Guy F. Atkinson Co.

National Labor Relations Board - Board Decisions

Jun 8, 1950

90 N.L.R.B. 143 (N.L.R.B. 1950)

In the Matter of Guy F. ATKINSON Co., A CORPORATION, AND J. A. JONES
CONSTRUCTION CO., A CORPORATION, D/B/A Guy F. ATKINSON CO.
AND J. A. JONES CONSTRUCTION Co. and CHESTER R. HEWES.
Case No. 19-CA-28--Decided Jame 8,1950
DECISION AND ORDER
On May 12, 1949, Trial Examiner Peter F. Ward issued his Inter-
mediate 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 Interme-
diate Report attached hereto. The Trial Examiner also found that
the Respondent had not engaged in certain other alleged unfair labor
practices, and recommended that those allegations of the complaint be
dismissed.
Thereafter, the Respondent filed exceptions and supplemental
exceptions to the Intermediate Report; Local 370, International
Union of Operating Engineers, A. F. L., filed exceptions and a brief
in support of its exceptions; and Hewes, the charging party, filed a
brief in support of the Intermediate Report. Thereafter, the Board
permitted the Building and Construction Trades Department,
A. F. L., and the Associated General Contractors to file briefs, as
amici curiae, bearing on certain related matters, many of which are
not decided here.
On the morning. of December 19, 1949, the Board at Washington,
D. C., heard oral argument in which certain of the above-named par-
ties and the General Counsel participated. The latter's representative
argued in support of the Intermediate Report.
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Intermedi-
ate Report, the exceptions and briefs, the contentions advanced at oral
argument, and the entire record in the case, and hereby adopts the
' The Trial Examiner found that the Respondent had violated Section 8 ( 1) of the
original Act and Section 8 (a) (1) and ( 3) of the amended Act . Those provisions of
Section 8 ( 1) which the Trial Examiner found the Respondent had violated are continued
in Section 8 (a) (1) of the amended Act.
90 NLRB No. 27.
143
144 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
findings, conclusions, and recommendations of the Trial Examiner,
with the following additions and modifications :
1. We find, as did the Trial Examiner, that the operations of the
Respondent affect commerce, and that he policies of the Act will be
effectuated by the exercise of our jurisdiction.
Although the briefs of the Respondent and the Operating Engineers
point to the nonassertion of jurisdiction over construction projects
under the original Act, such abstention was an administrative choice
rather than a legal necessity,2 and does not estop our present exercise
of jurisdiction.3 Indeed, since 1947, under the amended Act, we have
asserted jurisdiction over substantial construction projects, including
this very project .4 And in taking jurisdiction over this project, we
.said :
We have previously indicated our disposition to assume juris-
diction over concerns engaged in construction projects similar to
the one in the case before us. Moreover, the magnitude of the
operations leaves little doubt as to their substantial effect upon
interstate commerce. -
We therefore cannot accept the contentions- addressed to the Board's
jurisdiction or its exercise thereof.
2. Like the Trial Examiner, we must find that the closed-shop
contract of August 16, 1947, between the Respondent and the Oper-
ating Engineers 5 is not a valid defense to the discharge of Chester R.
Hewes 6 on February 19, 1948.
The contract in question was entered into on August 16, 1947, for
a 1-year term. As this date fell between the enactment date and
the effective date of the amended Act, we must, under Section 102
,of that amended Act,7 determine its availability as a substantive de-
2 Ozark Dana Constructors, 77 NLRB 1136.
a N. L. R . B. v. Baltimore Transit Company , 140 F. 2d 51 (C. A. 4), cert. den. 321 U . S. 795.
Ozark Damn Constructors, supra; Daniel Hamm Drayage Company , Inc., 84 NLRB 458;
.Guy F. Atkinson Company and J. A. Jones Construction Company, 84 NLRB 88; Starrett
Brothers and Eken, Inc., 77 NLRB 275. In another case involving this project ( 83 NLRB
1004 ) the issue of jurisdiction was not raised.
The Respondent ' s further contention , that jurisdiction should not be asserted here because
the product of the Hanford atomic energy works is at all times the property of an instru-
mentality of the Government and never enters into commerce , is without merit . Monsanto
Chemical Company , 76 NLRB 767.
5 The Operating Engineers was one of the signatory unions to this contract which included
numerous unions affiliated with the Building and Construction Trades Department , A. F. L.
G The Respondent and the Operating Engineers except to the Trial Examiner 's finding
that several other employees had been discharged pursuant to this contract . The exceptions
are, well taken, as this finding is unsupported by the record . However, our rejection of this
finding has no impact upon the issues presented herein.
S Section 102, insofar as here applicable, provides:
. the provisions of Section 8 (a) (3) and Section 8 (b) (2) of the National
Labor Relations Act as amended by this title shall not make an unfair labor practice
the performance of any obligation under a collective-bargaining agreement entered
into prior to the date of enactment of this Act , or (in the case of an agreement for
GUT F. ATKINSON CO. AND J. A. JONES CONSTRUCTION 00. 145
fense under the original Acts Our decision in this case, therefore,
does not turn upon, or construe, the substantive terms of the present
statute.
The proviso to Section 8 (3) of that 1935 statute states, in relevant
part :
". . . nothing in this Act . . . shall preclude an employer from
making an agreement with a labor organization (not established,
maintained, or assisted by any action defined in this Act as an
unfair labor practice) to require as a condition of employment,
membership therein, if such labor organization is the representa-
tive of the employees as provided in Section 9 (a), in the ap-
propriate collective bargaining unit covered by such agreement
when made."
Pertinent to the issue here, therefore, is whether the contracting
union was the statutory representative of the employees in an ap-
propriate unit when the agreement was made. On all the facts, Ave
find, as did the Trial Examiner, that it was not.
On August 16, 1947, the project, which was known to be a very ex-
tensive one, was in its early stages. There were at that time 125
manual employees, including 10 operating engineers. In contrast,
as of December 31, 1947, the work force had grown to 5,400 manual
employees, of whom 740 were operating engineers. It is thus clear,
without considering further increments thereafter 9 and without at-
tempting to determine the scope of an appropriate unit, that in vir-
tually all categories, including that of the operating engineers, the
work force at the time the contract was signed was not at all repre-
sentative of that shortly to be employed. Under these circumstances,
the union could not have been, as required by the proviso to Section
8 (3), the representative of the employees in an appropriate unit.
It is contended, however, that these principles are not applicable,
because the manner in which the contract here was executed was and
is customary in the construction industry. We have previously held
that we cannot assume the power to give effect to a custom which is
a period of not more than one year) entered into on or after such date of enactment,
but prior to the effective date of this title, if the performance of such obligation would
not have constituted an unfair labor practice under Section 8 (3) of the National
Labor Relations Act prior to the effective date of this title, unless such agreement
was renewed or extended subsequent thereto.
Daniel Hamm Drayage Company, Inc., 84 NLRB 458; Chicago Freight Car d Parts Co.,
83 NLRB 1163.
No issue is, or could be raised here because the August 1947 contract was executed
without the conduct of a union-shop election under Section 9 (e) of the amended Acct.
9In May 1948. a peak of 9.900 manual employees was reached, and at no time during
1948 did employment drop below 8,400 manual employees.
903847-51-11
146 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
contrary to the statute.1° In writing the proviso to Section 8 (3), and
even its counterpart in the amended Act, Congress made no exception
based upon custom in any industry. We must, therefore, apply the
Act as written, without engrafting administrative exceptions upon it.'1
Nor does the fact that this Respondent in ay well have acted in good
faith or in the presence of what it considered a national emergency
constitute a sufficient legal defense. As the 'T'rial Examiner found,
the Congress made no exceptions for either good faith or economic
exigencies which may seem to an employer to justify his violations."
Equally without effective merit is the Respondent's contention that,
had it not entered into the contract, it would have been subject to a
charge of refusal to bargain. The very reasons for which we are hold-
ing the union not to have been the representative of the employees
would have constituted a valid defense to such a charge.
We therefore find, as we necessarily have found with respect to other
contracts executed under similar circunistances,13 that the contract
relied on as a defense to the discharge of Chester R. Hewes does not
fall within the protection of the proviso to Section 8 (3) of the original
Act.14 The discharge pursuant to that contract was consequently
violative of Section 8 (a) (3) and 8 (a) (1) of the amended Act,15
as the Trial Examiner found.
