Del E. Webb Construction Co.

National Labor Relations Board - Board Decisions

Jul 11, 1951

95 N.L.R.B. 75 (N.L.R.B. 1951)

DEL E. WEBB CONSTRUCTION COMPANY 75
takes dictation for correspondence between the station superintendent
and his superiors dealing with the disposition of grievances, and has
access to all files involving the station superintendent's relations with
the Union. As it appears from these facts that this employee acts
in a confidential capacity to the station superintendent in the exer-
cise of his managerial functions in connection with labor relations,
we shall exclude her from the unit .9
The timekeeper.-The Employer employs one timekeeper at its
Chester station. She works in the office, and under the supervision
of the station superintendent, keeping records of the time worked
by other employees, the wages paid them, and similar information.
The Employer wishes to exclude her from the unit on the ground
that she has no community of interests with the production and main-
tenance employees. She has in the past been included in the unit,
and the Union wishes to continue to include her. Upon the entire
record, we find that the timekeeper may appropriately be included
in the unit.10
Accordingly, we find that all the production and maintenance em-
ployees at the Employer's Chester, Pennsylvania, station, including
the chief boiler operator, the chief assistant running engineer, the
chief electrical mechanic, the chief hoisting engineer,"' the store-
keeper B, the head janitor, and the timekeeper, but excluding the
gatemen, the stenographer to the station superintendent, professional
employees'12 and supervisors as defined in the Act, constitute a unit
appropriate for the purpose of collective bargaining within the mean
ing of Section 9 (b) of the Act.
[Text of Direction of Election omitted from publication in this
volume.]
$ Minneapolis -Moline Company, 85 NLRB 597.
10 Aluminum Company of America ( Harvard Plant, Cleveland ), 80 NLRB 1342.
11 For the reasons set forth above , the inclusion of the individuals in the last four
categories is not to be taken as a final determination of their status as supervisors, but is
solely for the purpose of permitting them to vote subject to challenge.
12 The parties do not contest, and the record establishes that the investigators of plant
tests and the plant chemist are professional employees within the meaning of the Act.
DEL E. WEBB CONSTRUCTION COMPANY and JOHN WORDS
INTERNATIONAL HOD CARRIERS ', BUILDING AND COMMON LABORERS'
UNION OF AMERICA , CONSTRUCTION AND GENERAL LABORERS UNION
No. 264, A. F. OF L . and JOHN WORDS . Cases Nos . 17-CA-249 and
17 CB-19. July 11, 1951
Decision and Order
On December 26, 1950, Trial Examiner George A. Downing issued
his Intermediate Report in the above-entitled proceeding, finding that
95 NLRB No. 17.
76 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Respondents had engaged in and were engaging in certain unfair
labor practices, and recommending that they cease and desist there-
from, and take certain affirmative action, as set forth in the copy of
he Intermediate Report attached hereto. The Trial Examiner also
found that the Respondent Company had not engaged in certain other
alleged unfair labor practices and recommended that the complaint
'be dismissed in this respect. Thereafter, the. Respondents each filed
exceptions to the Intermediate Report and supporting briefs. The
Respondent Union also filed a request for oral argument. The request
for oral argument is denied as the record and exceptions and briefs,
in our opinion, adequately present the issues and the positions of the
parties.
The Board 1 has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record in
the case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner, with the following additions : 2
1. We find, as did the Trial Examiner, that on November 15, 1949,
the Respondents entered into an oral agreement or arrangement
-whereby Respondent Webb agreed'to hire as laborers only members.of
the Union referred to it by the Respondent Union, and that by enter.-
ing into, being parties to, and enforcing said agreement or arrange-
ment, Webb violated Section 8 (a) (1) and (3) of the Act, and the
Union (by attempting to cause a violation of Section 8 (a) (3) )
violated Section 8 (b) (2) of the Act.
The. Respondents concede that at the November 15 conference the
Union agreed, at Webb's request, to supply or refer common laborers
to Webb. They deny, however, that this agreement or arrangement
obligated Webb to hire only union laborers referred to it by the Union.
The agreement, if any, the Respondnts argue, was in the nature of a
legitimate hiring-hall arrangement, which did not restrict or limit the
Employer's power to hire.3
As detailed in the Intermediate Report, the November 15, 1949,
1 Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its
powers in connection with this case to a three -member panel [Chairman Herzog and
Members Murdock and Styles].
2 The assertion of jurisdiction over the Respondents is clearly in accord with existing
Board Policies . Although the inference might reasonably be drawn that the inflow of
materials from out of State for the project here involved would alone be sufficient on a
12-month basis to warrant the assertion of jurisdiction under existing policies, the
Respondent Webb, clearly meets another test for the assertion of jurisdiction which alone
requires such assertion. Thus it is an enterprise operating on a multistate basis, and
performing services valued at more than $25,000 per year outside of its home State of
Arizona. Arthur G. McKee and Company, 94 NLRB 399; The Borden Company,
Southern Division , 91 NLRB 628; Stanislaus Implement and Hardware Company, Limited,
91 NLRB 618.
3 Webb was a member of the National Association of General Contractors. As a
member of this Association, Webb was obligated on coming to Kansas City to accept the
job working conditions established by the Builders' Association and the District Council
DEL E. WEBB CONSTRUCTION COMPANY 77
agreement was entered into against a background of closed-shop con-
ditions which had existed for years in the building and construction
industry in Kansas City. Until March 31, 1949, the Builders' Asso-
'ciatiom was party to a master closed-shop agreement with the Dis-
trict Trades -Council and to separate contracts with each craft union
that was a -member of the District Trades Council, including the Re-
spondent Union, which contracts incorporate the terms of the master
agreement and covered the conditions peculiar to each craft. These
agreements were not renewed following their expiration, nor does
the record show that the parties thereto entered into any further
formal written agreement. New wage scales, however, were there-
after negotiated and understandings reached as to certain job conduct
and job conditions between the Builders' Association and the Re-
spondent Union.
The hiring-hall arrangement or the referral practice, which had
prevailed at least since 1940, was continued in effect after the last
closed-shop contracts expired on March 31, 1949. In fact, in July of
that year the. referral practice was strengthened by the Respondent
Union by the initiation of daily records of work referrals; in order
to assure the equitable distribution of available jobs. At the times
material to this case, the building industry in Kansas City was 98
percent -unionized. Under these circumstances, any hiring-hall ar-
rangement, as a concomitant of the preexisting closed-shop conditions,
must be carefully scrutinized for any indication that it was intended
to perpetuate those conditions after the expiration of the formal
closed-shop contracts.
That such was. the purpose of the hiring-hall arrangement of No-
vember 15 is strongly indicated by Construction Superintendent Neil's
acceptance of La. copy of the union rules under the" circumstances
amounting to an implied assent to abide by the rules. Neil arranged
for the meeting with the representatives of various trade unions in
order to establish good relations and to assure Webb of a continuous
supply of-laborers. At-the-meeting at which the agreement was made,
Union Representative Jarrett advised Webb's representatives that un-
der the Union's rules all laborers sent to Webb would get a clearance
or a referral card from the Union, and that when a certain number. of
union laborers had been hired, a member of the Union would have
to be designated by Webb as laborer foreman. Other union rules
were also discussed at the meeting and Neil was given a copy of the
union-rules 4 Neil testified that because of his prior familiarity with
Webb, in fact, checked with the Association to determine what local conditions had been
prescribed. Webb was also familiar with these conditions because it had done business
in that area before..
* Neil testified that it was his practice and policy to follow unions' working rules "to
the best of his ability," because, "if you have no other source of obtaining the trades . .
[except] that one source then naturally you are going to abide by their working rules."
78, DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the rules he did not have to read them. Among other things, the rules
provided: (a) That a member of the organization, designated by the
business representative "shall act as Steward on every job"; (b) that
"all employees must, after being hired, report to the Steward before
starting to work"; and (c) that, "where six or more members` are em-
ployed, a member of organization shall be designated as labor fore-
man." If, as the Respondents contend, the agreement was merely to
supply Webb, on request, with common laborers, there would have
been no need to impose upon Webb the conditions that "all employees"
be required to report to the union steward before starting work. The,
very nature of the condition indicates that it was predicated upon
recognition of the closed-shop practice.
. Further evidence that the agreement reached at the November 15
meeting provided for hiring union members who. were referred by the
Union is found by the manner in which it was carried out. Thus, all
of the 80 to100 common laborers hired by Webb during the period in
question were union members. Indeed, Webb hired all its laborers
through the Union. Jarrett, assistant business agent of the Union,
testified that all applicants for assignments to the project were re-
quired either to become members of or at least to take out a "permit"
(application for membership) in the Union. Moreover, only those
union members who possessed referral slips from the Union were hired
by Webb.5
Policing of the November 15, 1949, agreement was assured by the
presence of the Union's stewards on the project. According to Jarrett,
it was the steward's function to check the referral slips and the union
cards of new employees; and in no instance did the stewards report
the presenceof nonunion employees on the project. Frequent visits to
the project by union representatives further assured ' the . Union of
strict adherence to the agreement by Webb.
The Union in its brief argues that, even assuming that the record
contains evidence of a discriminatory hiring practice by Webb, such
evidence does not constitute proof of the existence of an agreement
between Webb and the Union requiring such practice. This argument
might have some persuasiveness were it not for the fact affirmatively
established by the record that on November 15, 1949, the Respondents
entered into an agreement obligating Webb to hire only union mem-
bers referred to it by the Union and that Webb's policy was the in-
tended consequence of that agreement.
