Arthur G. McKee and Co.

National Labor Relations Board - Board Decisions

May 11, 1951

94 N.L.R.B. 399 (N.L.R.B. 1951)

ARTHUR G. McKEE AND COMPANY 399k
ARTHUR G. MCKEE AND COMPANY and LODGE No. 1276 INTERNATIONAL-
ASSOCIATION OF MACHINISTS. Case No. 39-CA-80. May 11, 1951
Decision and Order
On January 31, 1951, Trial Examiner Louis Plost issued his Inter-
mediate Report in the above-entitled proceeding, finding that the-
Respondent had engaged in certain ulif air labor practices, and recom-
mending that it cease and desist therefrom and take certain affirma-
tive action, as set forth in the copy of the Intermediate Report at-
tached hereto. Thereafter the General Counsel and the Respondent
filed exceptions to the Intermediate Report and Respondent filed a.
supporting brief.
The Board 1 has reviewed the rulings of the Trial Examiner made-
at the hearing and finds that no prejudicial error was committed.2
The rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions, the Respondent's brief, and the entire.
record in the case, and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner with the following additions.
and modifications :
1, The Respondent, a Delaware corporation, maintains its principal
office in Cleveland Ohio, and a sales office in New York City, an engi-
neering office at Union, New Jersey, and field offices at a number of
locations throughout the United States for the duration of projects
at such locations. It does an annual business of about $25,000,000.
From about May 1947 to about September 1950, an office was main-
tained near Brownsville, Texas, for the construction of the Carthage
Hydrocal, Inc., plant, at a cost of more than $20,000,000. During
the year preceding the hearing in this case the Respondent operated
at Pittsburgh, Pennsylvania, to construct iron and steel plants for
Carnegie Steel Corporation; at Virginia, Minnesota, to construct
facilities for the Oliver Mining Company, a subsidiary of United
States Steel Co.; at Wilmington, North Carolina, to construct an
i Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the
Board has delegated its powers in connection with this case to a three -member panel
[Members Houston, Reynolds , and Styles].
2 During the course of the hearing the Trial Examiner ruled that the stipulated facts.
with reference to the business of the Respondent did not establish that the Respondent
was engaged in commerce within the meaning of the Act. The General Counsel took an
interlocutory appeal to the Board , and thereafter the Board reversed the Trial Examiner
and ordered the hearing to be completed . The Respondent contends that the General Coun-
sel did not comply with the requirements of Section 203 26 of the Board's Rules and Regu-
lations , Series 5, then effective , in taking a direct appeal to the Board. While it does
appear that there were certain procedural irregularities , which we do not condone, we
note that the Board 's Order specifically preserved the Respondent 's right to review its
motion to dismiss on jurisdictional grounds , and we have hereinafter considered the
jurisdiction question on the basis of the entire record. Accordingly , we conclude that the
Respondent was in no way prejudiced by the manner in which the General Counsel appealedi
from the Trial Examiner 's ruling.
94 NLRB No. 69.
400 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
asphalt plant for the American Oil Company; and at Toledo, Ohio,
to construct blast furnaces for Interlake Iron Corporation.
As the Respondent operates on a multistate basis, and performs
services in excess of $25,000 per year in each of several States, we
find that the Respondent is engaged in commerce within the meaning
of the Act, and that it will effectuate the policies of the Act to assert
jurisdicion in this case.3
2. The Trial Examiner found, and we agree, that James Blair,
Lampton Eugene Martin, and Lewis Even were denied employment
with the Respondent because of the latter's discriminatory policy of
requiring that millwrights be members of, or be referred by, the
Carpenters Union, and that the Respondent thereby violated Section
8 (a) (3) and8 (a) (3) and8 (a) (1) of the Act.
While we have some doubt that the testimony of Antill, and David-
son, which the Trial Examiner sets out at length, indicates the exist-
ence of discriminatory policy, the testimony of Blair, Martin, and
Even as to their conversation with Bailey, the Respondent's millwright
foreman, clearly establishes the existence of such a policy. After the
three applicants advised Bailey that they were members of the Ma-
chinists Union, Bailey told them that lie could not use them under
the circumstances, but that he would make arrangements with the
Carpenters Union for their referral if, and when, he needed them.
This testimony is further corroborated by that of Shearer, a former
employee, who testified that at the time he was hired as a millwright he
was required to obtain a referral from the Carpenters Union. All
of this testimony was denied by Bailey, but the Trial Examiner
credited Blair, Martin, Even, and Shearer, and we are satisfied that
the credibility findings of the Trial Examiner, who alone had an
opportunity to observe the witnesses, are supported by the clear pre-
ponderance of all the relevant evidence 4 We find, therefore, that the
discriminatory policy did exist, and that such policy was communi-
cated to the applicants. That being so, we agree with the Trial Ex-
aminer that the discrimination is established, and the violation fixed
as of the date the discriminatees first applied for employment, even
though no millwright jobs may have been available until sometime
after the initial applications were made.5
8 The Borden Company, Southern Division, 91 NLRB 628, Stanaslaus Implement and
Daidware Company, Limited, 91 NLRB 6i8.
See Standai d Dry Wall Products, Inc, 91 NLRB 544
sDaniel Hamm Drayage Company, Inc, 84 NLRB 458, enf 185 F (2d) 1020 (C A. 5).
The General Counsel excepts to the Trial Examiner's statement that "The Act was vio-
lated not when jobs became available but at the very moment that the applicants
were told in effect to seek membership in the Carpenters or show their willingness to do so "
We construe that statement as implying only that the violation occurred earhes than the
time jobs actually became available The violation continued, of course, at the time
at which jobs did become available.