3. We find it unnecessary, in the absence of exceptions, to pass upon
the Trial Examiner's dismissal of the 8 (2) allegations of the
complaint.
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
National Maritime Union of America, 78 NLRB 971.
' Cf. Colgate-Palmolive-Peet Co. v. N. L. R. B., 338 U. S. 355.
The Respondent and the Operating Engineers contend that the Board is precluded from
questionin3 the contract in view of the limitation to the Board's 1948 appropriation. We
agree with the Trial Examiner that , the rider having expired, the limitation is not here
applicable . Kinner Motors , 57 NLRB 622 ; cf. N. L. R. B. v. Thompson Products , 1.41 F.
2d 794 (C. A. 9). We therefore find it unnecessary to pass upon the various other bases
on which the Trial Examiner found this contention to be without merit.
12 N. L. It. B. v. Star Publishing Co., 97 F. 2d 465 (C. A. 9).
12 Daniel Hamin Drayage Company, Inc., supra; Chicago Freight Car & Parts Co., supra.
14 The complaint alleged, and the Trial Examiner found, the signing of the contract to
be an independent violation of Section 8 (1). However , as the contract was signed on
August 16 , 1947, and the charge was not filed until February 27, 1948, more than 6 months
after the effective date of the Act, Section 10 (b) precludes such a finding. Itasca. Cotton
Manufacturing Company, 79 NLRB 1442; Cathey Lumber Company, 86 NLRB 157. We
shall , therefore , without disturbing the Trial Examiner 's other 8 ( a) (1) findings , dismiss
this allegation of the complaint.
11 The fact that we did not choose to exercise jurisdiction over the construction industry
under the original Act, carries no implication that had we asserted jurisdiction , we would
not then have reached the same conclusion on an identical set of facts.
We find no merit in the contention that Hewes ' application to membership in the Oper-
ating Engineers was a contract by which he agreed to the discharge in advance. More-
GUY F. ATKINSON CO. AND J. A. JONES CONSTRUCTION CO. 147
Relations Board hereby orders that the Respondent, Guy F. Atkinson
Co. and J. A. Jones Construction Co., and its officers, successors, and
assigns shall :
1. Cease and desist from :
(a) Recognizing International Union of Operating Engineers, Local
370, A. F. L., or any successor thereto, as the representative of any
of its employees for the purposes of dealing with the Respondent con-
cerning grievances, labor disputes, wages, rates of pay, hours of em-
ployment, or other conditions of employment unless and until said
organization shall have been certified by the National Labor Relations
Board;
(b) Performing or giving effect to its contract of August 16, 1947,
with International Union of Operating Engineers, Local 370, A. F. L.,
or to any modification, extension, supplement, or renewal thereof, or to
any other contract, agreement, or understanding entered into with said
organization relating to grievances, labor disputes, wages, rates of
pay, hours of employment, or other conditions of employment, unless
and until said organization shall have been certified by the National
Labor Relations Board; excepting, however, that in no event shall
this be construed as waiving any provisions of Sections 8 and 9 of the
Act, as amended;
(c) Discouraging membership in International Association of
Machinists or in any other labor organization of its employees or en-
couraging membership in International Union of Operating Engin-
eers, Local 370, A. F. L., by discharging or refusing to reinstate any
of its employees, or in any other manner discriminating in regard to
their hire and tenure of employment or any term or condition of their
employment ;
(d) In any like or related manner interfering with, restraining, or
coercing its employees in the exercise of the right to self-organization,
to form labor organizations, to join or assist International Association
of Machinists, or any other labor organization, to bargain collectively
through representatives of their own choosing, and to engage in con-
certed activities for the purpose of collective bargaining or other mu-
tual aid or protection, or to refrain from any or all of such activities
except to the extent that such right may be affected by an agreement
requiring membership in a labor organization as a condition of em-
ployment as authorized in Section 8 (a) (3) of the Act.
over, the Respondent did not discharge Hewes pursuant to his contract with the Oper-
ating Engineers, but in accordance with the Respondent 's contract with the Operating
Engineers.
Nor do we believe that it was Hewes' duty to seek reinstatement after August 10, 1948,
when the closed-shop contract was no longer in effect. It is the employer ' s duty to remedy
a discriminatory discharge by offering reinstatement . E. C. Brown Company, 81 NLRB
140.
148 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Offer to Chester R. Hewes immediate and full reinstatement to
his former or substantially equivalent position, without prejudice to
his seniority and other rights and privileges;
(b) Make whole Chester R. Hewes for any loss of pay he may have
suffered as a result of the Respondent's discrimination against him by
payment to him of a sum of money equal to the amount he normally
would have earned as wages from the date of his discharge to the -date
of the Respondent's offer of reinstatement, less his net earnings during
said period;
(c) Post at its plant in Richland, Washington, copies of the notice
attached hereto, marked Appendix A.16 Copies of said notice, to be
furnished by the Regional Director for the Nineteenth Region, shall,
after being duly signed by the Respondent's representative, be posted
by the Respondent immediately upon receipt thereof and maintained
by it for sixty (60) consecutive days thereafter in conspicuous places,
including all places where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent to insure that said
notices are not altered, defaced, or covered by any other material ;
(d) Notify the Regional Director for the Nineteenth Region in
writing, within ten (10) days from the date of this Order, what steps
the Respondent has taken to comply herewith.
AND IT IS FURTHER ORDERED that the complaint be, and it hereby is,
dismissed insofar as it alleges that by executing the August 16, 1947,
agreement, the Respondent violated Section 8 (1) of the Act, and
that the Respondent violated Section 8 (2) and Section 8 (a) (2) of
the amended Act.
MEMBER STYLES took no part in the consideration of the above Deci-
sion and Order.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL withdraw and withhold all recognition from INTERNA-
TIONAL UNION Or OPERATING ENGINEERS, LOCAL 3 707 A. F. L., as
the representative of any of our employees at our Richland,
11 In the event this Order is enforced by a decree of a United States Court of Appeals, there
shall be inserted in the notice , before the words "A Decision and Order ", the word, "A
Decree of the United States Court of Appeals Enforcing."
GUY F. ATKINSON CO. AND J. A. JONES CONSTRUCTION CO. 149
Washington, plant, for the purposes of dealing with us concerning
grievances, labor disputes, wages, rates of pay, hours of employ-
ment, or other conditions of employment, unless and until said
organization shall have been certified by the Board as the repre-
sentative of such employees.
WE WILL cease performing or giving effect to our contract of
August 16, 1947, with INTERNATIONAL UNION OF OPERATING ENGI-
NEuRs, LOCAL 370, A. F. L., covering employees at our Richland,
Washington, plant, or to any modification extension, supplement,
or renewal thereof, or to any other agreement, contract, or under-
standing entered into with said organization relating to griev-
ances, labor disputes, wages, rates of pay, hours of employment, or
other conditions of employment, unless and until said organization
shall have been certified by the Board, excepting, however, that
in no event shall this be construed as waiving any provisions of
Sections 8 and 9 of the Act as amended.
WE WILL NOT in any like or related matter interfere with, re-
strain, or coerce our employees in the exercise of their right to self-
organization, to form labor organizations, to join or assist INTER-
NATIONAL ASSOCIATION OF MACHINISTS, or any other labor organi-
zation, to bargain collectively through representatives of their
own choosing, to engage in concerted activities for the purpose of
collective bargaining or other mutual aid or protection, or to re-
frain from any or all of such activities, except to the extent that
such right be affected by an agreement requiring membership in a
labor organization as a condition of employment, as authorized
in Section 8 (a) (3) of the Act.
WE WILL offer to Chester R. Hewes immediate and full rein-
statement to his former or substantially equivalent position, with-
out prejudice to any seniority or other rights and privileges
previously enjoyed; and we will make him whole for any loss of
pay suffered as a result of the discrimination against him.
Guy F. ATKINSON, AND
J. A. JONES CONSTRUCTION CO.,
Employer.
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.
150 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
INTERMEDIATE REPORT
Mr. Patrick H. Walker, for the General Counsel.
Mr. William C. Robbins, of Richland, Wash., for the Respondent.
Mr. E. J. Eagen, of Seattle, Wash., for Hewes.