5In several instances union members who resided in outlying towns and communities
and as to whom the Union had recognized an exception , were hired on the Webb project
without a referral slip, but these men later reported to the union hall for clearance. It
was Webb's hiring of such applicants without prior union clearance that occasioned
Jarrett's visit to the job and his conversation with Neil early in December , in which
Jarrett invoked a strict adherence. to. the referral card arrangement.
DEL E. WEBB CONSTRUCTION COMPANY , 1 79
We conclude, therefore, that on November 15, 194:99 the Respondents
became parties to an oral agreement or arrangement whereby the
Union undertook to supply Webb with all the common laborers it
needed, and Webb agreed to employ only union members who had first
received work orders from the Union. We further conclude that, as
the agreement provided for a discriminatory hiring practice and
-created conditions which would and did result in future discrimina-
tions, the Respondents violated the Act by entering into it. The fact
that the agreement. was oral rather than written makes it no less viola-
tive of the Act, for in either case such an agreement creates conditions
which may be expected to result in future discrimination. Accord-
ingly, we find, as did the Trial Examiner, that by becoming parties to,
and performing, the discriminatory referral and hiring agreement or
arrangement, Respondent Webb violated Section 8 (a) (1) and (3)
of the Act, and the Respondent Union (by attempting to cause a
violation of Section 8 (a) (3)) violated Section 8 (b)' (2) of the Act.,,
2. The Trial Examiner also found that by refusing to employ John
Words, Booker Armstrong, and James Ellis on December 12, 1949, the
Respondent Webb discriminated against them in violation of Section
8 (a) (3) and (1), and that by causing Webb so to discriminate
against said employees, the Respondent Union violated Section 8 (b)
(2) and 8'(b) (1), (A) -of-the Act. With the modifications set forth
below, we agree with these findings.
The Respondent Company contends that no proper application for
employment was made by the complainants on December 12, 1949,
when jobs were available, because neither Richardson, then a rank-
and-file employee, nor Carpenter Foreman Brown, the persons to
whom the application was. made, had authority to hire common labor-
ers, andthat therefore the action of Richardson and Brown in sending
the men to the Union for a work order cannot be construed as a refusal
to employ by Webb. We find this contention without merit.
' Brown was carpenter foreman in charge of the construction of
two buildings where he supervised the work of the carpenters and
the common laborers assigned to him. Brown had authority effective-
ly to recommend the discharge of the employees under his supervision:
Brown also had authority to recommend the hire of additional men,
or "any one man that he knew," if he needed them, and his recom-
mendations in this respect were usually followed by Construction
6 Daniel Hamm Drayage Company , Inc., 84 NLRB 458, enfd. 185 F. 2d 1020 (C. A. 5) ;
National Union of Marine Cooks & Stewards, 90 NLRB 1099; Acme Mattress Company,
Inc., 91 NLRB 1010 , Childs Company , 93 NLRB 281.
80 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Superintendent Neil or General Labor Foreman Maslen.?' We find
that Brown had the authority to make an effective recommendation as
to the hiring of additional help and/or the hiring of any particular
man to work under his supervision. It follows, therefore, that it was
also within the scope of his authority to accept the applications of
persons seeking employment as common laborers under his super-
vision--and to advise-them of the steps they must take to.complete
their, application. We find, therefore, that, on-, December. 12, the
complainants made a proper application for employment. We find
also that Webb was responsible for Brown's conduct in referring the
complainants to the Union for clearance.
Any doubts as to Brown's authority to entertain the application for
employment from the complainants were dispelled by the events
of December 13. That evening Brown advised Construction Superin-
tendent Neil of the complainants' application for employment. Neil
looked at the names and said "Oh, Oh, we'd better hold up on that.
It looks like we may be in a j am on these men." Neil also mentioned
the possibility of a lawsuit. Neil did not, question Brown's authority
to accept the application or to request the employment of these men,
nor did he base his denial of employment upon the ground that there
were no jobs available. The sole reason for the refusal of employment.
was Neil's apprehension that their employment might result in some
difficulty for Webb. As the Trial Examiner found„and;we agree, Neil
was referring to Jarrett's earlier demand for strict compliance with
the discriminatory hiring and referral arrangement.. Accordingly;
we find that Neil's reason for refusing to hire the complainants on
December 13 was based upon unlawful hiring agreement between
Webb and the Union.
While the Respondent Company admits -that the application for
employment was completed on the evening of December 13, it argues
that the denial of employment by Neil was not discriminatory because
at that time there were no jobs available, the Union having suppliect
Webb with the requested number of common laborers that morning.
Brown,.on whose project the complainants would have worked and
vgho was in the position to know whether he had need' of their services,
continued on the' evening of December 13 to press their application.
Neil did not base his refusal to employ these men on the fact that no,
jobs were available but on the ground that to, employ them might
' On this point Neil testified as follows :
Q. Can you state whether Mr . Brown had authority to hire employees hinrself?
A. Mr. Brown , the understanding was when he wanted additional men he would
come up to the office and ask for additional men or any one particular man that he
knew. Now, naturally, as superintendent of the job I have a following of key men.
and any good foreman has a following of good men and these men follew these men
around and in order to get a good organization together naturally you take the
men you know 'and the men that your foremen know.
Q. Did Mr. Brown have authority to request additional help if he felt he needed it?
A. Absolutely.
DEL E. WEBB CONSTRUCTION COMPANY 81
involve the Company in trouble with the Union. The evidence indi-
cates that at this time Webb was increasing its labor force and that a
few days later it placed with the Union another request for eight
additional common laborers. Thus, while it appears that at the
precise moment when the application for employment was refused,
jobs might not have been available, it is also clear that Webb was
then in the .process of. adding to its labor force and that but for thek
complainants' failure to obtain a referral slip from the Union, they
would have been hired the evening of December 13.
Assuming, however, that at the time of the refusal of employment'
no jobs were immediately available for the complainants, that cir
cumstance is no defense to the allegation of discriminatory refusal,
to hire because, throughout the period in question, Respondent Webb
continued unchanged its discriminatory referral and hiring arrange-
ment. ' The applicants were advised that they would not be hired
'without prior clearance from the Union. Their efforts to obtain such
clearance proved fruitless. Under these circumstances they were not:
obliged to continue making the useless gesture of reapplication in
order to establish Webb's responsibility for discriminatory practices
against them.8
Upon the entire record we find that the Respondent Webb, by
referring on December 12, 1949, the complainants to the Union for
the purpose of obtaining work permits, and by denying on the eve-
ning of December 13 their application for employment because of
the existence of the discriminatory hiring arrangement and/or prac-
tice, discriminated against the complainants in violation of Section
8 (a) (3) of theAct9
The Respondent Union contends that it did not cause or attempt
to cause Webb to discriminate against the complainants. There is
no evidence, the Union argues, that the charging parties would have
been hired but for the hiring-hall arrangement, or that they failed
to obtain employment due to their inability to obtain a referral slip
from the Union. We find to the contrary.. Construction Superin-
tendent Neil testified that he usually accepted the recommendations
of his subordinate supervisors as to what men should be hired and
that he could not recall having declined the request of a subordinate
for additional help. As found above Neil denied Brown's request
for employment of the charging parties because he thought that the
failure to comply strictly with the referral arrangement would have
8 Daniel Hamm Drayage Company, Inc., 84 NLRB 458, 460, enfd 185 F. 2d 1020 (C. A.
5) ; Swinerton and Walberg Company , 94 NLRB 1079 ; Arthur G. McKee and Company,
94 NLRB 399; Cf. The Kellogg Company, 94 NLRB 526.
B For reasons stated in the recent American Pipe and Steel Corporation case ( 93 NLRB
54) we find no nrerit in the Respondents ' argument that because the complainants were
already members of the Respondent Union. the refusal to hire them could not, as found
by the Trial Examiner , have encouraged membership in a labor organization in violation
of. Section 8 (a) (3). of the Act.
82 DECISI0149 OF NATIONAL 'LABOR RELATIONS BOARD
involved Webb in trouble with the Union. Thus, it is apparent that
the existence of the unlawful hiring-hall arrangement and its imple-
mentation in practice, for which both Respondents were equally re-
sponsible, was the reason Neil rejected the application.
Although the Respondent Union did not request or demand that
Respondent Webb refuse to hire the complainants, nevertheless the
refusal to hire was the proximate result of the discriminatory referral
and hiring arrangement which, on the part of the Union, constituted
a violation of Section 8 (b) (2) of the Act as an attempt to vase
Webb to discriminate against employees. As the Respondents are
equally responsible for the unlawful hiring arrangement, they 'are
also each responsible for its reasonably to be anticipated results.
Accordingly, we find that the Respondent Union caused the Respond-
ent Webb to discriminate against John Words, James Ellis, and
Booker Armstrong in violation of Section 8 (b) (2) of the Act .10
We also find that by the aforesaid conduct, the Respondent Union'
.violated Section 8 (b) (1) (A) of the Act."