ARTHUR G. McKEE AND COMPANY 401
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, Arthur G. McKee
and Company, and its officers, agents, successors, and assigns shall :
1. Cease and desist from :
(a) Discouraging membership in Lodge No. 1276 International
Association of Machinists, or in any other labor organization of em-
ployees or applicants for employment, or encouraging membership in
United Brotherhood of Carpenters and Joiners, AFL, and/or its
Local 1316 or in any other labor organization of employees or appli-
cants for employment, by refusing to hire and employ properly quali-
fied applicants, or in any other manner discriminating in regard to
their hire or tenure of employment, or any term or condition of em-
ployment, except insofar as such activity is affected by an agreement
requiring membership in a labor organization as a condition of em-
ployment, as authorized in Section 8 (a) (3) of the Act.
(b) In any other manner interfering with, restraining, or coercing
employees or applicants for employment, in the exercise of the right
to self-organization, to form labor organizations, to join or assist
Lodge No. 1276 International Association of Machinists, or any other
labor organization, to bargain collectively through representatives of
their own choosing, and to engage in concerted activities for the pur-
pose of collective bargaining or other mutual aid or protection, and
to refrain from any or all such activities, except to the extent that
such right may be affected by an agreement requiring membership in
a labor organization as a condition of employment, as authorized in
Section 8 (a) (3) of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the purposes of the Act:
(a) Make whole James Blair, Lampton Eugene Martin, and Lewis
Even for any loss of pay they may have suffered by reason of the
Respondent's discrimination against them in the manner set forth
in the Intermediate Report, attached hereto, in the section entitled
"The remedy."
(b) Upon request, make available to the National Labor Relations
Board, or its agents, for examination and copying, all records neces-
sary to analyze the amounts of back pay due under the terms of this
order.
(c) Post at its present office at the Carthage Hydrocol Inc., plant
or at any and all other offices it may now have at Brownsville, Texas,
and mail to Blair, Martin, and Even copies of the notice attached
953841-52-vol 94-27
402 DECISIONS OF NATIONAL LABOR RELATIONS, BOARD
hereto and marked "Appendix A." 6 Copies of such notice, to be fur-
nished by the Regional Director for the Sixteenth Region, shall, after
being duly signed by the Respondent's representative, be posted by the
Respondent immediately upon receipt thereof, and maintained by
it for sixty (60) consecutive days thereafter, in conspicuous places,
including all places where notices to employees and applicants for
employment are customarily posted. Reasonable steps shall be taken
by the Respondent to insure that said notices are not altered, defaced,
or covered by any other material.
(d) Notify the Regional Director for the Sixteenth Region, Fort
Worth, Texas, in writing within ten (10) days from the date of this
Order, what steps Respondent has taken in compliance herewith.
Appendix A
NOTICE TO ALL E MPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees and applicants for
employment that :
AVE WILL NOT discourage membership in LODGE No. 1276 INTER-
NATIONAL ASSOCIATION OF MACHINISTS, or in any other labor or-
ganization, or encourage membership in UNITED BROTHERHOOD OR
CARPENTERS AND JOINERS AFL and/or its Local 1316 or in any
other labor organization, by refusing to employ properly qualified"
applicants, or in any other manner discriminating in regard to.
their hire or tenure of employment, or any term or condition of
their employment, except insofar as such activity may be affected
by an agreement requiring membership in a labor organization as
a condition of employment as authorized in Section 8 (a) (3) of
the Act.
WE WILL NOT in any manner interfere with, restrain, or coerce-
our employees or applicants for employment, in the exercise of
their right to self-organization, to join or assist LODGE No. 1276
INTERNATIONAL ASSOCIATION OF MACHINISTS, or any other labor
organization, to bargain collectively through representatives of
their own choosing, and to engage in concerted activities for the-
purposes of collective bargaining or other mutual aid or protec-
tion, and to refrain from any or all of such activities, except to
the extent that such right may be affected by an agreement requir-
6 In the event that this Order is enforced by a decree of a United States Court of Appeals,
there shall be insetted befoie the words "A Decision and Order" the words-"A Deciee of:
the United States Court of Appeals Enforcing."
ARTHUR G. McKEE AND COMPANY 403
ing membership in a labor organization as a condition of employ-
ment as authorized in Section 8 (a) (3) of the Act.
WE WILL make whole James Blair, Lampton Eugene Martin,
and Lewis Even for any loss of pay suffered as a result of our
discrimination against them.
ARTHUR G. MCKEE & COMPANY,
Employer.
Dated ---------------- By ------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
Intermediate Report
Charles Y. Latimer, Esq , for the General Counsel.
Sharpe, Cunningham and Garza by Paul Y. Cunningham, Esq., of Brownsville,
Tex., for the Respondent.
Mr L M. Fagan, of Fort Worth, Tex, for the Machinists.
STATEMENT OF THE CASE
Upon a charge filed August 5, 1949, by International Association of Machinists,
herein called the Machinists, the General Counsel of the National Labor Relations
Board, herein called the Board, by the Regional Director for its Sixteenth Region
(Fort Worth, Texas), as agent for the Board, issued a complaint dated August
25, 1950, against Arthur G. McKee & Company, of Cleveland, Ohio, herein called
the Respondent, alleging that the Respondent had engaged in and was engaging
in unfair labor practices within the meaning of Section 8 (a) (1) and (5) and
Section 2 (6) and (7) of the Labor Management Relations Act, 61 Stat. 136,
herein called the Act. A copy of the charge was duly served on the Respondent
August 5, 1949. Copies of the charge, the complaint, and a notice of hearing
were duly served upon the parties.
