company willing, at the office and places of busi-
ness of the Respondent Company in Chattanooga, Tennessee, and vi-
cinity, in the places where notices to employees are customarily posted.
Copies of the notice, to be furnished by the Regional Director of the
Tenth Region as the agent of the Board, shall be returned forthwith
to the Regional Director after they have been signed by an official
representative of the Union, for such posting.
14 See footnote 13, supra.
TURNER CONSTRUCTION COMPANY 1867
(4) Notify the Regional Director for the Tenth Region, in writing,
within ten (10) days from the date of this Order, what steps it has
taken to comply herewith.
3. The Respondents, Turner Construction Company, its officers,
agents, successors , and assigns , and International Union of Operating
Engineers, Local 917, AFL, its officers, agents, successors, and assigns,
shall jointly and severally, and in the manner set forth in the Section
of this Decision and Order entitled "The Remedy," make whole Carl
M. Fisher for any loss of pay he may have suffered because of the
discrimination against him.
MEMBER MURDOCK, dissenting :
I do not believe that the evidence in this case is sufficient to estab-
lish a violation either of Section 8 (a) (3) or 8 (b) (2) of the Act.
The pertinent facts are as follows : Fisher, the alleged discriminatee,
had approached the Company's assistant superintendent with regard
to employment as a high lift operator. At that time the job was
being performed by Ridge, an employee secured by the Company
through the Union. Ridge, however, proved to be the wrong man
for the job through no fault of his own or of the Union. The record
reveals that the Company itself had misinformed the Union as to the
type of operator required. The Company therefore sought a replace-
ment for Ridge. In the meanwhile Fisher's interest in the job was
communicated to the superintendent of the project, the only official
authorized to hire employees. The superintendent called the Union's
business agent, Jones, and requested a replacement for Ridge, stating
that Fisher "was available if he [Jones] didn't have a good man."
In response to the Company's request, Jones offered to send a replace-
ment from the Union. The Company agreed and hired this indi-
vidual. Subsequently, Fisher contacted the superintendent and was
told that someone had already been hired for the job.
On these facts the majority finds that the Union "caused" the Com-
pany to discriminate against Fisher in violation of Section 8 (a) (3)
of the Act. I cannot agree either with this conclusion or with the
majority's interpretation of the Radio O fflcers' case, cited above in
support of that conclusion. The facts in the Radio O ficers' case
reveal that the company had hired Fowler, a radio officer and a mem-
ber of the union in good standing, without consulting the union. A
contract between the company and the union, executed in January
1947, required the company to give preference in employment to mem-
bers of the union in "good standing." The union wrongfully notified
the company that Fowler was not in "good standing" and refused to
clear him for the job, insisting that another union member be hired.
The company, unable to accept an employee without clearance from
the union, was forced to replace Fowler with a man dispatched by the
union for that job. The Supreme Court, affirming the lower court's
1868 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and the Board's decisions, found that the union had caused the com-
pany to discriminate against Fowler in violation of Section 8 (a) (3),.
and that the union had therefore violated Section 8 (b) (2) of the Act.
It seems apparent to me that the facts in these two cases are sub-
stantially different. I do not understand the Radio O ffdcers' case to.
hold that an employer may not, under penalty of violating Section
8 (a) (3) of the Act, request a union to send a competent workman
for a specialized job if a nonregistered union member has indicated
that he is available for that job. To find, as the majority does, that
the employer's mere knowledge that such a person is available for
employment establishes by a preponderance of the evidence that he
has suffered discrimination if the employer seeks another man from
the union seems to me to stretch the term discrimination beyond the
breaking point. If this is now to be the law a building superintendent
will need a legion of labor lawyers to advise him every time he hires
an extra carpenter. In this case the Company did no more than to
request the Union to correct an error in the referral of an operator
for a high lift tractor, an error caused by the Company's own mistake.