Order
Upon the entire record in the case and pursuant to Section 10 (c)
:of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that
1. The Respondent Company, Del E. Webb Construction Company,
Phoenix, Arizona, its officers, agents, successors, and assigns, shall :
a. Cease and desist from :
(1) Encouraging membership in International Hod Carriers',
Building and Common Laborers' Union of America; Construction
and General Laborers' Union No. 264, A. F. of L., or in any other
labor organization of its employees, by entering into, being a party
to, performing, or in any manner giving effect to the referral slip
agreement to the extent that such agreement expressly, impliedly, or
in performance requires membership in the Union and the obtaining
of a referral slip from the Union as a condition of employment, ex-
cept to the extent that such agreement may subsequently be authorized
as provided in Section 8 (a) (3) of the Act. 1
(2) In any like or related manner discriminating against or inter-
fering with, restraining, or coercing employees or applicants for
employment in the. exercise of the rights guaranteed by Section 7
of the Act, except to the extent that membership in a labor organi-
zation may be required as a condition of employment as authorized
in Section 8 (a) (3) of the Act.
b. Take the, following affirmative action, which the ' Board finds
will effectuate the policies of the Act.:
10 Childs Company, 93 NLRB 281.
11 Childs Company , supra; New York State Employers Association , Inc., 93 NLRB 127.
DEL E. WEBB CONSTRUCTION COMPANY 83,
(1) Offer to John Words immediate employment as a laborer, or,
a substantially equivalent job, without .prejudice to his seniority or
other rights and privileges; upon application by James, Ellis, em-
ploy him as a laborer, or if there are no vacancies, place his name
on a preferential hiring list and thereafter offer him employment
as a laborer when such work becomes available and before new per-
sons are hired for such work; and, jointly and severally with Re-
spondent Union, make whole John Words, James Ellis,12 and Booker
Armstrong for any loss of pay which each may have suffered by
reason of the discrimination against him in the manner provided
in the section of the Intermediate Report entitled "The Remedy."
(2) Henceforth employ laborers without regard to their union
membership, affiliation, or activity, and without regard to whether
they have procured from the Respondent Union a referral slip or
work order ; and take all reasonable steps and precautions to carry
out and make effective said requirement.
(3) Upon request, make available to the Board or its agents all
pertinent records necessary to insure expeditious compliance with
said recommended order.
(4) Post at its main office in Phoenix, Arizona, and in its job office at
Kansas City, Missouri, copies of the notice hereto attached marked
"Appendix A." 13 Copies of said notice, to be furnished by the Re-
gional Director for the Seventeenth Region, shall, after being duly
signed by the Respondent Company's representatives, be posted by
it immediately upon receipt thereof and be maintained by it for a
period of at least sixty (60) consecutive days thereafter in conspicu-
ous places, including all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by the Respondent
Company to insure that said notices are not altered, defaced, or
covered by any other material. ,
(5) Notify the Regional Director for the Seventeenth Region in
writing within ten (10) days from the date of this Order what steps
it has taken to comply herewith.
2. The Respondent Union, International Hod Carriers', Building
and Common Laborers' Union of America, Construction and General
Laborers' Union No. 264, A. F. of L., its officers, representatives, agents,
successors and assigns, shall:
a. Cease and desist from :
(1) Entering into, being a party to, performing, or in any manner
giving effect to the referral slip agreement with the Company to the
12 The back pay to James Ellis is to be computed from December 12, 1949, to March 28,
1950, when he was referred to the Respondent Company for employment, rather than to
April 11, 1950, as the Trial Examiner found in his Intermediate Report.
"In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be inserted before the words , "A Decision and Order," the words,
"A Decree of the United States Court of Appeals Enforcing."
961974-52-vol. 95-7
84 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
extent that such agreement expressly, impliedly, or in performance
requires membership in the Union and the obtaining of a referral
slip from the Union as a condition of employment, except to the
extent that such agreement may subsequently be authorized as pro-
vided in Section 8 (a) (3) of the Act.
(2) In any other manner causing or attempting to cause Del E.
Webb Construction Company to discriminate among employees or
prospective employees in violation of Section 8 (a) (3) of-the Act,
or in any other manner restraining or coercing employees or prospec-
tive employees in the exercise of rights guaranteed by Section 7 of
the Act, except to the extent that such rights may be affected by an
agreement requiring membership in a labor organization as a condi-
tion of employment as authorized by Section 8 (a) (3) of the Act.
b. Take the following affirmative action which the Board finds
will effectuate the policies of the Act:
(1) Notify Del E. Webb Construction Company in writing, and
furnish copies to John Words and James Ellis, that it has no objection
to their employment by the Company.
(2) Jointly and severally with Del E. Webb Construction Com-
pany, make whole John Words, James Ellis, and Booker Armstrong
for any loss of pay which each may hate suffered by reason of the
discrimination against him in the manner provided in the Intermedi-
ate Report in the section entitled "The remedy."
(3) Post at its office at Kansas City, Missouri, and wherever notices
to its members are customarily posted, copies of the notice attached
hereto marked "Appendix B." 14 Copies of said notice, to be fur-
nished by the Regional Director for the Seventeenth Region, shall,
after being duly signed by the Respondent Union's representatives,
be posted by it immediately upon receipt thereof and maintained by it
for a period of at least sixty (60) consecutive days thereafter in con-
spicuous places, including all places where notices to members are.,
customarily posted. Reasonable steps shall be taken by the Respond-
ent Union to insure that such notices are not altered, defaced, or
covered by any other material.
(4) Forthwith return to the Regional Director for the. Seventeenth
Region copies of the aforesaid notice furnished by the Regional
Director, after signing such notices as provided in paragraph b (3),
above. The Company willing, these notices shall be posted on the
Company's bulletin boards where notices to employees are customarily
posted, and maintained thereon for a period of sixty (60) days there-
after.
(5) Notify the Regional Director for the Seventeenth Region in
14 In the event that.this Order is enforced by a decree of a United States Court of
Appeals, there shall be inserted before the words, "A Decision and Order," the words,
"A Decree of the United States Court of Appeals Enforcing."
DEL E. WEBB CONSTRUCTION COMPANY 85
writing within ten (10) days from the date of this Order what
steps it has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be dismissed insofar as it
alleges that the Company has violated Section 8 (a) (4) of the Act.
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, we hereby notify our employees that :
WE WILL NOT encourage membership in INTERNATIONAL Hon
CARRIERS, BUILDING AND COMMON LABORERS' UNION OF AMERICA,.
CONSTRUCTION AND GENERAL LABORERS UNION No. 264, A. F. OF L.,,
or in any other labor organization of our employees, by entering
into, being a party to, performing, or in any manner giving effect
to the referral slip agreement to the extent that such agreement
expressly, impliedly, or in performance requires membership in
the Union and the obtaining of a referral slip from the Union as
a condition of employment, except to the extent that such agree-
nient may subsequently be authorized as provided in Section 8
(a) (3) of the Act.
WE WILL NOT in any like or related manner discriminate against
or otherwise interfere with, restrain, or coerce our employees in
the exercise of the rights guaranteed by Section 7 of the Act.
WE WILL offer to John Words immediate employment as a
laborer, or a substantially equivalent job, without prejudice to
his seniority or other rights and privileges; and upon application
by James Ellis we will employ him as a laborer, or if there are
no vacancies,. place his name on a preferential. hiring list and
thereafter offer him employment as a laborer when such work
becomes available and before new persons are hired for such work.
WE WILL make whole John Words, James Ellis, and Booker
Armstrong for any loss of pay which each may have suffered by
reason of the discrimination against him.
All our employees are free to become or remain or free to refrain
from becoming members of the above-named union, or any other labor
organization, except to the extent that such right may be affected by
an agreement as authorized in Section 8 (a) (3) of the Act..
DEL E. WEBB .CONSTRUCTION COMPANY,
Employer.
Dated ------------ By --------------------------------------
(Representative ) (Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
86 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Appendix B
NOTICE TO ALL MEMBERS OF INTERNATIONAL HOD CARRIERS', BUILDING
AND COMMON LABORERS' UNION OF AMERICA, CONSTRUCTION AND
GENERAL LABORERS' UNION No. 264, A. F. of L.
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 you that :
WE WILL NOT enter into, be a party to, perform, or in any
manner give effect to the referral slip agreement with the DEL E.
WEBB CONSTRUCTION COMPANY to the extent that such agreement
expressly, impliedly, or in performance requires membership in
the union and the obtaining of a referral slip from the union
as a condition of employment, except to the extent that such
agreement may subsequently be authorized as provided in Section.
8 (a) (3) of the Act.
WE WILL NOT in any other manner cause or attempt to cause
DEL E. WEBB CONSTRUCTION COMPANY to discriminate against
employees or prospective employees in violation of Section 8
(a) (3) of the Act, and we will not in any other manner restrain
or coerce employees or prospective employees in the exercise of
rights guaranteed by Section 7 of the Act, except to the extent
that such rights may be affected by an agreement requiring mem-
bership in a labor organization as a condition of employment as
authorized by Section 8 (a) (3) of the Act.
WE WILL notify DEL E. WEBB CONSTRUCTION COMPANY in writ-
ing, and furnish copies to John Words and James Ellis, that we
have no objection to their employment by the company.
WE WILL make whole John, Words, Booker Armstrong, and
James Ellis for any loss of pay which each may have suffered by
reason of the discrimination against him. -
INTERNATIONAL HOD CARRIERS' BUILDING AND COMMON
LOBORERS' UNION OF AMERICA, CONSTRUCTION AND GEN-
ERAL LABORERS' UNION No. 2,64, A. F. of L.,
Labor Organization.
By ------------------------------------------------------------
(Representative ) (Title)
Dated --------------------
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
Intermediate Report and - Recommended Order
STATEMENT OF THE CASE
Upon amended charges duly filed by John Words, the General Counsel of the
National Labor Relations Board, by the Regional Director for the Seventeenth
DEL E. WEBB CONSTRUCTION COMPANY 87
Region ( Kansas City , Missouri ), issued an order consolidating these cases and a
consolidated complaint on August 30, 1950, against Del E. Webb Construction
Company, herein called Webb and the Company , and International Hodcarriers',
Building and Common Laborers ' Union of America , Construction and General
Laborers ' Union No. 264 , A. F. of L., herein called the Union and Local 264. The
complaint alleged that the Company had engaged in and was engaging in un-
fair labor practices affecting commerce within the meaning of Section 8 (a) (1),
(3), and ( 4) of the National Labor Relations Act as amended , 61 Stat. 136, herein
called the Act, and that the Union had engaged in. and was engaging in unfair
labor practices within the meaning of Section 8 (b) (1) and ( 2) of the Act.