With respect to the unfair labor practices, the complaint alleged in substance,
that (a) the Respondent discriminatorily refused employment to three named
members of the Machinists by requiring as a condition precedent to such employ-
ment that they seek to or become members of, or obtain referral cards from,
the United Brotherhood of Carpenters and Joiners, AFL, and/or its Local 1316,
herein called the Carpenters; and (b) that the above conduct is violative of the
Act, more particularly Section 8 (a) (1) and (3) thereof.
On September 6, 1950, the Respondent filed an answer in which it contended
that the Board was without jurisdiction in the matter and denied that it had
engaged in any of the alleged unfair labor practices.
Pursuant to notice a hearing was opened on November 21, 1950, at Brownsville,
Texas, before Louis Plost, the undersigned Trial Examiner. The General Counsel
and the Respondent were represented by counsel, the Machinists by a Grand Lodge
representative. The above representatives are hereinafter referred to in the
names of their principals. All the parties participated in the hearing and were
afforded full opportunity to be heard, to examine and cross-examine witnesses,
to introduce evidence hearing on the issues, to argue orally on the record, and to
file briefs -and/or proposed findings of fact and conclusions of law with the
undersigned.
404 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The parties entered, into a stipulation with respect to the Respondent' s busi-
ness operations. The undersigned ruled that the stipulated facts did not estab-
lish that the Respondent was engaged in commerce within the meaning of the
Act. The General Counsel then announced that he would immediately appeal
this ruling directly to the Board and requested that the undersigned recess
the hearing until the following morning at which time the General Counsel
anticipated that a ruling by the Board would be received. The undersigned
granted the request. On the following day the Board by telegram reversed the
undersigned and ordered the record to be completed. Testimony was again
taken on November 24, a legal holiday having intervened, and was completed
on November 25.
At the time the hearing was resumed, and again in its brief, the Respondent
contended that (a) the Board was without jurisdiction in the matter; and
(b) that the direct appeal taken by the General Counsel is a nullity because "the
last binding effective Order and Judgment in this case is the Order of Dismissal
for Lack of Jurisdiction, entered by the Trial Examiner on November 21, 1950."
The Board having ruled, the undersigned therefore finds no merit in these
contentions.
The Respondent moved to dismiss the complaint. The undersigned denied the
motion. The parties waived their rights to argue orally. A brief has been
received from the Respondent.
Upon the entire record in the case and from his observation of the witnesses,
the undersigned makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The parties stipulated as follows:
It is stipulated by and among the parties that Arthur G. McKee & Com-
pany is a Delaware corporation, having its principal office and place of
business at 2300 Chester Avenue, Cleveland, Ohio. It maintains an engi-
neering office at Union, New Jersey, a sales office at New York City, New
York, and field offices at various locations throughout the United States
for the duration of the project in the particular city in which their field
offices are located.
The Respondent has capital stock of $84,000.00 as of December 31, 1949,
and an undivided surplus of approximately $4,659,000.00 as of the same
date. Its annual business is approximately twenty-five million dollars.
Beginning in May or June, 1947, the Respondent began a project for the
Carthage Hydrocol, Inc., near Brownsville, Texas, of a plant, the cost of
which was in excess of twenty million dollars. All material for the con-
struction of the Carthage Hydrocol plant was purchased by Carthage
Hydrocol, Inc. on the job orders prepared by the Respondent. The Board
has asserted jurisdiction over Carthage Hydrocol, Inc. in the matter of
Carthage Hydrocol, Inc., in case number 39-RC-179 and 39-RC-180 on
September 21, 1950.1
The majority of the materials which went into the building of this plant
was purchased by Carthage Hydrocol, Inc. outside of the state of Texas.
It is further stipulated and agreed that during the past twelve months,
Arthur G. McKee & Company has engaged in similar projects in the fol-
1 The indicated date is after the time of the alleged unfair labor practices in the instant
matter and also after the complaint herein was issued.
ARTHUR G. McKEE AND COMPANY 405
lowing particulars ; two construction jobs at Pittsburgh, Pennsylvania, for
Carnegie Steel Corporation, constructing iron and steel plants, with a con-
struction cost of approximately four million dollars on which construction,
a majority of the materials was furnished from inside the state of Pennsyl-
vania; a construction job at Virginia, Minnesota, for the Oliver Mining
Company, a subsidiary of U. S. Steel, being a four million dollar construc-
tion, in which the major portion of the materials was shipped in from points
outside the state of Minnesota ; a construction job at Wilmington, North
Carolina, for American Oil Company, of an asphalt plant, approximate cost,
one hundred thousand dollars, in which a large majority of the materials was
shipped in to the plant from outside the state of North Carolina ; construc-
tion at Toledo, Ohio, of blast furnaces, for Interlake Iron Corporation, at
approximate cost of one hundred thousand dollars, in which construction,
the major portion of the materials was obtained within the state of Ohio.
The Respondent furnished men, hired locally, other than top executive, to
construct the plant for Carthage Hydrocol, Inc., and did not furnish materials
for the construction. The average number of employees during 1949 was
approximately one thousand men.
The Respondent does not admit that it is engaged in commerce within the
meaning of the Act.
II. THE ORGANIZATION INVOLVED
Lodge No. 1276 International Association of Machinists, is a labor organization
which admits employees of the Respondent to membership.
III. THE UNFAIR LABOR PRACTICES
A. The Respondent's labor policy and methods of recruitment
As found herein the Respondent, under contract with Carthage Hydrocol, Inc.,
was at all times material to this Report engaged in the erection of a plant for
the latter corporation at Brownsville, Texas.
In its brief the Respondent correctly describes its connection with this project
as follows :
It did not furnish any material or equipment for the owner, but simply
furnished the brains, the "know how," and labor, all of which was hired
locally, to construct the plant.
The record is clear that at Brownsville the Respondent operated "open shop."
