International Brotherhood of Boilermakers, Iron Ship Builders, Welders and Helpers of America

National Labor Relations Board - Board Decisions

Jun 27, 1951

94 N.L.R.B. 1590 (N.L.R.B. 1951)

1590 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Avco Manufacturing Company is a successor to the Nashville Corporation
and, as such , responsible for remedying its unfair labor practices.
3. United Steelworkers of America , C. I. 0., is a labor organization within
the meaning of Section 2 (5) of the Act.
4. By discriminating with regard to the hire and tenure of employment of
A. F. Bambrough , Sue Anne Baucom , Sadie D . Guthrie, C . A. Rollins , E. T. Whit-
tenberg, Ephraim Winroe, and Truman Cannon , thereby discouraging member-
ship in a labor organization , and interfering with , restraining , and coercing
its employees in the exercise of the rights guaranteed in Section 7 of the Act, the
Respondents have engaged in and are engaging in unfair labor practices within
the meaning of Section 8 (a) (3) and ( 1) of the Act.
5. The foregoing unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
6. The Respondents have not discriminated with respect to the hire and tenure
of employment of Emmett E. Cooper and Charles E. Cone.
[Recommended Order omitted from publication in this volume.]
INTERNATIONAL BROTHERHOOD OF BOILERMAKERS, IRON SHIP BUILDERS,
WELDERS AND HELPERS OF AMERICA, LOCAL #6, AFL, AND EDGAR
.RAINBOW, PRESIDENT OF LOCAL #6 and Ross E. DULINSKY CON-
SOLIDATED WESTERN STEEL CORPORATION and Ross E. DULINSKY.
Cases Nos. 00-CB-91 and 20-CA-334. June 27, 1951
Decision and Order
On November 29, 1950, Trial Examiner Frederic B. Parkes 2nd is-
sued his Intermediate Report in the above-titled proceeding, finding
that the Respondents had engaged in and were engaging in certain
unfair labor practices, and recommending that they cease and desist
therefrom and take certain affirmative action, as set forth in the copy
of the Intermediate Report attached hereto. Thereafter the Respond-
ents filed exceptions to the Intermediate Report and supporting
briefs.'
The Board 2 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 In-
termediate Report, the exceptions and briefs, and the entire record in
the case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner, with the following additions and
modifications.
'The Respondent Company's request for oral argument ' is hereby denied because the
exceptions , briefs, and record, in our opinion , adequately present the issues and the
positions of the parties.
2 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 Houston and Reynolds].
94 NLRB No. 212.
INTERNATIONAL BROTHERHOOD OF BOILERMAKERS, ETC. 1591
1. We agree with the Trial Examiner that, by conditioning Dulin-
sky's employment upon his obtaining clearance from the Respondent
Union and by actually refusing him employment because he had
failed to obtain such clearance, the Respondent Company violated
Section 8 (a) (3) and (1) of the Act.3 The Respondent Company con-
tends, however, that its conduct was not unlawful,4 because Dulinsky
was already a member of the Respondent Union's International, and
the refusal to hire him could not, as found by the Trial Examiner,
have encouraged "Dulinsky's membership in a labor organization,
namely Local #6 [the Respondent Union]." °
In the recent American Pipe and Steel Corporation case,6 the Board
rejected a similar argument. It found that discrimination against
a member of a union strengthens the position of the union and "for-
cibly demonstrate[s] to the employees that membership in, as well
as adherence to the rules of . . ." the union, is extremely desir-
able. The tendency of discrimination, even against a union member,
is "necessarily" to encourage union membership and is therefore "ipso
facto" a violation of Section 8 (a) (3).7
2. We. also agree with the Trial Examiner that the Respondent
Union and the Respondent Rainbow caused the Respondent Company
to discriminate against Dulinsky in violation of Section 8 (b) (2) of
the Act.
The hiring clause in the 1948 contract between the Respondent Union and
the Respondent Company conceded to the Company the "right to determine the
competency and qualifications" of its employees. It also provided that the
Company was to notify the Union of any job vacancies. The Union agreed
that, when requested, it would furnish men within a given number of days.
The clause did not require the Company to do its hiring through the Union or
that in making referrals, the Union give preference to its own members. On
its face, the hiring clause appears to be lawful. A majority of the Board so
held in the American Pipe and Steel case .8
3Daniel Hamm Drayage Company, Inc., 84 NLRB 458, enfd. " 185 F. 2d 1020 (C. A. 5) ;
American Pipe and Steel Corporation, 93 NLRB 54 ; R. B. Guerin & Company , 92 NLRB
1698; Pinkerton 's National Detective Agency, Inc., 90 NLRB 205.
4 Section 8 (a) (3) provides that it shall be an unfair labor practice for an employer
"by discrimination in regard to hire or tenure of employment . . . to encourage or
discourage membership in any labor organization."
8 The Respondents contend that the Trial Examiner has based his finding on the
erroneous belief that there is a nrembership in a local apart from membership in the
Boilermakers ' International . For purposes of discussion, we are assuming that member-
ship in the International and in the Local are one and the same thing . But we note the.
Respondent Union itself made a distinction based on membership in it as opposed to
membership in its International in denying Dulinsky a referral and in referring applicants
to the Respondent Company.
8 93 NLRB 54.
7N. L. R. B. v. J. G. Boswell Co., 136 F. 2d 585, 596 (C. A. 9) ; N. L. R. B. v. Brezner
Tanning Co ., Inc., 141 F. 2d 62, 65 (C. A. 1) ; N. L. R. B. v. Walt Disley Productions,
146 F. 2d 44, 49 (C. A. 9).
8 93 NLRB 54. Members Houston and Reynolds did not agree with the majority's
finding that this clause was lawful . However, they deem themselves bound by the
majority 's holding in that case.
1592 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
'In practice, 'hiring of workers who, came within the jurisdiction of the Union
followed this pattern : The Company filed a requisition with the Union for a
given number of workers . The Union filled the requisition by referral of its
members from a job rotational list. If it had none of its own members available,
it sought out other members of its International for referral . If the Union was
unable to fill the requisitions , the Company secured its men from other sources,
but obtained clearances for them from the Union either immediately or within
a few days after they went to work. Men so obtained from other sources were
always members of the Union's International.
This practice was followed not only on the job for which the charging party,
Dulinsky , was denied employment , but for all jobs within the territorial juris-
diction of the Union . The evidence does not establish when this practice arose.
But that it was well established and certainly antedated the October 16, 1948,
contract between the Respondents seems clear.'
This hiring procedure, involving as it does preference in hiring to
union members , is unlawful .10
The unlawful. hiring practice would not have been possible without
the cooperation or participation of both the Company and the Union.