Copies of the complaiht , of the said charges, and of the order consolidating the
cases and notice of hearing were duly served upon the Respondents.
With respect to the unfair labor practices , the complaint alleged in substance
that the Respondents , prior to December 7, 1949, entered into an agreement or
understanding ( for the purpose of encouraging membership in the Union) that
the Company would employ as laborers only individuals who had been referred
to it by the Union and who had work orders issued by the Union ; that on or
about December 12, 1949, the Company refused to employ John Words, Booker
Armstrong , and James Ellis , because of the foregoing agreement or understand-
ing ; and that on and after December 15, 1949, the Company refused to employ
said individuals for the further reason that they had filed charges with the
National Labor Relations Board.
The Respondents filed separate answers which raised the question of jurisdic-
tion of the Board and which denied the commission of unfair labor practices.
The Union also pleaded that its acts were within the protection of Section 8 (c)
and of the proviso of Section 8 (b) (1) (A).
Pursuant to notice , a hearing was held at Kansas City, Missouri , on October
17, 18, and 19 , 1950, before George A. Downing , the undersigned Trial Examiner
duly designated by the Chief Trial Examiner . The General Counsel and the
Respondents were represented by counsel and participated in the hearing. Full
opportunity to be heard , to examine and cross -examine witnesses , and to intro-
duce evidence pertinent to the issues was afforded all parties . Respondents
made separate motions to dismiss on which ruling was reserved . They are
disposed of by the findings herein . All parties participated in oral argument
at the conclusion of the hearing. All parties were offered an opportunity to
file briefs and proposed findings of fact and conclusions of law . All parties filed
briefs, which have been considered . The Company also filed requested find-
ings of fact and conclusions of law, on which the following rulings are made:
Findings of fact Nos. 9, 10, 11 , 18, 19, 20, 27 , 28, 29, 30, 31 , 32, and 33 are hereby
granted ; all others are denied . All of the requested conclusions of law are
denied.
Upon the entire record in the case and from his observation of the witnesses,
the undersigned makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
Del E. Webb Construction Company, an Arizona corporation incorporated in
1946 with its principal office in Phoenix , Arizona, is an interstate construction
contractor which submits bids for, and constructs , large projects in various parts
of the United States. Several of such projects currently pending or recently
88 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
completed at the time of the hearing were hospitals , under contract with. the
United States, for the Veterans' Administration as follows :
Approximate
Location : Contract Price
Phoenix, Arizona_______________________________________ $4,000,000
Denver, Colorado ----------- I-------------------------- 10,000,000
St. Louis, Missouri________________________________ Over 2,000,000
Livermore, California ___y----------------------------- 3,000,000
Portland, Oregon_______________________________________ 3,500,000
Kansas City, Missouri__________________________________ 8,000,000
Webb similarly has engaged in the construction of large commercial and
industrial projects such as a water treatment plant, a newspaper building,
a department store building, a grain elevator, silos, and warehouses. It
also built at Metuchen, New Jersey, a plant for either a linoleum company
or a paraffin company at a contract price in excess of $1,000,000, which took
more than 2 years to build.
The alleged unfair labor practices occurred on the Veterans' Hospital
project at Kansas City, Missouri, which has an estimated construction period
of 18 months and which is still incomplete. Though Respondent did not
have available in its job office for production under subpoena, records which
-would establish the extent of the extrastate incidences of the Kansas City
project, evidence submitted by the General Counsel establishes the following:'
All materials are ordered for the job through the home office at Phoenix,
except that the job office is authorized to buy locally items whose cost does
not exceed $100. Of the total contract price of $7,933,000' materials ac-
count for approximately $3,173,200, of which approximately $300,000 were
or will be supplied locally and approximately $2,873,200, were or will be
procured from interstate sources.
It is therefore concluded and found, contrary to the contentions of the Re-
spondents, that the Company is engaged in interstate commerce within the
meaning of the Act.
IL THE LABOR ORGANIZATION INVOLVED
International Hod Carriers', Building and Common Laborers' Union of
America, Construction and General Laborers' Union No. 264,, A. F. of L., is a
labor organization admitting to membership employees of the Company.
I These findings are based mainly on the testimony of Edward G. Novak, the branch
manager and superintendent of the consulting engineering firm which was under contract
with the United States to design prepared detailed plans and specifications and to prepare
detailed estimates of costs of construction and to furnish supervision and inspection
services as architect-engineers during the construction period. Novak prepared during
the hearing a summary from Webb's construction cost estimate (which had been reviewed
earlier directly with Webb's representatives) indicating the proportion of the contract
price attributable to labor and materials, respectively, and the proportion of extrastate
materials. The summary was admitted, over the Company's objection that it did not
represent the best evidence, with the statement that the Company was free if it desired
to produce its records to rebut the summary and Novak's testimony. The Company made
no attempt to take advantages of the opportunity afforded it. Estimates made by job
superintendent McFee and job office manager Mooney of the proportion of interstate
materials are not credited. However, Mooney's estimate' (50 percent Interstate, 50
percent intrastate) would itself afford more than ample basis for the assertion of
jurisdiction.
. 'The proportion performed by subcontractors Is immaterial , since a work dispute
resulting in a strike would obviously tie up the entire project and affect the receipt of all
extrastate materials.
DEL E. WEBB CONSTRUCTION COMPANY
III. THE UNFAIR LABOR PRACTICES
89
A. Background and setting 3
Kansas City has been a "closed-shop town" in commercial and industrial
construction for more than 40 years. Although some of the small jobs, particu-
larly in the residential construction field, may have operated with nonunion labor,
the larger jobs have worked union labor "practically of necessity." The build-
ing and construction industry is about 98 percent organized, i. e., about 98 per-
cent of the men who look for work as construction workers are members of a
union.'
Until March 31, 1949, there was in effect a master agreement (entered into
in 1946), embodying closed-shop provisions, between the District Trades Council
(an association of AFL craft unions in the building and construction industry)
and the Builders' Association, which was an "over-all" organization of various
employer associations in the same industry, including the Association of General
Contractors and its National Association.' The master agreement covered the
subject of union-security clauses and included provisions which were common to
all trades. Separate contracts had also been negotiated with each of the craft
unions, including Respondent Union, which covered the conditions peculiar to
the respective crafts. Such separate contracts incorporated the master agree-
ment as a part.
The closed-shop provisions, outlawed by the present Act, expired with the
master agreement on March 31, 1949. Though no formal contract has since
been entered into between the Builders' Association and Local 264, new wage
scales have been negotiated and an understanding reached as to certain job con-
duct and job conditions.
The Kansas City project was begun by Webb on September 29, 1949, under
the direct and immediate supervision of John T. Neil,' whose experience as a
construction superintendent dated from 1926 and who was thoroughly familiar
with the problems. of the industry, including that of obtaining a labor supply
and of the functions of the District Trades Council in that regard.
Neil's general labor foreman was Clyde K. (Whitey) Maslen, and his general
carpenter foreman was Herbert A. Brown. They and Neil were the only super-
visors on the job who were authorized to hire, and only Neil, Maslen, and Mooney
were authorized to place calls to the Union requesting the referral of such
laborers as were needed from time to time to man the project. Although Brown
frequently needed varying numbers of laborers to work with the carpenters under
his supervision, he himself had no authority to hire such laborers, whose hiring
was solely under the jurisdiction of Maslen and Neil. In actual practice Maslen
These findings are made on evidence which is undisputed.
4 This does not mean that all union menrber applicants are necessarily members of the
various craft unions affiliated with AFL. Though the AFL unions have virtually
monopolized the building and construction field for years (see Haber, Industrial Relations
in the Building Industry , Harvard University Press, 1930, pp. 270- 308), some competition
was offered in the past by CIO affiliates (How Collective Bargaining Works, Twentieth
Century Fund, 1943, pp. 198-9), and is presently offered by United Construction Workers
(UMW) and by IAM (see e. g., 25 LRR 107, 108-9).
' William V. Hutton, secretary-manager of the Builders' Association, testified credibly
that Webb was a member of the National Association and that its membership therein
allowed Webb to operate throughout the country but obligated it on coming to Kansas City
to accept the job working conditions, wage rates, etc., established by the Builders' Associa-
tion and the District Council. He testified further that Webb in fact checked with the
Association to determine what local conditions had been prescribed.
' The main happenings relating to the alleged unfair labor practices occurred during
Neil's regime, who was succeeded as construction superintendent by John N. McFee on or
about January 4, 1950.
90 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
hired them all. No foreman or subforeman tinder either Maslen or Brown was
authorized to hire, though . the evidence indicates that as a class the foremen or
subforemen otherwise exercised such authority as to qualify as.supervisors under
the Act.