If the Company's original request for such an operator was not unlaw-
ful, and the majority does not contend it was, I do not believe that the
Company's follow-through on that request suddenly became unlawful
because another person had in the interim indicated a willingness to.
take the job.
Nor can I agree that the Union in this case caused or, indeed, at-
tempted to cause the employer to engage in discriminatory treatment
of any employee. The record is perfectly clear that the Union took no-
affirmative action to induce the Company to hire a registered union
member rather than someone else. At the Company's request the
Union originally sent Ridge to do the job. Informed by the Company
that Ridge was the wrong man and again, at the Company's specific
request, the Union sent a replacement. This is the sum total of the
conduct alleged to be a violation of Section 8 (b) (3). Of course, the
Union knew that Fisher was available. It may well have known that
16 other workmen were available. Is a union obliged to refuse to refer
any workmen to an employer simply because it knows that others not
registered with the union for employment are available? Or does such
knowledge on the part of the union require that it urge the company
to hire other available workmen even though registered union mem-
bers are also available? Consider, if the Union had told the Company
to hire Fisher rather than offering to furnish the registered union
member who would normally have been referred when the Company
requested an operator for a high lift tractor. Certainly, this union
member could argue that he would have been hired by the Company
but for the Union's suggestion that the Company hire Fisher. Un-
der the majority's reasoning in this case would not the Union have
TURNER CONSTRUCTION COMPANY 1869
caused the Company to discriminate against this registered union
member? Indeed, if the majority's reasoning is correct, the union
-causes an employer to discriminate against all available union mem-
bers when it refers one rather than another for employment. It seems
to me that such a result approaches a reductio ad absurdwm. I can-
not agree that the facts in this case establish causation within the
meaning of Section 8 (b) (2).
For these reasons I would dismiss the complaint in its entirety.
MEMBER RODGERS took no part in the consideration of the above
Decision 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 our employees that :
WE WILL NOT encourage membership in International Union of
Operating Engineers, Local 917, AFL, or in any other labor or-
ganization of our employees by refusing to hire employees unless
they have been cleared or approved by a labor organization, or
by discriminating against employees or prospective employees, in
any other manner in regard to their hire or tenure of employment
or any term or condition of their employment, except to the
extent permitted by Section 8 (a) (3) of the Act.
WE WILL NOT in any other 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 ex-
tent that such rights may be affected by an agreement requiring
membership in a labor organization as a condition of employment
as authorized by Section 8 (a) (3) of the Act.
WE WILL make Carl M. Fisher whole for any loss of pay he
may have suffered by reason of the discrimination against him,
and will offer him employment in the position for which he ap-
plied on May 12, 1954, or in a substantially equivalent position.
All our employees are free to become, remain, or to refrain from
becoming or remaining, members of the above-named Union or any
other labor organization, except to the extent that this right may be
affected by an agreement authorized by Section 8 (a) (3) of the Act.
TURNER CONSTRUCTION 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.
1870 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Appendix B
NOTICE TO ALL MEMBERS OF INTERNATIONAL UNION OF OPERATING EN-
GINEERS, LOCAL 917, AFL
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our members that :
WE WILL NOT cause or attempt to cause Turner Construction
Company, its officers, agents, successors, or assigns, to discrimi-
nate against its employees or prospective employees within the
meaning of Section 8 (a) (3) of the Act.
WE WILL NOT in any other manner restrain or coerce employees
or prospective employees of the above Company, its successors or
assigns, in the exercise of the rights guaranteed in Section 7 of
the Act, except to the extent that such rights may be affected by
an agreement requiring membership in a labor organization as
a condition of employment, as authorized in Section 8 (a) (3)
of the Act, as amended.
WE WILL make Carl M. Fisher whole for any loss of pay suf-
fered because of the discrimination practiced against him.
INTERNATIONAL UNION OF OPERATING
ENGINEERS, LOCAL 917, AFL,
Labor Organization.
