United Association of Journeymen & Apprentices, Etc.

National Labor Relations Board - Board Decisions

Feb 28, 1956

115 N.L.R.B. 594 (N.L.R.B. 1956)

594 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tor-film process, processor-film, processor's assistant-film, feeder-
film process, takeoff operator-film process, staff assistant-loss control,
teclmician-laboratory, supervisor-cafeteria, general clerk (other than
those in the general office on the third floor), coordinator-recordak,
senior correspondent-service, correspondent-service, correspondent-
form letters, group leader-clerical services, receptionist, transcriber,
dispatcher-dealer orders.
Classifications Excluded From the Appropriate Unit
Head building serviceman, building serviceman, entrance guard, gen-
eral foreman-processing, staff assistant-production, supervisor-ad-
ministrative staff, supervisor-engineering and maintenance, engineer
industrial-work measurement, accountant, staff assistant-payroll, staff
assistant-cost control, purchasing agent, supervisor-personnel, staff
assistant-training, staff assistant-personnel, estimator-time standards,
supervisor-quality control, engineer-quality control, medical doctor,
payroll clerk, records clerk, statistical clerk, dispensary nurse , secre-
tary, general clerk (those in the general office on the third floor), tele-
phone operator, engineer-maintenance, section foreman, section fore-
man-preparation, section foreman-finishing, section foreman-chemical
services, section foreman-maintenance, shift foreman-preparation,
shift foreman-finishing, shift foreman-processing, supervisor-service,
representative-processing service.
United Association of Journeymen & Apprentices of Plumbing
& Pipefitting Industry of the United States and Canada, Local
231, AFL-CIO and Vernon L. Bryant and J. S. Brown-E. F. Olds
Plumbing & Heating Corporation, Party to the Contract. Case
No. 33-CB-52. February 28,1956
DECISION AND ORDER
On August 4,1955, Trial Examiner Howard Myers issued his Inter-
mediate Report in the above-entitled proceeding, finding that the
Respondent had engaged and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. The Trial Examiner also found that
the Respondent had not engaged in certain other unfair labor prac-
tices. Thereafter the Respondent and the General Counsel filed ex-
ceptions to the Intermediate Report and supporting briefs. The Re-
spondent's request for oral argument is hereby denied.
The Board has reviewed the rulings made by the Trial Examiner
and finds that no prejudicial error was committed. The rulings are
115 NLRB No. 90.
UNITED ASSOCIATION OF JOURNEYMEN & APPRENTICES, ETC. 595
hereby affirmed. The Board has considered the Intermediate Re-
port, the exceptions and the briefs, and the entire record in this case,
and hereby adopts the findings, conclusions, and recommendations of
the Trial Examiner, only to the extent that they are consistent with the
findings below.
A. The contract
We agree with the Trial Examiner's finding that the Respondent
Union violated Section 8 (b) (1) (A) and 8 (b) (2) of the Act by
maintaining and enforcing an unlawful closed-shop contract with
J. S. Brown-E. F. Olds Plumbing & Heating Corporation, herein
called Brown-Olds. As the Trial Examiner pointed out, the plain
language of the contract requires membership in good standing in the
Respondent as a condition of employment.
The agreement provides that the Employer "... agrees to employ
Journeymen members and Apprentice members in good stand-
ing...." with the Respondent. In earlier contracts prior to the
1947 amendments to the Act, this sentence included the word only as
follows : the Employer ". . . agrees to 'employ only Journeymen
members and Apprentice members in good standing. . . ." The Re-
spondent argues, therefore, that because the word only was eliminated
in 1947 in order to comply with the Taft-Hartley Act, the contract no
longer requires that the employer hire only members of the Respond-
ent. The Respondent, however, has made no changes with respect to
the next sentence which reads : "Such employment shall be secured
through the Business Manager of Local Union Number 231, who will
issue referral cards which must be presented to Employer or his rep-
resentative." Moreover, elsewhere the agreement provides that the
Respondent's members must be employed for the erection and installa-
tion of pipework of every description, for the use of any equipment in
connection with work under the Respondent International's jurisdic-
tion, and for fabrication of specified welded pipe formations. The
meaning of these provisions, set out in full in the Intermediate Report,
is made abundantly clear by article X (D) (3) which declares that
"... it is definitely understood that members of the [Respondent]
reserve the right to refuse to handle, erect or install all welded,
screwed, caulked, wipe, sweat, or other pipe formations which have not
been fabricated by members. . . ." of the Respondent.
As we find no ambiguity with respect to the meaning of the contract
clauses, which the Trial Examiner correctly found to constitute an
unlawful closed-shop agreement, we shall adopt without modification
the Trial Examiner's findings with respect to the contract provisions
and the provisions of Respondent's bylaws, working rules, and regula-
tions, expressly made a part of the contract by its own terms.
596 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. The discrimination against Bryant
The Trial Examiner found that the General Counsel failed to estab-
lish by a preponderance of the evidence that the Respondent had dis-
criminated against Vernon L. Bryant in violation of Section 8 (b)
(2) of the Act. We do not agree. It is undisputed that Bryant, a
welder, was unable to obtain a work referral from the Respondent and
that the two openings then available at Brown-Olds were filled by
welders referred by the Respondent. Moreover, as the Trial Examiner
himself found, Brown-Olds was bound by its agreement with the Re-
spondent to hire only applicants referred by the Respondent in prefer-
ence to others.
Testimony of Speaker, the Brown-Olds foreman to whom Bryant
unsuccessfully applied for a job on Friday, December 3, 1954, makes it
clear that that is in fact what happened. Speaker testified that when
Bryant and another welder applied for work, he, Speaker, phoned the
Respondent's business agent, Stagner, ". . . to hire a couple of welders"
and "to ascertain from them [the Respondent] if it was alright with
them for him [Bryant] to come out." Stagner replied, according to
Speaker, that ". . . we have plenty of men ... waiting to be sent out on
the job," that Bryant and the other applicant had not been cleared with
the Respondent, and that two other welders would be sent out. Speaker
explained to Stagner, according to his own testimony, that ". . . it
didn't make any difference to me as long as I got men who were qual-
ified welders." At the hearing, Speaker was asked specifically if the
Union had replied "no" to his request for clearance of Bryant.
Speaker testified, "practically that in substance." The foregoing facts
show unequivocally that a violation of 8 (b) (2) occurred on Friday,
December 3, 1954. In so finding, we rely particularly upon Speaker's
action in meeting Bryant's request for a job with a phone call to the
Respondent's business agent, in which Speaker accepted the Respond-
ent's veto of Bryant, agreeing to take any qualified welder.
In view of our finding, based on Speaker's own testimony as to
what transpired on Friday, December 3, that the Respondent violated
Section 8 (b) (2) on that date, we conclude that further application for
employment by Bryant would have been a useless gesture. As the
Fifth Circuit said in N. L. R. B. v. The Lum.mw.s Co.:
Where such an illegal requirement has been imposed and it is ap-
parent that further application for employment would be futile,
the job applicants need not go through the useless procedure of re-
applying for employment at the later time when jobs are actually
'available to establish that they are victims of the discriminatory
hiring policy.1
1 210 F . 2d 377 , enfg as mod 101 NLRB 1628 Accord • Damel Hamm Drayage Com-
pany, Inc , 84 NLRB 458 , enfd . 185 F 2d 1020 (C. A 5).
UNITED ASSOCIATION OF JOURNEYMEN & APPRENTICES, ETC. 597
As we find that the Respondent discriminated against Bryant on
Friday, December 3, 1954, and that Bryant was not obliged to apply
again thereafter, Speaker's self-serving, conclusionary testimony to
the effect that had Bryant arrived earlier on Monday, December 6,
1954, Speaker would have hired him, is irrelevant even if it were
worthy of credence. However, because it is self-serving and because it
begs the question of law here at issue, we consider that it has little pro-
bative value. In any event, unlike the Trial Examiner, we discredit
this testimony of Speaker because it is inconsistent with the import
of his testimony as to what occurred the preceding Friday when, in
effect, in accordance with the closed-shop contract and his own inter-
ests as a member of the Respondent, he asked applicant Bryant to
produce a work referral from the Respondent.
Accordingly, we are unable to adopt the Trial Examiner's finding
that ". . . the testimony of Speaker regarding what transpired be-
tween him and Bryant on December 3 and 6 [is] . . . substantially
in accord with the facts." It was on this basis that the Trial Ex-
aminer specifically discredited ". . . Bryant's testimony that Speaker
told him that he could not be hired without a work order . . . even
though that portion of Bryant's testimony was not specifically de-
nied by Speaker. . . . " [Emphasis supplied.] The record shows
more, however. Speaker not only did not specifically deny that por-
tion of Bryant's testimony, he corroborated it. Speaker testified on
this point that although he did not remember telling Bryant that
Bryant could not be hired without a work order, that "that was the
stock reply" and that "I would not doubt his [Bryant's] word on it."