On the part of the Company, it involved the refusal to hire except on
referral from the Union so long as the latter was in a position to make
referrals ; on the part of the Union, it involved preference to its own
members in making referrals on the receipt of requisitions from the
Company. The practice was so long and firmly established as to raise
little doubt that each party knew of, and at least acquiesced in, what
the other was doing. In fact, the inference is warranted, and we find,
that the practice conformed to an understanding or oral agreement
between the parties. Thus, Foreman Schroeder, who was in the
camps of both the Company and the Union, as a member'of the latter
and as a hiring foreman of the former, testified that it was his under-
standing that the written agreement provided for the method of hiring
followed.- Similarly, Dulinsky testified that in refusing to give him
a job referral on September 3, 1949, Respondent Rainbow said to him
that the Union was having trouble with the Company in negotiating
a new contract because "they [Respondent Company] are wanting to
have the hiring of the men." Finally the Company's refusal to hire
Dulinsky, whom it knew to be competent and whom it wanted to
9 Foreman Schroeder testified that he had followed the procedure of hiring exclusively
through the Respondent Union since becoming a foreman in August 1948. Respondent
Rainbow testified that the members of the Respondent Union had adopted the present
, job referral rules in February 1948.
29 National Maritime Union of America , 78 NLRB 971 , enfd . 175 F. 2d 686 ( C. A. 2),
cert. den . 338 U. S. 954 ; Daniel Hamm Drayage Company, Inc., 84 NLRB 458, enfd. 185
F. 2d 1020 ( C. A. 5) ; National Union of Marine Cooks and Stewards ( Pacific American
Shipowners Association ), 90 NLRB 1099.
Schroeder testified :
Well, . . . it has been given in the agreement that we wouldn ' t do it, [put men to
work without a referral ] it has been approved in the bylaws with the men that you
are hiring that if you did put a man to work without a clearance , the men would
walk off the job.
INTERNATIONAL BROTHERHOOD OF BOILERMAKERS, ETC. 1593
employ, but who was unable to obtain a referral slip from the Union,
is hardly explainable. except on the supposition that the two parties
had in some witty agreed that no individual would be hired who was
unable to obtain a referral from the Union. The company policy of
clearance for employees obtained from sources other than the Union
also supports the inference of an understanding.
In the Acme Mattress case,12 the Board held that a labor organiza-
tion merely by signing a contract containing an unlawful union-
security provision, with the intention that such provision be enforced,
joined with the employer in creating conditions which would result in
future discrimination, thereby, in violation of Section 8 (b) (2),
attempting to cause the employer to discriminate against employees
in violation of Section 8 (a) (3). The essential point in this holding
was the agreement to hire in a discriminatory manner. In practical
effect, it makes no difference whether such an agreement is oral or in
writing. In either case, the agreement creates conditions which may
be .expected to create future discrimination. Accordingly, we find
that by the oral agreement or understanding with the Respondent
Company for the hiring of employees in a discriminatory manner and
by their practice pursuant thereto, the Respondent Union and the Re-
spondent Rainbow violated Section 8 (b) (2) of the Act.13
Neither the Respondent Union nor the Respondent Rainbow ever
requested or demanded that the Respondent Company refused to hire
Dulinsky. However, the refusal to hire was the proximate result of
the discriminatory hiring arrangement which, on the part of the Re-
spondent Union and the Respondent Rainbow, constituted a violation
of Section 8 (b) (2) of the Act as an attempt to cause the Company
to discriminate against employees. Those responsible for the unlaw-
ful hiring arrangement are also responsible for its reasonably to be
anticipated results. Accordingly, we find that the Respondent Union
and the Respondent Rainbow caused the Respondent Company to
discriminate against Ross E. Dulinsky in violation of Section 8 (b)
(2) of the Act 14
12 Acme Mattress Company, Inc., 91 NLRB 1010.
13 The Trial Examiner refrained from, making a specific finding that either the contract
or the general hiring practice thereunder was unlawful on the ground that the complaint
did not allege their illegality. However, the complaint did allege that "Continuously
since June 1, 1949, respondent Union and respondent Rainbow have caused and atttempted
to cause respondent Company to require that persons to be employed by respondent
Company, . . . be cleared by respondent Union as a condition of such employment." At
the outset of the hearing, in a discussion of a bill of particulars sought by the Respondent
Union, the General Counsel said that "the causing and attempting to cause is based on
the execution and administration of the contract between the two parties." In view of
the pleadings and the General Counsel's explanation, we find that the lawfulness of the
contract and the hiring practice was in issue. Indeed in their brief, the Respondent
Union and Respondent Rainbow assume as much.
14 Childs Company, 93 NLRB 281.
It is no defense, as the Respondent Union and the Respondent Rainbow contend, that
the refusal to grant Dulinsky clearance was in pursuance of a union rule. The proviso
1594 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We also find that by the aforesaid conduct, the Respondent Union
and the Respondent Rainbow violated Section 8 (b) (1) (A) of the
Act 15
The Remedy
In addition to adopting the remedial recommendations of the Trial
Examiner, we shall also order the Respondent Union and Respondent
Rainbow to notify the Respondent Company in writing that they
have no objection to the Company's employment of the complainant
Dulinsky or any other person without prior or subsequent clearance
or job referral from them.
The Respondent Company has excepted to the Trial Examiner's
recommendation that it be required to cease and desist from the
practice of requiring employees or applicants for employment to ob-
tain clearance or job referrals from the Respondent Union. Although
the complaint did not allege, and the Trial Examiner did not find,
that the hiring practice followed by the Respondent Company was
a violation of Section 8 (a) (3), which it is,16 the discriminatory
refusal to hire Dulinsky was caused entirely by that practice. In
order effectively to remedy the discrimination against Dulinsky and
to prevent similar discriminatory conduct in the future, we believe
we must order the Respondent Company to cease and desist from con-
tinuing its discriminatory hiring practice.
The Respondent Company has also excepted to the requirement of
the Trial Examiner's recommendation that it cease and desist from
encouraging membership "in any other labor organization" in addi-
tion to the Respondent Union. As limited in our Order, the phrase
is a customary one which is deemed necessary fully to effectuate the
policies of the Act.17
Finally, the Respondent Company objects to the requirement in the
Trial Examiner's recommendations that it be required to post notices
at any operations "in the vicinity of San Francisco." Although the
particular construction job at which Dulinsky was denied employment
has been completed, the Respondent Company's illegal hiring prac-
tices were not restricted to that site. The posting of notices should be
to Section 8 (b) (1) (A) preserves the right of a union to prescribe its own rules with
respect to the "acquisition or retention of membership therein," but does not expressly
or by implication excuse unlawful hiring practices when they are made pursuant to a
union regulation. Sub Grade Engineering Company, 93 NLRB 406.
Nor is it a defense that a decision forbidding the unlawful hiring practice followed
by the Respondents may be disruptive of established union regulations or of hiring practices
deemed necessary in the construction field. This is an argument that goes to the wisdom
of the existing statute. It should properly be addressed to Congress. (National Maritime
Union of America, supra; Daniel Hamm Drayage Company, Inc., supra.)
is Childs Company, supra; New York State Employers Association, Inc., 93 NLRB 127.
1e Newspaper and Mail Deliverers' Union (Hearst Consolidated Publications), 93
NLRB 237.