Mr. L. Presley Gill, of Seattle, Wash., for the Engineers.
STATEMENT OF THE CASE
Upon a charge duly filed February 27, 1948, by Chester R. Hewes, herein
called Hewes, the General Counsel for the National Labor Relations Board 1
by the Regional Director for the Nineteenth Region (Seattle, Washington),
issued a complaint dated September 28, 1948, against Guy F. Atkinson Company,
a corporation, J. A. Jones Construction Co., a corporation, doing business as
Guy F. Atkinson Co. and J. A. Jones Construction Co., Richland, Washington,
herein called the Respondent, alleging that the Respondent had engaged and
was engaging in unfair labor practices affecting commerce within the meaning
of Section 8 (1) and (2) and Section 2 (6) and (7) of the Act, prior to amend-
ment, herein called the Act, and Section 8 (a) (1), (2), and (3) and Section
2 (6) and (7) of the Act as amended, herein called the Amended Act. Copies
,of the complaint, with charge attached and notice of hearing thereon, were
duly served upon the Respondent, Hewes, and International Union of Operating
Engineers, Local 370, AFL, party to the contract, herein called the Engineers.
With respect to the unfair labor practices, the complaint alleged in substance
that: (1) On or about August 16, 1947, Respondent entered into an agreement
with the Building and Construction Trades Department of the AFL, of which
the Engineers was a signatory union, which agreement as a condition of employ-
ment at its Richland operations, required its employees, as a condition of con-
tinued employment, to become and remain members of the Engineers; and that
at the date of the execution of said agreement the Engineers did not represent
a majority of the employees at Respondent's Richland operations within an
appropriate unit, nor in any unit of Respondent's employees at such operations
that was appropriate for collective bargaining; the agreement above referred
to was executed and made effective by Respondent at a time when the Inter-
national Association of Machinists, herein called IAM, had given to Respondent
actual notice of its claim to represent employees in an appropriate unit com-
posed of machinists; (2) on or about February 19, 1948, the Respondent dis-
charged Hewes, then employed at its Richland, Washington, operations, and
since said date has failed and refused and continues to refuse to reinstate said
Hewes to his former or substantially equivalent position for the reason that
he joined or assisted the IAM, or engaged in other concerted activities for the
purposes of collective bargaining or other mutual aid and protection or for the
reason that he did not become a member in good standing of the Engineers; (3)
since on or about November 1, 1947, Respondent has solicited its employees to
become and remain members of the Engineers; and (4) by the acts described
above, the Respondent interfered with, restrained, and coerced its employees in
the exercise of the rights guaranteed in Section 7 of the Act and in Section 7 of
the amended Act.
On or about October 13, 1948, the Respondent filed its answer, wherein it ad-
mitted certain allegations in the complaint, but denied the commission of any
1 The General Counsel and his representative at the hearing are referred to as the General
Counsel and the National Labor Relations Board is referred to as the Board.
GUY- F. ATKINSON CO. AND J. A. JONES CONSTRUCTION CO. 151
unfair labor practices and for its affirmative defenses Respondent alleged in
substance that it would not effectuate the purposes of the N. L. R. A. as amended,
for the Board to assume jurisdiction over Respondent in its said activities ; that
the work performed by Respondent is known as building trades construction
work, which by custom immemorial in the industry, persons and firms desiring
said work to be done require the execution of contracts well in advance of the
commencement of the work ; that prospective contractors, in accordance with
said custom, cannot ascertain what the cost of labor will be nor the availability
of labor, without executing a labor contract with the Union able to supply the
requisite skilled mechanics in the numbers and at the times required ; that
Letter Subcontract No. G-133, which formed the basis for the Respondents un-
dertaking such work, was entered into effective as of July 25, 1947, in con-
templation of the Labor Agreement of August 16, 1947, as the Engineers had
the only available pool of workmen required for the work to be done under said
subcontract; that the Engineers and other labor signatories to the said labor
agreement operated only under so-called "closed-shop" conditions; and because of
said customs, and the control over all the manpower by the Engineers and other
signatory labor Unions, the Respondent was required to execute the union-security
provisions of said agreement and to comply therewith.
On or about October 1.5, 1948, the Engineers filed its answer to the complaint
wherein it admitted some of the allegations therein and denied the commission
of any unfair labor practices by the Respondent. The Engineers further alleged
in substance, that Hewes, upon good and sufficient consideration by contract,
agreed to become and remain a member of the Engineers ; that relying upon said
contract of Hewes, the Engineers did dispatch Hewes to the job with the
Respondent ; that Hewes did not comply with any of the conditions of the
contract and was therefore removed from the job. The Engineers' answer
iterates in the main the affirmative defenses set out by the Respondent.
Pursuant to notice, a hearing was held at Yakima, Washington, on November
4 and 5, 1948, before Peter F. Ward, the Trial Examiner duly designated by the
Chief Trial Examiner. The General Counsel, the Respondent, Hewes, the IAM,
and the Engineers were represented by counsel. All participated in the hearing
and were afforded full opportunity to be heard, to examine and cross-examine
witnesses, and to introduce evidence bearing upon the issues, and at the close
of the hearing, the parties were offered an opportunity to argue orally before
the undersigned, but such opportunity was waived. The parties were advised
that they might file briefs and/or proposed findings of fact and conclusions of
law with the undersigned and briefs and proposed findings were filed by Hewes 2
The Respondent and the Engineers filed briefs only.
At the close of the hearing the undersigned reserved ruling on the Engineers'
motion to strike and dismiss as is set forth in Engineers' Exhibits 2-A and 2-B;
and also reserved ruling on the motion of counsel for Respondent to strike certain
testimony having to do with the "jurisdictional aspects" certain issues involved
herein ; and the General Counsel's motion to strike certain testimony relating
to matters concerning representation proceedings and union-security proceedings,
and now rules that all said motions to strike be denied.
Upon the entire records in the case and from his observation of the witnesses,
the undersigned makes the following :
2 The undersigned has adopted Hewes' proposed findings, No. 1, in part, and Nos. 3 and
5 in full ; and the "Proposed Order" to the extent set forth in the Recommendations,
below.
152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Guy F. Atkinson Co. and J. A. Jones Construction Co., a joint venture s
organized for the purpose of accepting the terms of Letter Subcontract No. G-133,
an agreement made July 25, 1947, with General Electric Company, as prime
contractor , on behalf of the U. S. Atomic Energy Commission for the construction
of buildings , facilities , and other items of work in connection with Hanford
Engineering Works Project. Respondent 's principal office and place of business
is located at Richland , Washington , where in the course and conduct of its
business it causes and continuously has caused materials consisting of cement,
lumber, reinforcing steel , glass, paint, hardware , tools, equipment , and other
supplies of approximately $20,000,000 in value for the period from July 29, 1947,
to April 6, 1948, to be purchased and delivered to it at Richland , Washington.
Of such materials , approximately $2,500 ,000 in value has been purchased,
delivered , and transported in interstate commerce from and through States of
the United States other than the State of Washington . Approximately $9,500,000
in value of such materials were produced , fabricated , and originated from points
outside the State of Washington and thereafter were trans -shipped to Respondent
from points within the State of Washington .4 The undersigned finds that the
Respondent is engaged in commerce within the meaning of the Act and of the
Amended Act.
II. THE LABOR ORGANIZATIONS INVOLVED
International Union of Operating Engineers, Local 370, AFL, and Interna-
tional Association of Machinists, are labor organizations within the meaning of
Section 2 (5) of the Act and of the Amended Act.
III. THE UNFAIR LABOR PRACTICES
A. The discriminatory discharge of Chester R. Hewes
1. Events antedating the discharge
Prior to July 25, 1947, the U. S. Atomic Energy Commission, herein called the
Commission, entered into a contract with General Electric Company, herein called
General Electric, as prime contractor, for the construction of buildings, facilities,
and other items of work in connection with the Commission's Hanford Engi-
neering Works Project,' herein called the Project, located at, and in the vicinity
of Richland, Washington.
3 A "joint venture" Is normally created for the purpose of performing large type Gov-
ernment contracts where single firms or corporations lack sufficient resources to satisfy
the Government of their ability to undertake and complete large construction jobs, and are
generally dissolved at the end of a given contract.