Under these circumstances, and on the record as a whole, we reverse
the Trial Examiner's credibility findings as to both Bryant and
Speaker, and credit Bryant as the more credible of the two witnesses.
The Remedy
Having found that the Respondent engaged in certain unfair labor
practices within the meaning of Section 8 (b) (1) (A) and 8 (b) (2)
of the Act,-we shall order it to cease and desist therefrom and to take
certain affirmative action designed to effectuate the policies of the
Act.
We shall order the Respondent Union to make whole Vernon L.
Bryant for any loss of pay suffered by him as a result of the Respond-
ent's unlawful conduct by paying to him a sum of money equal to the
amount he would normally have earned as wages from the date of the
discrimination, December 3, 1954, until he would have been laid off,
absent unfair labor practices. In computing the back pay due to the
Charging Party for this period, the customary formula of the Board
59S DECISIONS OF NATIONAL LABOR RELATIONS BOARD
shall be followed.2 As the Trial Examiner did not find that the
Respondent Union had discriminated against him, the period from
the issuance date of the Intermediate Report to the date of our Order
herein shall, in accordance with the Board's usual practice, be ex-
cluded in computing the amount of back pay due s
Also, we shall order the Respondent to notify Vernon L. Bryant,
in writing, that it has withdrawn its opposition to his employment
and that henceforth it will not restrain or coerce him by unlawfully
denying to him a work referral slip or by otherwise unlawfully inter-
fering with the rights guaranteed to him by Section 7 of the Act.
We shall further provide that the Respondent may terminate its
liability for further accrual of back pay to the Charging Party by
notifying Brown-Olds that it has no objections to his reinstatement
or continued employment, as the case may be, or to. his reemployment
at any time in the future. The Respondent shall not thereafter be
liable for any back pay accruing after 5 days from giving such
notice.4
We shall require the Respondent to refrain from maintaining and en-
forcing its unlawful agreement with Brown-Olds. Furthermore, as
it is admitted by the Respondent that contracts substantially identi-
cal in all pertinent respects with the Brown-Olds agreement are main-
tained and enforced with Ackerman Plumbing Co., Border Plumbing
Co., Metropolitan Plumbing & Heating Co., and T. N. O'Kelley Plumb-
ing & Heating Co., we shall also require the Respondent to cease and
desist from maintaining and enforcing such agreements, understand-
ings, or practices not only with Brown-Olds, but also with these four
employers and with any other employers, provided that any such
employer-parties to such agreements or arrangements are employers
over whom the Board would assert jurisdiction in an appropriate
proceeding.' We reject the Respondent's contention that we cannot
make such a requirement with respect to employer-parties to the Re-
spondent's unlawful contracts where the employers are not parties to
this proceeding and were not formally notified of the charges here-
in. These contracts are in themselves a continuing means of thwarting
the policy of the Act.' The policy of the Act cannot be made effective
without an order which will result in cessation of the practices which
2 F W. Woolworth Corn pang , 90 NLRB 289 The record shows that Bryant was em-
ployed by Brown -Olds after it had been formally notified of the charges in this case. Like
other compensation . earnings from any such employment are deductible from any back pay
which may be found due at the compliance stage under the Woolworth formula. Also,
there was some evidence admitted at the hearing which might indicate that, had Bryant
been hired on December 3, 1954, this employment , absent discrimination, would have been
of short duration Nevertheless , we do not pass on that or related back-pay questions here.
These matters were not fully litigated at the hearing In any event , as a matter of Board
procedure, such matters are more appropriately handled as compliance matters
Utah Construction Co., 95 NLRB 196
} P+nl,erton's Detect ,t, e Agency, Inc.. 90 NLRB 205, 213
Daugherty Company, Inc., 112 NLRB 986.
O X L R. B v National Licorice Co., 309 U. S. 350.
UNITED ASSOCIATION OF JOURNEYMEN & APPRENTICES, ETC . 599
we have found unlawful and which are admittedly embodied in these
contracts.' As we' are only concerned here with rights which are
concomitant to the Act's public policy, we do not here pass upon
any private rights arising upon or derived from the contracts be-
tween the Respondent and the various employers with whom it has
made these agreements. Private rights between the Respondent and
employer-parties to its contracts are matters for appropriate future
proceedings with which we are not concerned. But, insofar as such
private rights may be inconsistent with the public policy of the United
States as announced in the Act, that public policy must prevail.'
This is not a case involving isolated acts in violation of the statute.
The Respondent does not deny that it is maintaining in force and
effect at least five collective-bargaining agreements which we have
found violative of Section 8 (b) (2) of the Act because they make union
membership a condition of employment. In these circumstances, the
Board is free to restrain the Respondent from engaging in such con-
duct generally and from engaging in like or related unlawful acts -9
In adopting all of the Trial Examiner's conclusions as to the illegal-
ity of the specified provisions of the Brown-Olds agreement we have
thereby found unlawful section 31 of the Respondent's constitution
and bylaws, expressly made a part of the contract. Section 31 pro-
vides, inter alia, that, "All members working at the trade shall pay
two (2%) percent of net wages as working assessments" in addition
to monthly dues of $3 for working members. Apart from the un-
lawful closed-shop character of the contract, it is clear on its face that
the assessment is illegal as a requirement in addition to the "periodic
dues and the initiation fees uniformly required," within the mean-
ing of Section 8 (b) (2) of the Act.io
We find merit in the General Counsel's exception to the Trial Exam-
iner 's failure to recommend an appropriate remedy to correct this un-
lawful exaction of assessments.1' However, although the General
Counsel limited his specific exceptions to the assessment aspect of sec-
tion 31 of the Respondent's constitution and bylaws, we do not so limit
our findings or remedy here. The Respondent admitted through _its
counsel at the hearing that it has been enforcing section 31 of its con-
stitution and bylaws at all times material herein. This admission was
made twice at the hearing by counsel for the Respondent who an-,
swered in the affirmative when asked by the Trial Examiner, "Do you
enforce Section 31 of the By-Laws?" and when the Trial Examiner re-
Cf. Consolidated Edison Co . v. N L. R . B., 305 U S 197
N L. R. B v National Licorice Co., supra, 364
International Brotherhood of Teamsters , Chauffeurs . Warehousemen and Helpers of
America, AFL, Local 179, 110 NLRB 287, 288-290; cf. N. L R. B v Express Publishing
Company, 312 U. S 426, 436-437
10 Anaconda Copper Mining Company. 110 NLRB 1925
" Cf J J. White, Inc, 111 NLRB 1126, 1129
600 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
iterated, "You have been enforcing it during all times material here-
in?" We are unable to interpret such admissions by counsel as being
any less than they appear to be. The admission, coupled with the il-
legal closed-shop agreement, is, in our view, ample evidence of the
coercive character of the collection of the dues and assessments. Cer-
tainly, on the heels of the admission, it was no. longer incumbent upon
the General Counsel to come forward with any further evidence of
illegality with respect to collection of dues and assessments. Under
these circumstances, we think it is unnecessary that there be,produced
additional evidence of coercion or evidence of threats as a basis for an
order directing reimbursement of the fruits of the unfair labor prac-
tices found here. Further litigation on this point would have been
cumulative. Moreover, the Board has previously held that it is within
its authority in a proper case to order reimbursement of unlawfully
collected dues, despite absence in the complaint of a specific allegation
that the dues were so collected.'2
As to the broader question, the United States Supreme Court recog-
nized in the Virginia Electric case the Board's "wide general discre-
tion" to order such affirmative action as will effectuate the policies of
the Act.13 It is true that the Virginia Electric case differs from the
facts here in that the Supreme Court was dealing in Virginia Electric
with a checkoff which was illegal because it was in favor of a company-
dominated union. Thus, the Court upheld the Board's order as an
appropriate remedy designed to correct a respondent-employer's vio-
lation of Section 8 (a) (2) of the Act. The Board had concluded in
that case that the dues collected from employees constituted "a price
coerced from them for the Respondent's purpose of supporting and
maintaining the organization which the Respondent had dominated
in order to thwart bona fide representation." Answering the re-
spondent's attack on the Board's authority to so order disgorgement of
the illegal price employees paid to keep their jobs, the Supreme Court
ruled :
The Board has here determined that the employees suffered a
definite loss in the amount of the dues deducted from their wages
and that .the effectuation of the policies of the Act requires reim-
bursement of those dues in full. We cannot say this considered
judgment does not effectuate the statutory purpose.14
Since that decision was rendered in 1943, the Taft-Hartley amend-
ments have made unlawful all closed-shop contracts as contrary to
public policy, proscribing such conduct by unions as unfair labor
12 Hibbard Dowel Co., 1.13 NLRB 28.
13 Virginia Electric & Power Co. v. N. L. R. B., 319 U . S. 533 , 539; also see N. L. R. 13. v.
Baltimiore Transit Co., 140 F. 2d 51, 58 (C. A. 4).
