United States Steel Corp.

National Labor Relations Board - Board Decisions

Feb 9, 1959

122 N.L.R.B. 1324 (N.L.R.B. 1959)

1324 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
nation selected by a majority of the employees in the pooled group,
which unit the Board, in such circumstances, finds to be appropriate
for purposes of collective bargaining.
[Text of Direction of Elections omitted from publication.]
United States Steel Corporation ( American Bridge Division>
and James Russell
Local Union 542, International Union of Operating Engineers,
AFL-CIO and James Russell . Cases Nos. 4-CA-1514 and
1-CB-373. February 9, 1959
DECISION AND ORDER
On October 30, 1957, Trial Examiner C. W. Whittemore' issued
his Intermediate Report in the above-entitled proceedings, finding
that the Respondents had not engaged in any unfair labor practices
and recommending that the complaints be dismissed in their entirety,
as set forth in the copy of the Intermediate Report attached hereto.
Thereafter, the General Counsel filed exceptions to the Intermediate
Report and a supporting brief, and each Respondent filed a brief 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 Board has considered the Intermediate Report, the exceptions
and briefs, and the entire record in the case, and finds merit in the
exceptions to the Intermediate Report to the extent noted below.
Accordingly, the Board adopts the findings, conclusions, and recom-
mendations of the Trial Examiner which are consistent with the
findings and conclusions hereinafter made.
1. The Trial Examiner found that the General Counsel did not
prove the allegations of the complaint that the Respondent Company
violated Section 8(a) (3) and (1) of the Act and that the Respondent
Union violated Section 8(b) (2) and (1) (A) of the Act by being
parties to an agreement which required the Company to hire only
persons who were members of the Union and who were referred for
employment by the Union. We do not agree.
The record discloses that the Company entrusted its master me-
chanic with the recruitment of operating engineers for its Morrisville
construction project, which is here involved. Thus, when the Com-
pany's superintendent, Wright, determined that operating engineers
were needed, it was his practice to request Master Mechanic Stewart,
122 NLRB No. 155.
UNITED STATES STEEL CORPORATION 1325
concededly a supervisor, to secure them.' Stewart, who was a mem-
ber of the Union, used the Union's hiring hall exclusively to recruit
the required engineers . Generally, the individuals whom the Union
referred to the job reported directly to the master mechanic who,
after having them sign in with the timekeeper, assigned and super-
vised them in their work. As a union member, Master Mechanic
Stewart was obligated under the International's constitution to hire
only members in good standing.2 In addition, Stewart owed his job
as master mechanic to the Union. Fine, the Company's erection
manager , testified that, although the Company was not signatory
to the Union's area contract with various contractor associations, the
Company followed, among other things, the contractual provision
requiring the hiring of a master mechanic when a specified number
of engineers were employed on a particular job site. Under the
Union's bylaws, the Union and the business agents in the district
selected the master mechanics. The inevitable consequence of this
power of appointment was to enable the Union, through the master
mechanic, to control the hiring and retention of the Company's oper-
ating engineers.' Indeed, it is not without significance that the
Company in its brief to the Board refers to the master mechanic
as the Union's hiring hall representatives on the job.
It is clear from the foregoing, that Master Mechanic Stewart
served in a dual capacity. On the one hand, he acted as agent for
the Company in hiring operating engineers ; on the other hand, he
acted as agent for the Union bound by the International's constitu-
tion and the Local's bylaws to enforce the Union's restrictive hiring
policies. In such circumstances, we find that the Company and the
Union, in effect, entered into an agreement or arrangement to operate
under closed-shop conditions, which the Act plainly prohibits 4 The
1 The record indicates that in only two instances involving Driscoll and Russell, the
Charging Party, did Superintendent Wright ask Master Mechanic Stewart to employ
engineers by name. It also appears that, in case a layoff was necessary , the master
mechanic was told by his superiors to release a specified number of engineers without,
however , also being instructed as to which individuals to lay off . Apparently , the master
mechanic was left with the authority to select the specific individuals for layoff.
2 Article XXXIII , subdivision 3, section ( a) provides that "Each member shall hire none
but those in good standing with a Union having jurisdiction over the work done. . . .
The extent to which the Respondent Union controlled employment is further indicated
in the various provisions in the Union 's bylaws which require all members to report to
the steward or master mechanic before going on the job ; prohibit Local 542 -A men to
operate when Local 542 men were out of work ; require all "permit men " to be laid off
jobs when "bookmen" were out of work ; and provide that all master mechanics must be
selected by the Union and business agents in that district . ( Article V, section 2(11),
(14), and ( 16) and section 3.) Contrary to the Respondent Union's contention, we find
that the Union ' s bylaws were in effect at all times material herein.
8 Cf. Houston Maritime Association , Inc., 121 NLRB 389.
& Enterprise Industrial Piping Company, 117 NLRB 995 ; Booth and Flinn Company,
et at., 120 NLRB 545, and cases cited therein . Cf. Houston Maritime Association, Inc.,
supra . See also Mountain Pacific Chapter of the Associated General Contractors, Inc.,
119 NLRB 883 , where the Board held that an exclusive hiring hall agreement between an
employer and a labor organization is permissible only under special safeguards against
discrimination,
1326 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
fact that Master Mechanic Stewart did not also initially determine
when and how many engineers to hire does not, in our opinion,
detract from the unlawful nature of the hiring arrangement as the
Trial Examiner thought it did.