It was under no contract with any labor union, nor did any labor union repre-
sent a majority of its Brownsville employees within an appropriate unit for the
purpose of collective bargaining, however certain business representatives of
various unions sought to deal with the Respondent in behalf of their members
employed at the Brownsville project.
The record is clear that C. B. Antill, Jr., the Respondent's manager on the
Carthage Hydrocol, Inc., project, had full charge of labor relations including
'the hiring of employees therefor.
Antill testified that "this job dragged along for a period of years" but got
well under way "in early 1949." Peak employment in 1949 reached between
1,700 and 1,800 men, the average being 1,000. Antill testified that in recruiting
its Brownsville force:
We used many methods. We used the Texas Employment Bureau; we called
upon help of unions; 2 we had personal contacts with people who worked for
2 Emphasis supplied.
406 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Arthur G. McKee Company on previous projects; references from our Cleve-
land office ; references from firms doing similar business of men finishing on
their jobs, and newspaper advertising.
The Respondent did not place its newspaper advertisements in Brownsville
but used a newspaper in Houston, Texas 8
Antill's testimony makes it clear that the recruitment of a labor force for the
Carthage Hydrocol project was no easy task.
Applicants for employment could file written applications on forms furnished
by the Respondent but the record does not show that applicants were required to
do so. Some applicants for employment, with or without referrals from unions
or the Texas Employment Bureau, came directly to the gate, which was guar ded
and could not be passed without permission. Such applicants as well as those
who merely telephoned, could not of course all be personally interviewed by
Antill, according to whose testimony when an applicant came to the gate seeking
employment:
The guard would call our general office, and our general office, in turn, would
call down to the field to our general foreman of that particular craft and
he would go to the gate and interview that man. He would, then, refer
that man to my office for hire or he wouldn't refer him to my office for hire.
According to Antill's testimony, in addition to above procedure the Respondent
although it did not recognize or deal with any union made use of the union
stewards of various crafts on the job in the following manner : If a newly hired
employee came to the gate, a steward of the union representing the craft of the
new employee would be called to escort him to the proper labor foreman.
Dan W. Davidson, called by the Respondent, testified that during the time
material herein he was assistant general superintendent at the Respondent's
Carthage Hydrocol project; that labor was recruited for the project in the
following manner :
. . . we would talk it over-we would have a conference in his office, most
every morning, and talk over our labor problems and he [Antill] would
tell me to go order so many men, of whichever craft we were short on, you
see. I'd get on the telephone or he would, not me, necessarily, all the time,
we would call these men and a lot of times, I'd meet men down on the street
and they'd ask me for employment and I'd tell them to go ahead and report
out there.
Davidson further testified :
We have called Texas Employment Service and we advertised in the news-
papers and circulated the word as much as possible but a lot of times, we
had trouble getting men out there, shortage on different crafts.
Q. And as part of that getting labor, you also contacted each of the various
local craft unions as you needed men from them?
A. Yes sir, that's correct.
On cross-examination Davidson testified :
The way that worked, as far as Carpenters were concerned, we'd call
Brownsville Local or if they didn't have a man available, they'd call the
locals all over the country, you see. Their Business Agent took care of
that.
Rudy Pyron testified that he is business agent of the Plumbers and Steam-
fitters, Local Union 185; that the Respondent asked him for various types of
pipe fitters whom he would send to the Carthage Hydrocol project with referral
slips ; that not all the men he sent out were members of the Plumbers Union ;
8 Houston is 371 rail miles from Brownsville.
ARTHUR G. McKEE AND COMPANY 407
that the Respondent recognized and settled grievances with the steward of the
Plumbers Union on the Carthage Hydrocol job, although there was no contract
between the Respondent and the Plumbers Union.
Antill further testified that on behalf of the Respondent he made the decisions
with respect to the types of work allocated to the various craftsmen on the
project.
In connection with this declared policy the Respondent had posted a notice
to its employees which read inter alia:
We do not discriminate against any craft. As we are employers of all
crafts, it is our policy to allocate work to that craft which has authoritative
claim to it.
Antill testified as follows :
Q. (By Mr. Latimer) . . . will you explain what that paragraph means.
A. By past precedence, in the use of particular tools of equipment, and
past experience in skills to perform a particular work, we allocated that
work. For example, Mr. Latimer, it is quite obvious that I would not al-
locate pipefitting to carpenters nor would I allocate boilermaking work to
bricklayers. I would say an authoritative claim is work performed by a
particular craft over historical period of time.
Q. Well, when you say authoritative claim to it, the authoritative claim
is determined by the company?
A. Yes sir.
As to the actual method of procuring millwrights, one of the necessary crafts,
Antill testified :
Trial Examiner PLOST. Pardon me-how did you get those millwrights
when you hired them?
The WITNESS. We got them several ways, your Honor-personal knowl-
edge, personal reference, also called the union.
Trial Examiner PLOST. You called the unions?
The WITNESS. Called the unions.
Trial Examiner PLOST. And asked them to furnish you with millwrights?
The WITNESS. Yes, Sir.
Trial Examiner PLOST. What unions did you call?
The WITNESS. For millwrights, I called the Carpenters.
Trial Examiner PLOST. You wouldn't call any other union for millwrights?
The WITNESS. No, Sir. We called U. S. E. D.
Henry J. Murphy, Grand Lodge representative of the Machinists, testified
that on or about March 10, 1949, he, accompanied by another Machinists' repre-
sentative, Virgil C. Reneau, called on Antill at the Carthage Hydrocol project;
that during the course of the conversation Murphy asked that Antill give em-
ployment to Machinists' members who were competent and skilled as millwrights ;
that Antill maintained that the "work belonged to Millwrights" and that there-
fore Antill "was hiring through the business agent [of the Carpenters] because
they did not have the time to review each and every applicant, and they had
to depend on the Union to supply competent help."