14 Op . cit., 543.
UNITED ASSOCIATION OF JOURNEYMEN & APPRENTICES , ETC. 601
practices. The dues required and collected under such a contract, and
all assessments under any contract, contravene that public policy. It
is no longer required by the Act that the union be company-domi-
nated in order for collection of dues to be unlawful under a closed-
shop contract. Here, the dues and the assessments were required and
collected pursuant to a contract which clearly contravened the public
policy of the Act. Dues and assessments here collected constituted
the price these employees paid in order to retain their jobs. We
therefore conclude that the remedy of reimbursement of all such
monies is appropriate and necessary to expunge the illegal effects of
the unfair labor practices found here.
Frequently since. enactment of the Taft-Hartley amendments, this
Board has ordered unions to reimburse members for dues, excessive
initiation fees, or the monies unlawfully exacted as the price of em-
ployment, even in the absence of an, employer-party to the proceed-
ing and in the absence of any findings of Section 8 (a) (2) -violations.15
It is our view that, where payment of dues is required under a
closed-shop contract, as where assessments are required under an
otherwise valid agreement, reimbursement of such monies actually
collected will best effectuate the policies of the Act. Otherwise the
very fruits of the unfair labor practice itself will remain in the hands
of the respondent. Accordingly, we shall so order here.
We are not extending this aspect of the remedy to the other con-
tracts which we have also found unlawful, as it is not clear from the
record that the Respondent was also admitting enforcement of this
provision in agreements other than its agreement with Brown-Olds.
Although the Trial Examiner did not recommend that the Re-
spondent be required to so reimburse the employees of Brown-Olds,
we are nevertheless not exempting the period between the date of the
issuance of the Intermediate Report and the date of this Order, as
the Trial Examiner did find that that contract was unlawful as a
closed-shop agreement. The Respondent's liability for reimburse-
ment-shall begin 6 months prior to the date of the amended charge
and shall extend to all such monies thereafter collected.
]R The Board adopted pro forma in Local 4 04, International Brotherhoodof Teamsters,
Chauffeurs , Warehonaemen and Helpers of America, A. F. L., 100 NLRB 801, a Trial Ex-
aminer's findings that 31 teamsters had joined their union . . under protest as a result
of coercion of the Teamsters . . . ." and had paid initiation fees and dues , which pay-
ments would go unremedied unless the 31 employees were made whole and the status quo re-
stored , Similarly , the Board ordered reimbursement of sums of money in excess of periodic
dues and initiation fees uniformly required where, in Eclipse Lumber Company , 95 NLRB
464, the employees were coerced into making such payments in violation of 8 (b ) (1) (A).
Recently, in Marlin Rockwell Corporation , 114 NLRB 553, the Board held:
We find , further , in agreement with the Trial Examiner, that the Union should not
be allowed to enjoy the benefits of its unlawful conduct , and that, accordingly, an
affirmative order requiring it to reimburse the Charging Employees for dues coercively
r•ollected from them . . is an appropriate remedy in this case.
602 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We shall further order, however, that the Respondent notify all
Brown-Olds' employees from whom it unlawfully collected such dues
and assessments that it is making reimbursement pursuant to a Board
Order, and that it will not hereafter require union membership as a
condition of employment, except in accordance with the provisions of
Section 8 (a) (3) of the Act.
CONCLUSIONS OF LAW
1. J. S. Brown-E. F. Olds Plumbing & Heating Corporation is
engaged in commerce within the meaning of Section 2 (6) and (7)
of the Act.
2. United Association of Journeymen & Apprentices of Plumbing &
Pipefitting Industry of the United States and Canada, Local 231,
AFL-CIO, is a labor organization within the meaning of Section
2 (5) of the Act.
3. By maintaining in effect an agreement with Brown-Olds which
makes union membership a condition of employment and requires pay-
ment of dues and assessments as a condition of employment, the
Respondent has engaged in and is engaging in unfair labor practices
within the meaning of Section 8 (b) (1) (A) and 8 (b) (2) of the
Act.
4. By causing or attempting to cause Brown-Olds to discriminate
against the Charging Party, Vernon L. Bryant, in violation of Section
8 (a)^ (3) of the Act, the Respondent has engaged in and is engaging
in unfair labor practices within the meaning of Section 8 (b) (2)
of the Act.
5. By the aforementioned acts, the Respondent has restrained and
coerced the employees of Brown-Olds in the exercise of their rights
guaranteed by Section 7 of the Act, and has thereby 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
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 the Respondent , United Associa-
tion of Journeymen & Apprentices of Plumbing & Pipefitting Industry
of the United States and Canada , Local 231, AFL-CIO, and its re-
spective officers , agents, successors, and assigns , shall :
1. Cease and desist from :
(a) Executing , maintaining , performing , or enforcing any agree-
ment, understanding , or practice with J. S. Brown -E. F. Olds Plumb-
UNITED ASSOCIATION OF JOURNEYMEN & APPRENTICES, ETC. 603
ing & Heating Corporation, " or with Ackerman Plumbing Co., Border
Plumbing 'Co., Metropolitan Plumbing & Heating Co., and T. N.
O'Kelley Plumbing & Heating Co.," or with any other employer,
which requires membership in its organization as a condition of em-
ployment, except as authorized by Section 8 (a) (3) of the Act.
(b) Causing or attempting to cause Brown-Olds, or any other
employer, to discriminate against employees or prospective employees
by requiring them to obtain clearances or job referrals from the
Respondent as a condition of employment in violation of Section
8 (a) (3) of the Act.
(c) In any other manner restraining or coercing employees or
prospective employees of Brown-Olds, or any other employer, in the
exercise of their 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.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Make whole Vernon L. Bryant for any loss of pay he may
have suffered as a result of the discrimination against him in the
manner set forth in the section entitled "The Remedy."
(b) Reimburse all employees of Brown-Olds in the full amount of
any dues unlawfully collected from them pursuant to the Respondent's
unlawful agreement with Brown-Olds, provided, however, that this
Order shall not be construed as'requiring reimbursement for any such
dues collected more than 6 months prior to the date of the amended
charge herein.
(c) Reimburse all employees of Brown-Olds for any assessments
collected from them pursuant to the Respondent's agreement with
Brown-Olds, provided, however, that this Order shall not be con-
strued as requiring reimbursement for any such assessments collected
more than 6 months prior to the date of the amended charge herein.
(d) Post at its offices in El Paso, Texas, copies of the notice attached
hereto marked "Appendix A." 18 Copies of said notice, to be fur-
nished by the Regional Director for the Sixteenth Region, shall, after
being duly signed by representatives of the Respondent, be posted im-
mediately upon receipt thereof and maintained by it for sixty (60)
levee have already found, supra , that Brown -Olds is engaged in commerce within the
meaning of the Act
17 As the record does not show whether or not any of these four employers are engaged
in commerce wilhui the meaning of the Act, this Order is applicable to the Respondent's
contracts with them, as in the case of its contracts with any other employer, only in the
event that they are engaged in commerce within the meaning of Section 2 ( 6) of the Act,
and are employers over whom the Boaid would assert jurisdiction.
is 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."
604 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
consecutive days thereafter in conspicuous places, including all places
where notices are customarily posted. Reasonable steps shall be
taken by the Respondent to insure that such notices are not altered,
defaced, or covered by any other material.
(e) Notify, in writing, Brown-Olds and Vernon L. Bryant that the
Respondent has withdrawn its objection to the hiring or continued
employment of Bryant by Brown-Olds; and also notify Bryant, in
writing, that henceforth it will not coerce him or restrain him by un-
lawfully denying to him a work referral slip or by otherwise interfer-
ing with the rights guaranteed to him by Section 7 of the Act.
(f) Notify the Regional Director for the Sixteenth region in writ-
ing, within ten (10) days from the date of this Order, what steps
they have taken to comply herewith.
MEMBER PETERSON, concurring in part and dissenting in part :
While I agree that the contract presented in this case was in it-
self unlawful and that the discharge of Bryant pursuant thereto was
an unfair labor practice, I do not agree that the record before us war-
rants that portion of the remedial order which orders the Respondent
Union to make reimbursement of union dues and assessments. In
this case, neither the legality of the payment of dues and assessments,
nor the appropriateness of any specific remedy incident thereto, was
litigated. In addition, apart from the absence of any issue raised
by the parties on this aspect of the case, the record as a whole does
not support an affirmative finding that the collection of dues and
assessments involved a violation of the Act, a conclusion necessary to
support the express disgorgement order upon the Union.