The Respondents, however, argue that no violation could be found
because the Company used the Union's hiring hall as only one source
for securing personnel. In support of this contention the Respond-
ents rely upon the self-serving testimony of Erection Manager Fine
to that effect and the fact that Superintendent Wright insisted that
Master Mechanic Stewart employ Russell, the Charging Party, and
Driscoll. We find no merit in this contention. Not only did the
Respondents offer no evidence as to what other sources the Company
used to recruit engineers, but the record establishes that Stewart
secured engineers exclusively from the hiring hall. In fact, Stewart,
as will hereafter be discussed, disregarded Superintendent Wright's
instructions to hire Russell, but instead turned to the Union to fill
available jobs. Moreover, even though Wright told Stewart to hire
Russell and Driscoll, this fact does not preclude a finding that an
unlawful hiring arrangement otherwise existed.5 This is particularly
apparent here since Wright sought to persuade the Union's business
agent, Panlaleo, to permit him to employ these individuals.
As indicated in the Intermediate Report, the Trial Examiner was
also of the opinion that the foregoing evidence of an unlawful
agreement or arrangement was not encompassed by the allegations
of the complaints. We do, not agree. The complaints allege that
the Respondents were "parties to an agreement which provides for
[the Company], within the geographical jurisdiction of [the Union]
to hire only those persons who are members of [the Union] and who;
have been referred for employment by [the Union]." The evidence,
which the General Counsel adduced and which was received without
objection in support of these allegations, clearly disclosed that the
General Counsel was proceeding on the theory of an implied agree-
ment or arrangement to establish closed-shop conditions of employ-
ment through the delegation of recruiting authority to the master
mechanic. The case was litigated on this theory and no question
of surprise or prejudice was raised. Indeed, the Trial Examiner so-
understood the General Counsel's theory and adversely ruled on hi&
contention. In these circumstances, we find that the complaint suffi=
ciently alleged the violation which was litigated and is found herein.-
In view of the foregoing, we find that, by being parties to an
unlawful hiring arrangement, the Respondent Company and the-
Respondent Union, respectively, violated Section 8(a) (3) and (1),
and Section 8(b) (2) and (1) (A) of the Act.
5 Millwright Local Union No. 248 4, at al., 114 NLRB 541, 550.
UNITED STATES STEEL CORPORATION 1327
2. We also find, contrary to the Trial Examiner, that Russell was
denied employment until March 26, 1957 , as a result of the operation
of the unlawful hiring arrangement discussed above under which
the Respondent Union exercised control over the employment of
engineers and that the Respondent Company thereby discriminated
against Russell in violation of Section 8 (a) (3) and ( 1) of the Act
and the Respondent Union caused such discrimination in violation of
Section 8 ( b) (2) and (1) (A) of the Act.
The relevant facts are substantially undisputed and are briefly
these : On January 4, 1957, the Company's Superintendent Wright,
who was scheduled to take personal charge of the Morrisville project
a few days later , promised Russell , who had previously worked with
him, a job at that project. Wright accordingly instructed both his
assistant on the Morrisville project, Mikulan, and Master Mechanic
Stewart, to place Russell on a crane . Therefore , when Mikulan de-
cided to start operating the crane on January 8, he directed Stewart
to get Russell for the job . At this time Mikulan specifically inquired of
Stewart if Wright had not also spoken to him previously concerning
Russell , and Stewart replied that Wright had . However , Stewart hired
another engineer . At about 11 a.m. on January 8 , Russell came to
Mikulan's office to find out why he was not called to work. It was
then that Mikulan learned for the first time that Master Mechanic
Stewart had not called him. Mikulan then asked Russell to remain
until the Union Business Agent Pantaleo arrived at the construction
site. Later that day Mikulan met with Pantaleo, Stewart , Russell,
and the shop steward. In the ensuing conversation it developed that
Stewart had already filled the crane position . When the question
of displacing the engineer who was hired instead of Russell arose,
Pantaleo told Mikulan that ". . . if Russell takes the job, . . . the
man on the job will have a labor case." At this point Russell de-
clared "I think I am the one to decide whether you have a labor case
or not. . . ." He offered as a solution that the incumbent remain
on that machine and that he ( Russell ) be given the "next rig." He
asked if this was agreeable and all present agreed that Russell was
to have the next opening.
The following day, Superintendent Wright took over personal
supervision of the job. Upon canvassing the project and discovering
that Russell was not working, Wright questioned Stewart as to why
Russell was not hired . Stewart told him that there was some "mix-
up" and that Russell was to get the next machine which came in.
Sometime between January 9 and 14, Wright told Stewart that he
wanted Russell on the job, and Stewart indicated that he would have
to check with his Business Agent Pantaleo. When Wright again
asked Stewart about Russell , Stewart indicated that Russell would
cause trouble . Later during the same period , Wright told Pantaleo
1328 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that he needed and wanted to hire both Russell and Driscoll. Panta-
leo replied that he could have Driscoll but that Russell would cause
trouble. Wright disagreed that Russell would cause trouble as
Russell had worked for him before. Wright testified at the hearing
that he would have made jobs for both men.
On January 15 openings occurred for four operators.' Mikulan
ordered Stewart to obtain these operators and to include Russell for
one of them. All four operators, however, were hired through the
hiring hall by Stewart, but not Russell. It appears that Mikulan,
nevertheless, did not question Stewart about his failure to hire
Russell. On January 21 Driscoll reported to work. Wright had
previously promised Driscoll employment at the Morrisville site as
soon as his work assignment at another company job site was com-
pleted. The witnesses were unable to recall whether there was any
equipment available for Driscoll to operate when he reported to work
or if he was given other assignments until a crane was needed.'
Thereafter, Superintendent Wright ordered Master Mechanic
Stewart to call Russell for a job for February 14. Again, another
operator, however, was secured by Stewart through the Union. Ap-
proximately 3 weeks after Russell filed charges, Wright telephoned
Russell and offered him a job on a crane which he expected to arrive
about March 1. Russell told Wright that he would accept it but
would have to let Wright know when he would be free as he ex-
pected to testify in court at about that time.' Russell notified Wright
of his availability but the March 1 job because of operating diffi-
culties did not materialize, Wright personally called Russell to report
to work on March 26, which Russell did.