Dated---------------- By-------------------------------------
(Representative ) (Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
Intermediate Report and Recommended Order
STATEMENT OF THE CASE
Upon charges filed by Carl M. Fisher, an individual, the General Counsel for
the National Labor Relations Board issued a consolidated complaint on May 28,
1954, against Respondents Company and Local Union set forth in the caption, al-
leging violations of Section 8 (a) (1) and (3) of the Act as to the Company and
of Section 8 (b) (1) (A) and (2) as to the Union. Copies of the complaint and
charges were duly served, and the Respondents filed answers denying the commis-
sion of the unfair labor practices alleged; the Union also filed a a motion to dismiss
claiming that the complaint fails to state a cause of action against it.
Pursuant to notice, a hearing was held in Chattanooga, Tennessee, on June 28,
1954, before the duly designated Trial Examiner. The General Counsel and the.
Respondents were represented by counsel and all parties were offered full oppor-
tunity to be heard, to examine and cross-examine witnesses, and to introduce evi-
dence bearing on the issues. The parties were given an opportunity to present oral
argument before the Trial Examiner and also to file briefs and proposed findings of
fact and conclusions of law. Motions of the Respondents to dismiss the respective
complaints are disposed of in accordance with the following findings of fact and
conclusions of law.
Upon the record in the case, and upon observation of the demeanor of witnesses,
I make the following:
TURNER CONSTRUCTION COMPANY
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
1871
The Company is a New York corporation engaging in general construction work
throughout the United States. The present case involves the Cramet plant project
at Chattanooga, Tennessee, which the Company is constructing under a contract
valued in excess of $6,000,000.
The Company, I find, is engaged in commerce within the meaning of the Act.
It. THE ALLEGED UNFAIR LABOR PRACTICES
The issues in this case are whether the Company discriminatorily failed to hire
Carl M. Fisher and whether the Union caused such discrimination. Fisher has
been a member in good standing in the Union at all material times here.
Respondent Company had been leasing a high lift tractor on its Cramet project
from one Lonas and Company in April and May 1954, in connection with which
Lonas also supplied its own employee, Fisher, who operated the tractor under the
supervision of R. S. Stewart, Respondent Company's assistant superintendent, and
under A. B. Cooper, the Company's equipment foreman. Fisher remained a Lonas
employee during this period. The Company meanwhile purchased a high lift tractor
of its own in May, and it put the tractor into operation on May 10, Monday, with
a new tractor operator whom the Company had obtained from the Union. That
same Monday morning, Fisher informed Assistant Superintendent Stewart that he
would be out of work when the Lonas machine left the project; Stewart thereupon
told Fisher that the Company had already engaged an operator for its tractor,
that Fisher had done good work on the project, and that Stewart would have liked
to have Fisher operate the new machine.
The Lonas tractor completed its work at the project at the end of business on
Tuesday, and Fisher's employment on the project thus was ended. Meanwhile, the
Company was dissatisfied with the work of its new operator and on Monday after-
noon Stewart advised Fisher, according to Fisher's testimony, that Stewart wanted
Fisher to operate the tractor and that Stewart would "get [Fisher] transferred
through the Union if [Fisher] was going to be out of work." On Tuesday, however,
Stewart informed Fisher, according to Fisher's testimony, that there had been a
"mixup" between Stewart and the project superintendent, George Kube, as to which
of the two would get Fisher "straightened up" with the Union, but that Fisher should
return on Thursday by which time the matter would be taken care of and Fisher
could then begin work. Denying Fisher's testimony as to fixing up Fisher with
the Union, Stewart testified that Fisher had inquired about job prospects whereupon
Stewart suggested that Fisher return to the project and that Stewart would mean-
while speak to Superintendent Kube about him. In any event, Stewart then men-
tioned to Kube that Fisher was available and that he would like to have Fisher
replace the unsatisfactory operator. On Wednesday Kube advised Union Business
Agent Jones to send a replacement and Kube mentioned Fisher's availability in
that connection. Later the same day Jones informed Kube that he had an operator
who had been unemployed for some time and Jones inquired whether such replace-
ment would be satisfactory; Kube replied, according to Kube's testimony, "I don't
care as long as the man is a good operator; that's all I want."