All that appears in the record in support of the majority finding
that there was an unlawful collection of dues or assessments is an
obscure statement by counsel on the record. Although superficially
referred to by the majority as an "admission" of serious illegal con-
duct, the statement made by the Respondent's attorney fails of such
import in at least two respects. Specifically, there is no basis for
concluding from counsel's statement that payment of dues and assess-
ments was in fact made a condition of employment or that their col-
lection was effected by coercive means, assumptions which the majority
has gratuitously read into the so-called "admission." That the Re-
spondent was making no such "admission" is evident from its conten-
tion that the contract is lawful and that the assessments are dues and
therefore lawful because they are uniform and periodic.
In any event, the significance of counsel's statement is made at best
ambiguous by the discussion on the record which preceded it. In
seeking a stipulation as to the enforcement of section 31 of the con-
tract, counsel for the General Counsel stated that the General Counsel
was not concerned with the dues aspect of section 31, but was limiting
UNITED ASSOCIATION OF JOURNEYMEN & APPRENTICES, ETC. 605
his contentions to the illegality of the assessments only. After counsel
for the Respondent had made his argument that the assessments con-
stitute dues within the meaning of the Act, he asked if the General
Counsel were taking the position that, ". . . we should not enforce this
particular By-Law." The General Counsel replied merely that his
allegation was that the assessment provision violated the Act. The
Respondent then moved that the General Counsel be required to
specify "... what relief he desires with respect to that particular mat-
ter. . . ." However, the General Counsel did not specify either in his
brief or at the hearing what remedy he desired. Colloquy on the
record, upon which the majority bases its finding of an admission,
concludes as follows :
TRIAL EXAMINER : The original stipulation, as I remember, is
whether this allegation in the complaint is in the By-Laws. You
have the By-Laws in evidence. I don't know why he [counsel for
the General Counsel] asks you [the Respondent] to stipulate to
anything. You allege it is in the agreement and you put the By-
Laws in evidence, didn't you?
Mr. PICKERING [counsel for the General Counsel] : That is
correct.
TRIAL EXAMINER: If it is in the By-Laws, it is in the By-Laws.
Why ask counsel to stipulate what is in evidence?
Mr. PICKERING : It might be one thing to have something in the
By-Laws which might be waived.
TRIAL EXAMINER: Do you enforce Section 31 of the By-Laws?
Mr. WELLS [counsel for the Respondent] : Yes, Sir.
TRIAL EXAMINER : That is all you wanted.
Mr. PICKERING : That is all. 3
TRIAL EXAMINER : You have been enforcing it during all times
material herein?
Mr . WELLS : Yes, sir.
Mr. PICKERING : What I wanted was no stipulation as to any
legal conclusion one way or the other.
From the foregoing, it is apparent that neither of the parties nor
the Trial Examiner regarded the so-called stipulation as a basis for
the remedy applied here. Moreover, from an admission that section
31 was enforced as a requirement of the bylaws, it does not follow that
the Respondent was admitting that payment of dues and assessments
was required as a condition of employment by Brown-Olds. Certainly
no such implication was discussed on the record. Furthermore, neither
the "admission" nor the fact that we have found that the contract con-
stitutes an unlawful closed-shop agreement shows that the dues and
assessments were coercively collected. As the cases cited by the major-
ity show, the illegality of an assessment provision and the unlawful
606 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
character of a dues requirement in a closed-shop contract do not alone
support a reimbursement remedy. 19 These cases differ from the pre-
Taft-Hartley cases involving Section 8 (a) (2) of the Act in that the
dominated-union cases involved checkoff by employers in favor of
unions which were in effect instrumentalities of such employers. Thus,
although collection of dues may be deemed in a sense tainted with il-
legality where there is a closed-shop contract, the Board has in such
situations, unlike Section 8 (a) (2) cases , insisted upon specific evi-
dence of coercion or threats by the union aside from the import of the
contract itself.
Whatever meaning may be attributed to the Respondent' s "admis-
sion," I do not see how it can be treated as an admission of coercive
collection of dues and assessments in view of the fact that the Respond-
ent's whole defense is one of denial of coercive and discriminatory
conduct. Moreover, it should be noted that the discrimination which
we have found to have been practiced against Bryant did not involve
failure to pay dues or assessments ; nor did it involve nonmembership
in the Respondent. In sum, it is clear therefore that the majority is
ordering reimbursement of dues and assessments in a situation where
there is no evidence of specific coercion and no evidence that such
payments were required as a condition of employment. Under these
circumstances, it is quite possible the Board is ordering reimburse-
ment of dues and assessments which were lawfully received from
Brown-Olds' employees who may have made such payments
voluntarily.
The record is silent as to the manner in which the dues and assess-
ments were collected. The General Counsel specifically denied at the
hearing that he was making any allegations of illegality with respect
to the dues provisions. He urged no specific remedy and the matter
has not been litigated at all. It seems to me that if the Board is going
to depart from its customary practice of requiring specific evidence of
coercion and evidence that payments were required as a condition of
employment, it should do so in a case in which the remedy of reim-
bursement has been requested and litigated.
Finally, from another point of view, the remedy here seems unduly
harsh. Clearly, under the terms of a lawful union-security clause, the
"In the recent Marlin Rockwell case, cited by the majority in footnote 15 supra, the
Board found as follows : -
the record shows that the Union openly took a position that it was entitled
either to obtain union dues from the Charging Employees or to have these employees
dismissed ; that it induced the Company to threaten these employees with dismissal ;
and that it graphically demonstrated to the employees that its statements of this posi-
tion were not mere "expressions of opinion" (as the Union now claims), but real
warnings that the employees were in danger of losing their jobs if they failed to sat-
isfy the Union's dues demands.
Also, in both the Local 404 and the Eclipse Lumber cases, cited by the majority.in foot-
note 15, supra, there was specific evidence of coercion and threats of a sort completely
absent from the instant case.
UNITED ASSOCIATION OF JOURNEYMEN & APPRENTICES, ETC. 607
Respbndent could have required, as a condition of employment, pay-
ment of all dues that may have been received with the exception of
dues collected during the first 30 days of employment during the life
of the contract. At most, therefore, the Respondent may have col-
lected only 1 month's dues in excess of those to which it was equitably
entitled. In this respect also, the facts here differ from Section 8 (a)
(2) cases in which the Board has ordered reimbursement. Further-
more; under a lawful union-security arrangement, the union is not
prohibited from receiving dues payments voluntarily made during the
first 30 days. In any event, in the circumstances of this case, we are
barred by Section 10 (b) of the Act from requiring reimbursement of
dues collected during the first 30 days of this contract because both
the original and amended charges herein post date by more than 6
months the effective date of the contract.
For the foregoing reasons, I would not direct the Respondent to
reimburse dues and assessments.
MEMBERS MURDOCK and BEAN took no part in the consideration of
the above Decision and Order.
APPENDIX A
To ALL MEMBERS OF UNITED ASSOCIATION OF JOURNEYMEN & APPREN-
TICES OF PLUMBING & PIPEFITTING INDUSTRY OF THE UNITED STATES
AND CANADA, LOCAL 231, 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, as amended, we hereby notify you that :
WE WILL NOT cause or attempt to cause J. S. Brown-E. F. Olds
Plumbing & Heating Corporation to discriminate against Vernon
L. Bryant, or any other employee or applicant for employment,
by discriminatorily requiring clearances or job referrals from us,
as a condition of employment, in violation of Section 8 (a) (3)
of the Act.
WE WILL NOT execute, maintain, perform, or enforce any agree-
ment, understanding, or practice with the J. S. Brown-E. F. Olds
Heating & Plumbing Corporation, or with Ackerman Plumbing
Co., Border Plumbing Co., Metropolitan Plumbing & Heating Co.,
or T. N. O'Kelley Plumbing & Heating Co., or with any other em-
ployer, provided that any such employers are engaged in commerce
within the meaning of the Act, which requires membership in its
organization as a condition of employment, except as authorized
by Section 8 (a) (3) of the Act.
608 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL notify, in writing, J. S. Brown-E. F. Olds Plumbing
& Heating Corporation that we have withdrawn our objection to
the hiring or continued employment of Vernon L. Bryant.
WE WILL notify, in writing, Vernon L. Bryant, that we have
withdrawn our objection to his employment with J. S. Brown-E.
F. Olds Heating & Plumbing Corporation and that henceforth
we will not coerce or restrain him by discriminatorily denying to
him a clearance or a work referral slip or by otherwise interfering,
with his rights in Section 7 of the Act.
WE WILL make whole Vernon L. Bryant for any loss of pay he
may have suffered as a result of the discrimination against him.