Murphy further testified :
Q. Do you recall whether you had any conversation about how other
craftsmen were employed, such as, pipefitters, for instance?
A. Yes, he told me they had to hire through the Union because they didn't
have the time to devote to interview the people who made application. I
asked him how about if a machinist came down there and asked for a job,
and he said, "I don't have any work for a machinist." I said, "Setting
408 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
this machinery, what would you do?" He said, well, they would have to
get a referral from the millwrights.
Murphy's testimony was corroborated by Reneau. Both Murphy and Reneau
testified that Antill told them that he alone made the decision as to what craft
performed certain work on the project
With respect to his meeting with the Machinists' representatives on May 10,
1949, Antill admitted that he told Murphy and Reneau that he was "going to
make the decision as to what crafts would do any particular job out there," and
further testified, "ostensibly they were there for the purpose of securing em-
ployment for the Machinists" but that he advised them that he had no machinist's
work, the machine shop not being yet built, and that "we were employing a few
millwrights and I thought it would be quite some time, if at all, we would re-
quire the services of machinists." He further testified : -
Mr. Murphy and Mr Reneau and I entered into a long discussion of the
history of the erection of refinery erection equipment. Mr. Reneau and
Mr. Murphy both told me through years they had erected exchangers, trays,
and towers, assembled machinery, and I stated that might be true ; that
other people had and in my experience, I had never employed machinists for
that particular work.
* * * * * * *
The machinists claimed all the work the millwrights were doing. I ex-
plained to Mr. Reneau and Mr. Murphy or rather thought I had explained
to them, that while the millwrights and the machinists are similar crafts,
that in my opinion there was a vast difference between the two. The ma-
chinist, as such, is a man, in my opinion, that works with machine tools at
a bench. Millwrights are skilled mechanics and particularly skilled in
erection and the use of erection equipment.
Q. Now, did you make those statements to Mr. Murphy and Mr. Reneau?
A. I thought I had.
Antill did not deny Murphy's testimony that as to the work millwrights, pipe
fitters, and machinists all claimed the skill to perform he hired through the
Union, in the case of pipe fitters and that machinists seeking employment "would
have to get a referral from the Millwrights."
Homer Charles Vickers, called by the Respondent, testified that from August
1948 until September 1949, he was business agent of Carpenters' Local 1316 at
Brownsville ; that during that period various representatives of the Respondent
called him for carpenters and millwrights for the Carthage Hydrocol project ;
that the millwrights he sent to the job were always interviewed by Assistant
Superintendent Bailey. Vickers testified :
Trial Examiner PLOST. By that, do you mean that Mr. Bailey would
interview the men and send them directly to the job without passing them
through anybody else? Is that what you mean?
The WITNESS. I don't know whether they went through anyone else or
not. He called in for six men and there were six men available, seeking
employment, and he called for six men and I could locate the six, I would
give them referrals to go out to the job Now, who they contacted after they
got out there, I do not know, sir.
Vickers testified that he sent men to the Carthage Hydrocol project'who were
not members of the Carpenters Union but could not recall any man he sent
who was not or did not become a member of the Carpenters.
ARTHUR G. McKEE AND COMPANY 409
Considering Antill's testimony that "for millwrights I called the Carpenters" ;
Vickers' testimony to the effect that calls for millwrights were referred to him ;
and Davidson's testimony that he called the Carpenters for men, the under-
signed is persuaded by this testimony and the record considered as a whole
that the pattern of employment was to hire through unions or union repre-
sentatives. Considering Antill's admission that he told Murphy and Reneau
that he alone made the decision as to the crafts which possessed the requisite
skills for any certain type of work on the job, the undersigned is further per-
suaded that it would only be natural for Antill to also tell the Machinists' repre-
sentative that he "was hiring through the [Carpenters'] business agent,"
moreover as this testimony was not denied the undersigned therefore credits
the testimony of Henry J. Murphy as corroborated by Virgil C. Reneau and
finds that their testimony with respect to their meetings with Antill represents
an acurate account thereof. The undersigned finds that Antill in effect told
the Machinists' representatives on May 10, that men possessing, or being thought
to possess, certain skills, were hired to do work requiring these skills through
the Carpenters.
B. The discrim2nation against James Blair, Lamp ton Eugene Martin, and
Lewis Even
On May 17, 1949, James Blair, Lampton Eugene Martin, and Lewis Even
presented themselves at the Respondent's gate at the Carthage Hydrocol project
seeking employment. The three men had come by auto from Corpus Christi,
Texas, some 160 miles distant. They were all members of the Machinists ; all
craftsmen of many years experience on construction jobs as well as in shops,
and apparently fully qualified for the jobs they sought ; all were unemployed ;
had registered for employment with the Texas Employment Bureau at Corpus
Christi ; and all had been sent to seek employment at the project by their local
Machinists' business agent.
The gate at which they applied had a sign affixed to it reading that no help
was wanted ; however they spoke to the guard at the gate telling him that they
were seeking jobs as construction machinists or erection machinists. Accord-
ing to their testimony, the guard told them, "you applied at the wrong place.