Fisher returned to the project on Wednesday, after Kube's aforestated conversa-
tion with Jones and by which time the Company had arranged to hire an operator
from the Union. Stewart and Cooper informed Fisher on this occasion, according
to Fisher's testimony but which Stewart denies in effect, that the Union had advised
that Fisher was not entitled to the job and that the Company would have to use
another operator who was longer unemployed than Fisher. Fisher thereupon called
up Business Agent Jones; Jones advised Fisher, according to Fisher's testimony, that
Fisher had not even placed his name on the Union's unemployment roster, that the
Union had referred as a replacement an operator with senior standing on such list,
and that the Union "did not allow anyone to go out and get jobs of their own."
(There is no testimony concerning the operation or administration of the Union's
unemployment roster other than the fact that the Union sends men to various jobs
on the basis of their unemployment seniority placement on such list and that this
method of selection was used by the Union in the present case. Fisher was aware
of this unemployment roster and its use and makeup and he has himself used such
facilities in obtaining employment.) Fisher then called Superintendent Kube, this
being his first conversation about the matter with Kube; Kube informed Fisher on
this occasion , according to Fisher's testimony, that the matter was beyond Kube's
1872 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"power" because the Union had "stepped in" and gave them another operator, and
that the Company would have to employ such operator if he were satisfactory.
Fisher told Kube at the time that the Union would have referred Fisher had the
Company specifically requested him and Kube replied that he had not requested any
specific person and that it was immaterial to Kube whom the Union sent providing
the man were competent. Fisher testified that he had never solicited employment
from the Company.
Kube testified that neither Jones nor anyone else had ever told him he could not
hire Fisher; rather, Kube testified, Jones had merely said, as stated above, that he
(Jones) had a capable operator whom Jones would like to send if Kube were satis-
fied. Kube further testified that he was aware of the union practice, established by
the record, of sending a particular workman specifically requested by construction
firms. Kube also testified that it was his normal procedure to call the various trade
unions for craftsmen 1 and that in this instance he felt the Union should be given an
opportunity to furnish a replacement for the unsatisfactory operator because he had
originally misinformed the Union as to the particular kind of machine operator re-
quired when the Union had sent the first operator.
Within 2 weeks after the incidents under consideration, the Union offered em-
ployment to Fisher, apparently on the basis of his unemployment seniority standing.
Fisher had meanwhile received a job offer from Lonas, his former employer, and
he accordingly rejected the Union's tender.
Contentions and Conclusions
The complaint alleges that the Company did not employ Fisher as a replacement
for the first operator because he had not obtained approval and clearance from the
Union and that the Union refused to grant such approval to Fisher and instead in-
formed the Company to employ another person which the Company did; the Union,
asserts the General Counsel, thereby caused the Company to discriminate against
Fisher. The Union asserts, in a motion to dismiss the complaint, that the complaint
fails to state a cause of action against it and both Respondents contend, among other
-things, that only Kube and neither Stewart nor Cooper had authority to hire and that
Fisher never made a proper employment request to a person with effective employ-
ment authority at least until a replacement was already hired (cf. Webb Construction
Company v. N. L. R. B., 196 F. 2d 841, 848 (C. A. 8) ).
In his brief the General Counsel announces his principal theory of the case to be
that Fisher was discriminated against in the application to him of an "implied under-
standing" between the Respondents, the substance of which required "all employees
to be hired through the Union and giving union members preference" (Br., pp. 5-6).
This is the first time in this proceeding, however, that the General Counsel asserted
such hiring hall arrangement. Indeed, the absence of such allegation in the com-
plaint was the basis of Respondent Union's demurrer or motion to dismiss the com-
plaint at the outset of the proceeding; and, in discussing this very matter at the hearing
the General Counsel stated that his case is not predicated on a hiring hall theory.