WE WILL reimburse all employees of the J. S. Brown-E. F. Olds
Plumbing & Heating Corporation for all dues and assessments
which we have collected pursuant to our unlawful agreement with
the aforementioned Company, beginning with all such dues and
assessments collected 6 months prior to February 8, 1955.
UNITED ASSOCIATION OF JOURNEYMEN & APPREN-
TICES OF PLUMBING & PIPEFITTING INDUSTRY
OF THE UNITED STATES AND CANADA, LOCAL
231, AFL-CIO,
Labor Organization.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon a charge and an amended charge duly filed on December 6, 1954, and
February 8 , 1955, respectively , by Vernon L. Bryant , the General Counsel of the
National Labor Relations Board , herein respectively called the General Counsel I
and the Board , by the Regional Director for the Sixteenth Region ( Fort Worth,
Texas ), issued his complaint on May 3 , 1955, against United Association of Journey-
men & Apprentices of Plumbing & Pipefitting Industry of the United States and
Canada, Local 231 , AFL, herein called the Respondent , and on occasion called
the Union, alleging that Respondent had engaged in and was engaging in unfair
labor practices affecting commerce within the meaning of Section 8 (b) (1) (A) and
(2) and Section 2 (6) and (7) of the National Labor Relations Act, 61 Stat. 136,
as amended , herein called the Act . Copies of the charges and complaint , together
with notice of hearing thereon , were duly served upon Respondent , Bryant, and
upon J . S. Brown-E. F. Olds Plumbing & Heating Corporation , a party to a collective-
bargaining contract with Respondent and herein called Brown-Olds.
With respect to the unfair labor practices , the complaint , as amended at the hear-
ing, alleged in substance that Respondent : ( 1) By maintaining and enforcing certain
collective-bargaining agreements entered into with Brown-Olds and other employers
on or about May 18, 1953 , which contain unlawful provisions , violated Section 8
(b) (2) of the Act; (2) since about June 1954 , further violated Section 8 (b) (2)
by requiring Bryant and all of its members to secure referral cards from its business
manager before they could work for Brown-Olds, or for any other employer, and
'This term specifically includes counsel for the General Counsel appearing at the
hearing.
UNITED ASSOCIATION OF JOURNEYMEN & APPRENTICES, ETC. 609
in addition required all said persons to pay to Respondent an assessment of 2
percent of all wages earned from said employers and leave their union dues books
in the possession of the Respondent as security for the payment of said wage assess-
ments; and (3) on or about December 3, 1954, and thereafter, attempted to cause
and did cause Brown-Olds to refuse employment to Bryant "for the reason that he
was not a member of the Respondent union and had not been cleared by said
Respondent union, and because [Bryant] was unable to obtain a referral slip from
[Respondent] and/or for reasons other than his failure to tender the periodic dues
and initiation fees uniformly required by said Respondent union."
On May 26, 1955, Respondent duly filed an answer denying the commission of
the alleged unfair labor practices.
Pursuant to due notice, a hearing was held on June 1, 2, and 3, 1955, at El Paso,
Texas, before the duly designated Trial Examiner. The General Counsel and
Respondent were represented by counsel and were afforded full opportunity to be
heard, to examine and cross-examine witnesses, to introduce pertinent evidence, to
argue orally at the conclusion of the hearing, and to file briefs or proposed findings
of fact and conclusions of law, or both, with the Trial Examiner on or before June
23, 1955.2 A brief has been received from Respondent's counsel which has been
carefully considered.
During the course of the hearing, Respondent's counsel made various motions to
strike certain portions of the complaint for the reason that the matters complained
of were not violative of the Act, to dismiss certain allegations of the complaint for
lack of proof, to dismiss the complaint in its entirety for lack of proof, and to dis-
miss all allegations of the complaint based upon the amended charge for the reason,
among others, that said charge was obtained and filed unlawfully. Some of the
motions were granted in part, or in whole, and others were denied in toto. At the
conclusion of the taking of the evidence, Respondent's counsel renewed all the
motions which he previously had made and which had been ruled adversely to him.
Decisions thereon were reserved. The motions, except those regarding striking the
allegations of the complaint based upon the amended charge which are hereby-
denied ,3 are disposed of in accordance with the findings, conclusions, and recom-
mendations set forth below.
During the course of the hearing, Respondent's counsel applied for and obtained
a subpena calling for the production of a certain letter, or a copy thereof, purportedly
written by a Board agent to the Charging Party herein. Counsel for the General
Counsel declined to respond to said subpena until permission to do so had been ob-
tained from the General Counsel. Respondent's counsel made application to the
General Counsel for the production of said letter and was advised, after the hearing
had been closed, that the application was denied. Thereafter, and on June 23,
Respondent's counsel filed with the Trial Examiner a motion, copies of which were
duly served upon Bryant and the General Counsel, to file, as an exhibit, copies of
the communications they received from, and on behalf of, the General Counsel
under date of June 6 and 13, 1955. The motion is granted and the motion papers
are hereby received in evidence as Trial Examiner's Exhibit No. I.
Upon the entire record in the case, and from his observation of the witnesses, the
Trial Examiner makes the following:
FINDINGS OF FACT
1. THE BUSINESS OPERATIONS OF BROWN-OLDS
J. S. Brown-E. F. Olds Plumbing & Heating Corporation, a Texas corporation,
has its offices and principal place of business in El Paso , Texas , where, as well as
in Atlanta, Georgia; Memphis, Tennessee; Dallas, Texas; Albuquerque, New Mexico;
and Las Vegas, Nevada, it is, and at all times material was, engaged in the plumbing
and heating contracting business. During the 12-month period immediately preced-
ing the issuance of the complaint herein , Brown-Olds performed services and furnished
plumbing and heating materials by contract in excess of $10,000,000, approximately
$6,000,000 of which were performed and furnished outside the State of Texas. In
addition , Brown-Olds has a $1,500,000 contract with the United States Army Corps
of Engineers for the construction of heating and plumbing equipment to be installed
in the barracks buildings now under construction at Fort Bliss , Texas, and it also
performs maintenance and repair services of certain operating and production
* At the request of counsel the time to file briefs was extended to July 18, 1955
' Cf N. L. R. B. v. Jay Company, Inc., 227 F. 2d 416 (C. A. 9).
390609-56-vol. 115-40
610 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
.equipment of Standard Oil Company, El Paso, Texas, at an annual cost to Standard
,Oil in excess of $200,000.
Upon the above facts, the Trial Examiner finds that Brown -Olds is engaged in,
and during all times material was engaged in, commerce within the meaning of the
Act, and that it will effectuate the policies of the Act for the Board to assert jurisdic-
tion in this proceeding.
U. THE LABOR ORGANIZATION INVOLVED
United Association of Journeymen & Apprentices of Plumbing & Pipefitting In-
dustry of the United States and Canada , Local 231, AFL, is a labor organization
admitting to membership employees of Brown-Olds.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The alleged refusal to hire Bryant
1. Background and pertinent facts 4
Shortly after arriving in El Paso from Corpus Christi, Texas, about mid-June
1954, Bryant, a welder and a member of Local 185 of the United Association of
Journeymen & Apprentices of Plumbing & Pipefitting Industry of the United States
and Canada, which has been located in Corpus Christi since January 20, 1953,
.called at Respondent's offices and requested employment of its business agent, Miller,
who referred him to the Foster Wheeler Construction Company after Bryant had
,deposited with Miller his union dues book as security for the payment to Respond-
ent of 2 percent of his net wages, as called for in section 31 of Respondent's con-
stitution and bylaws,5 and after he had agreed to donate $2.85 to the local YMCA.
Bryant obtained employment at Foster Wheeler sometime in June and remained
,on the job until December 1. However, for the period from about August 10 until
,about August 26, he worked for Brown-Olds.
On December 2, his employment at Foster Wheeler having terminated the pre-
vious day, Bryant went to Respondent's offices seeking work. There he was informed
by Jim Stagner, Respondent's financial secretary, that there were no jobs available.