17 Associated Press v. N. L. R. B., 301 U. S. 103.
INTERNATIONAL BROTHERHOOD OF BOILERMAKERS , ETC. 1595
coextensive with the area in which the illegal hiring practices are
being followed.
Order
Upon the entire record in these cases and pursuant to Section 10
(c) of the National Labor Relations Act, the National Labor Relations
Board hereby orders that:
1. The Respondent Consolidated Western Steel Corporation, San
Francisco, California, its officers, agents, successors, and assigns, shall :
(a) Cease and desist from:
(1) The practice of requiring employees or applicants for em-
ployment to obtain clearance or job referrals from International
Brotherhood of Boilermakers, Iron Ship Builders, Welders and
Helpers- of America, Local #6, AFL, or from any other labor organ-
ization, as a condition of employment, except under a nondiscrimi-
natory arrangement permitted by Section 8 (a) (3) of the Act.
(2) Encouraging membership in International Brotherhood of
Boilermarkers, Iron Ship Builders, Welders and Helpers of America,
Local #6, AFL, or in any other labor organization, by refusing to
hire any applicant for employment because he has not obtained clear-
ance or a job referral from the Respondent Union, or by discriminat-
ing in any other manner in regard to hire or tenure of employment
or any term or condition of employment.
(3) In any other manner interfering with, restraining, or coercing
employees or applicants for employment in the exercise of the rights
guaranteed in Section 7 of the Act, except to the extent that such
rights may be affected by an agreement requiring membership in a
labor organization as a condition of employment as authorized 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 :
(1) Offer to Ross E. Dulinsky employment in a position substan-
tially equivalent to that discriminatorily denied him on September 6,
1949, if such position is in existence in its field operations at the time
of the issuance of this Decision and Order, without prejudice to his
seniority or other rights and privileges, and jointly and severally
with the Respondent Union 18 make him whole in the manner set forth
in the section of the Intermediate Report entitled "The remedy," for
any loss of pay suffered by reason of the discrimination against him.:""
Is The Trial Examiner found that the Respondent Rainbow could not be held personally
liable for any part of the back-pay obligation and recommended his exemption from that
liability. As the General Counsel has not excepted to this recommendation , we adopt it
without necessarily accepting the Trial Examiner ' s reasoning.
19Back pay shall be computed in the manner set forth in F. W . Woolworth Company,
90 NLRB 289.
1596 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(2) Upon request, make available to the National Labor Relations
Board, or its agents, for examination and copying, all payroll records,
social security payment records, time cards, personnel records and
reports, and all other records necessary for a determination of the
amount of back pay due and the right of reinstatement under the
terms of this Order.
(3) Post at its field operations in the vicinity of San Francisco,
California, copies of the notice attached hereto, and marked "Ap-
pendix A." 20 Copies of said notice, to be furnished by the Regional
Director for the Twentieth Region, shall, after being duly signed by
the Respondent Company's representative, be posted by it imme-
diately upon receipt thereof, and maintained by it for sixty (60) con-
secutive days thereafter, in conspicuous places, including all places
where notices to employees are customarily posted. Reasonable steps
shall be taken by the Respondent Company to insure that such notices
are not altered, defaced, or covered by any other material.
(4) Notify the Regional Director for the Twentieth Region in writ-
ing, within ten (10) days from the date of this Order, what steps it
has taken to comply herewith.
II. The Respondent International Brotherhood of Boilermakers,
Iron Ship Builders, Welders and Helpers of America, Local #6,
AFL, San Francisco, California, and its officers, representatives,
successors, assigns, and agents including the Respondent Edgar Rain-
bow, shall :
(a) Cease and desist from:
(1) The practice of requiring employees of, or applicants for em-
ployment with, Consolidated Western Steel Corporation to obtain
clearance or job referrals from it or from any other labor organiza-
tions as a condition of employment, except under a nondiscriminatory
arrangement permitted by Section 8 (a) (3) of the Act.
(2) Causing or attempting to cause Consolidated Western Steel
Corporation, its officers, agents, successors, or assigns, to discriminate
against an employee or applicant for employment in violation of Sec-
tion 8 (a) (3) of the Act.
(3) In any other manner restraining or coercing employees of, or
applicants for employment with, Consolidated Western Steel Cor-
poration, in the exercise of the rights guaranteed in Section 7 of the
Act, except to the extent that such rights may be affected .by an agree-
ment requiring membership in a labor organization 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 :
20 In the event this Order is enforced by 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."
INTERNATIONAL BROTHERHOOD OF BOILERMAKERS, ETC. 1597
(1) Notify Consolidated Western Steel Corporation that it has no
objection to the hiring and employment of Ross E. Dulinsky, or any
other person, without prior or subsequent clearance or job referral
from it.
(2) Jointly and severally with Consolidated Western Steel Cor-
poration make Ross E. Dulinsky whole in the manner set forth in the
section of the Intermediate Report entitled "The Remedy," for any-
loss of pay suffered by reason of the discrimination against him .2t
(3) Post in conspicuous places in its offices in San Francisco, Cali-
fornia, and wherever notices to members are customarily posted, copies
of the notice attached hereto as Appendix B.22 Copies of said notice,
to be furnished by the Regional Director for the Twentieth Region,
shall, after being duly signed by an official representative of the Re-.
spondent Union, and by the Respondent Rainbow, be posted by them
immediately upon receipt thereof, and maintained by them for sixty
(60) consecutive days thereafter, in conspicuous places, including all
places where notices to members are customarily posted. Reasonable
steps shall be taken by the Respondent Union and Respondent Rain-
bow to insure that such notices are not altered, defaced, or covered
by any other material.
(4) Mail to the Regional Director for the Twentieth Region signed
copies of the notice attached hereto as Appendix B for posting, the
Respondent Company willing, at its field operations in the vicinity of
San Francisco, California, in places where notices to employees are
customarily posted. Copies of said notice to be furnished by the Re-
gional Director for the Twentieth Region, shall, after being signed as
provided in paragraph II (b) (2) of this Order, be forthwith returned
to the Regional Director for said posting.
(5) Notify the Regional Director for the Twentieth, Region in writ-
ing, within ten (10) days from the date of this Order, what steps it
has taken to comply herewith.
Appendix A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify you that :
WE WILL NOT require applicants for employment to obtain clear=
ance or job referrals from INTERNATIONAL BROTHERHOOD OF BOIL-
." The obiligation to make Dulinsky whole does not extend to Respondent Rainbow. See
footnote 18, supra.
"In the event this Order is enforced by decree of a United States Court of Appeals,
there shall be inserted before the words , "A Decision and Order ," the ward's, "A Decree
of the United States Court of Appeals Enforcing."
1598 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ERMAKERS , IRON SHIP BUILDERS , WELDERS AND HELPERS OF AMER-
ICA, LOCAL #6, AFL, or any other labor organization, as a condi-
tion of employment, except under a nondiscriminatory arrange-
ment permitted by Section 8 (a) (3) of the Act. Nor will we
-discriminate in any other manner in regard to hire or tenure of
employment or any term or condition of employment.