* These findings are based upon a stipulation of the parties. Notwithstanding it joined
in such stipulation , the Engineers contends that the Respondent 's operations as above
stipulated do not affect commerce and the Respondent contends in substance , that inas-
much as its operations consist of building construction , the Board should not exercise or
assert jurisdiction . Neither contention has merit . Respondent ' s contention is further
discussed below in connection with its defenses.
5 Other than that such Project has to do with security measures undertaken on behalf of
the Government of the United States, the record is silent as to the Project's functions.
GUY F. ATKINSONT CO. AND J. A. JONES CONSTRUCTION CO. 153
Under date of July 25, 1947, General Electr.c, as prime contractor, and the
Respondent as subcontractor, pursuant to the terms of "Letter Subcontract No.
G 133," ° sometimes referred to in the record as the "letter order," entered into
an agreement with the Respondent requiring the latter to proceed immediately
in preparing to perform such construction work. While it appears that such
"letter order" contained no plans or specifications, the Respondent was informed
that a part of the work had to do with residential construction to house future
employees and the construction of a construction camp area. Such letter order
referred to the sum of $8,000,000 as an estimate of the cost of construction.
As soon as the Respondent had employed its initial nonmanual staff, it met with
the Building'I'rades Department of the American Federation of Labor at Spokane,
Washington, on August 14, 15, and 16, .1947. On August 16, 1947, the Respondent
as Employer and the Engineers and some 14 other affiliates of the Building and
Construction Trades Department of the American Federation of Labor, as the
Union executed a closed-shop agreement, effective as of August 1., 1947, and to
remain in effect until August 1, 1948, and from year to year unless terminated
in the manner therein provided.
The contract provided, inter alit:
Art. III. Sec. 1. THIS AGREEMENT shall cover all employees who are
members of the signatory unions who are performing work within the
recognized jurisdiction of such unions as the same is defined by the Building
Trades Department of American Federation of Labor, for which employees
the UNION is recognized as the sole and exclusive bargaining agent.
Art. IV. Sec. 2. It is understood and agreed that the EMPLOYER shall
retain in employment only members in good standing of UNION OR THOSE
WHO have signified their intention of becoming members through the regu-
larly established procedure of the UNION.
Sec. 3. While the UNION assumes all responsibility for the continued
membership of its members and the collection of membership dues, it reserves
the right to discipline its members and/or those employees who have filed
applications to become members; and the EMPLOYER agrees to, upon
written notice from the UNION, release from employment any employees
who fail to maintain membership in good standing and/or any employee who
defaults in his obligations to the UNION. It is understood that the removal
of and replacement of such employees shall not interfere with the operations
of the job.
It is undisputed that at the date of the execution of the collective bargaining
contract on August 16, 1947, the Engineers did not represent a majority of em-
ployees of the Respondent in any unit, appropriate or otherwise.'
On or about August 2S, 1947, the Respondent caused a copy of the August 16,
1947, contract to be posted on its bulletin board at the entrance to its Flead-
9 This is a form used by governmental agencies in emergencies in order that contractors
or subcontractors may make preliminary preparations for the procurement of manpower
and materials and usually antedates receipt of plans, specifications, or blueprints. Such
Letter in its nature is a "stop -gap" agreement which is to be followed by a normal agreement
at the earliest possible (late.
T In its position in this connection, the Respondent makes no claim that the Engineers
represented any employees on August 16, 1947, but contends that the contract was valid
and binding on all signatory parties for reasons which are discussed in detail below.
154 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
quarters and Administration Building, where such copy of the contract remained
posted until on or about January 1, 1948.8
During the latter part of October 1947, Chester R. Hewes, complainant herein,
went to the Respondent's personnel office and applied for a job as a machinist
and asked if he could go to work and work on his Machinist "card." He was
informed that it was "a closed job . . . a closed shop," and was referred to
the Operating Engineers at Pasco (Washington). Hewes went to Pasco and
contacted Ray Clarke, business representative for the Engineers, and asked
Clarke if "they" needed any machinists. Clarke took Hewes into the office and
asked him if he were a Machinist, whereupon Hewes presented his Machinist
dues book for Clarke's information. Clarke then stated that Hewes would have
to turn in his Machinist book and join the Engineers to go on the job. Hewes
refused to turn in his book and was told by Clarke that he would be given
credit for $60 on his clues amounting to $100 if he turned in his IAM book
and would then have to pay but $40 of the remaining amount of dues which
would entitle him to membership in the Engineers.
Hewes refused to turn in his book and left Clarke's office. He later returned
to Clarke's office and a further discussion was had in connection with his
Machinist dues book which he again refused to turn over to Clarke. Hewes
then asked if he could not be permitted to work as a machinist on a "permit,"
to this Clarke replied, "I will go you one better. You keep your book and we
will charge $40 and you go to work." Thereafter Clarke issued Hewes an Intro-
duction Card assigning him to work with the Respondent as a "Machinist
(Precision)."
Hewes went to work on or about November 4, 1947, and was assigned to work
in a machine shop in the locale referred to as "3000 Area." The record discloses
that during his employment he was continuously employed performing work ordi-
narily performed by Machinists, as distinguished from the work performed by
Operating Engineers.
2. The discharge
Under date of February 16, 1948, the Engineers wrote Respondent's labor
relations manager as follows :
FEBRUARY 16, 1948.
Mr. D. RUSSELL Goc11NOUR,
Labor Relations Manager,
Guy F. Atkinson Co. and J. A. Jones Construction Co.,
Richland, Washington.
DEAR MR. GoclNOUR: I am requesting the removal of Chester R. Hewes,
machine tool operator, from the Hanford Project. This man is one of
the ring leaders who is trying to sabotage the efforts of the, Operating
Engineers to supply competent men for your job. This man has absolutely
failed in his financial obligation to this Local Union.
8 Such posting was caused to be made in an attempt to comply with the provisions of the
"rider" made a part of the National Labor Relations Board Appropriations Act, 1948. The
effect of such posting is discussed and considered below in connection with the contentions of
the Respondent and the Engineers to the effect that the contract could not be questioned
as to its validity, since it had been posted more than 3 months before the charge was
filed herein.
9 On the original of such introduction card, introduced in evidence, the word "Machinist"
had been obliterated. On the duplicate of such card the word "Machinist" still remained.
Hewes credibly testified, and the undersigned finds that when the card was turned in to
the Respondent , the word "Machinist" was on it.
GUY F. ATKINSON CO. AND J. A. JONE'S CONSTRUCTION CO. 155
The following is a list of other machine tool men who have also failed
to meet their obligation and I am requesting that these men be notified
at once to pay their obligation to this office not later than this coming
Thursday evening, February 19th. Also at the same time, I want them to
be notified that if they do not meet their obligation , I will demand their
removal from the project.
Claire Abbott LeRoy A. Dyer Archie T. Rollo
John D. Beach Martin R. Griffin Ralph E. Rugg
Ben Bishop Charles L. Hall Steve F. Susick
Myron A. Brewer Phillip R. Helwig Lyle E. Triplett
O. E. Burns Herbert M. Kinsey Gordon E. Weed
Robert W. Davis Walter A. Mackay Gage M. West
This is quite a formidable list; however, my steward reports that he is
of the opinion that once these people are notified, they will likely meet
their obligations and remain in good standing.
Thanking you for your cooperation and with kind personal regards,
I am,
Very truly yours,
(S) Ray Clarke,
(T) RAY CLARKE,
Local 370, Pasco Branch Officer.
The letter above referred to was called to the attention of James J. Molthan
employed under the title of Manager of the Contract and Claims Section of
Respondent and who also acted as administrative assistant to the general
manager. In this connection Molthan testified in part :
The letter called for us to go and contact various individuals allegedly
members of the Operating Engineers, with a view of telling them that if
they didn't pay their dues, we were going to discharge them. We were
under no contractual obligation to do that on behalf of the various Unions
with whom we were dealing at that time.
The above-quoted letter was then withdrawn by the Engineers and a second
letter applicable to Hewes only was sent to the Respondent 's labor relations
manager. The letter reads :
FEBRUARY 16 , 1948.
MR. D. RUSSELL GCCHNouR,
Labor Relations Manager,
Guy F. Atkinson Co. and J. A. Jones Construction Co.,
Richland, Washington.