B. The referral arrangement is agreed upon: how it operated
On or about November 15, 1949, Neil and Mooney met with representatives of
the District Trades Council , including Don Jarrett , an assistant business repre-
sentative of Local 264 . Neil, Mooney , and Jarrett testified to the happenings
at the meeting , Neil by deposition . Neil's testimony , which contains the fullest
account of the discussions , can be summarized as follows :
Cordial reference was made to the fact that Webb was returning to the Kansas
City area , in which it had performed an earlier contract , and there was discussion
of sources of employment and of the manner by which common laborers were
to be hired by Webb . In fact, each trade union who had a representative present
discussed its work rules. Jarrett, for the Laborers ' Local , mentioned the fact
that under the Union 's bylaws all laborers referred by the Union would get a
clearance card or a referral slip from the Union, and Neil was agreeable be-
cause, he testified , he had no other source of getting common labor. Neil denied,
however, that there was any discussion of obtaining common laborers only from
the union hall . There were other discussions of the Union ' s working rules, in-
cluding at least the requirement for a foreman over a specified number of men.
Neil was given a copy of the working rules during the conference but testified
that he found it unnecessary to read them because from his long experience in
the Construction field he had found working rules pretty much the same through-
out the country. `
.
Neil also testified that it was his practice and policy to follow the Union's
working rules to the same extent as the job specifications , explaining , "If you
have no other source of obtaining the trades you need and you get those trades
from that one source , then naturally you are going to abide by their working
rules ." He explained that to get his job done he must have harmony, and that
he got harmony on the job because he followed the union rules. -Neil also ad-
mitted knowing that in making assignments to the Webb project, the Union
made selections from its membership.
Mooney, though professing not to remember too well the happenings at the;
conference , admitted that there was a discussion concerning the manner in which
the referral slip practice was to be maintained and that Neil brought up the
subject "to find out how he was going to be able to man the job out there." Ac-
cording to Mooney, Neil inquired whether, if he called the union hall , it would
be able to supply him with men , that the union representatives agreed, and that
the referral slip system was agreed on as a means of identification and introduc-
tion. Mooney recalled no discussion of union working rules during the confer-
ence nor whether Neil was furnished a copy . of them.
Jarrett testified that the question of union working rules did not come up in
the meeting and that he did not recall any reference to the referral slip system.
Indeed, according to Jarrett , the purpose of the meeting-was simply for Neil and
Mooney to "get acquainted" with the various representatives of the trades unions.
Jarrett admitted , however , that he was asked if his Union would supply men
on call and that it was agreed that it would . He denied that there was any dis-
cussion of the referral slip requirement during the conference , and testified that
the referral slip was only a rule of the Union for the regulation of its membership.
As is seen , Neil was corroborated by Mooney that the referral slip system was
discussed and agreed upon, though Mooney did not recall any discussion of the
working rules . Neil's testimony is credited . He was not connected with either
DEL E. WEBB, CONSTRUCTION COMPANY 91
party at the time of the hearing, as were Jarrett and Mooney, his testimony
reflected less interest than theirs, and was correspondingly more candid?
The true nature of the arrangement which was agreed to at the conference is
fully revealed by the evidence as to the manner in which it was carried out.
Those circumstances appear from the testimony of Maslen and Brown , which was
corroborated in its most significant aspects by Neil's.
Maslen testified that when applicants for employment appeared on the project,
he hired them "by sending them back to the Local Union [Local 264] and then
they returned back to the job," and that he required a referral from Local 264
before putting a man to work. He testified further that the Union had at times
honored his request for particular men if they were in the hall at the time he
called in. Malsen testified further that he himself hired all laborers, that Neil
personally hired none of them, and that he had never hired a laborer without
going through Local 264.
Brown, who admitted that he was without authority to hire common laborers,
testified that, "We were all aware of how the [common] labor was hired on the
job; it was hired through the general labor foreman," who "got the laborers
from the Labor Union [Local 264]." Questioned further as to the Company's
practice in handling common laborers who applied on the .job, he testified,
"Those men had to come out to the job with a referral from the Labor Union,"
and that a common laborer who applied at the job could not be hired direct,
but that "you had to call the hall and make a request for him." [Italics supplied.]
Brown also testified that although Webb and the Union had not set down and
entered into any agreement for the hiring of only union men, it was "just under-
stood that they would be." 8
Neil ' s testimony , though not as frank as Maslen's and Brown's, is in substantial
accord with theirs with reference to the operation of the referral card arrange-
ment. Thus, he testified that there was never any question as to whether Webb
employed union or nonunion employees : ". . It was a foregone conclusion
that we hired union men because there was no other source of getting the trades
that we wanted." His testimony continued :
Q. (By Mr. SACKS.) Do you know whether your organization required
a work order or a union referral slip of each common laborer who went to
work on your job?
A. Yes, the common laborers in Kansas City did require a clearance
from the Union and there was no other source or no thought given of any
other source because no one ever applied, so naturally that was our source
of employment.
Q. So that it was your policy then to employ only common laborers who
came from the Union with a union work order or a referral slip?
A. That is right. There was no other source. Where else would I get
them?
Indeed, Neil testified that in his long experience as a building superintendent
there was never a time that there was not an abundance of union tradesmen and
that he has known of no other source of labor. Neil therefore disclaimed any
I Even in Neil's case, however, his testimony showed a disposition not to damage Webb's
cause unduly , as illustrated by his statement after an innocuous answer relating to general
commerce facts, "I don't think Del Webb would ever mind me saying that."
8 Respondents attempted to discredit Brown because of difficulties and controversies
between the Carpenters ' and the Laborers ' Unions on the Webb and other jobs . Brown's
attitude and denreanor were free of apparent bias and prejudice against any party.
Furthermore his testimony is in close accord with Maslen 's as to the hiring practices on
the job; and is therefore credited.
92 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
experience with a situation which involved the effect of calling nonunion laborers
to work on a job where all other crafts were union
Jarrett testified that there was never any agreement that Webb would hire
only union laborers nor only those who had a referral slip from the Union, and
that the referral slip was a rule imposed by the Union to govern its members and
to identify them to the employer. He admitted, however, that the job steward's
function was to check the referral slips and the union cards of new employees
and that in no case had the steward reported the presence of a nonunion man
on the job.1°
Jarrett testified further that his only discussion of the referral-slip system
with Neil occurred around the first of December as a result of "calls from the
job where some of the boys had come on the job without a work referral," and
that he "went out to ask Mr. Neil that whenever he calls us for a man or men
that he would ask them to come in and get a work referral from us at the office."
Jarrett testified that Neil refused to comply with that request. That testi-
mony is not credited. It is directly in conflict with the testimony of Neil and
Mooney, as well as with the testimony of Maslen and Brown as to the manner in
which the hiring was done and the referral card system operated. Further-
more Brown, who had heard the conversation, testified that Jarrett and Neil
were discussing the manner in which common laborers were to be hired on the
yob, that Jarrett said they had to come through the hall and that the men
were to come from the Union with a referral slip before they could go to work.
Brown testified that Neil reluctantly agreed, as he did not like the idea of
not being able to hire men direct on the job.
Jarrett admitted that not all of'the men who came into the union hall seek-
ing work were necessarily members of his Union, and that he did not give
nonmember applicants assignments because he had no authority to assign
anyone who was not a member of the Union. He testified, however, that if
the union labor supply was exhausted and if nonunion applicants would apply
for membership in the Union, the Union was glad to take them in, sign them
up as members or issue them permits, and assign them to job openings as
they arose. Jarrett testified that he never assigned anyone to employment
'until he had either become a member or had at least taken out a permit or
application for membership in the Union.
The testimony of Jerry Irving (another assistant business representative)
closely paralleled that of Jarrett as to the nature and purpose of the referral
card system. Irving also denied the existence of any agreement with Webb
that it would hire only union members, and stated that the only agreement
was that the Union would furnish laborers on Webb's request. He testified that
the Union acted in the nature of an employment agency in referring its mem-
bers to work.
The operation of the hall was described as follows by Irving and Jarrett :
The hall was opened by 7: 30 a. in. or earlier, and the first order of busi-
ness was to fill from the assembled applicants requests for men received from
employers at or after the close of the previous workday. The priority of such
assignments was to enable the employees to report for work by 8 a. m., and
receive a full day's pay. In making the assignments attention was given to
It is impossible to credit that testimony literally . It might be accepted as an
admission that Neil never supervised any but closed -shop jobs. However , because of his
admitted experience in the field , Neil was bound to know of the traditional rule in the
trades unions which prohibits union members from working on a job where any nonunion
men are employed . See footnote 18, infra.
10 The job steward's function in this respect was obviously the traditional one of keeping
nonunion men or union men not in good standing off the job. See infra, p. 95.
DEL E. WEBB CONSTRUCTION COMPANY 93
the employer 's specification , if any, of particular skills and to the union repre-
sentative's knowledge , if any, of the particular skills of assembled applicants.
Attention was also given the relative amounts of work applicants had received
and their relative length of idleness, with an eye to spreading the employ-
ment as evenly as possible, and for that purpose the Union had set up a register
of work referrals. However, the Union did not hesitate at times to honor..
an employer's request for a particular man or particular men. After the open-
ing assignments, others were made from time to time during the day as requests
or requisitions were called in.
In making the assignments referral slips were issued in triplicate, one copy
being retained by the Union and two handed the employee. The employee
thereupon reported to the project and delivered one copy to the general fore-
man or to the job office where he was "signed up" and the other to the job
steward.
Irving testified that there were a number of instances within his knowledge
where employees had been hired on the Webb project without a referral slip
but where the employees had later called in and reported to the union hall.
Upon refreshing his recollection from the Union's records, he named about 21
such employees who had been hired on or about the following dates : October
6, November 10, 11, 22, December 7, 1949, and March 7 and 14, 1950. Only 6
of the instances had occurred in March 1950, and more than half of the remainder
occurred prior to the November 15 conference and the agreement to the referral
arrangement. Furthermore, according to Irving's testimony, such instances
involved union - members who resided in outlying towns and communities,. as
to whom the Union had recognized an exception (at least until December 7)
because of the difficulty involved in trying to make assignments to members
who lived in outlying communities.