You have to go to town and see Mr. Vickers, of the Carpenters' Union. He fur-
nishes all erection machinists at this job." They then asked and were granted
permission to call Antill by phone. None of the three applicants knew Antill or
had ever spoken to him but his name had been given them by their business agent
who sent them to the project. They talked by phone to some one whom they
took to be Antill, and were told that L. V. 'Bailey, the Respondent's millwright
foreman, would come to the gate to interview them. Presently, L. V. Bailey, the
millwright foreman, came to the gate and introduced himself to the men who
told him that they were looking for work as "construction machinists" and in-
formed him that they carried cards in the Machinists. Bailey then told them
that he could not use them under those circumstances but that he could make
arrangements with the business agent of the Carpenters "to fix them up with
millwrights cards." He further stated that he needed no men at the time but
expected to hire a large number of millwrights soon ; that "it would be no
trouble" to have them "fixed up" and get clearance for them from the Mill-
wrights' business agent. Bailey then took their names and addresses which he
wrote down in a book he carried and told them that it would not be necessary
for them to come back to see him telling them, according to the testimony of
James Blair, "If I need you, I will get in touch with you and just save that long
410 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
drive from Corpus Christi" and then added, "then I will fix you up with Mr.
Vickers." According to the testimony of Lampton Eugene Martin, after having
written down their names Bailey said that he would either write or telephone
them when work was available and told them also "I want this understood right
now, Whenever I write you or call you, you will have to join the Millwrights'
organization. The machinist card . . . will not be good on this job . . . I can
arrange right here on the job for you to come into the Millwrights' organization,
through the shop steward, and through the business agent here."
Bailey also told them that the job was a closed shop with the Carpenters, who
furnished millwrights, that he had no objection personally to hiring machinists
for the work but that the "Company wouldn't permit it, owing to the fact that
it might cause further labor troubles."
Bailey gave them a slip of paper on which he had written the name and ad-
dress of the Carpenters' business agent in Brownsville, and then gave them oral
directions how to reach the address
The three men then drove to the Brownsville, Texas, address given them by
Bailey, where they were told there that the man they sought, Vickers, was not
in ; they waited for him ; tried to reach him by telephone without success ; then
left for Corpus Christi.
They did not file a formal written application form for employment with the
Respondent, although it is not clear that this was required; they did not register
with the Texas Employment Bureau at Brownsville, they never wrote or tele-
phoned or again in any way sought to contact Bailey or the Respondent. They
reported their attempt to obtain employment with the Respondent to the business
agent of their local.
None of the three men was ever called by Bailey or the Respondent.
On August 5, 1949, the charge herein was filed by the Machinists.
The above recital is based on the mutually corroborative testimony of Blair,
Martin, and Even.
Antill testified that he did not speak to Martin either over the phone or
personally regarding employment. Antill was asked on cross-examination :
Q. Isn't it possible that you may have talked to Mr. Martin and forgotten
about it?
A. I would say that anything is possible but to the best of my knowledge,
again, I have never spoken to Mr. Martin. I'm sure if Mr. Martin had
talked to me personally and said he was a machinist, that he was at our
gate, that he was seeking employment, that I would have seen the gentleman.
L. V. Bailey testified that as the Respondent's millwright foreman, he interviewed
applicants for employment at the gate, and that those he wished to employ were
then taken to Antill's office for approval Bailey was questioned by the Respond-
ent with respect to such applicants,
Q. And in all instances, did they have referral cards from the Union or
the employment service?
A. Some of them did, and some of them didn't.
With respect to the testimony of Blair, Martin, and Even regarding their
interview with him at the Respondent's gate on May 17, Bailey testified that he
had no recollection of the incident. He was asked by the Respondent, on direct
testimony :
Q. Are you able to say whether they did or did not [talk to Bailey at the
gate] or you just can't recall?
A I presume maybe they were because I talked to many men that day
at the gate. I'm not saying they wasn't. I'm not saying they were.
ARTHUR G. McKEE AND COMPANY 411
Bailey's examination by the Respondent then continued as follows :
Q. Now, can you state whether or not three men came to you on or about
May 17, 1949, and you refused to hire them until they went down and joined
Local 1316, the Carpenter's Union, here?
A. I did not.
Q Do you think [if] something like that happened to you, you could
remember that all right?
A. I would think so because I didn't have the authority.
Q Beg pardon?
A. I wouldn't have that authority.
The witness then explained his lack of authority would be because "Mr. Antill
had a sign published on the job when I first went there, `There will be no discrim-
ination in regard to labor, creed or color.' "
Bailey further testified :
Q. Did you at any time so far as you can recall independently, tell any
machinist that he'd have to have a card from Local 1316 before you'd put
him to work as a millwright?
A I did not.
Bailey also denied that he kept any records of the applicants he interviewed.
On cross-examination Bailey testified that he "occasionally " called the Carpen.
ters' for men ; he testified as follows :
Q Isn't it a fact that the only time the Carpenters ever sent a man out
to you with a referral slip was when you asked for him?
A. That's right.
Q And when they came out, you'd put them to work , is that right?
A That's right.
Q. Now, when you would interview a prospective employee at the gate,
if you decided to hire that man, what would you do with him?
A I'd tell him when to report for work.
Q You'd tell him when to report for work?
A. That's right.
Q Would you have him fill out an application blank?
A. No sir.
Q. Well, just what would you do with him?
A. I'd meet him at the gate the next morning and bring him into the
office and sign him up in the office , with Mr. Mayer , over there.
Q. Did you ever have an occasion to send a man into the plant with a
steward?
A. I have.
Q How would you do that?
A. I'd have the steward go to the gate and meet him. I might have some-
thing special that morning or that day , I'd have him go down there. It's
customary , the way I have my boys working, they had tool boxes , and they'd
pick them up and bring their tool boxes.
Q. Mr l;ailey, when the Carpenters would send a man down with a referral
slip, he would take that referral slip to the gate and the watchman at the
gate would send him to the steward , isn't that correct?
A. Yes sir.
Q. And the steward would take him down and sign him up or take him to
the office?
A. Either the steward or myself.
Q. And that was true of all the men that the Carpenters sent down?
A That's right.