DEAR MR. GoonNOUR: I am requesting the removal of Chester R. Hewes,
machine tool operator, from the Hanford Project. This man has absolutely
failed in his financial obligation to this Local Union.
Thanking you for your cooperation and with kind personal regards, I am
Very truly yours,
(S) RAY CLARKE,
Representative Local 370,
Pasco, Branch Ofce.'o
11 The record discloses that other individuals named in the first letter sent under date of
February 16 were named separately in letters similar to the one sent in connection with
Hewes : and like Hewes all were discharged at the request of the Engineers.
156 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
After the receipt of the foregoing letter Molthan made an investigation and
found that Hewes had applied for membership in Local 370 (Engineers) ; there-
after had defaulted in his financial obligations; and Molthan testified that he
concluded that under the Respondent's contract with the Engineers the Re-
spondent was required to and did discharge Hewes from the payroll.
On February 18, 1948, Respondent's timekeeper handed Hewes a "lay-off card" ;
while the card handed to Hewes did not state the reason for the layoff, a
photostatic copy of the original of such card in evidence states the reason as
"Union request."
The layoff card contained the following question, "Do you want this workman
back again?", after which appeared the word, "Yes" followed by a blank line
and under the word yes appeared the word "No" followed by a blank line.
Neither alternative was checked.
Issues; contentions; conclusions
The Respondent bases its defense, in substance, on the following points:
(1) That the contract of August 16, 1947, is a typical Building Trades Con-
struction contract of the type over which the Board has not historically asserted
or exercised general jurisdiction ; and under the circumstances disclosed by the
record herein, the Board should decline to exercise its jurisdiction; (2) that the
instant proceedings are barred by the "rider" contained in the National Labor
Relations Board Appropriation Act, 1948;" (3) that pursuant to the terms of
the August 16, 1947, contract the Respondent was required to discharge workmen
who failed to meet their obligations to Unions signatory to the contract ; (4)
that inasmuch as the Hanford Works Project was of such vital importance to
the national security it was a matter of great urgency that the work be com-
menced at the earliest possible moment ; that at the direction of the Atomic
Energy Commission, given on behalf of the Government of the United States, the
Respondent undertook the performance of the construction work required by
the Project; that in so doing the Respondent found it necessary to solicit manual
personnel from the Building and Construction Trades Department of the Ameri-
can Federation of Labor, as the source of the only available labor pool sufficient
to fill the job requirements; that in order to receive the cooperation of the
American Federation of Labor Building Trades Union, it was absolutely neces-
sary to give such unions the exclusive right to select all such employees; and
that in view of all of the foregoing facts the complaint should be dismissed; and
(5) that should the foregoing grounds, either jointly or severally, be insufficient
to constitute a defense, the Respondent relies upon the representations of its
prime contractor, General Electric Company and the U. S. Atomic Energy Com-
mission, that the requirement for immediate performance of the work was urgent
and vital and affected with extreme national importance ; and since the Re-
spondent has discharged its obligations to the satisfaction of its prime contractor,
and if it has thereby violated any of the provisions of the Act or the Act as
amended, the good faith of the Respondent constitutes a defense.
As to point (1), while the Respondent does not affirmatively contend that the
Board lacks jurisdiction over Building Trades Construction, it implies that the
Board has not heretofore asserted such jurisdiction and should, in effect, feel
itself estopped to do so in the instant matter. Board decisions have held that
the Board has such jurisdiction and has exercised it. In re Brown & Root, Inc.,
11 Public Law 165, 80th Cong ., Chap. 210, 1st Sess.
GUY F. ATKINSON CO. AND J. A. JONES CONSTRUCTION CO. 157
et al,12 wherein a group of corporations and firms doing business as a joint venture
under the name of Ozark Dam Constructors, who had engaged to build a dam
and presumably other facilities as a part of a flood control and electrical power
development project of the War Department, contended that the joint venture
was not engaged in commerce within the meaning of the Act, and based its con-
tention on the fact that the Board had in the past refused to exercise jurisdiction
in construction cases. In this connection the Board said:
. . . Aside from the fact that construction of a dam for purposes of flood
control and generation of electric power has a greater impact upon com-
merce than construction of buildings, we have repeatedly stated that our
jurisdiction extends over construction projects if their interruption would
affect interstate commerce, and that our abstention from exercising our
jurisdiction in construction cases was a matter of administrative choice
and not legal necessity.
In this case the Board further stated in part:
Inasmuch as stoppage of work on the Bull Shoals Dam would affect shipments
of several million dollars' worth of materials into the State of Arkansas
from other States, and would delay the production of electricity which will
probably be sold in interstate commerce we find, contrary to the contentions
of the Employer, that it is engaged in commerce within the meaning of the
National Labor Relations Act, and that the purposes of the Act will best be
served if we assume jurisdiction in the case. [Citing cases.]
As found in Section I above the Respondent is engaged in interstate commerce
within the meaning of the Act, The Board has and should assume jurisdiction
herein.
Point (1) is without merit.
As to point (2),13 the "rider" in question reads in part as follows:
No part of the funds appropriated in this title shall be used in any way in
connection with a complaint case arising over an agreement, . . . between
an employer and a labor organization which, represents a majority of his
employees in their appropriate bargaining unit, which has been in existence
for 3 months or longer without complaint being filed by an employee or
employees of such plant: Provided, That, hereafter, notice of such agree-
ment . . . shall have been posted in the plant affected for such period of 3
months, said notice containing information as to the location at an accessible
place of such agreement where said agreement shall be opened for inspection
by any interested persons : . . .
It will be noted that the "rider" (a) presupposes an agreement between an
employer and a labor organization which represents a majority of his employees
in their appropriate bargaining u nit,-and (b) that "notice of such agree-
ment . . . shall have been posted in the plant affected . . . said notice contain-
ing information as to the location at an accessible place of such agreement where
said agreement shall be opened for inspection by interested persons . . ." [Em-
phasis supplied.]
From the foregoing it would appear necessary to determine first, whether the
Engineers represented a majority of the Respondent's employees in an appro-
1177 NLRB 1136.
13 The Engineers also contends that such " rider" is a bar to the instant proceedings.
158 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
priate unit as of the date of the execution of the contract on August 16, 1947,"
and second, if it did so represent such majority whether notice of such agree-
ment was properly and timely posted.
As to the first point for determination it is clear that on August 16, 1947, when
the contract was executed, neither the Engineers nor other signatory Unions
represented any of the Respondent's employees in an appropriate unit.
In this connection, Molthan, with reference to the negotiation and signing of
the August 16, 1947, contract, testified in part:
We did not ask for any of the Unions that signed this agreement to make
a showing that they, in fact, represented persons employed by Atkinson and
Jones because actually we had no employees. It is customary in the con-
struction industry to get your working agreements settled, your wage rates
settled through the area agreement, if possible, or set up a special job agree-
ment, as we were required to do at Hanford, and then rely upon the unions
signatory to man the job .. .
Assuming arguendo that the facts found next above are insufficient to support
a finding that the limitation "rider" of the Board's Appropriations Act of 1948 is
not a bar to the proceedings herein, was a sufficient notice of such agreement
properly and timely posted?
The only evidence in the record pertaining to posting is the affidavit of Respond-
ent's "Controller" that he caused a mimeographed copy of the August 16, 1947,
agreement to be placed upon the bulletin board on or about August 28, 1947 (or
some 12 days after the execution of the contract), and that it was his "recollec-
tion" that said agreement 18 remain posted on such bulletin board until on or
about January 1, 1948.
The "rider" provides inter alia that such notice shall have been posted in the
plant affected for said period of 3 months and shall contain "information" as to
the "location" at an "accessible place" where the agreement shall be "open for
inspection by any interested person." [Emphasis supplied.] Did the posting of
the mimeographed copy above described comply with the requirements of the
"rider" with reference to "notice"? It is clear that no "Notice," as such, was
posted. Assuming that the posting of a copy of the contract amounts to a con-
structive "posting," did such posting of a copy of the contract on a bulletin board
constitute the giving of information of an "accessible place" where the agreement
was "open for inspection by any interested person"? The record contains no de-
scription or dimensions of the bulletin board ; does not disclose whether the con-
tract was attached to the bulletin board in a manner making it possible for an
interested person to inspect it page by page while it was attached to the board ; or
whether it was necessary to detach it in order to inspect it. On the basis of the
foregoing and the record it is the opinion of the undersigned that the mere "post-
ing" of a copy of the agreement on the bulletin hoard does not constitute the post-
ing of "notice" as is required by the Appropriations Act of 1948.18
14 The limitation on the use of Board ' s funds for the fiscal year ending June 30, 1947, did
not contain the qualifications that the labor organizations be one "which represents a
majority of his [ employer ' s] employees in their appropriate unit" and thus indicates that
Congress , by use of such language in the "rider" to the Appropriations Act of 1948 , intended
to protect only contracts wherein the labor organizations actually represented a majority
of an Employer ' s employees in an appropriate unit at the date of the execution of a
collective bargaining agreement.