Instead, the General Counsel's theory, as expressed at the hearing, is merely that
the Company acceded to the Union's request not to hire Fisher and to hire someone
else. The hiring hall theory is materially different from the one upon which the case
was tried, and I therefore consider it beyond the scope of the complaint, particularly
when it is not set forth until the record has been closed. In resolving this case,
therefore, I shall not decide whether there was an exclusive hiring hall arrangement
and whether such arrangement operated on a discriminatory basis. Rather, the
posture of the case as framed by the pleadings and explicated at the hearing is one
in which there is no such unlawful hiring hall arrangement.
I am satisfied in this case, so far as the Union was concerned, that the Company
was free to hire Fisher directly or to request him through the Union, and that the
Union did not, by threats or promises of any kind, compel the Company to hire
someone other than Fisher. Absent such compulsion or an exclusive hiring hall
arrangement requiring union clearance, I am unable to find any basis in the Act for
sustaining the complaint against the Union, no matter what standards the Union
used for its selection. Compare Radio Officers' Union of the Commercial Teleg-
raphers Union, AFL, v. N. L. R. B., 347 U. S. 17, 28-33; N. L. R. B. v. Philadelphia
Iron Works, Inc., 211 F. 2d 937, 939 (C. A. 3). I shall therefore recommend dis-
missal of the complaint as to the Union.
1 All craftsmen on the project, including those employed by the Company's subcon-
-tractors, are union members.
CONCORD SUPPLIES & EQUIPMENT CORP. 1873
The case against the Company involves other principles, however; for even absent
any union pressures or a hiring hall arrangement, an employer may still discrim-
inate against an applicant who is not hired for lack of union clearance. On the other
hand, it is not necessarily unlawful for an employer to call upon a union for per-
sonnel; if it were, employers would commit an unfair labor practice whenever they
hired someone with knowledge of the applicant's union membership or lack of it.
While not completely free from doubt, I find that Respondent did, as Kube testified,
feel obligated to give the Union an opportunity to replace the original operator who,
as Kube testified, was not able to handle the job properly because the Company itself
had misinformed the Union concerning the kind of operator it needed. Such motiva-
tion is not unlawful in my opinion. Assuming, but without deciding, that Fisher
had made a timely application to someone with authority to hire, I find that Re-
spondent Company did not discriminate against Fisher.
CONCLUSIONS OF LAW
Respondent Company has not violated Section 8 (a) (1) and (3) and Respond-
ent Union has not violated Section 8 (b) (1) (A) and (2) of the Act.
[Recommendations omitted from publication.]
CONCORD SUPPLIES & EQUIPMENT CORP. and ALUMINUM WORKERS IN-
TERNATIONAL UNION, LOCAL No. 200, A. F. L. Case No. 10-CA-
1906. December 16,1954
Decision and Order
On July 30, 1954, Trial Examiner C. W. Whittemore issued his In-
termediate 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-i
mediate Report attached hereto. Thereafter, the Respondent filed
exceptions to the Intermediate Report and a supporting brief.'
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 Interme-
diate Report, the exceptions. and brief, and the entire record in the
case, and hereby adopts the findings,' conclusions, and recommenda-
tions of the Trial Examiner 3
Order
Upon the entire record in this case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
1 The Respondent's request for oral argument is denied because the record and excep-
tions and brief, in our opinion, adequately present the issues and positions of the parties.
2 The Trial Examiner, while stating the jurisdictional facts which disclose that the Re-
spondent is engaged in commerce within the meaning of the Act, inadvertently failed to
make a specific finding to this effect. We so find. Maytag Aircraft Corp„ 110 NLRB 594.
3 Like the Trial Examiner, we reject as without merit Respondent's contention that
employees Powell and Barnes were discharged for disobedience. In addition to the other
matters referred to by the Trial Examiner, we note that the alleged disobedience occurred
after Respondent had decided to discharge them and such disobedience was not asserted
as a reason at the time of the discharges.
110 NLRB No. 234.
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