412 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
William Shearer testified that on or about February 14, 1949, he applied for
work at the Carthage Hydrocol project; he was interviewed by Bailey who gave
him a note to Vickers , the Millwrights ' business agent, to whom he made a
payment on dues in the Carpenters and received a "referral " which he took
back to the job and was put to work. Shearer testified that he was not at the
time a member of the Carpenters but became a member while on the job. He
was a member of the Machinists.
The Respondent contends that Shearer 's testimony should not be considered
as he was discharged for drunkenness , however, the undersigned was favorably
impressed by Shearer and was not so impressed by Bailey who denied Shearer's
testimony ; therefore , on the entire record including his observation of the
witnesses the undersigned credits Shearer's testimony and finds that Bailey sent
Shearer to the Carpenters ' business agent for a referral before employing Shearer
on the latter 's application made on or about February 14, 1949.
The undersigned was not favorably impressed by Bailey as a witness, nor by
his testimony , which as can be seen by so much of it as cited herein was largely
obtained by questions leading in character, however without objection by the
General Counsel . The undersigned does not consider that Bailey 's testimony
refutes the testimony of Blair, Martin , and Even, all of whom impressed the
undersigned as honest and wholly reliable witnesses ; the undersigned therefore
credits the testimony of Blair, Martin , and Even with respect to their applica-
tion for employment as hereinabove set out and finds that the testimony of
Blair, Martin , and Even represents an accurate account of the statements made
to them by Bailey on May 17, 1949 , during their interview with him.
The undersigned finds that on May 17, 1949, L. V. Bailey , a supervisor, whose
conduct with respect to labor relations is chargeable to the Respondent , in effect
advised James Blair, Lampton Eugene Martin , and Lewis Even, applicants for
employment with the Respondent , that in order to obtain employment with the
Respondent they would first need to obtain referral from the Carpenters ;
further informed them that he would arrange for their obtaining membership
in the Carpenters after such referral and their employment by the Respondent,
presumably if they had not previously become members of the Carpenters ; that
Bailey directed Blair, Martin, and Even to the Carpenters' business agent in
Brownsville, Texas, and that Bailey took the names and addresses of Blair,
Martin, and Even and told them that he would call them when work was avail-
able and that it was not necessary for them to see him again before he called
them to work.
Concluding Findings
The undersigned is convinced and finds that Bailey had authority to hire and
that applicants were sent to Antill 's office only after Bailey had already
employed them , and not before such actual hiring.
The Respondent argues in its brief that although the Carpenters and Machinists
both claimed the right to the same work the "Respondent certainly had a right
to decide and hire members of the craft he considered the ones best suited to
perform the particular work."
Absent any duty to recognize and deal with a labor organization which had
met certain legal requirements , this is of course true , however, the record here
discloses that the Respondent did more than select the skills it desired. In the
opinion of the undersigned one of the tests, in fact the primary test, for em-
ployment at any certain skill, as set by the Respondent, was membership in a
labor organization which bad an "authoritative" claim to represent craftsmen
of that skill . By such action the Respondent fostered a hiring policy which
excluded from its consideration for employment an applicant who was not a
member of , or was unwilling to become a member of , a union of the Respondent's
ARTHUR G. McKEE AND COMPANY 413
selection . By such action the Respondent encouraged membership in labor or-
ganizations of its selection and discouraged membership in all others. Under
these circumstances , and the facts as found herein , such conduct on the part of
the Respondent was violative of the Act.
The undersigned so finds.
There remains now for consideration the question as to whether the Respond-
ent's conduct was applicable to Blair, Martin , and Even.
The Respondent argues in its brief :
The Board does not have jurisdiction of this cause because Complaint is
based upon alleged failure or refusal to hire three applicants for work who
were not then and never had been employees of Respondent.
The undersigned has examined and considered the argument and authority
cited in its support and can find no merit in the Respondent 's contention.
It is well established that a discriminatory refusal to hire is the same in
legal effect as an outright discharge in violation of the Act.'
After they left Bailey the three applicants , Blair, Martin , and Even, made
no further application with the Respondent , they did not file written application,
(it is not clear that this was required ), they did not register with the Browns-
ville office of the Texas Employment Bureau, they did not write or otherwise
communicate with Bailey.
At the hearing the Respondent questioned witnesses in such manner as to
indicate a contention that the applications were made by Machinists' members
merely to try and build a case against the Carpenters . The record in no way
sustains such a contention nor is there anything to show the three applicants
would not have accepted employment if tendered them.
The record however does show that on May 17, 1949, no jobs such as sought
by the 3 applicants were available, however, between May 17, 1949, and August
5, 1949, the date of the charge herein , more than 12 such jobs became available.
The three applicants having been told by Bailey on May 17 that he would call
them when work became available and further that it was not necessary for
them to communicate with him, had a right to rely on him and under the
circumstances their applications for employment made to Bailey were continuing
applications which were automatically renewed when each job became avail-
able. The Respondent argued that assuming the testimony adduced by the
General Counsel was in fact true it could not be credible to believe that the
Respondent would call the applicants from Corpus Christi to Brownsville, yet
the Respondent adduced testimony that it advertised for men in newspapers 371
miles away and sought men from Cleveland, Ohio, and other jobs. Brownsville,
Texas, is in an agricultural section, not in a skilled labor market . Antill testi-
fied that had he known that Martin, a machinist, was applying for work at the
gate he "would have seen the gentleman." If skilled men were not needed all
of the above would not have been done.
However the point is not so much as to whether or not work was available
at the time the applications were made, or later became 'available, the crux
of the matter is that the Respondent violated the Act at the very time Bailey
indicated to Blair, Martin, and Even that membership in the Carpenters was a
condition precedent to employment at a certain skill with the Respondent.
The Act was violated not when jobs became available but at the very moment
that the applicants were told in effect to seek membership in the Carpenters or
show their willingness to do so.