15 A photostatic copy of the contract in evidence discloses that it was typewritten ; con-
sisted of seven pages , and was headed "AGREEMENT" with the sections typed in single
spaced lines.
18 See in re Hall Freight Lines, Inc., 65 NLRB 397.
GUY F. ATKINSON CO. AND J. A. JONES CONSTRUCTION CO. 159
In any event it is clear that the agreement, when executed, was not one between
,in employer and a labor organization which represents [represented] a majority
of his employees in their appropriate unit," as required by the "rider" in ques-
tion, Said "rider" is not a bar to the instant proceedings. It is so found."
Point (2) is without merit.
As to point (3), the Respondent contends that it was compelled to discharge
Hewes pursuant to the terms of the August 16, 1947, contract. The record dis-
closes without dispute that at the time of the execution of the contract on August
16, 1947, the Engineers did not represent any employees of the Respondent in an
appropriate unit. The proviso of Section 8 (3) of the Act prior to amendment,
insofar as is material herein, reads as follows :
Provided, That nothing in this act . . . shall preclude an employer from
making an agreement with a labor organization (not established, maintained,
or assisted by any action defined in this act as an unfair labor practice) to
require as a condition of employment membership therein, if such labor
organization is the representative of the employees as provided in section 9
(a), in the appropriate collective bargaining unit covered by such agreement
when m-ade.'a [Emphasis supplied.]
The Board has long held that an illegal closed-shop contract cannot operate
as a defense to discharges made pursuant to the terms of such contract. In the
Lennox Shoe Company, Inc., case '° the Board, after quoting the proviso to Section
8 (3) of the Act, stated :
Under this provision and in view of our findings under III, A, above, the
contract here in question is clearly invalid. The B. & S. W. U. was not, on
the date on which the contact was signed, the free choice of a majority of the
respondent's employees and was a labor organization which had been assisted
by unfair labor practices. The B. & S. W. U. therefore is within the proviso
to Section 8 (3) of the Act quoted above, and the June 9, 1937 contract be-
tween it and the respondent is void and of no effect. Of course, this does
not mean that the B. & S. W. U. may not hereafter negotiate a new contract
with the respondent should it subsequently be certified by the Board as
exclusive ,representative of the respondent's employees.
Since the contract is void and of no effect, it cannot operate as a defense
to the discharges of Hill and Coffin.
Citation of further decisions is deemed unnecessary.
Point (3) is without merit.
As to point (I,), the record does indicate that the Hanford Works Project was
of vital importance to the national security ; that at the direction of the Atomic
Energy Commission, and its prime contractor, General Electric Company, the
17 These findings concerning the "rider" to Board's Appropriations Act of 1948, have been
made on the theory that the "rider" is still in force and effect insofar as the instant case
is concerned ; however, the Appropriations Act of 1.948 expired on June 30, 1948, and prior
to the issuance of the complaint herein. The National Labor Relations Board Appropria-
tions Act, 1949, did not reenact the "rider" with which we are here concerned. Under
similar conditions the Board has held that it is not barred from. proceeding to hear cases
following expiration of an Appropriations Act. See Kinner Motors, Inc., 57 NLRB 622.
18 The Proviso under Section 8 (a) (3) of the Amended Act is to the same effect insofar
as it requires the labor organization to be the representative of the employees is provided
in Section 9 (a) in the appropriate collective bargaining unit covered by such agreement
when made. [Emphasis supplied.]
10 4 NLRB 272.
160 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent promptly undertook the performance of the construction work re-
quired ; and that the Respondent believed that it was necessary and advisable
that it solicit manual personnel from the Building and Construction Trades
Department of the American Federation of Labor as the source of the only
available labor pool sufficient to fill the job requirements; and it is also clear
that the Respondent believed that it was necessary to make a closed-shop contract
with the American Federation of Labor Building Trades Unions in order to
expedite the work.
The Respondent contended in substance and effect, that unless it entered into
a closed-shop contract with the signatory Unions to the August 16, 1947, contract,
it would have been necessary to spend large sums of money in the procurement
of manpower. The Board and the courts have long and consistently held that
economic exigency does not excuse violation of the Act. As found in the Star
Publishing case ," the Court of Appeals for the Ninth Circuit stated :
The Act prohibits unfair labor practices in all cases. It permits nc
immunity because an employer may think that the exigencies of the moment
require infraction of the statute. In fact, nothing in the statute permits
or justifies its violation by employers.'
Point (4) is without merit.
As to point (5), from the record the undersigned is convinced that the Re-
spondent relied upon the representations of its prime contractor, General Electric
Company and the Atomic Energy Commission, that it was necessary that the
construction work required by the Hanford Engineering Works Project was
urgent and vital and effected with extreme national importance ; and that the
Respondent has discharged its obligations to the satisfaction of its prime con-
tractor ; and while the record clearly indicates that the Respondent acted in
good faith, such fact does not constitute a defense to the unfair labor practices
herein found.
Point (5) is without merit.
Engineers' contentions
In addition to joining generally in the contentions of the Respondent , counsel
for the Engineers contends in substance ( 1) that the complaint should be
dismissed for lack of service on Local 370 of a copy of the charges ; and (2)
that since Hewes had in effect waived his rights to any remedy under the Act
or the Amended Act by agreeing to the discharge in a legal contract with the
Engineers.
As to Engineers ' contention ( 1) the record discloses that the charge herein
was filed February 27, 1948 ; and was served on the Respondent by registered
mail on March 4, 1948. Since the Engineers was not "the person against whom
such charge is made," or named a respondent in the instant proceedings, the
provisions of Section 10 (b) of the Act does not require that the Engineers
be served with a copy of the charge at any particular time or at all.
As to Engineers ' contention ( 2), the record discloses that on October 27,
1947, Hewes signed an application for membership card in the Engineers
whereby he agreed to join the Engineers ; pay initiation fees and dues; and
designate the Engineers as his exclusive bargaining agency. The Engineers
contends , in effect, that Hewea' application for membership became a contract
20 97 F. 2d 465, 47-5 (C. A. 9).
21 See also McQuay-Norris Manufacturing Company v. N. L. R. B., 116 F. 2d 748, 752.
GUY F. ATKINSON CO. AND J. A. JONES CONSTRUCTION CO. 161
based upon a valid consideration, in which he waived any right to institute
proceedings in any court of law or equity against the Engineers; and since
he had failed to pay his initiation fee in the Engineers he was properly dis-
charged by the Respondent at the request of the Engineers.
Inasmuch as Hewes, in order to be employed by the Respondent, was com-
pelled to make application in the Engineers as the result of an illegal contract
executed between the Respondent, the Engineers, and other unions the Engineers'
contention is wholly without merit and is so found.
Conclusions
From the foregoing and the record it appears and the undersigned finds that
the Respondent discharged Chester R. Hewes on February 19, 1948, upon the
demand of the Engineers pursuant to the terms of an invalid contract and
thereby discriminated in regard to his hire and tenure of employment thereby
discouraging membership in the IAM and interfering with, restraining, and
coercing its employees in the exercise of the rights guaranteed in Section 7 of
the Act and Section 7 of the Amended Act, in violation of Section 8 (1) of the
Act and Section 8 (a) (1) and (3) of the Amended Act.