WE WILL NOT in any other manner interfere with, restrain, or
coerce employees or applicants for employment in the exercise of
the rights guaranteed in 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 in Section 8 (a) (3) of the Act.
WE WILL offer Ross E. Dulinsky a position substantially equiva-
lent to that denied him on September 6, 1949, if one is available at
the time of the issuance of the National Labor Relations Board's
Decision and Order, and we will make him whole for any loss of
pay suffered as a result of the discrimination against him.
All our employees are free to become, remain, or to refrain from
becoming or remaining, members of the above-named union or any
other labor organization, except to the extent that this right may be.
affected by an agreement in conformity with Section 8 (a) (3) of
the Act.
CONSOLIDATED WESTERN STEEL CORPORATION,
Employer.
By ----------------------------------------------
(Representative ) (Title)
Dated --------------------
Appendix B
NOTICE
To ALL MEMBERS OF INTERNATIONAL BROTHERHOOD OF BOILERMAKERS,
IRON SHIP BUILDERS, WELDERS AND HELPERS OF AMERICA, LOCAL #6,
AFL, AND TO ALL EMPLOYEES OF CONSOLIDATED WESTERN STEEL
CORPORATION
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify you that :
WE WILL NOT require applicants for employment with CON-
SOLIDATED WESTERN STEEL CORPORATION to obtain clearance or job
referrals from INTERNATIONAL BROTHERHOOD OF BOILERMAKERS,
IRON SHIP BUILDERS, WELDERS AND HELPERS OF AMERICA, LOCAL
#6, AFL, as a condition of employment except under a nondis-
INTERNATIONAL BROTHERHOOD OF BOILERMAKERS , ETC. 1599
criminatory arrangement permitted by Section 8 (a) (3) of the
Act.
WE WILL NOT cause or attempt to cause CONSOLIDATED WESTERN
STEEL CORPORATION , its officers, agents , successors, or assigns, to
discriminate against employees or applicants for employment in
violation of Section 8 (a) (3) of the Act.
WE WILL NOT in any other manner restrain or coerce employees
of, applicants for employment with, CONSOLIDATED WESTERN
STEEL CORPORATION, its successors or assigns , in the exercise of the
rights guaranteed in 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 in Section 8 (a) (3) of the Act.
INTERNATIONAL BROTHERHOOD OF BOILERMAKERS, IRON SHIP
BUILDERS, WELDERS AND HELPERS OF AMERICA, LOCAL #6, AFL,
will make Ross E. Dulinsky whole for any loss of pay suffered be-
cause of the discrimination against him.
INTERNATIONAL BROTHERHOOD OF BOILERMAKERS , IRON SHIP
BUILDERS , WELDERS AND HELPERS OF AMERICA, LOCAL #6,
AFL, Union.
By -------------------------------------------------------
(Representative ) ( Title)
EDGAR RAINBOW.
Dated --------------------
Intermediate Report
Benjamin B. Law, Esq., for the General Counsel.
David P. Evans, Esq ., of Los Angeles , Calif ., for the Respondent Company.
Charles P. Scully, Esq ., of San Francisco , Calif., for the Respondent Union.
STATEMENT OF THE CASE
Upon charges duly filed by Ross E. Dulinsky , an individual , the General Coun-
sel of the National Labor Relations Board,' by the Regional Director of the
Twentieth Region ( San Francisco , California ), issued a complaint dated June
15, 1950 , against International Brotherhood of Boilermakers , Iron Ship Build-
ers, Welders and Helpers of America, Local #6, AFL, herein called the Re-
spondent Union , against Edgar Rainbow, at times referred to herein as Re-
spondent Rainbow, and against Consolidated Western Steel Corporation , herein
called the Respondent Company,2 alleging that the Respondents had engaged
in and were engaging in unfair labor practices affecting commerce within the
meaning of Section 8 (a) (1) and ( 3), Section 8 (b) (1) (A) and 8 (b) (2), and
Section 2 ( 6) and ( 7) of the National Labor Relations Act, as amended, 61
Stat. 136, herein called the Act. Copies of the charges , complaint , and no-
tice'of hearing were duly served upon each of the Respondents.
' The General Counsel and his representative at the hearing are referred to as the
General Counsel. The National Labor Relations Board is herein called the Board.
2 The Respondent Union, the Respondent Company, and Respondent Rainbow are at
times collectively referred to herein as the Respondents.
1600 DECISIONS OF NATIONAL LABOR RELATIONS-BOARD
With respect to the unfair labor practices, the complaint alleged in sub-
stance that: (1) Since June 1, 1949, the Respondent Union and Respondent
Rainbow have caused and attempted to cause the Respondent Company to
require that persons to be employed by the Respondent Company on field
construction work be "cleared" by the Respondent Union as a condition of such
employment; (2) on or about September 3, 1949, and thereafter, the Respondent
Union and Respondent Rainbow, by the above conduct, caused and attempted
to cause the Respondent Company to refuse to employ Dulinsky unless and
until he should be "cleared" by the Respondent Union for such employment;
(3) on or about September 3, 1949, and thereafter, the Respondent Company
refused to employ Dulinsky unless and until he was cleared for such employ-
ment by the Respondent Union; and (4) on or about September 3, 1949, and
thereafter, the Respondent Company refused to employ Dulinsky for the reason
that he was not cleared for such employment by the Respondent Union. The
complaint further alleged that by the foregoing conduct the Respondent Com-
pany has engaged in unfair labor practices within the meaning of Section 8
(a) (1) and (3) and Section 2 (6) and (7) of the Act and that the Respond-
ent Union and Respondent Rainbow have engaged in unfair labor practices
within the meaning of Section 8 (b) (1) (A) and 8 (b) (2) and Section 2 (6)
and (7) of the Act.
On June 23, 1950, the -Respondent Union and Respondent Rainbow filed a
joint answer denying that the Respondent Company is subject to the Board's
jurisdiction, urging that particular sections of the Act are violative of the
Constitution of the United States, and denying that they had engaged in the
alleged unfair labor practices. On June 26, 1950, the Respondent Company
filed its answer, admitting certain allegations of the complaint but denying
that it had engaged in the alleged unfair labor practices. Pursuant to notice
a hearing was held on August.29 and 31, and September 1, 1950,' before Frederic
B. Parkes, 2nd, the undersigned Trial Examiner duly designed by the Chief
Trial Examiner. The General Counsel and the Respondents were represented
by counsel. Full opportunity to be heard, to examine and cross-examine wit-
nesses, and to introduce evidence bearing on the issues was afforded all parties.
At the outset of the hearing, the undersigned granted in part and denied in
part a motion for a bill of particulars filed by the Respondent Union and Re-
spondent Rainbow. At the same time, their motion that the complaint be
dismissed was denied. At the conclusion of the hearing, the motion of the
General Counsel that the pleadings be conformed to the proof in respect. to
minor variances such as names and dates was granted. At the same time,
the undersigned reserved ruling on'the motions of the Respondents that the
complaint be dismissed. These motions are disposed of in accordance with
the findings of fact and conclusions of law made below.