The inference is clearly justified from the entire evidence and from the
abrupt cessation of such instances on December 7, that it was Webb's hiring
of such applicants without prior union clearance that occasioned Jarrett's
visit to the job dnd his conversation with Neil early in December (the Union's
brief so concedes) in which Jarrett invoked strict adherence to the referral
card arrangement" Similarly, the inference is justified that it was the fresh-
ness of that agreement which led to the handling by both parties of the Words
application in strict conformity to the arrangement. That incident began on
Friday, December 9, and ran through,_ Tuesday, December 13, and the evidence
concerning it is now summarized.
0. The refusal to hire Words, et at.
On Friday, December 9, John Words went to the Webb project looking for
work. Words testified that an acquaintance there recommended him to Maslen,
who inquired "How is your standing with the Union?"; that he replied "Fine"
and started to show his card to Maslen ; but that Maslen said "I didn't mean
that," and walked away. 'Later, and. while still on the project, Words saw
Francis Richardson, whom he knew from previous employments ; Richard-
son stated that he needed Words and requested Words to find Booker Arm-
strong and James Ellis, that they should report to the union hall Monday
11 The Isolated March incidents 3 months later stand as an unexplained exception.
Apparently they occurred at a time of a resumption of operations after a shutdown
(possibly because of weather conditions ) and at a tinre when Webb needed to reman the
project. A possible explanation is that McFee , who had succeeded Neil, may have been
unaware that the Union was requiring strict compliance with the referral card arrange-
ment. In any event , the evidence does not Indicate that there were any subsequent
exceptions.
94 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
morning, and that Richardson would call in there for some men." The evi-
dence clearly establishes, however, that Richardson was himself then only a
laborer, having been hired on December 6, and that he was not made a labor
foreman under Brown until December 15.
Pursuant to Richardson's suggestion Words, Armstrong, and Ellis, who were
all union members in good standing, reported at the union hall Monday morn-
ing, but their names. were not called. The Union's register of job referrals
showed that 13 men were referred to the Webb project on that date. However,
according to Armstrong's testimony the 3 men were at the hall only from about
8 a. in. until some time after 11 a. in. Under normal procedure, the Monday
referrals could have been made before the arrival of the trio or after their ar-
rival from those who had reported earlier.
In any event, the trio went out to the project on Monday afternoon, arriving
during the lunch period. They saw Richardson, who said he had been looking
for them and who recommended them to Brown for employment. Brown wrote
their names down, said that he would see Maslen about having them put on the.
job, and told them to wait around a while. The matter slipped Brown's mind
until about 4 p. in., when Richardson spoke to him again. Richardson testified
that Brown then stated that he would see Maslen that night, and that he directed
Richardson to give the three men a slip to the union hall. Richardson gave the
three men the following note :
To: JERRY IRVING.
Jerry These men have a job out hear. Please give them a work order For
.12-13-49 it is O. K.
Thanks a lot.
FRANCIS RICHARDSON.
The trio took the `note that afternoon to the union hall and handed it to Roy
Livingston, the Local's secretary, who told them, "I won't do anything with this,
come in in the morning.' Don [Jarrett] will be here and you give him this."
The three men went separately to the union hall Tuesday morning, but as they
wanted to see Jarrett in a group, they waited until all three had arrived and by
that time it was about 7: 45 or 7: 50. Jarrett looked at the note from Richard-
son and said, "We haven't got any orders here for any men and I can't send you
out because we haven't got any calls here for any laborers" (testimony of Arm-
strong). He also reprimanded them for having broken the Union's rules by
hustling their own jobs (testimony of Words and Ellis)..
Jarrett testified that he had filled an order from Webb for eight laborers be-
fore Words and his companions came in, and that although he did not know
Richardson's capacity, he knew Richardson had no authority to request men
for Webb. He told the men that if they would wait around he would send them
out either to Webb or to some other job, if orders came in. Jarrett admitted
that he reminded the men that the rules of the district council required them to
get a referral slip from the Union.
The three men waited at the hall the rest of the day, but their names were
not called.
In the meantime, Brown had been unable to see Maslen or Neil on Monday
evening. Brown testified that on Tuesday evening while checking over his notes
with Neil, he came across his memorandum regarding the three men and he
" Maslen and Richardson both deny having seen words on the Friday visit he testified
.to. However, Maslen's inquiry as to union standing on the occasion is almost identical
to that which Armstrong testified to on the subsequent occasion when Maslen hired him
in March 1950. See infra, p. 95. As to Richardson, it is clear from the testimony of
words and Ellis as to their subsequent conversations on Monday, the 12th, that Richardson
was expecting them'. Words' testimony is therefore credited in both instances.
DEL E. WEBB CONSTRUCTION COMPANY 95
inquired whether they could be hired. Neil looked at the names and said "Oh,
Oh, we'd better hold up on that. It looks like we may be in a jam on these
men," and he mentioned the possibility of a law suit either through the Labor
Board or the Union."
Subsequent to December 13," each of the three men spent a varying number
of days at the hall. Words' efforts were without success. Ellis received a
referral slip to the Webb job on April 11, 1950, but was unable to report, due
to the death of his wife. Armstrong was hired on March 7, 1950, under cir-
cumstances which throw considerable cumulative light on the realities of the
employment arrangement which existed between the Respondents. Armstrong
had again heard that Webb needed laborers and went out to the project and
spoke to Maslen about a job. Maslen said "If you've got a good standing with
the union you've got a job," and told Armstrong that he would have to have a.
work order from the Union. Armstrong testified that he thereupon went to the
hall, procured a work order from Livingston, took it back to the project, delivered
it to Maslen, and was put to work. Maslen did not testify in denial of Arm-
strong's foregoing testimony.
D. Concluding findings
1. Was the referral slip arrangement illegal?
The evidence regarding the referral arrangement between the Respondents
can properly be evaluated only in the light of the realities in labor relations in the
construction industry. Those realities include the existence of practices which
are now so well known and widely accepted as virtually to be regarded as
traditional. It is unnecessary for present purposes to trace the origin and
historical development of the trades unions in the construction industry nor the
conditions or reasons which accounted for their growth." It is likewise unneces-
sary to explore the method or means by which those unions have achieved
acceptance of the closed-shop principle nor the reasons or considerations which
led to agreement or acquiescence therein by the building contractors 18
It is sufficient to note that the closed shop has been for years an accepted
principle in wide segments of the construction industry17 and that this result
was accomplished through the structural form of the District Trades Council,
which achieved effectiveness through the device of the sympathetic strike and by
the simple rule that no union member may work on a job where a nonunion man
is employed.18 The mechanics of enforcing the latter rule, likewise simple, are
also significant : The referral or working card system, which is policed on the job
by the job steward, serves to keep off the job nonunion men or union men who
are not in good standing. See Haber, supra, p. 263. It is also of significance
13 Brown's recollection of Neil's statement insofar as it related to the law suit and the
Labor Board was quite vague. He was positive, however, that his conversation with Neil
was on Tuesday.
14 The original. charge was filed on December. 15 and a copy was served on the Company
on December 16.
15 A detailed and documented treatment of such matters can be found in Haber, Industrial
Relations in the Building Industry, Harvard University Press, 1930. See particularly
Chapters IX and X.
1e Haber, op. cit., pp. 251-6; and see How Collective Bargaining Works, supra, pp. 212-13.
17 See footnote 15, supra; and see Taft's Law Hits Building Trades, by Richard J. Gray,
President , Building and Construction Trades Dept. (The American Federationist, Vol. 57,
No. 9, p. 8, Sept. 1950).
18 Haber, op . cit., pp. 262 , 329-31; How Collective Bargaining Works, supra, p. 200.
Indeed, it is chiefly due to these devices that common or unskilled laborers have been
able to achieve any degree of success in organizing and In obtaining recognition. Haber,
pp. 305-6, 308.
96 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that contractors who operate on an interstate or national basis have, in par-
ticular, been disposed to accept the closed shop in all localities in order to
protect themselves against strikes on jobs in unionized communities. Haber,
supra, pp. 256, 263.
Webb's operation as an interstate contractor and its membership in the Na-
tional Association of General Contractors made it, of course, fully cognizant
of conditions and of labor-management relations in the construction industry.
Were there any doubt on that score, it would be dissipated by Neil's knowledge
of such matters, acquired through many years of experience as a construction
superintendent. Finally, that Webb was fully acquainted with local condi-
tions is established by its performance of an earlier Kansas City project and
by Hutton's testimony that Webb's membership in the National Association
obligated it. to accept the job working conditions, wage rates, etc., established
by the local Builders' Association and the District Trades Council, and that
Webb did in fact check with the Builders' organization about such matters on
coming into the city.
In the foregoing setting, the true meaning and significance of the happenings
at the November 15 conference stand out boldly. Stated simply, an understand-
ing was reached for the supplying by the Union of all laborers on Webb's requi-
sition under the referral slip system. As made and as operated, the arrange-
ment required insistence by the Company that all applicants be directed to the
Union for referral to the job, which was for all practical purposes the equiva-
lent of an agreement that none but union members would be employed. Cer-
tainly, Webb (through Neil) and-the Union both knew-that only union members
would or could be hired; indeed, the policing of the closed shop was assured
by Neil's agreement to abide by the Union's working rules, which provided in
part that "All employees must, after being hired, report to the Steward before
starting to work." [Italics supplied.] In fact, the arrangement precluded the
acceptance not only of nonunion members, but also of union members who had
not first received assignments and work orders from the Union."