4 N L R B v. Security Warehouse and Cold Storage Co , 136 F 2d 829, 834 (C A 9) ;
N L. R. B v. Waumbec Mills , Inc, 114 F 2d 226, 233-234 (C. A 1) ; N L . R B. v Milan
Shirt Manufacturing Co, 125 F. 2d 376 (C. A. 6).
414 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The undersigned so finds.
As the Board has said in a similar matter, namely , Daniel Henna Drayage
Company, Inc ., 84 NLRB 458, affirmed 185 F . 2d 1020 (C A. 5) :
In these circumstances we find that the complainants , having made their
initial application and having been informed of the Respondent 's discrimina-
tory hiring policy, were not obliged to continue making the useless gesture
of continuous reapplication in order to establish the Respondent 's responsi-
bility for the discrimination practiced against them.
Conclusion
The undersigned finds that by the Respondent's refusal to employ James Blair,
Lampton Eugene Martin, and Lewis Even, unless and until they hest sought
clearance by, or membership in, the Carpenters, the Respondent has discriminated
against these applicants in regard to their hire and tenure of employment,
thereby discouraging membership in the Machinists while encouraging mem-
bership in the Carpenters, in violation of Section 8 (a) (3) of the Act, and also
thereby interfering with, restraining, and coercing their employees in the exercise
of the rights guaranteed in Section 7 of the Act, in iiolation of Section S (a) (1)
of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICLS UPON CO\rMERCE
The activities of the Respondent, set forth in Section 111, above, occurring in
connection with the operations of the Respondent, described in Section I, above,
have a close, intimate, and substantial relation to ti ade. 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
It having been found that the Respondent has engaged in unfair labor practices
within the meaning of Section 8 (a) (1) and (3) of the Act, it will be recom-
mended that it cease and desist therefrom and take certain affirmative action
in order to effectuate the policies of the Act.
The undersigned has found that the Respondent discriminated against James
Blair, Lampton Eugene Martin, and Lewis Even by refusing them employment,
however since the project on which they applied for work has been completed,'
the undersigned will not make the customary recommendation of reinstatement,
but it will be recommended however that the Respondent make Blair, Martin,
and Even whole for any loss of earnings suffered by them by reason of the
Respondent's discrimination against them, by payment to them of a sum of
money equal to that which they would have earned as wages from the date of the
refusal of employment to the date on which the employment normally would
have been terminated, absent discrimination, less their net earnings a during
said period.
5 The record discloses that at present the Respondent has some managerial connection
with the Carthage Hydrocol, Inc, plant at Brownsville The nature of connection
however is not clearly shown
6 Crossett Lumber Company, 8 NLRB 440 Consistent with the policy of the Board
the loss of pay shall be computed on the basis of each separate calendar quarter or portion
thereof during the period from Respondent's discriminatory action to the date of a
proper offer of reinstatement. The quarterly periods hereafter called "quarters" shall
begin with the first day of January, April, July, and October It will be further recom-
mended that Respondent make available to the Board upon request payroll and other
recoils to facilitate the checking of the amount of back pay due F. IV. TVoolicoi th
Company, 90 NLRB 289.
LOS ANGELES BUILDING AND CONSTRUCTION TRADES COUNCIL 415
The unfair labor practices found to have been engaged in by the Respondent
are of such character and scope that in order to insure to employees and pros-
pective employees their full rights guaranteed them by the Act, it will be recom-
mended that the Respondent cease and desist from in any manner interfering
with, restraining, or coercing its employees or prospective employees in their
right to self-organization, as guaranteed in Section 7 of the Act.
On the basis of the above findings of fact and upon the entire record in the
case, the undersigned makes the following :
CONCLUSIONS OF LAW
1. Lodge No. 1276 International Association of Machinists is a labor organiza-
tion within the meaning of Section 2 (5) of the Act.
2. By discriminating in regard to the hire and tenure of employment of James
Blair, Lampton Eugene Martin, and Lewis Even, thereby discouraging member-
ship in Lodge No. 1276 International Association of Machinists and encouraging
membership in United Brotherhood of Carpenters and Joiners, AFL and/or its
Local 1316, the Respondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8 (a) (3) of the Act.
3. By interfering with, restraining, and coercing its employees in the exercise
of the rights guaranteed in Section 7 of the Act, the Respondent has engaged
in and is engaging in unfair labor practices within the meaning of Section 8 (a)
(1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
[Recommended Order omitted from publication in this volume.]
Y May Department Stores, 326 U. S. 376.
Los ANGELES BUILDING AND CONSTRUCTION TRADES COUNCIL, A. F. L.,
AND LLOYD A. MASHBURN, ITS AGENT; MILLWRIGHT AND MACHINERY
ERECTORS LOCAL 1607 OF THE UNITED BROTHERHOOD OF CARPENTERS
AND JOINERS OF AMERICA, A. F. L., AND HERMAN F. BARBAGLIA, ITS
AGENT and INTERNATIONAL ASSOCIATION OF MACHINISTS, FOR ITS
LOCAL LODGE 1235. Case No. 21-CD-19. May 11, 1951
Decision and Order
On August 31, 1949, Trial Examiner Peter F. Ward issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondents had engaged in certain unfair labor practices in viola-
tion of Section 8 (b) (4) (D) of the Act, and recommending that
they cease and desist therefrom and take certain affirmative action, as
set forth in the copy of the Intermediate Report attached hereto.
Thereafter, the Respondents filed exceptions to the Intermediate Re-
port and a supporting brief. On January 5, 1950, the Board heard
oral argument at Washington, D. C.; the Respondents, the charging
IAM, the General Counsel, Westinghouse, and Edison participated.
94 NLRB No. 63.