Upon the conclusion of the hearing, the undersigned advised the parties that
they might argue before, and file briefs or proposed findings of fact and con-
clusions of law, or both, with the Trial Examiner. All counsel participated
in oral argument. Thereafter, counsel for the Respondent Company and for
the Respondent Union and Respondent Rainbow each filed a brief with the
undersigned.
Upon the entire record in the case and from his observation of the witnesses,
the undersigned makes the following :
3 Upon the undersigned's motion, the record is hereby corrected to show that the hearing
opened on August 29, 1950.
INTERNATIONAL BROTHERHOOD OF BOILERMAKERS, ETC. 1601.
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT COMPANY
Consolidated Western Steel Corporation, a Delaware corporation with its;
principal office in Los Angeles, California, and a branch office in San Fran-
cisco, California, is engaged in the fabrication of steel plate and the erection:
and installation of steel products. It operates plants at South San Francisco,
Berkeley, Fresno, Taft, and Los Angeles, California, and at Phoenix, Arizona,
and Orange, Texas. As of July 31, 1950, the Respondent employed a total of
6,105 employees. Of these, 94 were employed at its Arizona plant and 1,650
at its Texas operations. The remainder worked in its various. California oper-
The Respondent Company's erection and construction work in the fieldations.
covers the "seven western States,"' Alaska, and Texas. In the course of its;
business, the Respondent Company annually purchases and causes to be shipped'
into the State of California from points in other States of the United States
steel in various forms valued at more than $1,000,000. It is found that the
Respondent Company's operations affect commerce within the meaning of the
Act.
II. THE ORGANIZATION INVOLVED
International Brotherhood of Boilermakers, Iron Ship Builders, Welders and
Helpers of America, Local #6, AFL, is a labor organization admitting to
membership employees of the Respondent Company.
III. THE UNFAIR LABOR PRACTICES
A. Sequence of events
On October 16, 1948, the Respondent Company and the Respondent Union
executed a collective bargaining agreement to be in effect until October 1, 1949,.
and thereafter for successive annual periods unless otherwise terminated. The
agreement contained the following provisions :
Rule 2. Hiring of Alen.
(a) The Contractor recognizes the Union as the sole collective bargaining
agent for all of its employees employed on work covered by the scope of
this agreement.
(b) When the Contractor requires employees to perform the work in-
cluded within the scope of this agreement, the Contractor agrees to notify
the local union having jurisdiction of the job of the number of employes
and classifications required. When the local union is requested to furnish
men, the Union agrees to supply the Contractor with the most competent
workmen available within two (2) working days in metropolitan areas
and three (3) working days in rural areas after the date for which the
men are requested. The Contractor shall not discriminate against em-
ployes in regard to hire or tenure of employment by reason of union
membership.
(c) The Contractor shall have the right to determine the competency
and qualifications of its employes and the right to discharge any employe
for any just and sufficient cause, provided, however, that no employe shall
be discriminated against.
4 These States apparently are Washington , Oregon, California , Idaho, Utah , Nevada,
and Arizona. -
953841-52-vol . 94-102
1602 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(d) In the event the parties, subsequent to the signing of this agreement,
are authorized under provisions of the Labor Management Relations Act,
or its is possible by reason of an amendment or repeal thereof, to enter into
an agreement requiring membership in the Union as a condition of employ-
ment, or in the event it is determined by a final judgment of a court of
competent jurisdiction that such authorization is unnecessary, either party
may give written notice to theother of its desire to reopen the provisions
of this agreement affecting union security. In the event such notice is given
the parties shall meet within fifteen (15) days to negotiate such union
security provisions.
These provisions were included in the succeeded contract, executed by the
Respondent Company and the Respondent Union on August 31, 1949. This
contract contained the following additional provisions, pertinent to the issues
of the proceeding :
Rule 15. Transfer of Employees Within the Jurisdiction of a Local Union
A Contractor may, on jobs located within the territorial jurisdiction of
a local union, transfer its employees, members of said local union, from
one job to another, provided the employees so transferred are in the con-
tinuous employment of the Contractor and provided further that employees
transferred shall not displace employees already working on the new job.
Due to the intermittent nature of field work it is understood that continuous
employment by a Contractor is not broken so long as the layoff between jobs
does not exceed five (5) working days. The Contractor shall notify the
local union at least forty-eight (48) hours prior to any such transfers, the
nature and location of the new job and the names of the employees to be
transferred.
During periods of serious and continued unemployment among competent
and qualified field workers of a local union, when called to the attention
of the Contractor by the business manager of the local union, the Contractor
and the business manager of the local union shall mutually cooperate toward
the distribution of available work among such workmen.
With respect to the practices of the parties under the contract, the record
shows that when job openings arose, the Respondent Company customarily -
notified the Respondent Union that employment was available for certain classi-
fications of employees and requested the Respondent Union to furnish employees
for such vacancies. If competent union members were available for employ-
ment in the classifications requested, the Respondent union referred such members
to the Respondent Company for employment, giving the members a "job referral,"
a union document indicating the name and address of the person referred for
employment, the classification and wage rate of the job for which referral is
made, the name and address of the company to which the person is referred for
employment, and the signature of the business representative of the Union making
the referral.
In a membership meeting in February 1948, the Union adopted certain rules
with respect to the procedure of referring members for employment. Unemployed
members desiring employment were required to register at the Union's offices
and a list of such members was made. Members were referred to jobs in rotation
from the list. If the job was of less duration than 2 days, the member retained
his position on the list, but if the job was for a longer period of time, his name
went to the bottom of the list upon the completion of the job. The regulations
prohibited requests for specific members by name unless the member's regular
INTERNATIONAL BROTHERHOOD OF BOILERMAKERS, ETC. 1603
and established place of employment was with the Respondent Company or one
of the other contractors signatories to the contract.
It was from the rotation list of unemployed members that the Respondent
Union filled requisitions for. employees. In the event that it had no members
available to fill the requisitions for employees, the Union would seek employees
from other sources and refer them to the Respondent Company for employ-
ment. In several instances, when the Union was unable to fill the requisitions
for employees, the Respondent hired employees from sources other than the
Union. These employees were not required "to clear" with the Respondent
Union before commencing their employment, but usually the Respondent Company
informed the Respondent Union of the employment of such persons and the
Respondent Union gave the employees job referrals. In some instances,. Edgar
Rainbow, who was president and business manager of the Union, called upon
the Respondent Company's foremen who had hired such employees and re-
quested that they report to the Respondent Union's offices "for proper clearance
through the job." The record shows that all employees supplied the Respondent
Company by the Respondent Union from its rotation list of members were
members of the Respondent Union, that all employees supplied to the Respondent
Company from other sources were members of International Brotherhood of
Boilermakers, Iron Ship Builders, Welders and Helpers of America, hereinafter
called the International, that all employees hired by the Respondent Company
from sources other than the Respondent Union were members of the Interna-
tional, and that all applicants for the employment with the Respondent have
been members of the International.