Russell testified that he had never received a call from Master
Mechanic Stewart for any job with the Company; that he had reg-
istered with the Union for work ; and, that during the time material
herein, he occasionally stopped by the Union hall to see if work was
available.9 Stewart gave no testimony as to whether or not he ever
called or attempted to call Russell.
6 This is erroneously referred to In the Intermediate Report as a temporary rush job.
Wright testified that he told Mikulan to get Russell and thought that Mikulan had called
Russell. He also testified that he thought that these were temporary rush jobs and that
Pantaleo had filled them.
7 We do not find that Russell was discriminatorily denied the job given to Driscoll.
8 Russell and 11 other union members had brought a civil suit against the Union's
International in a U.S. District Court involving the internal operations of the Respondent
Local. This case was pending and being heard, during this period . Russell was a witness
in the court trial of this civil suit about February 25 or 26.
"The trial in the civil suit against the Union began on February 4, and was attended
every day by Russell and Union Business Agent Pantaleo . Russell testified that the day
following his call from Wright concerning the March 1 job and on the evening before he
was due to appear on the witness stand, Pantaleo telephoned and told him that he had a
job for him at the Company' s Morrisville project and that he was to report to work the
next morning . Russell told Pantaleo he could not do so due to the fact that he was to
testify the next day. He also informed Pantaleo that Wright had called him the previous
evening for a job beginning around March 1. Pantaleo replied that he did not know that
Wright had done so. The circumstances of this offer cast serious doubt on the Union's
UNITED STATES STEEL CORPORATION 1329
Viewing the foregoing facts in the light of the unlawful hiring
arrangement between the Respondents with the evident control the
Union thereby exercised over the employment of engineers, we find
that the General Counsel proved at least a prima facie case that
Russell was a victim of the discriminatory hiring system. On the
state of the record before us, it is clear that, were it not for the
unlawful hiring arrangement and the opposition of Master Mechanic
Stewart, as the agent of the Company and the Union, as well as
the opposition of Union Business Agent Pantaleo, as. the agent of
the Union, Russell would have been employed by the Company when
the first job opened up on January S. The Respondents did not
come forward, as they were required to do in these circumstances if
countervailing evidence existed, with evidence that Russell's non-
employment until March 26 was actually attributable to nondiscrim-
inatory reasons to rebut the reasonable inference of discrimination
established by the evidence adduced by the General Counsel.
Contrary to the implication in ,the ,Intermediate Report, we further
find that Russell's refusal to replace the individual who was hired
in his place, does not militate against a finding of unlawful dis-
crimination against him.10 In the first instance, it does not explain
Master Mechanic Stewart's initial or subsequent failures to follow
the Company's instruction to call Russell when jobs opened up.
Secondly, Russell's decision not to insist on replacing the individual
who was hired on January 8 was made in the face of Union Business
Agent Pantaleo's warning that that individual would have a "labor
case," and undoubtedly influenced his action. Finally, Russell's de-
cision was made on condition that he get the next job which opened
up. As indicated above, this condition was not fulfilled but instead
Russell was subjected to further discrimination.
Accordingly, we conclude, in disagreement with the Trial Exam-
iner, that the Respondent Company discriminatorily denied Russell
employment from January 8 to March 26, 1957, in violation of Sec-
tion 8 (a) (3) and (1) of the Act, and that the Respondent Union
caused such discrimination in violation of Section 8(b) (2) and
(1) (A) of the Act."
THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON C03TATERCE
The activities of the Respondents, as set forth above, which have
been found to constitute unfair labor practices, occurring in connec-
motives and do not minimize the discrimination 'theretofore practiced against Russell or
affect the back pay to which he is entitled. This is particularly so in view of the fact
that at the time of Pantaleo's offer, Russell had already accepted Wright's offer of a job.
10 Equally without merit is the suggestion in the Intermediate Report that no dis-
crimination was practiced as Russell and the other engineers involved were union mem-
bers. Radio Officers' Union v. N.L.R.B., 347 U.S. 17.
uLocal Union No. 450, International Union of Operating Engineers, AFL-CIO, etc.
(Tellepsen Construction Company), 122 NLRB 564.
505395-59-vol. 122-85
"1330 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Lion 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, contrary to the Trial Examiner, that the Respond-
ents have engaged in unfair labor practices, we shall require them
to cease and desist therefrom and from any like or related conduct,
and take certain affirmative action designed to effectuate the policies
of the Act.
We have found that the Respondents are parties to an illegal
closed-shop hiring arrangement. We shall therefore order them to
cease and desist from entering into, maintaining, or giving effect to
such arrangement, agreement or understanding, or any other ex-
clusive hiring arrangement, agreement or understanding, which does
not provide for the safeguards prescribed in the Board 's decision in
Mountain Paci fic,12 and which is not enforced in a nondiscriminatory
manner.
We have also found that, under the hiring arrangement between
the Respondent Union and the Respondent Company, membership
in good standing was a condition for securing and retaining employ-
ment with the Respondent Company, thereby inevitably ' coercing
employees not only to become members in good standing in the Re-
spondent Union, but also to pay the Respondent Union initiation
fees, dues, and other sums. The payment of such moneys thus
constituted the price employees had to pay for their jobs in disregard
of their statutory rights. In order to expunge the coercive effects
of such illegal exactions, we find it necessary and appropriate in
effectuating the policies of the Act to direct the Respondents jointly
and severally to refund to the former and present employees of
Respondent Company moneys so collected." Otherwise, the Respond-
ent Union would be permitted to enjoy the fruits of its own unfair
labor practices and the Respondent Company, who made such exac-
tions possible, would be exonerated from liability at the expense of
the victims of the unlawful hiring arrangement. However, in con-
formity with Section 10(b) of the Act, the Respondents' liability
shall be limited to moneys collected during the period beginning
12 Mountain Pacific Chapter of the Associated General Contractors , Inc., at al., supra.
18 Cf. United Association of Journeymen & Apprentices of Plumbing and Pipefitting
Industry of the United States and Canada, Local 231, AFL-CIO (J. S. Brown-E. F. Olds
Plumbing & Heating Corporation ), 115 NLRB 594; Local Union No. 450, International
Union of Operating Engineers , at al ., footnote 11 supra; N.L.R.B. v. Broderick Wood
Products Company, 261 F. 2d 548 (C.A. 10).