Both in intent and in actual practice , the effect of the arrangement was to
delegate the hiring of laborers to Local 264,2' and to require all such employees
to be members of that Union. Cf. Daniel Harem Drayage Company, Inc., 84
NLRB 458. Any doubt as to intent and of possible misunderstanding on Neil's
part was immediately removed by Jarrett's December visit. As to practice,
the testimony of Maslen and Brown, the entire evidence concerning the Words
incident, and Armstrong's undisputed testimony regarding the circumstances
of his hiring in March, established the effect of the arrangement n
It is without significance, of course, that the provisions of the agreement
were not reduced to writing. Von's Grocery Company, 91 NLRB 504; N. L. R. B.
v. Scientific Nutrition Corporation, 180 F. 2d 447, 449 (C. A. 9). Indeed, the
practice of oral understandings is particularly prevalent in the construction
industry :
In a number of areas of industrial employment, notably in building and
construction trades, there are examples of labor-management relations based
19 Early exceptions as to union members residing in outlying communities were brought
to an abrupt halt on December 7, when Jarrett required Neil's reaffirmation of the referral
card arrangement.
20 Webb had no employment or personnel office, nor did It set up any procedure for
interviewing and, hiring applicants on the job.-
21 Cumulative evidence that the Union was asserting jurisdiction for its members only
and of the Company's awareness thereof was furnished by a jurisdictional strike in March
1950, by union members In opposition to the performance of certain work by members of
the Carpenters' Union.
DEL E. WEBB CONSTRUCTION COMPANY 97
on verbal understandings between the union and the employer , with verbal
agreement backed by long-established practice and custom and the employer
acceptance of union security.
American Federation of Labor , The Closed Shop and Union Security; Eco-
nomic Brief of the American Federation of Labor ( Judd & Detweiler, Inc.,
1947 ), p. 39; and see Dickinson , Collective Wage Determination ( The Ronald
Press Company , 1941 ), pp. 380-1.
Respondents ' argument that there was no empress agreement to hire only
employees referred by the Union is rejected , since, as found , there was express
assent to the arrangement which , with the full knowledge of both parties, pre-
cluded the hiring of any but union members and only such of those who first
obtained referral cards. Furthermore , it would be immaterial if express assent
were lacking, for assent certainly was to be implied from the conduct of the
parties in permitting , acquiescing in, and participating in the operation of the
arrangement . See Restatement of the Law of Contracts , Sec. 21; 17 C. J. S.
" Contracts ," Sec. 3, pp. 315-6.
The Union ' s counsel argued orally that hardships and even chaos might well
result in the construction industry if a finding of unfair labor practices were
made on the facts in this case , and referred to the fact that the Board had
not, up to that time , been able to work out a procedure for holding union-shop
elections in the industry 22 The Union 's argument is answered first by the
Board 's holding both adjudicatively ( Daniel Hamm Drayage Company, Inc.,
supra; Guy F. Atkinson Co., 90 NLRB 143) and administratively (see 26
LRR 128) that it must enforce the law as written and that it is not at liberty
to change the law by administrative amendment or exemption . Secondly, the
evidence ' shows that the arrangement under which the Respondents have
operated went far beyond "the limited type of union -security permitted by the
amended Act" (Pen and Pencil Workers Union , 91 NLRB No . 155, and cases
cited ), and that it would have been unlawful even if it had been authorized by
an election . The latter fact clearly accounted for the prosecution of the case
by the General Counsel . See 26 LRR 175 and 26 LRR 364.
It is therefore concluded and found on all the evidence that on November 15,
1949, Respondents became parties to an agreement or arrangement under which
Webb would hire only union member laborers referred to it by the Union and
would hire no laborers not so referred , and that by entering into, being parties
to, and performing such agreement or arrangement , Webb violated Section 8
(a) (1) and (3) of the Act , and the Union ( by attempting to cause a violation
of Section 8 (a) (3)) violated Section 8 ( b) (2) of the Act . Acme Mattress
Company, Inc., 91 NLRB 1010 ; National Union of Marine Cooks d Stewards,
90 NLRB 1099.
2. Were the charging parties discriminated against
to encourage membership in the Union
To determine whether discrimination resulted against the charging parties
individually , it is first necessary to decide whether they were in fact refused
employment . If that question is answered affirmatively , a further question
arises whether as a matter of law such refusal would have constituted dis-
crimination against them in view of their membership in the Union.
As to the first question, the evidence establishes that Words and his com-
panions made repeated efforts to be hired . The question is whether they would
22 Various attempts by the Board and by the General Counsel to deal with this thorny
problem are set forth at 25 LRR 54 ; 26 LRR 107; 26 LRR 128; 26 LRR 175; and 26
LRR 364.
98 DECISIONS, OF NATIONAL LABOR RELATIONS BOARD
have been hired but for the operation. of the combination closed shop-hiring
hall arrangement which has been found to be illegal. It is true that technically
the trio did not apply personally to any representative of the Company who
was authorized to hire. This is not important, however, for the following
reasons.,
First, during the period they were attempting to get jobs the Company would
not and could not have hired them at the job site ; but, pursuant to Neil's then
fresh'afi'irmance of the referral card agreement, it could only have referred them.
to the Union, which was acting as the Company's hiring hall or employment
agency. Second, the applicants were, in fact, directed to report to the hall
for employment, and they were informed and understood.that their assignments
must come from there. Indeed, any further application on their part at the
job site was precluded by Jarrett's reprimand. Respondents thus had made it
wholly clear to the trio that they could only obtain jobs by procuring assign-
ments-at and work slips from the.union hall.
Certainly, the trio had made every reasonable effort to obtain 'employment
under the circumstances, and certainly there were laborers' jobs available.
The latter fact is obvious from the nature of Richardson's and Brown's state:
ments to the men, from the note to the Union authorized by Brown, and from
the referral by the Union of a total of 21 employees on Monday and Tuesday..
Brown, whose recommendations were generally accepted by Neil, had clearly
indicated need for the services of the men.29. In fact,. as late as Tuesday
evening, when Brown took the matter up with Neil, there was no indication that
the services of the three men were not needed or that Neil was rejecting Brown's
recommendation that they be hired. Instead, the only question Neil raised
was that he was in some trouble about the men, and he mentioned the possibility
of a law suit by the Labor Board or the Union. Brown was quite vague as to
the content of Neil's latter remarks. Since, however, Brown was confident the
conservation occurred on Tuesday, Neil's remarks were obviously not related
to the filing of the original charges. Instead, the inference is clearly justified,
and it is concluded and found, that Neil was referring to some complaint from
the Union about the violation (apparent from the face of the Richardson note)
of the recently affirmed understanding between Jarrett and Neil for strict com-
pliance with the referral arrangement.
The fact that the trio might eventually have received assignments to the
Webb or to some other project if they had carefully observed the union hiring
hall procedure, by reporting punctually and by waiting for calls to come in,
is wholly irrelevant. Respondents could not require compliance by applicants
with the provisions of their illegal hiring arrangement, nor assert noncompliance
as a defense to a refusal to hire where applications had otherwise appro-'
priately been made. It would be anomalous indeed to permit wrongdoers so to
profit by their illegal acts and contracts.
Furthermore, the trio' was not required to repeat the futile gesture of re-
applying on the project without a referral slip. It is settled that it is un-
necessary to request employment where the making of such request would be
only an empty gesture. Daniel Hamm Drayage Company, supra; see Eagle-
Picher Alining & Smelting Co. v. N. L. R. B., 119 F. 2d 903, 914 (C. A. 8) ; N. L.,
R. B. v. Sunshine Mining Co., 110 F. 2d 780, 792. (C. A.. 9), cert. den. 312 U. S.
678; N. L. P. B. v. Carlisle Lumber Co., 94 F. 2d 139, 143, 147 (C. A. 9), cert.
den. 304, U. S. 575.
In sum, the evidence establishes unmistakably, and it is hereby concluded.
and found that Words and his companions made requests for employment, that
x' It was also within Brown's authority to inform applicants of the steps they should
take to comply with the hiring arrangement.
DEL E. WEBB CONSTRUCTION COMPANY 99
vacancies existed for which they were qualified, and that they would, in fact,
have been hired but for the operation of the illegal agreement. -
Close reference to the language of the statute is necessary to resolution of the
final question whether there was or could be discrimination against the charg-
ing parties individually in view of their union membership. Section 8 (b) (2)• ,
makes it an unfair labor practice for a labor organization or its agents-
to cause.or attempt to cause an employer to discriminate against,an em-.
ployee in violation of subsection. (a) (3).
Section 8 (a) (3) defines the corresponding employer unfair labor practice
as:
by discrimination in regard to hire or tenure of employment or any term
or condition of employment to encourage or discourage membership in any
labor organization. [Italics supplied.]
It is true that the most frequent form of discrimination is that shown by
employers among employees because of their membership or nonmembership
in a union. Where discrimination is for such cause, the encouragement or
discouragement of membership is obvious. But the Act does not require that
discrimination to be proscribed must be because of membership or nonmember=
ship; what it provides is that no discrimination may be practiced among em=
ployees (or applicants for employment; see Phelps Dodge Corp. v. N. L. R. B.,
313 U. S. 177) to encourage or discourage membership in the union.
.
There can be no doubt that the agreement between Respondents did en-
courage membership in the Union. That was both its intent and its effect.
And the discrimination against the charging parties is likewise apparent:
Words and his companions were refused employment by Webb solely because
of its illegal agreement which encouraged membership in the Union.