On August 29, 1949, the Respondent Company commenced the erection of eight
gas storage tanks at the San Francisco Station A project of the Pacific Gas
and Electric Corporation, hereinafter called the Station A project. Bernard
E. Schroeder, the foreman in charge of the Respondent Company's employees
on the project, testified that he obtained all employees, but two, for the project
by requesting the Respondent Union. "to send men to me, whatever I wanted."
The two who were not hired through requisitions of the Respondent Union were
members of another local of the International. They were transferred from
another operation of the Respondent Company but Schroeder obtained from
the Respondent Union "an o. k. to bring those men over to this job." Schroeder
further testified that he had followed this procedure in obtaining employees for
all other jobs he had supervised since becoming a foreman in 1948. In respect
to the general practice of obtaining employees through requisitions to the
Respondent Union, Schroeder gave the following testimony, on cross-examina-
tion:
Q. Now, did Mr. Rainbow ever tell you that you couldn't put a man to
work unless he had a job referral slip?
A. No, I don't recall of anything told direct to me that way, no.
Q. As a matter of fact, has any member representative of Local #6
ever told you that?
A. I can't recall, but I do believe it has been.
Q. Well, do you know whom, and when?
A. No, I don't recall it.
Q. And with respect to Mr. Dulinsky on cross-examination by Mr. Law,
you said that you made a statement that you could not put men to work
without referral, that you meant that you could, but never did, now, what do
you mean by that?
A. Well, that it has been given in the agreement that we wouldn't do
it, it has been approved in the by-laws with the men that you are hiring
1604 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that if you did put a man to work without a clearance, the men would walk:
off the job.
Q. Well with respect to jurisdiction of Local # 6, have the men ever-
walked-off the job under such circumstances?
A. I never put a man on without one.
Q. As far as Local # 6 is concerned, your answer that they would have-
walked off the job is speculation on your part?
A. More or less.
Q. And so your choice with respect to whether or not you desire to put.
a man to work without a job referral was a question of management wisdom,.
is that correct?
A. That sounds correct to me.
About August 31, 1949, Ross E. Dulinsky, the complainant herein, was em-
ployed as a rigger by the Bigge Drayage Company which was another sub-
contractor on the Station A project and was performing work near the place.
where the Respondent Company was building the gas tanks. Dulinsky had
been referred to the job by the Respondent Union. On September 1, 1949„
Dulinsky encountered Foreman Schroeder at the Station A project and having
worked for the Respondent Company for 6 or 7 weeks in 1948, under the super-
vision of Schroeder, Dulinsky stopped to chat with Schroeder. During the con-
versation, Schroeder inquired as to the duration of Dulinsky's employment
with Bigge Drayage Company and Dulinsky told him that it was "a very short
job." Schroeder told him, according to Schroeder's credible testimony, that
since Dulinsky "was about through with the job that he was on, if there wasn't
work, I would see him there and see what we could do." Schroeder also testified
that he knew at this time that Dulinsky was a member of the Union because he-
had worked for the Respondent before and because he was working for Bigge-
Drayage Company at that time.
On September 2, 1949, Dulinsky's employment by the Bigge Drayage Company
terminated upon the completion of its work for the Station A project. The
same day, Dulinsky met Foreman Schroeder at the project and they discussed
the possibility of Dulinsky's entering the Respondent's employ. According to
Schroeder, "I told him that if he could get a clearance [i. e., a job referral]
from Ed Rainbow [president and business agent of the Union] that he could
go to work on that job."
On September 3, 1949, Dulinsky spoke with Rainbow at the union hall and
informed him of Dulinsky's encounter with Schroeder at the Station A project
and of Schroeder's offer of a job, explaining however that Dulinsky had not
"rustled" the job. Dulinsky requested. that Rainbow give him a job referral to a
job as rigger with the Respondent Company. Rainbow replied that the Respon-
dent Company had not filed a requisition for additional employees with the
Respondent Union and that pursuant to the regulations of the Union, he could
not give Dulinsky a job referral in the absence of such a request. During their
conversation, Rainbow stated, according to the credible and undenied testimony
of Dulinsky; that the Respondent Company "is the outfit we're having trouble
with now in negotiating a new contract . . . they are wanting to have the
hiring of the men."
Following his interview with Rainbow, Dulinsky took out a "travel card"
while at the offices of the Respondent Union. The purpose of a travel card, as
explained by Rainbow's testimony, is to serve as "a record of membership stand-
ing in the union when transferring from one local jurisdiction to, another."
Upon obtaining the travel card, Dulinsky relinquished his membership in Local
#6 but still retained his membership in the International ..,Until his travel
INTERNATIONAL BROTHERHOOD OF BOILERMAKERS, ETC. 1605
,card was deposited with and accepted by a local, he had no membership in any
of the International's locals.
On September 6, the day after Labor Day, Dulinsky reported to Schroeder his
interview with Rainbow and the latter's refusal to give Dulinsky a job referral
to the Respondent Company. Schroeder stated, according to Dulinsky's credible
.and undenied testimony, "It's a god damn crying shame * * * a man wants
.a job and the job wants a man, and a man can't go to work." After some discus-
sion, Dulinsky finally prevailed upon Schroeder to give him the following note
which Dulinsky in turn would present to Rainbow in an effort to obtain a job
,referral to the Respondent. Company :
Ed would you let me have R. Dulinsky as a rigger. He worked here before
and would sure like to have him again.°
Later the same day, Dulinsky returned to the Respondent Union's offices and
:presented the above note, along with his travel card, to Rainbow and requested
that Rainbow give him a job referral to the Respondent Company. Rainbow
.again declined to accede to Dulinksky's request for the reason that the note from
:Schroeder was not a proper requisition by the Respondent Company for an
employee and that Rainbow was not required to accept the travel card because
union regulations provided that "the local union [should] not accept [travel]
cards, applications for membership, or withdraw cards so long as there was an
acute unemployment situation for members without unemployment." At that
time many members of the Union were unemployed.
On September .7, 1949, Dulinsky filed with the Board his initial charge in
'Case No. 20-CB-91, and on September 7 or 8, informed Schroeder of such action.
B. Conclusions
In view of the foregoing, the undersigned finds that by conditioning Dulinsky's
employment upon his obtaining a clearance or referral by the Respondent Union
.and by failing to give him employment for the reason that he was unable to
-obtain such clearance, the Respondent has engaged in violations of Section 8
(a) (1) and (3) of the Act. That this action by the Respondent Company was
-discriminatory in regard to the hire and tenure of Dulinsky's employment is
clear, inasmuch as one of the reasons given by the Respondent Union for its
refusal of his clearance on September 6, 1949, was that he was no longer a
member of Local #6 due to the fact that he had taken a travel card on September
:3, 1949.. The obvious consequence of the Respondent Company's action was to
encourage Dulinsky's membership in a labor organization, namely, Local #6.