UNITED STATES STEEL CORPORATION 1331
6 months before the filing and service on them of the charges,
herein."
We have found that the Respondents have discriminatorily denied
employment to James Russell from January 8 to March 26, 1957, at
which latter date Russell was hired by the Company. Accordingly,
we shall order the Respondents jointly and severally to make Russell
whole for the loss of pay suffered by him during this period by
reason of the discrimination practiced against him by payment to
him of a sum of money equal to the amount he normally would
have earned as wages during this period.
ORDER
Upon the basis of the entire record in this case, and pursuant to
Section 10(c) of the National Labor Relations Act, as amended, the
National Labor Relations Board hereby orders that:
A. The Respondent, United States Steel Corporation (American
Bridge Division), Philadelphia, Pennsylvania, its officers, agents,
successors, and assigns, shall:
1. Cease and desist from :
(a) Entering into, performing, maintaining, or giving effect to
any agreement, arrangement, or understanding with Local Union 542,
International Union of Operating Engineers, AFL-CIO, or any
other labor organization, which conditions the hiring of applicants
for employment, or the retention of employees in their jobs, upon
clearance or approval by, or upon membership in, such labor or-
ganization, except as authorized by Section 8(a) (3) of the Act.
(b) Encouraging membership in Local Union 542, International
Union of Operating Engineers, AFL-CIO, or any other labor or-
ganization, by granting preference in hiring to its members or by
discriminating in any other manner in respect to the hire or tenure
of employment, or any term or condition of employment, except as
permitted by Section 8(a) (3) of the Act.
(c) Discriminating against James Russell or any other applicant
for employment by refusing to hire him without approval of the
above-named Union, except to the extent permitted by Section 8
(a) (3) of the Act.
(d) In any like or related manner, interfering with, restraining,
or coercing employees in the exercise of their rights guaranteed in
Section 7 of the Act, except to the extent that such rights may be
14 As the Trial Examiner recommended dismissal of the complaint , we shall not require
the Respondents to refund dues and initiation fees and other moneys paid to the Union
during the period between the date of the issuance of the Intermediate Report and the
date of our Decision and Order herein . Cf. Los Angeles -Seattle Motor Express , Incorpo-
rated, 121 NLRB 1629.
1332 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
affected by an agreement requiring membership in a labor organiza-
tion 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) Preserve and make available to the Board or its agents upon
request, for examination and copying, all payroll records, social
security payment records, timecards, personnel records and reports,
and all other records necessary to analyze the amounts of back pay
due under the terms of this Order.
(b) Post at its offices and job sites within the territorial jurisdic-
tion of Respondent Local Union 542, copies of the notice attached
hereto marked "Appendix A." 15 Copies of said notice, to be fur-
nished by the Regional Director for the Fourth Region, shall, after
having been duly signed by Respondent's representative, be posted
by it immediately upon receipt thereof, and be maintained by it for
60 consecutive days thereafter in conspicuous places, including all
places where notices to employees or job applicants are customarily
posted. Reasonable steps shall be taken by it to insure that said
notices are not altered, defaced, or covered by any other material.
(c) Post at the same places and under the same conditions as set
forth in (b) above, as soon as they are forwarded by the Regional
Director, copies. of the Respondent Union's notice herein marked
"Appendix B."
(d) Mail to the Regional Director for the Fourth Region signed
copies of the notice attached hereto marked "Appendix A" for post-
ing by Respondent Local Union 542, at its offices, hiring halls, and
meeting halls in places where notices to members and to other persons
using Local 542's hiring hall are customarily posted. Copies of said
notice, to be furnished by the Regional Director, shall, after being
signed by a representative of the Respondent Company, be forthwith
returned to the Regional Director for such posting.
(e) Notify the Regional Director for the Fourth Region in writ-
ing, within 10 days from the date of this Order, as to what steps
the Respondent Company has taken to comply herewith.
B. The Respondent, Local 542, International Union of Operating
Engineers, AFL-CIO, its officers, representatives, agents, successors,
and assigns, shall:
1. Cease and desist from :
(a) Entering into, performing, maintaining, or otherwise giving
effect to any agreement, arrangement, or understanding with the
Respondent United States Steel Corporation (American Bridge Divi-
sion), or. any other employer over whom the Board will assert
151n 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."
UNITED STATES STEEL CORPORATION 1333
jurisdiction, which conditions the hiring of applicants for employ-
ment or the retention of employees in their jobs, with such employer
upon clearance or approval by the said Respondent Union, or which
conditions employment upon membership in the Respondent Union,
except as authorized by Section 8(a) (3) of the Act.
(b) Causing or attempting to cause the Respondent Company
or any other employer over whom the Board will assert jurisdiction,
to discriminate against James Russell, or any other employee or
applicant for employment, in violation of Section 8(a) (3) of the Act.
(c) In any like or related manner restraining or coercing em-
ployees or prospective employees of Respondent Company, or any
other employer, in the exercise of their rights guaranteed in Sec-
tion 7 of the Act, except to the extent that such rights may be
affected by an agreement requiring membership in a labor organiza-
tion as a condition of employment as authorized 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) Preserve and make available to the Board or its agents upon
request, for examination and copying, all records, reports, and other
documents, necessary to analyze the amounts of moneys due under
the terms of this Order.