Bryant testified that on December 3 he went to the job site offices of Brown-Olds
.where that concern was doing some work for the Standard Oil Company and in-
quired for work from Marcus Poston, Brown-Olds' project engineer; that Poston, in
turn, asked Jess W. Speaker, Brown-Olds' general foreman of the Standard Oil job,
-whether he could use another welder; that when Speaker replied that he did not
know, Speaker, Poston, and Charles Heist, Brown-Olds' field office manager, left
the offices to ascertain whether a welder's job was available; that about an hour
dater, Speaker and Heist returned and Speaker said that a welder's job was avail-
able, but had to telephone Respondent before hiring him; that Speaker dialed a tele-
phone number and when no one answered the telephone, Speaker told him, to quote
from Bryant's testimony, "To go down to the Union hall and that he would phone
,down again and to go on down there to pick up my work order"; that he went to
-the union hall, saw Stagner, who said that Speaker had phoned requesting that he
(Bryant) be sent to the Standard Oil job but he (Stagner) could not comply with
the request because there were "seven men on the bench"; that when he asked
'Stagner to "put my name down then if something comes up you can send me out,"
-Stagner said, to further quote Bryant, "It won't be necessary to put your name down.
couldn't keep a roster. I know who is off work and who isn't working. If I am
4 The General Counsel stated at page 37 of the stenographic transcript of the record,
"There is nothing in so far as any conversation [Bryant purportedly had with Respondent's
business agent, Miller, in June 1954], that would be of itself violative of the Act. We are
not concerned with any violation on the part of the Union In so far as Mr . Bryant Is eon- _
.cerned prior to the date of December 2, 1954. This [ line of inquiry ] leads up to that date."
In view of said statement, and Respondent's obvious reliance thereon, the Trial Examiner
'has not considered any event which took place prior to December 2, 1954, as indicative of
a violation of the Act with respect to Bryant. He has, however, considered such events
which took place after June 2, 1954, and up to the issuance of the complaint herein, as
,background evidence solely for whatever effect such evidence might have in elucidating
,and explaining the character and quality of Respondent 's alleged Illegal conduct regard-
ing Bryant on and subsequent to December 2, 1954.
6 This section provides, in addition to the payment of the stipulated monthly dues, that
.each member working at the trade shall pay 2 percent of his net wages to Respondent as
a working assessment. -
UNITED ASSOCIATION OF JOURNEYMEN & APPRENTICES, ETC . 611
to send you out on a job , I will send you"; and that Stagner also said he "didn't have
to be cleared in [Respondent ] to be a member of it . [Stagner] could send me on
a job regardless."
Bryant further testified that at about 8:30 or 9 a . m. on Monday , December 6,
he called upon Speaker seeking employment . What transpired at that time, Bryant
testified as follows:
Q. What conversation did you have with Mr. Speaker on that occasion?
* * * * * * *
A. I asked him what happened to the phone call he made down at the local
Union here. He said Mr . Stagner couldn't send me until he sent the 7 men
that were on the bench waiting for work.
Q. What did you say, if anything, after that?
A. I don't remember my saying anything at all.
Q. Did you ask Mr. Speaker any questions on that occasion?
A. Not that I recall.
Q. Do you recall any more of your conversation with Mr. Speaker on that
occasion? -
A. He did say he had sent two other men that had taken my place on the
job, two other men sent out . I don 't know the men.
* * * * * * *
Q. Mr. Bryant, do you remember anything being said between you and Mr.
Speaker on that occasion about a work order?
A. Not on a Monday, no, sir.
Q. Was there anything said on this Monday morning , December 6th? I
will ask you if you asked Mr. Speaker whether or not he could hire you without
a work order?
* * * * * * *
A. Yes, sir, on Monday , I remember I asked Mr. Speaker could he hire me
without a work order.
Q. Did Mr. Speaker answer that question? -
A. Yes, sir.
Q. What did he answer?
A. He said no.
Speaker testified that he is presently employed by Brown-Olds, was its general
foreman on the Standard Oil project until February of this year, and had the authority
to hire and fire; that when he arrived at the project office on December 3, Poston
introduced him to Bryant; that he had not known Bryant previously; that when he
asked Bryant whether he was a welder or a pipefitter, the latter replied that he was
a welder and was qualified to work on the Standard Oil project; 6 that he could not
testify positively whether Bryant told him at that time whether has was a Respondent
member or only "intimated " that he was; 7 that Bryant asked him to telephone Stagner
and obtain Stagner 's permission to hire Bryant ; that he thereupon dialed Stagner's
number but received no answer ; that he, Poston, and Heist left the project office and
went into the field to ascertain whether there was a welder 's job available; that their
investigation disclosed that no such job was opened but , nevertheless, they concluded
it was advisable to hire two additional welders, and that he thereupon obtained
Standard Oil's permission to do so; that he then returned to his office and endeavored
to reach Stagner by telephone but was unsuccessful; 8 that he then "may have told
[Bryant] that I would call [ the union hall] for him , that he might be down there in
the event they did want to send him out"; and that at about 2 p. m. that afternoon,
December 3, he had the following telephone conversation with Stagner:
I informed Mr. Stagner that we would like to have two welders and that I
wanted men who had previously qualified with Standard Oil and at that time I
asked him if there was any objection to a fellow named Moss and Mr. Bryant.
He said, "Well, we have plenty of men, qualified welders waiting to be sent out on
the job." So,I,told him it didn't make any difference to me as long as I got men
who were qualified welders.
8 Before Brown -Olds could hire any welder he had to successfully pass certain tests pre-
scribed by Standard Oil Even though a welder had passed such tests but performed work
which Standard Oil considered unsatisfactory it had the authority to have such employee
discharged.
9 Speaker has been a member of the Union since about October 1953
8 At this point . Speaker testified that was when I "made the first telephone call [to
Stagner ] I spoke of a while ago."
612 DECISIONS OF NATIONAL LABOR RELATIONS- BOARD
Q. What did he say, if anything, in regard to Bryant or Moss that you re-
quested?
A. To the best of my memory, I believe he said they had promised to clear
into this local and had not done so and that he had men sitting on the bench,
awaiting jobs longer than they who were qualified by the Standard Oil test.
Q. What did he tell you then, if anything, about whether or not he would`
send out two men for the two jobs that you had?
A. He merely said he would send a couple out.
Speaker further testified that about 7:45 a. m. on December 6, the 2 men Stagner
had sent to the project were put to work; 9 that at about 10 or 11 o'clock that morning
Bryant appeared at the office and applied to him for work; that he told Bryant he had
no work for him because he had already hired 2 welders; that had Bryant appeared
and asked for work at or before 8 o'clock that morning, the normal starting time, he
would have hired Bryant even though Bryant had not been sent by Respondent and
despite Stagner's remarks to him during the above-quoted telephone conversation of
December 3; that prior to the filing of the charge in this case he never saw Respond-
ent's work referral slip; that Brown-Olds had "quite a few" employees working on the
Standard Oil project who were not members of Respondent; that he called Respond-
ent on December 3 because it "is about the only place I [could have called to] hire
competent pipe fitters and welders" and because Bryant said he was a member of Re-
spondent and if he were he knew that members thereof preferred being sent out to
jobs by Respondent; and that the job for which Bryant applied for lasted only 5
workdays at which time he laid off the 2 welders he had hired on December 6, in ad-
dition to 3 other workmen who had been on the job prior thereto.
Upon the entire record in the case, and from his observation of Speaker and Bryant
while they were on the witness stand, the-Trial Examiner finds that the testimony of
Speaker regarding what transpired between him and Bryant on December 3 and 6,
to be substantially in accord with the facts.
Heist testified, and the Trial Examiner finds, that when the two welders reported
on December 6, they handed him their referral slips and they then were put to work.
2. Concluding findings
Upon the credited evidence in the case, as epitomized above,10 the Trial Examiner
is convinced, and finds, that the General Counsel has failed to establish, by the
preponderance of _ the evidence, that Respondent's treatment of Bryant was dis-
criminatory within the meaning of the Act. It is clear, and the Trial Examiner
finds, that had Bryant presented himself at the Standard Oil project on December
6, prior to starting time, he would have been employed by Brown-Olds. This find-
ing is buttressed by the following credited testimony of Speaker made during the
course of his examination by the General Counsel:
Q. (Mr. Pickering.) Mr. Speaker, you stated, in answer to the Trial Ex-
aminer's question, I believe, that if Mr. Bryant had come out to the job on
Monday, December 6 at 8 o'clock you would have put him to work, is that
correct?
A. That is true.
Q. Would you have put him to work without a work referral from a union?
A. We had quite a few out there working that didn't even belong to the
Union.
Q. Would you have put Mr. Bryant to work on Monday, December 6th, had
he arrived on the project at 8 o'clock in the morning without a work referral?
A. Yes, I never see a work referral anyhow.
Q. You would have done it even in view of the conversation you had with
Mr. Stagner on the previous Friday?