B. Interference, restraint, and coercion; the alleged violation of Section 8 (2)
of the Act and, Section 8 (a) (2) of the Amended Act
The complaint, in substance, alleges that in violation of Section 8 (2) of the
Act, reenacted as Section 8 (a) (2) in the Amended Act, the Respondent (1)
entered into the closed-shop agreement above described which required its
employees to become and remain members of the Engineers ; (2) that at the
time of the execution of said contract the Engineers did not represent a majority
of the Respondent's employees at its Richland operations in an appropriate
unit or in any unit that was appropriate for collective bargaining; (3) that
said contract was executed and made effective by Respondent at a time when
the JAM had given to Respondent actual notice of its claim to represent
employees in an appropriate unit composed of employees who customarily
and regularly performed work of Machinists; (4) that notwithstanding that
during the time Hewes was employed by the Respondent he performed work
regularly performed by Machinists and not type of work performed by Engineers
or coming within the terms of such contract, Hewes was, pursuant to demand
of the Engineers made on February 16, 1948, discharged on or about February
19, 1948; and (5) that since on or about November 1, 1947, Respondent has
solicited its employees to become and remain members of the Engineers. The
undersigned has found in Section III A, above, that the Respondent entered
into a closed-shop contract with the Engineers, at a time when the Engineers
did not represent any of Respondent's employees in any unit; that such contract
required the employees to become and remain members of the Engineers; and
that it discharged Hewes (and other employees not party to these proceedings)
because he had failed to "remain in good standing" with the Engineers.
With reference to allegation that when the Respondent executed the closed-
shop contract with the Engineers, the IADI had given the Respondent "actual
notice of its claim" as representative of employees in an appropriate unit of
Machinists, the record discloses that under date of August 11, 1947, James A.
Duncan as representative of IAM wrote Ray H. Northcutt, vice president of
Guy F. Atkinson Company, inquiring as to what the policy of the latter company
903847-51-12
162 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was to be in connection with the hiring of employees in the Machinists' category
on the "Richland" and another project. Under date of September 15, 1947,
Northcutt wrote Duncan explaining that the contract of August 16, 1947, had
been negotiated with AFL Building Trades Unions, and stated inter alia that it
was his understanding "that unions not so affiliated might execute separate
agreements for this (Hanford) Project."
Subsequently the Respondent requested IAM to submit copy of its "Schedule
A," which was delivered along with a copy of "Machinists' Standard Agreement."
Insofar as the record discloses, the IAM contended that it represented the Ma-
chinists in the Buildings Trade; asked to be considered; and made no claim as
representative of any of the Respondent's employees.'' With reference to the
allegation that Respondent "solicited" its employees to become and remain mem-
bers of the Engineers, the record contains no evidence of "soliciting." The rec-
ord does disclose, however, that when Hewes asked for employment as a
"Machinists," he was told that it was "a closed job . . . a closed shop," and that
he would have to see the Engineers. This he did and subsequently he (along
with other employees) was discharged at the instigation of the Engineers .2'
It has been found above that at the date of the execution of the August 1.6,
1947, contract, the Engineers did not represent a majority of the employees of the
Respondent in an appropriate unit; that following the execution of such contract
as aforesaid, the Respondent required employees to become and remain members
of the Engineers ; and on or about February 18, 1948, the Respondent, at the
request of the Engineers, discharged Chester R. Hewes and some 18 other em-
ployees (not parties to these proceedings) for nonpayment of dues to the
Engineers.
From the above and the record the undersigned is of the opinion that the
Respondent's conduct herein falls short of domination or support within the
meaning of Section 8 (2) of the Act and Section S (a) (2) of the Amended Act
and that the Respondent did not dominate the Engineers or otherwise engage in
conduct violative of that portion of the Act or the Amended Act." The under-
signed finds, however, that, by the signing of the closed-shop contract as afore-
said ; by requiring its employees to become and remain members of the Engineers,
thereby enhancing the prestige of the Engineers; and by the discharge of Hewes
and other employees on February 18, 1945, thereby enforcing its illegal recogni-
tion of the Engineers, the Respondent has interfered with, restrained, and
coerced its employees in the exercise of the rights guaranteed in Section 7 of the
Act and Section 7 of the Amended Act, and thereby violated Section 8 (1) of
the Act and Section 8 (a) (1) of the Amended Act.
22 Counsel for Respondent , in his brief states :
Inasmuch as the International Association of Machinists was not an affiliate of
American Federation of Labor the cooperation of the American Federation of Labor
Building Trades Department would not have been available if respondent had used
International Association of Machinists on the job.
23 In its first request, made on February 16, 1947, that Hewes et at. be discharged, the
Engineers, referring to Hewes, stated : "This man is one of the ringleaders who is trying
to sabotage the efforts of the Operating Engineers to supply competent men for your job."
The undisputed testimony shows that the Respondent considered Hewes a competent and
satisfactory worker. From all of which it may be inferred that Hewes was active in seeking
members for the IAM, and that such activity was one of the reasons which caused the
Engineers to seek his discharge.
-' See S1henandoah Dives Mining Company, 56 NLRB 715 ; Hershey Metal Products Com-
pany, 76 NLRB 695.
GUY 'F. ATKINSON CO. AND J. A. JONES CONSTRUCTION CO. 163
In view of the foregoing, which discloses illegal assistance,.it will be recom-
mended that the Respondent withdraw and withhold recognition from the Engi-
neers as representative of its employees and cease giving effect to its contract
with the Engineers in the manner set forth in the section entitled "The remedy"
below.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent, set forth in Section III, above, occurring in
connection with the operations of the Respondent described in Section I, above,
lave a close, intimate, and substantial relation to trade, traffic, and commerce
among the several States, and tend to lead to labor disputes burdening and ob-
structing commerce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in certain unfair labor prac-
tices, it will be recommended that it cease and desist therefrom and take certain
affirmative action designed to effectuate the policies of the Act.
The undersigned has found that the Respondent discriminated in regard to
the hire and tenure of employment of Chester R. Hewes. It will be recom-
mended that the Respondent offer to said Hewes immediate and full reinstate-
ment to his former or substantially equivalent position 26 without prejudice to
his seniority or other rights and privileges, and make him whole for any loss of
pay he may have suffered by reason of the Respondent's discrimination against
him by payment to him of a sum of money equal to that which he would have
normally earned as wages from the date of his discharge to the date of the
Respondent's offer of reinstatement, less his net earnings 26 during such period.
The undersigned has further found that the Respondent did not dominate the
Engineers' violation of Section 8 (2) of the Act or Section 8 (a) (2) of the
Amended Act. It has been found, however, that the Respondent illegally recog-
nized the Engineers and thereafter discharged certain employees at the request
of the Engineers and thereby enhanced the prestige of the Engineers.
In order to remove the effects of such illegal support to the Engineers and in
order to insure the employees full and free exercise of the rights guaranteed
in Section 7 of the Act and of the Amended Act, it will be recommended that the
Respondent withdraw and withhold recognition of the Engineers as the repre-
sentative .of any of its employees for the purpose of collective bargaining until
such time as the Engineers may be certified as their representative by the Board.
It will be further recommended that the Respondent cease giving effect to the
above-described contract or to any other contract made with the Engineers prior
to certification, without prejudice, however, to the assertion by the employees
23 In accordance with the Board's consistent interpretation of the term, the expression
"former or substantially equivalent position" is intended to mean "former position wherever
possible and if such position is no longer in existence then to a substantially equivalent
position." See The Chase National Bank of the City of New York, San Juan, Puerto Rico,
Branch, 65 NLRB 827.
26 By "net earnings" is meant earnings less expenses, such as for transportation, room,
and board, incurred by an employee in connection with obtaining work and working else-
where, which would not have been incurred but for this unlawul discrimination and the
consequent necessity of his seeking employment elsewhere. Crossett Lumber Company,
8 NLRB 440. Monies received for work performed upon Federal, State, county, municipal,
or other work-relief projects shall be considered earnings. Republic Steel Corporation v.
N. L. R. B., 311 U. S. 7.
164 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of any legal rights acquired thereunder. Nothing herein, however, shall be
taken to require the Respondent to vary those wage, hour, and other substan-
tive features of its relations with the employees themselves which the Respond-
ent may have established in conformity with the contract as extended, renewed,
modified, supplemented, or superseded.
Upon the basis of the above findings of fact and upon the entire record in the
case, the undersigned makes the following:
CONCLUSIONS OF LAw
1. International Union of Operating Engineers, Local 370, AFL, and Inter-
national Association of Machinists, are labor organizations within the meaning
of Section 2 (5) of the Act and of the Amended Act.