(b) Notify in writing Respondent Company and James Russell
that the Respondent Union has withdrawn its objections to the hiring
or continued employment of Russell by Respondent Company, or to
his employment by any other employer.
(c) Post in the Respondent Union's business offices, hiring halls,
and meeting halls copies of the notice attached hereto marked "Ap-
pendix B." 16 Copies of said notice, to be furnished by the Re-
gional Director for the Fourth Region, shall, after being duly signed
by an authorized representative of the Respondent Union, be posted
by the said Respondent immediately upon receipt thereof, and
maintained by it for a period of 60 consecutive days in conspicuous
places, including all places where notices to members and to other
persons using Respondent Union's hiring hall are customarily posted.
Reasonable steps shall be taken by the Respondent to insure that
the said notices are not altered, defaced, or covered by any other
materials.
(d) Post at the same places and under the same conditions as set
forth in (c) above, as soon as they are forwarded by the Regional
Director, copies of the Respondent Company's notice herein marked
"Appendix A."
(e) Mail to the Regional Director for the Fourth Region signed
copies of the notice attached hereto marked "Appendix B" for post-
'° See footnote 15, supra.
1334 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing by Respondent United States Steel Corporation (American
Bridge Division), at its offices and job sites within the territorial
jurisdiction of Respondent Union, including all places where notices
to employees or job applicants are customarily posted. Copies of
said notice, to be furnished by the Regional Director, shall, after
being duly signed by a representative of Respondent Union, be forth-
with returned to the Regional Director for such posting.
(f) Notify the Regional Director in writing within ten (10) days
from the date of this Order as to what steps the Respondent has
taken to comply herewith.
C. The Respondent, United States Steel Corporation (American
Bridge Division), its officers, agents, successors, and assigns, and the
Respondent, Local Union 542, International Union of Operating
Engineers, AFL-CIO, its officers, representatives, agents, and as-
signs, shall jointly and severally make whole James Russell for any
loss of pay he may have suffered by reason of the discrimination
against him, in the manner set forth in the section of this Decision
entitled "The Remedy"; and shall jointly and severally reimburse
all present and former employees, of Respondent Company, who
have unlawfully been required to pay initiation fees, dues, or other
money, to the Respondent Union in order to secure or retain em-
ployment with the Respondent Company under the illegal hiring
arrangement between the Respondents during the period beginning
6 months before the filing and service upon the Respondents of the
charges in this proceeding, in the manner set forth in the section of
this Decision entitled "The Remedy."
MEMBER BEAN , concurring in part and dissenting in part:
I agree with the majority finding that the Respondents violated
Section 8(a) (1) and (3) and Section 8 (b) (1) (A) and (2), re-
spectively, in connection with their hiring arrangement. However,
I cannot agree that the General Counsel proved, by a fair preponder-
ance of the evidence and on the record considered as a whole, that
the Respondents engaged in further violations with respect to
Russell.
The evidence shows only that on January 8, 1957, the master me-
chanic in charge of hiring for the Company was a union member;
that Russell was persona non grata to the Union; and that the master
mechanic hired another employee although instructed by management
representatives to call Russell. But there was no evidence that the
master mechanic had not tried to call Russell as instructed. If the
master mechanic had tried to call Russell, but was unsuccessful in
reaching him and thereupon hired another, I think my colleagues
would agree that no violations had been made out. But the General
Counsel made no attempt to prove that this was not the fact, and
UNITED STATES STEEL CORPORATION 1335
indeed, the evidence shows that the Company did not reprimand
the master mechanic, as it would normally do if he had in fact dis-
obeyed instructions. On the contrary, when management representa-
tives held a conference about the Russell case later on January 8,
the master mechanic indicated that there had been a mix-up (which
the Trial Examiner found was not due to any unlawful or dis-
criminatory considerations), and it was then unanimously agreed
that Russell could replace the other employee who had been hired.
However, Russell himself replied that he did not want to "knock
off" the other employee, whereupon the master mechanic agreed
that Russell could take the very next opening.''
In these circumstances, and by adding a reference to the unlawful
hiring arrangement, my colleagues would put on the Respondent the
burden of showing that the master mechanic acted lawfully, and in
the absence of such a showing would infer or presume the ultimate
fact that he acted for unlawful or discriminatory reasons. I think
that the evidence actually adduced, while perhaps creating a suspicion
that the Respondents' actions may have been improper, is not suf-
ficient to warrant my colleagues' assertion that the General Counsel
proved a case, prima facie or otherwise.
Accordingly, I would affirm the Trial Examiner's dismissal of the
complaint in respect to Russell.
17 Before Russell was hired in March, further openings occurred which the master
mechanic also filled with employees other than Russell, but again there is no evidence
that the master mechanic did not first try to call Russell.
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 give notice that:
WE WILL NOT enter into, perform, maintain, or otherwise give
effect to any agreement, arrangement, or understanding with
Local Union 542, International Union of Operating Engineers,
AFL-CIO, requiring membership in, or clearance by, said labor
organization as a condition of employment, except as authorized
by Section 8(a) (3) of the National Labor- Relations Act, as
amended.
WE WILL NOT encourage membership in Local Union 542,
International Union of Operating Engineers, AFL-CIO, or any
other labor organization, by refusing to hire James Russell, or
any other applicant for employment, or by discriminating in
any other manner in regard to hire or tenure of employment
1336 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
or any term or condition of employment, except as authorized
by Section 8(a) (3) of the Act.
WE WILL NOT discriminate against James Russell or any other
applicant for employment by refusing to hire him without ap-
proval of the above-named Union, except as permitted by Sec-
tion 8(a) (3) of the Act.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce employees 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 loan organization as a condition of employment, as author-
ized in Section 8(a) (3) of the Act.
WE WILL make James Russell whole for any loss of pay suf-
fered as a result of the discrimination against him.