A. Yes, I hired two welders at 8 o'clock.
In addition, the record establishes that: (1) The normal industry practice is for ap-
plicants for hire to appear at the job site "ahead of the day's work starting"; (2)
Brown-Olds' employment practices are to select persons who make written applica-
tion for employment as welders or pipefitters and who had passed the required Stand-
ard Oil tests , if Speaker is not acquainted with the applicant , or to secure such em-
ployees from Respondent for Speaker is aware that members of Respondent must
6 One of these men was transferred from another Brown-Olds job.
10 Bryant, Speaker, and Heist, all of them General Counsel witnesses. were the only
persons who testified
UNITED ASSOCIATION OF JOURNEYMEN & APPRENTICES, ETC. 613
,pass an examination in order to obtain membership; (3) Brown-Olds did not insist
that its employees hold membership in Respondent as a condition of employment; 11
(4) Stagner did not refuse to refer Bryant to the Brown-Olds job. The record is
clear that when Speaker asked Stagner to send 2 qualified welders and inquired whether
Stagner had any objection to either Bryant or another welder, named Moss, being
referred, Stagner indicated he preferred referring 2 qualified welders who had been
out of work longer than either Bryant or Moss, and that Speaker then replied, "It
didn't make any difference to me as long as I got men who were qualified welders";
(5) there is no evidence that the 2 welders Stagner had referred to the job on
December 6 were members of Respondent or whether they were among the 7 men
"sitting on the bench"; 12 (6) there is no evidence in the record that Stagner or any
other official "caused" or "attempted to cause" Brown-Olds to refuse employment to
Bryant or to anyone else; and (7) Stagner advised Bryant that it was not necessary
to be a member of Respondent in order to be referred to a job. Under the circum-
stances, the Trial Examiner recommends that the allegations of the complaint with
respect to Vernon L. Bryant be dismissed.
B. The contract between Respondent and Brown-Olds
1. The pertinent facts
Under date of May 18, 1953, Respondent and Brown-Olds entered into a 2-year
collective-bargaining agreement containing a yearly automatic renewal clause pro-
vided neither party gave notice to the other party of a desire to reopen. Except
for the statement of Respondent's counsel, "It is my understanding, Mr. Examiner,
it was reopened ... Fin] January or February 1955," no evidence 13 was introduced
that the contract was in fact reopened. The Trial Examiner, therefore, assumes that
the contract was renewed on May 18, 1955, and is currently in effect.
The complaint alleged that by entering into, maintaining, and enforcing the afore-
said agreement, which contains, among others, the following provisions, Respondent
violated and is violating Section 8 (b) (2) of the Act-
ARTICLE I (B): SCOPE:
The PARTY OF THE FIRST PART hereby agrees to employ journeymen
members and apprentice members in good standing with the PARTY OF THE
SECOND PART under wages and working conditions as hereinafter outlined
and agreed to. Such employment shall be secured through the business manager
of Local Union No. 231, who will issue referral card which must be presented
to Employer or his representative.
ARTICLE IV: ASSIGNMENT OF MEN:
It is understood that the PARTY OF THE FIRST PART will use members of
the PARTY OF THE SECOND PART on all work coming under the jurisdic-
tion of the United Association of Journeymen and Apprentices of the Plumbing
and Pipefitting Industry of the United States and Canada, subject to the follow-
ing rules and regulations:
(A) The PARTY OF THE SECOND PART agrees that the PARTY OF
THE FIRST PART may send one member of each craft of United Associa-
tion, as the case may be, from their Home Local Union to install work in the
jurisdiction of the PARTY OF THE SECOND PART, and the above men-
tioned member shall be permitted to supervise the job or work with the
tools without the necessity of employing unnecessary additional journeymen,
provided the above mentioned member or members shall first report to the
PARTY OF THE SECOND PART with their Clearance Card and satisfy
PARTY OF THE SECOND PART, that they are qualified to perform the
work in question.
11 Bryant 's testimony that Speaker told him that he could not be hired without a work
order is not credited , even though that portion of Bryant 's testimony was not specifically
denied by Speaker, for Bryant, himself, obtained employment from Brown -Olds in August
1954 and again in February 1955, without any work referral order from Respondent.
Moreover , other nonmembers of Respondent worked for Brown -Olds on the Standard Oil
project.
12 In fact , the contrary seems to be correct; for one of the welders put to work on
December 6 was transferred from another Brown -Olds job
1a Obviously , counsel's statement , above referred to, cannot be considered as probative
evidence
614 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(B) The Appointment of members of PARTY OF THE SECOND PART
to serve as foreman is the responsibility of the PARTY OF THE FIRST
PART.
.ARTICLE X: WORKING RULES
* * * * * * *
(D) The erection and installation of work contracted for by the PARTY
OF THE FIRST PART shall be performed by members of the PARTY OF
THE SECOND PART, under the following conditions:
1. Pipe work of every description being installed under the supervision of
the PARTY OF THE SECOND PART must be set, erected , assembled and
installed by Journeymen members of the PARTY OF THE SECOND
PART. -
2. There shall be no restriction on the use of machinery , tools , or appli-
ances used in connection with the installation of work coming under the
jurisdiction of the members of the United Association , provided that if
power pipe cutting and threading machines are to be used on the job
or in the shop of the PARTY OF THE FIRST PART, that all pipe sizes
up to and including eight ( 8) inches in diameter , as the case may be, shall
be cut and threaded on the job in the shop of the PARTY OF THE FIRST
PART, and such power machines shall be operated by Journeymen,mem-
bers of PARTY OF THE SECOND PART.
3. It is understood by the PARTIES TO THIS AGREEMENT that
welded pipe formations of two and one-half (2V2 ) inches and over in diam-
eter may be fabricated in the field or in the PARTY OF THE FIRST
PART'S Yard or Shop, but it is definitely understood that members of the
PARTY OF THE SECOND PART reserve the right to refuse to handle,
erect or install all welded , screwed , caulked , wiped , sweat, or other pipe
formations which have not been fabricated by members of the PARTY OF
THE SECOND PART.
ARTICLE XI: BY-LAWS, WORKING RULES & REGULATIONS OF
LOCAL UNION NUMBER 231
It is understood and agreed by the parties to this Agreement that 'the By-Laws,
Working Rules and Regulations of the Plumbers and Steamfitters Local Union
No. 231 of the United Association shall be a part of this Agreement.
* * * * * * *
ARTICLE XIV: WORKING FOR OTHERS
The PARTY OF THE SECOND PART further agrees that during the life
of this Agreement no member of PARTY OF THE SECOND PART shall work
for any person or firm who is not a party to a like Agreement, nor to work for
any person or firm who might be a party to a like Agreement , for any less wages
or under any more unfavorable conditions that is herein stipulated. The PARTY
OF THE FIRST PART agrees to employ no member of PARTY OF THE
SECOND PART for less than the minimum wage rate stipulated.14
The complaint further alleged that Respondent also violated the Act by incorporating,
by reference, into the contract the following sections of Respondent's constitution and
bylaws.
Section 19. Any member soliciting work except through the office of the Local
Union and fails to secure a work order before accepting employment, shall be
subject to an assessment and not permitted to work in the shop or on the job
where the violation occurred for a period of six months. Companies employing
union members shall request them through the office of the Local Union.
* * * * * * *
Section 25. Any Brother from another Local Union coming into the jurisdic-
tion of Local Union No. 231 will be required to deposit his clearance card and
secure .a work order before accepting employment.
Section 26. Names of all members of Local Union No. 231 being in arrears
the amount of three months' dues on the twentieth day of the third month, shall
14 Upon motion by Respondent's counsel, made during the course of the hearing, the
Trial Examiner dismissed the allegations of the complaint that this article of the agree-
ment was unlawful -
UNITED ASSOCIATION OF JOURNEYMEN & APPRENTICES, ETC. 615
be read before the Local Union at a regular meeting. Members paying an initia-
tion fee are required to pay weekly the sum of twenty-five percent (25%) of
their wages. It shall be the duty of the Business Manager to notify said members
of their delinquency and remove them from the job until such time as they ap-
pear before the Executive Board and receive permission to go back to work.
Section 29. Any member having an assessment levied against him by this
Local Union shall pay at the rate of not less than Twenty-Five (25%) of his
wages beginning the first week after assessment has been sanctioned at a regular
meeting. Failure to do so shall result in removal of this member from the shop
or job.
* * * * * * *
Section 31. Monthly dues to Local Union No. 231 shall be as follows:
Journeyman ------------------------------------------------ $3.00
Journeyman over 60 years of age ------------------------------ 2.00
Master Plumbers Maintaining U. A. Membership ------------------ 2.00
Apprentices ------------------------------------------------- 2.00
All members working at the trade shall pay two (2%) percent of net wages as
working assessments.
* * * * * * *
Section 44. Any member of Local Union No. 231 entering into business or
any company desiring to operate a union shop shall notify the Executive Board in
writing of their intentions and shall sign an agreement in accordance with these
By-Laws and United Association Constitution.15
Section 49. Any member working for less wages and longer hours than this
Local- Union provides will be assessed not less than $25.00 and if not paid in one
week he shall be suspended. he shall not work for one year in the shop or
jobs where this violation occurred.