2. By discriminating in regard to the hire and tenure of employment of Ches-
ter R. Hewes, thereby discouraging membership in International Association of
Machinists, the Respondent has engaged in and is engaging in unfair labor prac-
tices within the meaning of Section 8 (1) of the Act and Section 8 (a) (1) and
(3) of the Amended Act.
3. By interfering with, restraining, and coercing its employees in the exercise
of their rights guaranteed in Section 7 of the Act, the Respondent has engaged
in and is engaging in unfair labor practices within the meaning of Section 8 (1)
of the Act and Section 8 (a) (1) of the Amended Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of both the Act and of
the Amended Act.
5. The Respondent has not violated Section 8 (2) of the Act or Section 8 (a)
(2) of the Amended Act by dominating the Engineers.
RECOMMENDATIONS
Upon the above findings of fact and conclusions of law, and upon the entire
record in the case, and pursuant to Section 10 (c) of the Act and Section 10 (c)
of the Amended Act, the undersigned recommends that Guy F. Atkinson Co., a
corporation, J. A. Jones Construction Co., a corporation, d/b/a Guy F. Atkinson
Co. and J. A. Jones Construction Co., of Richland, Washington, its officers,
agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Discouraging membership in International Association of Machinists, by
discharging and refusing to reinstate any of its employees or in any manner dis-
criminating in regard to the hire and tenure of employment or any terms or con-
dition of employment;
(b) Interfering with the administration of International Union of Operating
Engineers, Local 370, AFL, or with the formation or administration of any other
labor organization, and from contributing support to the above-named labor or-
ganization, or to any other organization ;
(c) Recognizing International Union of Operating Engineers, Local 370, AFL,
or any successor thereof, as the representative of any of its employees for the
purposes of collective bargaining with respect to grievances, labor disputes, wages,
rates of pay, hours of employment, or other conditions of employment, unless
and until such organization shall have been certified by the Board as the repre-
sentative of the employees ;
(d) Giving effect to or performing its contract dated as of August 16, 1947,
with International Union of Operating Engineers, Local 370, AFL, relating to
GUY F. ATKINSON CO. AND J. A. JONES CONSTRUCTION CO. 165
rates of pay, wages, hours of employment, and other conditions of employment,
or any extension, renewal, modification, or supplement thereof, or any super-
seding contract with the said Engineers or any successor thereof, without preju-
dice, however, to the assertion by the employees of any legal right thereby ac-
quired ;
(e) Discouraging membership in International Association of Machinists, or
any other labor organization of its employees, or encouraging membership in In-
ternational Union of Operating Engineers, Local 370, AFL, or any other labor
organization of its employees by discharging and refusing to reinstate any of its
employees, or in any other manner discriminating in regard to the hire or tenure
of employment or other term or condition of employment ;
(f) In any other manner interfering with, restraining, or coercing its em-
ployees in the exercise of the right to self-organization to form, join, or assist
labor organizations, to bargain collectively through representatives of their own
choosing, and to engage in concerted activities for the purposes of collective bar-
gaining or other mutual aid and protection, as guaranteed in Section 7 of the
Act and in Section 7 of the Amended Act.
2. Take the following affirmative action which the undersigned finds will effec-
tuate the policies of the Act and of the Amended Act:
(a) Withdraw and withhold recognition from International Union of Operat-
ing Engineers, Local 370, AFL, or any successor thereof, as the representative of
any of its employees for the purpose of collective bargaining with respect to
grievances, labor disputes, wages, rates of pay, hours of employment, or other
conditions of employment, unless and until the said Engineers or its successor
shall have been certified by the Board as the representative of the employees ;
(b) Offer to Chester R. Hewes immediate and full reinstatement to his former
or substantially equivalent position, without prejudice to his seniority or other
rights and privileges and make him whole in the manner set forth in Section V,
entitled "The remedy" ;
(c) Post at its plant in Richland, Washington, copies of the notice attached
hereto and marked Appendix. Copies of said notice, to be furnished by the
Regional Director for the Nineteenth Region, after being signed by representa-
tives of the Respondent, shall be posted by the Respondent immediately upon re-
ceipt thereof, and maintained by it for sixty (60) consecutive days thereafter,
in conspicuous places, including all places where notices to the employees are
customarily posted. Reasonable steps shall be taken by the Respondent to in-
sure that said notice is not altered, defaced, or covered by any other material ;
(d) Notify the Regional Director for the Nineteenth Region in writing,
within twenty (20) days from the date of the receipt of this Intermediate Re-
port, what steps the Respondent has taken to comply herewith.
It is further recommended that unless on or before twenty (20) days from
the receipt of this Intermediate Report, the Respondent notify said Regional
Director in writing that it will comply with the foregoing recommendations, the
National Labor Relations Board issue an order requiring the Respondent to take
the actions of the aforesaid.
It is further recommended that the complaint be dismissed insofar as it
alleges that the Respondent violated Section 8 (2) of the Act and Section 8
la) (2) of the Amended Act.
As provided in Section 203.46 of the Rules and Regulations of the National
Labor Relations Board-Series 5, as amended August 18, 194S, any party may,
within twenty (20) days from the date of service of the order transferring the
rase to the Board, pursuant to Section 203.45 of said Rules and Regulations,
166 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
file with the Board, Washington 25 , D. C., and original and six copies of a
statement in writing setting forth such exceptions to the Intermediate Report
or to any other part of the record or proceeding (including rulings upon all
motions or objections) as he relies upon, together with the original and six
copies of a brief in support thereof; and any party may, within the same period,
file an original and six copies of a brief in support of the Intermediate Report.
Immediately upon the filing of such statement of exceptions and/or briefs, the
party filing the same shall serve a copy thereof upon each of the other parties.
Statements of exceptions and briefs shall designate by precise citation the
portions of the record relied upon and shall be legibly printed or mimeographed,
and if mimeographed shall be double spaced. Proof of service on the other
parties of all papers filed with the Board shall be promptly made as required by
Section 203.85. As further provided in said Section 203.46 should any party
desire permission to argue orally before the Board,-request therefor must be
made in writing to the Board within ten (10) days from the date of service of
the order transferring the case to the Board.
In the event no Statement of Exceptions is filed as provided by the aforesaid
Rules and Regulations, the findings, conclusions, recommendations, and recom-
mended order herein contained shall, as provided in Section 203.48 of said
Rules and Regulations, be adopted by the Board and become its findings, con-
clusions, and order, and all objections thereto shall be deemed waived for all
purposes.
Dated at Washington, D. C., this 12th day of May 1949.
PETER F. WARD,
Trial Examiner.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, and said Act as amended, we hereby notify our employees that :
WE WILL NOT interfere with the administration Of INTERNATIONAL UNION
OF OPERATING ENGINEERS, LOCAL 370, AFL, or with the formation or admin-
istration of any other labor organization, or contribute support to the above-
named labor organization or any other labor organization.
WE WILL NOT in any manner interfere with, restrain, or coerce our em-
ployees in the exercise of -their rights to self-organization, to form labor
organizations, to join or assist INTERNATIONAL ASSOCIATION of MACHINISTS,
or any other labor organization, to bargain collectively through representa-
tives of their own choosing, and to engage in concerted activities for.the
purpose of collective bargaining or other mutual aid or protection.
WE WILL WITHDRAW AND WITHHOLD recognition Of INTERNATIONAL UNION
OF OPERATING ENGINEERS, LOCAL 370, AFL, as representative of our em-
ployees for the purpose of collective bargaining until such time as the said
Engineers may be certified as their representative by the Board and we
will not give effect to or perform the contract now in existence with said
organizations pending such contingency.
WE WILL OFFER to Chester R. Hewes immediate and full reinstatement to
his former or substantially equivalent position without prejudice to any
seniority or other rights and privileges, previously enjoyed, and make him
GUY F. ATKINSON CO. AND J. A. JONES CONSTRUCTION 00. 167
whole for any loss of pay as a result of the discrimination in the manner
directed by the Trial Examiner in his Intermediate Report under the
section entitled "The remedy," a copy of which Intermediate Report is on
file at the office of the undersigned and may be inspected by interested per-
sons during office hours.
All our employees are free to become or remain members of INTERNATIONAL
ASSOCIATION OF MACHINISTS or any other labor organization.
Guy F. ATKINSON CO. AND
J. A. JONES CONSTRUCTION CO.,
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.