WE WILL refund to all present and former employees any
initiation fees, dues, or other moneys they were illegally required
to pay to Local Union 542, International Union of Operating
Engineers, AFL-CIO, in order to secure or retain employment
with us under the illegal hiring arrangement between our Com-
pany and the said Union during the period beginning 6 months
before the filing and service upon us of the unfair labor practice
charge in this proceeding.
UNITED STATES STEEL CORPORATION
(AMERICAN BRIDGE DIVISION),
Employer.
Dated---------------- By-------------------------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
APPENDIX B
NOTICE TO ALL MEMBERS OF LOCAL UNION 542, INTERNATIONAL UNION
OF OPERATING ENGINEERS, AFL-CIO; TO ALL EMPLOYEES OF
UNITED STATES STEEL CORPORATION (AMERICAN BRIDGE DIVISION) ;
TO ALL EMPLOYEES WHO WORK, OR WISH To WORK WITHIN THE
JURISDICTION OF OPERATING ENGINEERS. AND TO ALL APPLICANTS
FOR EMPLOYMENT
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 give notice that :
WE WILL NOT enter into, perform, maintain, or otherwise give
effect to any agreement, arrangement, understanding, or practice
UNITED STATES STEEL CORPORATION 1337
with United States Steel Corporation (American Bridge Divi-
sion), or any other employer within our territorial jurisdiction
over which the Board would assert jurisdiction, which conditions
the hiring of applicants for employment, or the retention of
employment in their jobs, with such employer upon clearance or
approval by us, or which conditions employment upon member-
ship in our organization, except as authorized by Section 8(a)
(3) of the Act.
WE WILL NOT cause or attempt to cause United States Steel
Corporation (American Bridge Division), or any other employer
over whom the Board will assert jurisdiction, to discriminate
against James Russell, or any other employee or applicant for
employment, in violation of Section 8 (a) (3) of the Act.
WE WILL NOT in any like or related manner restrain or coerce
employees in the exercise of their rights guaranteed in Section 7
of the Act, except to the extent 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 James Russell whole for any loss of pay suf-
fered as a result of the discrimination against him.
WE WILL refund to all present and former employees of
United States Steel Corporation (American Bridge Division),
any initiation fees, dues, or other moneys they were illegally re-
quired to pay in order to secure or retain employment with the
said Company under the illegal hiring arrangement between our
Union and said Company during the period beginning 6 months
before the filing and service upon us of the unfair labor practice
charge in this proceeding.
WE WILL notify, in writing, United States Steel Corporation
(American Bridge Division), that we have no objection to the
hiring or employment of James Russell.
WE WILL notify, in writing, James Russell, that we have with-
drawn our objection to the hiring or continued employment of
him by United States Steel Corporation (American Bridge
Division), or to his employment by any other employer.
LOCAL 542, INTERNATIONAL UNION Or
OPERATING ENGINEERS, 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.
1338 DECISIONS OF NATIONAL 'LABOR.-RELATIONS BOARD
INTERMEDIATE REPORT
STATEMENT OF THE CASE
Charges having been duly filed, and served in each of the above- entitled cases;
complaints , an order consolidating the cases, and a notice of hearing thereon
having been duly served by the General Counsel of the National Labor Relations
Board, and answers having been filed by the two Respondents, a hearing involving
allegations of unfair labor practices in violation of Section 8(a)(1) and (3) and
8(b)(1)(A) and (2) of the National Labor Relations Act, as amended (61 Stat. 136),
herein called the Act, was held in Philadelphia, Pennsylvania, on September 24,
1957, before the duly designated Trial Examiner.
As to the unfair labor practices, in substance the complaints allege and the
answers deny that: (1) the Respondent Union and the Respondent Company, since
September 1956, have been parties to an agreement requiring the employer to hire
only members of the Union or individuals referred by it, within the Union's
jurisdictional area; (2) on January 7 and 14, 1957, and at all times until March 26,
1957, the Respondent Union, by refusing to refer James Russell for employment,
the Respondent Union caused the Respondent Company to discriminate against
Russell in violation of Section 8(a)(3) of the Act; (3) on the above dates the Re-
spondent Company discriminatorily refused to hire James Russell ; and. (4) by their
respective conduct the Respondents have restrained and coerced employees in the
exercise of rights guaranteed by Section 7 of the Act.
At the hearing all parties were represented, were afforded full opportunity to be
heard, to examine and cross-examine witnesses, to. introduce evidence pertinent
to the issues, to argue orally upon the record, and to file briefs and proposed
findings and conclusions . Oral argument was waived. Briefs have been received
from the parties.
At the conclusion of the hearing ruling was reserved upon motions of the Re-
spondents to dismiss the complaints. Disposition of said motions is made by the
following findings, conclusions, and recommendations.
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 OF THE RESPONDENT COMPANY
United States Steel Corporation is a New Jersey corporation. Its American
Bridge Division is engaged in the fabrication of structural steel for use in erecting
buildings, bridges, barges, and certain other specialties. In its New Jersey opera-
tions, it annually purchases and receives from points outside the State of New
Jersey raw materials valued at more than $500,000. The value of its annual
shipments outside the State of New Jersey exceeds $100,000. The Respondent
Company is engaged in commerce within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Local Union 542, International Union of Operating Engineers , AFL-CIO, is a
labor organization within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The relevant facts and issues
First, as to the question of an "agreement," alleged by the complaints to have
existed "at all times since on or about September 1956," between the Respondents,
"which provides for Respondent Employer, within the geographical jurisdiction of
Local 542, to hire only those persons who are members of Local 542 and who are
referred to employment by Local 542."