In respect to the complaint's allegations of unfair labor practices on the part
of the Respondent Union, the General Counsel initially contends that the pro-
visions of the contract above quoted are illegal. He further contends that the
practice of the parties under the contract amounted to the addition of illegal
hiring, hall provisions to the contract. Since the complaint failed to allege
that the contract or the general practice of the parties thereunder were violative
of the Act, the undersigned makes no specific findings that any of the Respondents
engaged in violations of the Act in respect to the execution of the contract and
5 These findings are based upon the mutually reconcilable testimony of Dulinsky and
Schroeder. On cross-examination, the latter testified that on September 6, Dulinsky did
not ask Shroeder "to put him to work." Although Schroeder's testimony may be
literally true in the sense that Dulinsky did not make such a request in those words, the
testimony is rejected insofar as it implies that Dulinsky was not seeking employment
with the Respondent Company. Other testimony of Schroeder, as well as Dulinsky, and
the note written by Schroeder, in itself , indicate that Dulinsky had not abandoned his
hope of obtaining immediate employment with the Respondent Company. Cf. Daniel
Hamm Drayage Company, Inc., 84 NLRB 458.
1606. DECISIONS OF NATIONAL LABOR RELATIONS BOARD
their general practice thereunder. The complaint alleged, however, that "con-
tinuously since June 1, 1949, respondent Union and respondent Rainbow have
caused and attempted to cause respondent Company to require that persons to be
employed by respondent Company on field construction work be cleared by re-
spondent Union as a condition of such employment," and that by this conduct,
the Respondent Union and Respondent Rainbow engaged in violations of Section
8 (b) (2) and 8 (b) (1) (A) of the Act.
In the undersigned's opinion, the Board's decision in the Acme Mattress case °
is dispositive of this allegation. . Upon a different but analogous fact situation,
the Board therein made the following statement :
The Trial Examiner found that, by causing the Respondent Employer to
enter into an unlawful union-security contract, the Respondent Unions vio-
lated Section 8 (b) (2) of the Act. This finding presupposes some acts by
the Respondent Unions which caused the execution of the unlawful contract.
The record, however, indicates that the Respondent Employer voluntarily
accepted the unlawful union-security provisions. It is devoid of any evi-
dence that the Respondent Unions exerted on the Respondent Employer any
pressure designed to secure acceptance of these provisions. In these circum-
stances we cannot conclude that the Respondent Unions caused the Re-
spondent Employer to accept such provisions, unless we are to hold that by
merely requesting the illegal provisions the Respondent "caused" or "at-
tempted to cause" their acceptance. Such requests, however, are at the most
acts of persuasion which are not proscribed by Section 8 (b) (2). Accord-
ingly, although we agree that the Respondent Unions violated Section 8
(b) (2) in connection with the execution of the contract, we do not base^
our findings on the rationale adopted by the Trial Examiner.?
So far as the record shows, the practice that employees be cleared by the
Union, as well as the practice of requisitioning employees from the Union, was
voluntarily accepted by the Respondent Company without any pressure on
the part of the Respondent Union or Respondent Rainbow. Therefore, it is
found that the record fails to establish that the Respondent Union and Respond-
ent Rainbow caused or attempted to cause the Respondent Company to adopt
these procedures in violation of Section 8 (b) (2) of the Act 8 or of Section 8 (b)
(1) (A)°.of the Act.
Turning then to what the General Counsel termed the primary issue in the
case, the discrimination in respect to the hire of Dulinsky, an examination of
the Respondents' practices under the contract is clearly pertinent. As out-
lined above, the practices of the Respondents in effect established a hiring
hall procedure, closely analogous to that which the Board found to be illegal
in the National Maritime Union case. The general practices of the Respondents,
as a whole and also in particular with respect to the hiring of employees for the
Station A project on which Dulinsky sought employment indicate that requi-
sitions for employees were made by the Respondent Company to the Respondent
Union and that these employees were supplied by the Respondent Union from
a rotating list of its members. In the event that it could not supply the neces-
sary employees from this list, the Respondent Union referred to other sources
6 Acme Mattress Company, Inc., 90 NLRB No. 169.
7 Marginal notes have not been included in this excerpt from the Board' s Decision•
and Order.
8 See also Denver Building and Construction Trades Council, et al ., 90 NLRB 1768;
International Longshoremen's and Warehousemen's Union, et al., 90 NLRB 1753.
° See National Maritime Union of American, 78 NLRB 971 ; Amalgamated Meat Cutter&
and Butcher Workmen of North America, et at., 81 NLRB 1052.
INTERNATIONAL BROTHERHOOD OF BOILERMAKERS, ETC. 1607
for employees and referred members of the International to the Respondent
Company. If the Respondent Union was unable to fill the requisitions for
employees, the Respondent Company obtained employees from other sources
but required them to clear with the Respondent Union. And on some occa-
sions, the Respondent Company transferred employees from other operations
but obtained clearance for such action from the Respondent Union. All such
employees thus hired by the Respondent Company from other sources were
members of the International and Foreman Schroeder's testimony shows that
the Respondent Union demanded and required such employees be cleared with
the Respondent Union. Although these hirings in some measure dissipated
the discriminatory effect of the firing-hall practice, it is nevertheless clear that
the hiring hall as administered by the Respondent Union was unlawful inasmuch
as it discriminated against nonmembers ; indeed, one of the reasons for its
refusal to give Dulinsky clearance on September 6 was the fact that he was
no longer a member of Local #6.
In view of the hiring hall procedures, including the requirement that employees
be cleared with the Respondent Union, and of the Respondent Union's refusal
to grant Dulinsky clearance on September 6, 1949, because of his. nonmember-
ship in Local #6, the undersigned concludes and finds that the Respondent
Union and Respondent Rainbow caused the Respondent Company to discrimi-
nate in regard to the hire of Dulinsky in violation of Section 8 (a) (3) of the Act
and thereby the Respondent Union and. Respondent Rainbow violated Section
8 (b) (2) and 8 (b) (1) (A) of the Act10
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondents set forth in Section III, above, occurring in
connection with the operation of the Respondent Company described in Section
I, above, have a close, intimate, and substantial relation to trade, traffic, and
commerce among the several States, and tend to lead to labor disputes burden-
ing and obstructing commerce and the free flow of commerce.
V. THE REMEDY
Since it has been found that the Respondents have engaged in unfair labor
practices, the undersigned will recommend that each of them cease and desist
therefrom and take certain affirmative action designed to effectuate the policies
of the Act.
It has been found that the Respondent Company has discriminated in regard
to the hire and tenure of employment of Ross E. Dulinsky and that the Respondent
Union and Respondent Rainbow caused the Respondent Company to so discrimi-
nate against Dulinsky. The discriminatory action taken by the Respondents
in respect to Dulinsky was based upon their hiring hall practices which required
employees to be cleared by the Respondent Union in its issuance of a job referral
card. Since the vice of the discriminatory action taken in regard to Dulinsky
arose from these practices, it will be recommended that the Respondents cease
and desist from the practice of requiring employees of and applicants for employ-
ment with the Respondent Company to obtain clearance or job referrals from
the Respondent Union or Respondent Rainbow.