2. Concluding findings
Section 8 (a) (3) of the Act forbids an employer to encourage or discourage mem-
bership in a labor organization by discrimination in regard to hire or tenure of employ-
ment. Section 8 (b) (2) prohibits a union from causing or attempting to cause an
employer to violate Section 8 (a) (3). Both employer and union violate these pro-
hibitions if they execute, maintain, or enforce an agreement making union member-
ship a prerequisite to initial employment or arrange to give union adherents priority
in employment, whether through the device of requiring referral by the union or
not.16 Derivatively, such discriminatory hiring practices also constitute restraint
and coercion of employees which is forbidden by Section 8 (a) (1) and Section 8
(b) (1) (A) of the Act.
The evidence in this case plainly shows, and the Trial Examiner finds, that the
above-referred-to contract between Brown-Olds and Respondent requires that mem-
bership in "good standing" in the Union be a condition of employment with Brown-
Olds. The agreement does not provide, as a condition of employment, that an em-
ployee or applicant for a job, make application for membership in the Union within
the time fixed by the statute, but rather requires nonunion welders and pipefitters to
obtain membership in the Union in order to obtain a job with Brown-Olds and, under
the agreement, present members are constrained to maintain their membership in
"good standing" in order to retain their employment with Brown-Olds. Such pro-
visions in a contract exceed the bounds permitted by the Act.
Respondent seeks to defend the validity of the contract on the grounds, among
others, that (1) the contract does not state in so many words that "only" members
of the Union shall be hired by Brown-Olds; (2) the record is devoid of any evidence
that the questioned hiring provisions of the contract were adhered to; (3) Brown-
Olds obtained welders and pipefitters from sources other than Respondent; and
(4) Brown-Olds employed welders and pipefitters who were not members of Re-
spondent. Whatever may be said of those contentions, the fact remains that the
contract contains an unlawful union-security clause. The Board, with court ap-
> The allegations of the complaint that this section was repugnant to the Act was di--
missed during the course of the hearing upon motion of Respondent's counsel
is N L. R B v F H DlcGraiv and Co 206 F 2i1 6.35 (C A 6), and cases cited therein.
616 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
proval, has repeatedly and uniformly held that the mere execution of such a con-
tract is violative of the Act.17 It has also been held by the Board and the courts
on a number of occasions that maintaining a hiring agreement under which, and
without benefit of the required 30-day grace period, membership in a labor organiza-
tion is a condition of employment was violative of Section 8 (b) (1) (A) and (2)
of the Act.18 Respondent, furthermore, cannot escape responsibility for its illegal
conduct on the ground that Brown-Olds secured employees from sources other than
the Union or that it employed nonunion help. The arrangement entered into by
Respondent and Brown-Olds contravened the provisions of Section 8 (a) (3) of
the Act prohibiting a contractual requirement of union membership as a condition
of employment except on or after its 30th day. Moreover, even after the 30-day
period expires, a union may not condition employment upon qualifying for member-
ship unless such qualification is restricted to tendering the periodic dues and initiation
fees uniformly required. As the Supreme Court said in Radio Officers' Union of
the Commercial Telegraphers Union, AFL v. N. L. R. B., 347 U. S. 17, 41, ". . .
Congress intended to prevent utilization of union security agreements for any pur-
pose other than to compel payment of union dues and fees." The contract fur-
ther indicates that specified work was reserved for members of Respondent. Such
a provision is likewise violative of the Act 19
The Trial Examiner is of the opinion, and finds, that the clauses of the contract
and the adoption of the Union's rules and bylaws as part thereof, as enumerated
in paragraph numbered 7 of the complaint, except the matters set forth in sub-
sections 5 and 11 thereof, when consideration is given to the evidence regarding
the entire contract, are likewise unlawful, for said provisions tend to restrain and
coerce Brown-Olds' employees and applicants for employment with Brown-Olds in
the exercise of the rights guaranteed in Section 7 of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth in section III, above, occurring in connec-
tion with the operations of the J. S. Brown-E. F. Olds Plumbing & Heating Corpora-
tion described in section I, above, have a close, intimate, and substantial relation
to trade, traffic, and commerce among the several States, and tend to lead to labor
,disputes burdening and obstructing commerce and the free flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in and is engaging in certain un-
fair labor practices affecting commerce, the Trial Examiner shall recommend that
it cease and desist therefrom and take certain affirmative action designed to effec-
tuate the policies of the Act.
It has been found that Respondent has violated Section 8 (b) (1) (A) and (2) of
the Act by maintaining a contract which requires membership in Respondent as a
condition of employment and which compels Brown-Olds to employ only welders
and pipefitters who are members in good standing in Respondent.
Upon the basis of the foregoing findings of fact, and upon the entife record in the
case, the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. J. S. Brown-E. F. Olds Plumbing & Heating Corporation is engaged in com-
merce within the meaning of Section 2 (6) and (7) of the Act.
11 See, for example, Rockaway News Supply Company, Inc., 94 NLRB 1056; Childs Com-
pany, 93 NLRB 281, enfd. 195 F 2d 617 (C A 2) ; Juliars Resnick, Inc., 86 NLRB 38;
Monohn.th Portland Cement Company, 94 NLRB 1358, Port Chester Electrical Construction
Corporation, 97 NLRB 354
1s N. L R B v F H McGraw and Co, supra; Philadelphia Iron Works, hie, 103 NLRB
596, enfd 211 F. 2d 937 (C A 3) ; The Babcock it Wilcox Co, 105 NLRB 339; Local 803,
Intea national Brotherhood of Bogle; makers, etc 107 NLRB 1011; Ehasco Services In-
oarporated, 107 NLRB 617; Consolidated Western Steel Corporation, 94 NLRB 1590;
Permanente Steamship Corporation, 107 NLRB 1111; N. L. R. B. v Gottfried Baking Co.,
Inc., at at , 210 F. 2d 772 (C A. 2) ; N L. R B v George D Anchter Co, 209 F. 2d 273
(C. A 5)
19 See United Association of Journeymen and App; entices of the Plumbing and Pipe-
fitting Industry of the United States and Canada, Local 428, AFL, 108 NLRB 186; United
Brotherhood of Carpenters and Joiners of America, Local #517, AFL, 112 NLRB 714
GENERAL DRIVERS 617
2. United Association of Journeymen & Apprentices of Plumbing & Pipefitting
Industry of the United States and Canada , Local 231, AFL, is a labor organization
within the meaning of Section 2 (5) of the Act.
3. By maintaining an agreement which contains and involves terms and condi-
tions of employment requiring membership in good standing in Respondent, Re-
spondent has engaged in and is engaging in unfair labor practices within the mean-
ing of Section 8 (b) (1) (A) and (2 ) of the Act.
4. The unfair labor practices found herein are unfair labor practices within the
meaning of Section 2 (6) and (7) of the Act.
5. Respondent has not engaged in unfair labor practices within the meaning of
the Act with respect to Vernon L. Bryant.
[Recommendations omitted from publication.]
General Drivers, Warehousemen and Helpers , Local Union No.
968, International Brotherhood of Teamsters , Chauffeurs, Ware-
housemen and Helpers of America , AFL-CIO; and Houston
Building and Construction Trades Council , AFL-CIO and
Farnsworth & Chambers Co., Inc. Case No. 39-CD-18. Febru-
ary 28,1956
DECISION AND DETERMINATION OF DISPUTE
This proceeding arises under Section 10 (k) of the Act, which
provides that, "Whenever it is charged that any person has engaged
in an unfair labor practice within the meaning of paragraph 4
(D) of Section 8 (b), the Board is empowered and directed to hear
and determine the dispute out of which such unfair labor practice,
shall have arisen. . ."
On October 3, 1955, Farnsworth & Chambers Co., Inc., herein
called the Company, filed with the Regional Director for the Sixteenth
Region a charge against General Drivers, Warehousemen and Help-
ers, Local Union No. 968, International Brotherhood of Teamsters,.
Chauffeurs, Warehousemen and Helpers of America, AFL-CIO, herein
called the Teamsters, and Houston Building and Construction Trades
Council, AFL-CIO, herein called the Council, alleging that they had
engaged in and were engaging in unfair labor practices within the
meaning of Section 8 (b) (4) (D) of the Act. The charge alleged in
substance that the Teamsters and the Council had induced and en-
couraged employees of the Company to engage in a strike or con-
certed refusal to work in the course of their employment with an
object of forcing or requiring the Company to assign particular work
on the San Jacinto Water Treater Plant project, Harris County,.
Texas; hereinafter called the San ,Jacinto project, to employees who,
are members of the Teamsters, rather than to other employees.
Thereafter, pursuant to Section 10 (k) of the Act and Sections
102.71 and 102.72 of the Board's Rules and Regulations, the Regional
Director investigated the charges and provided for a hearing upon
115 NLRB No. 95.