It is true that the Union could have discriminated among its members at will
and that it could have laid down and enforced any conditions or rules it wished
respecting membership or regulating its members (cf. Section 8 (b) (1) (A))
but it could not use such rules to limit its members' rights to secure and retain
employment (cf. Senate Report No. 105, 80th Cong., 1st Sess. p. 21). Indeed,
even under the limited type of union security permitted by the Act, a union
cannot legally cause an employer to discriminate against an employee except
for a denial or termination of membership grounded on his failure to tender
periodic dues (ibid.; and see Sec. 8 (b) (2) ).
In the present case, the discrimination against the charging parties can be
spelled out more explicitly. Thus, as the arrangement was installed and as it
operated, Webb could employ only union members and only such union members
as were assigned by the Union and as reported on the job with a referral card.
Such arrangement, therefore, required and resulted in discrimination not only
against all nonunion members but also against all union members who were
unable to procure referral cards at the union hall. It is therefore irrelevant
that no specific intent may have been shown to discriminate against the charg-
ing parties individually, since the necessary intent and effect of the arrangement
was to discriminate among applicants, not only by requiring membership in the
union, but by requiring the applicants to procure a referral card from the Union.
The charging parties were members of a class which was the victim of the
illegal arrangement and of the general discriminatory practices.
Though the charging parties were already members of the Union, it cannot be
said that membership in the Union was not being encouraged, for the normal
effect of the discriminatory practices was to encourage nonmembers to become
members and to encourage members to remain members, as well as to encourage
961974-52-vol. 95-8
100 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
obedience by members to such rules as the Union might prescribe. Thus the
Company upheld and strengthened the Union's hand. in its regulation of and in
its control over its members. Significantly, although the charging parties be-
came victims of the discriminatory practices, the discrimination had its normal
and predictable effect of encouraging them to retain their membership in good
standing, either through their fear of the consequences if they dropped out
or through hope of advantage by staying in (later realized by Armstrong and
Ellis). It is therefore concluded and found on all the evidence that by refusing
to employ John Words, Booker Armstrong, and James Ellis on December 12,
.1949, Respondent Company discriminated against them to encourage membership
,in the Union and thereby engaged in unfair labor practices within ,the meaning
ofCection 8 (a) (3) and (1). It is also concluded and found that by causing
the-Company so to discriminate against said employees, the Respondent Union
engaged in unfair labor practices within the meaning of Sections 8 (b) (2) and
8` (b) (1) (A).
3. Was Section 8 (a) (4) violated?
The evidence wholly fails to sustain the General Counsel's contention that
the Company also refused to employ the charging parties because they had
filed charges with the Board. Brown's testimony as to Neil's remarks afforded
the sole basis for, but do not support, the contention. See pp. 97 and 98. It will,
therefore, be recommended that the complaint be dismissed insofar as it alleges
that the Company engaged in unfair labor practices within the meaning of
Section 8 (a) (4).
IV. THE EFFECT-OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondents set forth in Section III, above, appearing
in connection with the operations of the Respondent Company set forth in
Section I, above, have a close, intimate, and substantial relation to trade,
traffic, and commerce among the several States and tend to lead to labor dis-
putes burdening and obstructing commerce and the free flow of commerce.
V. THE REMEDY
It having been found that the Respondents engaged in unfair labor practices,
it will be recommended that. they cease and desist therefrom and take certain
affirmative action designed to effectuate the policies of the Act. It has been
found that by entering into, being parties to, and performing the referral slip
agreement or arrangement, the Company discriminated among applicants for
employment and the Respondent Union caused and attempted to cause said dis-
crimination. It will therefore be recommended that the Respondents shall cease
and desist from their said employment practices, * and shall cease giving effect
to'the- referral slip agreement ; that the Respondent Company henceforth employ
laborers without regard to their union membership, affiliation, or activity and
without regard to whether they have procured from the Respondent Union a
referral slip or work order; and that Respondent Company take all reasonable
steps and precautions to carry out and make effective this requirement.
It has been found that the Company, on December 12, 1949, discriminated
against John Words, Booker Armstrong, and James Ellis by denying them em-
ployment, to encourage membership in the Union, and that the Union caused the
Company so to discriminate. It appears, however, that Armstrong was employed
by the Company on or about March 7, 1950, and has remained in its employ ;
and that Ellis was offered employment on or about April 11, 1950, but did not
DEL E. WEBB CONSTRUCTION COMPANY 101
then accept for reasons which are not attributable to the Respondents." It will
therefore be recommended that the Company offer to John Words immediate
employment as a laborer, or a substantially equivalent job, without prejudice to
his seniority or other rights and privileges. See The Chase National Bank of
the City of New York, San Juan, Puerto Rico, Branch, 65 NLRB 827. It will
also be recommended that the Company shall, upon Ellis' application, employ
'him as a laborer, or in the event that there are no vacancies, shall place his
name on a preferential hiring list and thereafter offer him employment as a
laborer •as such work becomes available and before new persons are hired for
such work. -
It will be further recommended that Respondents, jointly and severally, make
whole, according to the formula sot forth below, John Words, Booker Armstrong,
and James Ellis, for any loss of pay they may have suffered by reason of the
discrimination against them. Words' loss--of pay shall be computed from the
date of the discrimination against him to the date of the Company's offer of
employment. Armstrong's loss of pay shall be computed from the date of the
discrimination against him to March 7, 1950. Ellis' loss of pay shall be com-
puted from the date of the discrimination against him to April 11, 1950. In
computing such loss of pay, the customary formula of the Board shall be fol-
lowed (see F. W. Woolworth Company, 90 NLRB 289), with due allowances for
periods when the job was shut down.
It will be recommended further that the Union no the Company in writing,
and furnish copies to John Words and James Ellis, that it has no objection to
their employment by the Company. It is also recommended that the Union may
terminate its liability for'furtker•accruals of back pay by giving the.said notices;
and in' that event the Uni'on' ^hdll not be liable for any back pay which may
accrue after 5 days from the giving of said notices.
In order to insure expeditious compliance with the recommended back-pay order,
it is recommended that the Company be ordered, upon reasonable request, to
make all pertinent records available to the Board or its agents.
In view of the findings that the Company violated the Act not only by entering
into and performing the, illegal agreement, but by discriminatorily refusing
employment to John' Words, James Ellis, and Booker Armstrong, it will be
recommended that it -cease and, desist: not, only, from, the unfair labor practices
found, but also from in any other manner discriminating against, or otherwise
interfering with, restraining, or coercing its employees in the exercise of the
rights guaranteed by Section 7 of the Act. Acme Mattress Co., supra. A corre-
spondingly broad order will be recommended as to Respondent Union. See ibid.
Upon the basis of the foregoing findings of fact and upon the entire record
in the case, the undersigned makes the following:
CONCLUSIONS OF LAW
1. International Hod Carriers', Building & Common Laborers' Union of
America, Construction and General Laborers' Union No. 264, A. F. of L., is a
labor organization within the meaning of Section 2 (5) of the Act.
2. By entering into, being a party to, and performing the referral slip agree-
ment, the Company discriminated among applicants for employment to encourage
membership in the Union and thereby engaged in unfair labor practices' within
the meaning of Section 8 (a) (1) and 8 (a) (3) of the Act.
3. By entering into, being a party to, and performing said agreement, which
94 Ellis' testimony is contradictory on the point whether he made any subsequent applica-
tion for employment, but were the version accepted that he did, his testimony indicates
there were no vacancies at the time.
102 DECISIONS OF -NATIONAL LABOR RELATIONS BOARD
required the Company so to discriminate , the Union has engaged in unfair
labor practices within the meaning of Section 8 (b) (2) of the Act.
4. By discriminating in regard to the hire and tenure of employment of John
Words, Booker Armstrong , and James Ellis, thereby encouraging membership
in the Union , the Company has engaged in unfair labor practices within the
meaning of Section 8 (a) (3) and (1) of the Act. -
5. By causing the Company so to discriminate against said persons in violation
of Section.8 (a) .(3) of the Act, the Union has engaged in. unfair labor practices
within the, mean ing'of.Section 8 (b) (2) and 8 (b) (1) (A) of the Act.
6. The aforesaid unfair labor practices are unfair labor practices, affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
[Recommended Order omitted from publication in this volume.]
SHELL 'OIL COMPANY (SUCCESSOR TO SHELL OIL COMPANY, INCORPO-
RATED) and OIL WORKERS INTERNATIONAL UNION, CIO. Case No.
7-CA-296. July 11, 1951
Decision and Order
On March 30, 1951, Trial Examiner Eugene F. Frey issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in 'and was engaging in certain unfair
labor practices, and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the copy of the
Intermediate Report attached hereto.: Thereafter, the Respondent
filed exceptions to the Intermediate Report and 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.
The rulings are hereby affirmed. The Board has, considered the
Intermediate Report, the exceptions and brief, and the entire record
in this case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner.2
Order
. Upon the entire record in this case, and pursuant to Section 10 (c):
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the Respondent, Shell Oil Company, and
its officers; agents, successors, and assigns, shall:
1. Cease and desist from
(a) Discouraging membership in Oil Workers International Union,
CIO, or in any other labor organization of its employees, by dis-
1 Pursuant to the provisions of Section 3 (b) of the National Labor . Relations Act, the
Board has delegated its powers in connection with this proceeding to a three -member panel
[ Chairman Herzog and Members Houston and Reynolds].
2 Trial Examiner Lloyd Buchanan properly denied Respondent 's motion to strike certain
allegations of the complaint on the ground that they were not contained .. in the charge filed
Ferro Stamping and Manufacturing Co., 93 NLRB 1459.
95 NLRB No. 24.