The record is barren of any evidence, substantial or otherwise, that any argu-
ment of the nature alleged is or ever has been in existence. The testimony of
David S. Fine,-. erecting manager of .the Respondent Company, is undisputed; .and
is to the effect that the employer had no "written agreement with Local 542,"
and no "agreement or arrangement ' with them" of "any sort." Fine readily ad-
mitted that he used the Local as "one of the sources" in obtaining needed em-
ployees, and "followed" whatever wage rates, holidays, welfare payments, etc., were
set out and established in the operating area by such agreements as might exist
between the Local and other employers. Even were Fine's admissions considered
as support for a finding of "practice," practice is not alleged, and the finding is
UNITED STATES STEEL CORPORATION 1339
therefore not made.' The Trial Examiner therefore concludes and finds that the
evidence in the record fails to sustain the specific allegations of the complaint
that: (1) by an exclusive hiring agreement with the Union the Respondent Com-
. pany has violated Section 8(a)(3) of the Act; and (2) by said agreement the Re-
spondent Union has caused the Company to violate Section 8(a)(3) and itself has
violated Section 8(b)(2) of the Act .2
Next, to the question as to whether or not, as alleged in the complaint against
the Respondent Company, the employer "refused to hire" the Charging Party,
James Russell, on January 7 and 14, or at any other time between those dates
and March 26, 1957.
Russell himself was, of course, General Counsel's chief witness in support of this
allegation. Although in a previous Board case, Local 542, International Union of
Operating Engineers, AFL (Koppers Company, Inc.), 117 NLRB 1863, the Trial
Examiner relied to a large extent upon the same Russell's testimony in making
certain findings thereafter adopted by the Board, he is unable to accord similar
credence to Russell's testimony in the instant case. In the first place, as the record
shows, on January 29, 1957, Russell signed and filed a charge with the Board
against the Respondent Company, stating therein:
On various dates in January 1957, including January 8 and 28, the above
named company refused to hire James Russell as an operating engineer solely
because Local 542, International Union of Operating Engineers, AFL-CIO,
objected to the employment of James Russell for various reasons, including
the fact that he had given testimony before the National Labor Relations
Board in a prior proceeding and these facts were known to the said Company
and they refused to employ said James Russell.
More than a year later, on June 10, 1957, Russell filed an amended charge
against the same employer which contains no claim that the giving of previous
testimony either caused the employer to refuse him hire or the Union to cause
such refusal. As a witness, his explanation of his declaration in his original
charge, quoted above, was evasive and unconvincing.3 And the claim made is
I The Trial Examiner is aware of no case wherein the Board has found either that an
employer 's practice of paying union wage scales in an area is, per Be, discriminatory in
violation of Section 8(a) (3), or that such practice is a factor compelling an inference
that its hiring practice is exclusive and discriminatory in violation of the same subsection.
Nor does evidence support a finding, urged for the first time in General Counsel's brief,
that there was in existence an "illegal hiring agreement , arrangement and/or practice"
between the Respondents because Master Mechanic Stewart, who calls the Union for
engineers , is also a member of the Union . The evidence establishes that Stewart is with-
out independent authority to hire, and only calls for men upon instruction from Wright.
Wright is not a union member, and obviously is not bound by the clause in the Union's
constitution requiring that "Each member shall hire none but those in good standing with
a union having jurisdiction of the work to be done..... And the evidence is clear that
during the material period Wright hired, or ordered to be hired , both Driscoll and
Russell-directly and not through the hiring hall.
2In Eichleay Corporation v. N.L.R .B., 200 F. 2d 799, 803, the Court of Appeals for the
Third Circuit stated :
We agree with Eichleay that "The factor in a hiring hall arrangement which makes
the device an unfair labor practice is the agreement to hire only union members
referred to the employer." Del E. Webb Construction Co. v. N.L.R.B., 8 Cir., 1952,
196 F. 2d 841 , 845. A referral system is not per se improper , absent evidence that
the union unlawfully discriminated in supplying the company with personnel.
N.L.R.B. v. Swinerton, 9 Cir., 1953, 202 F. 2d 511 ; Hunkin-Conkey Construction
Co., 95 NLRB 433 (1951).
3 In part, his relevant testimony follows :
(By Mr . Fessenden .) Mr. Russell , what is the basis for the statement in the
Charge which you signed that the American Bridge Company refused to employ you
because it knew that you had given testimony against the Union in January of 1955
in this Labor Board case?
A. What do you want me to do?
Q. How do you know that the Company knew you had given this testimony, to
state it another way?
A. I don 't understand what you are talking about.
Q. You charged-
A. I filed charges , that's right.
(Balance of footnote on following page.)
1340 DECISIONS OF NATIONAL LABOR _.RELATIONS BOARD
inconsistent with an admission drawn from him that, after he had given testimony
before the Board in early 1955, he worked for a period of some 7 months for the
American Bridge without objection on the part of Local 542's business agent.
Nor, confining attention to his own account of hiring events in early 1957, is
Russell's testimony persuasive that he was discriminated against. According to the
substance of his testimony, Russell had been working for the Respondent Company
on various jobs and for varying periods in 1955 and 1956, under Superintendent
Guy Wright. It appears that during the first week in January 1957, Wright was
completing supervision of a construction job in Philadelphia and had already been
assigned to take over supervision of a new job in Morrisville, Pennsylvania. Pend-
ing Wright's arrival, one Leon Mikulan was in charge at the latter location. Shortly
before January 8, Russell approached Wright, in Philadelphia, and asked for a job
on a crane which he said he understood was coming on the Morrisville job.