The General Counsel suggested that the undersigned should recommend that
the Respondent Company offer Dulinsky employment in a position comparable
to that discriminatorily denied him on September 6, 1949, if such a position is in
existence at the date of the issuance of the Intermediate Report and that the
10 Clara-Val Packing Company , 87 NLRB 703.
1608 . DECISIONS OF NATIONAL LABOR RELATIONS BOARD
'period to be covered by the back-pay recommendations should run from the date
,of the discriminatory refusal to hire to the date of the offer of employment.
The problem of devising a remedy for the discriminatory refusal to employ
Dulinsky presents some difficulty in view of the nature of the Respondent Com-
pany's field operations in which Dulinsky sought employment. The field opera-
tions are concerned with the erection of steel structures over a wide area and
each field project is of a limited duration. In general, it appears that the
Respondent Company hires the complement of employees necessary for each
project and terminates their employment upon the completion of the project.
-The Respondent Company does not employ a full crew of employees on a perma-
nent basis and shift them from place to place. However, a few employees are
transferred from one job to another. In the main, however, these employees
are pushers and foremen and a few especially skilled employees.
Prior to the hearing herein, the Respondent Company had completed its work
,on the Station A project on which Dulinsky sought employment and had termi-
nated the employment of the 14 boilermakers" who worked on the project.
None of these boilermakers was transferred to another operation of the Respond-
ent Company and only one was subsequently rehired. These circumstances
militate against a recommendation for the Respondent Company to offer Dulinsky
employment. However, it is possible that the unlawful hiring hall procedures
-and the requirements of referral of employees, from the Respondent Union's
rotation list of members may account for the fact that these boilermakers have
:not been reemployed by the Respondent Company.
Upon the foregoing and the entire record, the undersigned will recommend
that the Respondent Company offer employment to Dulinsky if at the time of
the issuance of this Intermediate Report, the Respondent Company has in
existence in its field operation a position for which Dulinsky is qualified and
which is substantially equivalent 12 to that denied him at the time of the
-Respondents' discrimination against him. However, the recommendations in
respect to back pay will be limited to the period from September 6, 1949, to the
-date on which his employment on the Station A project would have been termi-
nated. Since it has been found that the Respondent Company and the Respondent
-Union are responsible for the discrimination suffered by Dulinsky, it will be
recommended that they jointly and severally make him whole for any loss he
-may have suffered from September 6, 1949, to the date when, in the normal course
-of operations, his employment on the Station A project would have ceased, less
his net earnings 13 during said period"
"Although Schroeder's note to Rainbow indicated that Schroeder contemplated hiring
'Dulinsky as a rigger , it appears that the position would have been classified as that of
a boilermaker.
12 See The Chase National Bank of the City of New York, San Juan , Puerto Rico , Branch,
'65 NLRB 827.
33 Crossett Lumber Company , 8 NLRB 440 ; F. W. Woolworth Company, 90 NLRB 289.
14 The General Counsel at the hearing urged that Respondent Rainbow should be made
,jointly responsible with the other Respondents for the back-pay reimbursement to Dulinsky,
stating, "As to his personal liability, I think under the Act, Mr. Rainbow individually,
as agent of the union, could be liable to Mr. Dulinsky for back pay." The undersigned
does not so construe the Act, or the legislative history, and accordingly has not recent.
mended that Respondent Rainbow be made responsible for the reimbursement of Dulinsky.
Although the record establishes fully Respondent Rainbow's responsibility for causing
Dulinsky ' s discharge , the statute does not, in literal terms , confer upon the Board power
to direct the agent of a labor organization to reimburse an employee for back wages lost
as a result of discriminatory action against him. Section 10 (c) provides that in the
Board's remedial order, it may require back pay of an "employer or labor organization."
The provision makes no reference to an agent of a labor organization , although Section 8
(b) specifically prohibits the commission of unfair labor practices both by labor organiza-
tions and their agents . In view of the specific inhibitions imposed separately upon a
INTERNATIONAL BROTHERHOOD OF BOILERMAKERS, ETC. 1609
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. The operations of Consolidated Western Steel Corporation constitute trade,
traffic, and commerce among the several States within the meaning of Section
2 (6) and (7) of the Act.
2. International Brotherhood of Boilermakers, Iron Ship Builders, Welders
and Helpers of America, Local #6, AFL, is a labor organization within the
meaning of Section 2 (5) of the Act.
3. By discriminating in regard to the hire and tenure of employment of Ross
E. Dulinsky, thereby encouraging membership in a labor organization, the
Respondent Company has engaged and is engaging in unfair labor practices
within the meaning of Section 8 (a) (3) of the Act.
4. By causing the Respondent Company to discriminate in regard to the hire
and tenure of employment of Ross E. Dulinsky in violation of Section 8 (a) (3)
of the Act, the Respondent Union and Respondent Rainbow have engaged and
are engaging in unfair labor practices within the meaning of Section 8 (b) (2)
of the Act.
5. By interfering with, restraining, and coercing employees in the exercise of
the rights guaranteed in Section 7 of the Act, the Respondent Company has
engaged in unfair labor practices within the meaning of Section 8 (a) (1) of
the Act.
6. By restraining and coercing employees of the Respondent Company in the
exercise of their right to refrain from any and all of the concerted activities
guaranteed by Section 7 of the Act, the Respondent Union and Respondent
Rainbow have engaged and are engaging in unfair labor practices within the
meaning of Section 8 (b) (1) (A) of the Act.
7. 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.]
"labor organization" and its "agents " by Section 8 (b), and of the definition of labor
organization" provided by Section 2 (5) of the Act, it may not be assumed that Congress
intended the term "labor organization ," as used in Section 10 ( c), to include its "agents."
The coupling of the words " labor organization" and "agents" in Section 8 (b) by specific
use of the terms and the omission of "agents" from the relevant provision of Section 10
(c) evidences a statutory design to limit the obligation for back pay to employers and
unions. The undersigned will accordingly not recommend that Respondent Rainbow
reimburse Dulinsky for wage losses resulting from the discrimination against him.
C. A. BRAUKMAN and LUCILLE BRAUKMAN D/B/A S CREW MACHINE
PRODUCTS COMPANY and INTERNATIONAL UNION OF OPERATING ENGI-
NEERS, LOCAL 1. AFL. Case No. 30-CA-34. June 27, 1951
Decision and Order
On December 29, 1950, Trial Examiner C. W. Whittemore issued
his Intermediate Report in the above-entitled proceeding,' finding
'Trial Examiner Josef L. Hektoen conducted the hearing in this proceeding but due
to his death Trial Examiner Whittemore prepared the Intermediate Report.
94 NLRB No. 234.