Wright agreed to and did communicate with Mikulan and the Master Mechanic
C. Stewart on the Morrisville job, and arranged with them that Russell should be
employed. Wright then called Russell, and told him to check with Mikulan at
Morrisville. Russell went up there on January 8. It appears that, before Russell
arrived, some mix-up, unexplained clearly in the record, had occurred, and another
man had been put on the job. (There is not the slightest evidence in the record
to support a finding that the "mix-up" was brought about either by pressure from
Local 542 or by discriminatory motive on the part of the employer.) Mikulan,
Stewart, and Business Agent Pantaleo of Local 542 discussed the problem on the
job. According to Russell's own testimony, Pantaleo advised the employer repre-
sentatives that they should hire Russell, although the other man, if displaced, might
have a "labor case." Also, according to Russell's own testimony, he, and he alone,
decided that he would not take the job. It was agreed among them, after this
decision of his, that he would be given the "next rig that comes in here," quoting
his own testimony. Again, on cross examination, Russell admitted that if he had
wanted to, he could have started work on January 8. It is plain from Russell's
testimony that he was neither discriminated against by the employer on January 8,
nor on that date did any representative of the Union attempt to cause discrimina-
tion against him.
Despite the facts revealed by his own testimony, and as noted heretofore, later
that month Russell filed charges claiming discriminatory refusal to hire against both
the Respondents on January 8.
Wright took over personal supervision of the Morrisville job on January 9.
Observing that Russell was not there, he asked the master mechanic-who is fore-
man over the engineers-why he was not. Stewart replied that there had been
a mix-up, but that there was an agreement that Russell would take the next
"machine" that came in. According to Wright's credible testimony, the next "ma-
chine" (rig or crane) did come in in mid-January, and he assigned to it an engineer
named Driscoll, who had been working with him on the Philadelphia job and
with whom he had made a previous commitment to hire at Morrisville as soon as
he finished in Philadelphia. While this fact indicates that, from Russell's point
of view, it might have been more equitable had he been offered the mid-January
job, taken by Driscoll, it does not lead to a conclusion that Russell was illegally
discriminated against. Whatever Russell's agreement with Mikulan on January 8,
Mikulan's authority was superseded by that of Wright on January 9 and thereafter.
Russell had declined to take the job Wright had sent him to Morrisville for, and
to the Trial Examiner it does not seem unreasonable that Wright should have pre-
ferred to put Driscoll on the job in mid-January, since he had made his first
promise to Driscoll. Certainly the record contains no evidence of illegal motive
on the part of Wright; there clearly was no discrimination as between a union and
Q. Yes. You filed charges, and in the Charge you said that the American Bridge
refused to employ you.
A. Well, they did.
Q. And the reason they refused to employ you was because, you state, "I had given
testimony against the Union."
A. No. I didn't do that.
TRIAL EXAMINER: That is the point (indicating) that he is referring to. Just
read the latter part of that.
The WITNESS : "The fact that he had given testimony before the National
Labor Relations Board in a prior proceeding ." Now, that's a mistake there, or
something . . . .
EAU CLAIRE & VICINITY BUILDINO 'a' CONSTRUCTION;"ETC. 1341
donunion engineer, since - both Driscoll and Russell were members of Local 542.
Nor. is there any evidence, that , any union agent - was involved in any way in. the
hiring of Driscoll.
Specifically it is concluded and found that the evidence is insufficient to support
the allegations of the , complaints that Russell was illegally -refused employment
on or about January 14, or that the Union attempted to cause such illegal refusal.4'
According to Russell's own testimony, also, Wright called him about the middle
of February , told him there would be a "3900" crane coming in about March 1,
and he could . have it . Russell agreed . The next day, also according to Russell,
Business Agent Pantaleo called him , told him that the company would not need
the "3900". because "steel got backlogged ," but told him there was a job open at-
Morrisville the next day . Again Russell declined to take this job, stating that he
was to be a witness at a labor case that day.
A few days . later, Wright called him again , told him they were getting in a
"Chicago boom" soon , and asked if he would take that . Russell agreed. He was
given that crane , apparently upon its arrival on March 26 , and went to work.
There is no claim of discrimination against Russell since that date.
In summary, the Trial Examiner is unable to find in the record sufficient evidence
to support the allegations of the complaints to the effect that Russell was refused
hire at any material time by the Respondent Company, or that the Union at any
material time attempted to cause such refusal.
It will be recommended that the complaints be dismissed in their entirety.
Upon the foregoing findings of fact and upon the entire record in the case, the
Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. The operations of the Respondent Company occur in commerce within the
meaning of .the Act.
' 2 Local Union 542, International Union of Operating Engineers , AFL-CIO,
is a- labor organization within the meaning of Section 2(5) of the Act.
3.. The Respondents have not engaged in' unfair labor practices , as alleged in the
complaints , within the meaning of Section 8(a)(1) and (3) and 8(b)(1)(A) and (2)
of the Act.
[Recommendations omitted from publication.]
' The record also contains some testimony on the part of Wright and Mikulan regarding
a temporary rush job that developed late on January 15-a welding job. Wright said
that he , understood Mikulan called Russell , to see if he would -take it . Mikulan testified
that he told Stewart to get in touch with Russell . Stewart, although a witness for
General Counsel , was not questioned about the matter . The Trial Examiner declines to
speculate from , this paucity of evidence that Stewart did not actually call Russell. In the
absence of any testimony it would be as reasonable to infer that Stewart did call, but
was, unable to reach Russell , as to Infer that he willfully refused to obey his superior's
instructions . In any event, the evidence is insufficient to support a finding of dis-
crimpnatury, or illegal refusal to hire Russell on this occasion.
Eau Claire and Vicinity Building and Construction Trades
Council and Robert Bauer and St. Bridget's Catholic Con-
gregation, Inc. Case No. 18-CC-57. February 9, 1959
DECISION AND ORDER
Upon charges duly filed on May 5, 1958, and amended charges,
on June 19, 1958, by St. Bridget's Catholic Congregation, Inc.,
herein called St. Bridget, the General Counsel for the National
Labor Relations Board, by the Regional Director for the Eighteenth
Region, issued a complaint on June 19, 1958, against Eau Claire
and Vicinity Building and Construction Trades Council and its agent
122 NLRB No. 156.