Local 542Download PDFNational Labor Relations Board - Board DecisionsMay 31, 1957117 N.L.R.B. 1863 (N.L.R.B. 1957) Copy Citation LOCAL 542 1863 Local 542, International Union of Operating Engineers, AFL- CIO [Koppers Company, Inc.] and James J. Russell Local 542, International Union of Operating Engineers, AFL- CIO, and Edward Piscatelli , Business Agent [ Catalytic Con- struction Company] and William J . McElhill A. C. Frommeyer, Charles M. Foley and Joseph E. Murphy, a partnership doing business as Frommeyer & Company and William T. MacDougall Local 542, International Union of Operating Engineers, AFL- CIO and William T. MacDougall Local 542, International Union of Operating Engineers, AFL- CIO, and A. L. Smith , Business Agent [R . S. Noonan , Inc.] and Harold E. Naugle Local 542 , International Union of Operating Engineers , AFL-CIO [G. H. D. Construction Co. and Cestone Construction Company, Inc.] and Stanley Dombroski . Cases Nos. 4-CB-215,4-CB-239, 4-CA-1101, 4-CB-9218, 4-CB-246, and 4-CB-251. May 31,1957 DECISION AND ORDER On March 7, 1955, Trial Examiner C. W. Whittemore issued his Intermediate Report in the above-entitled proceeding, finding that the Respondents had engaged in and were engaging in certain unfair labor practices and recommending that they cease and desist there- from and take certain affirmative action as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the Respondent Union, the Respondent Employer (Frommeyer & Company), and the General Counsel filed exceptions to the Intermediate Report and supporting briefs. The Board has reviewed the rulings of the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Interme- diate Report, the Respondents' exceptions and briefs,' and the entire record in the case, and hereby adopts the findings, conclusions,2 and recommendations of the Trial Examiner, to the extent consistent herewith. The essential, substantive allegation of the complaints in this con- solidated case is that Respondent Local 542, International Union of Operating Engineers, AFL-CIO, is resorting to unlawful methods, 1 The Respondents' request for oral argument is hereby denied as the exceptions and briefs and the record as a whole adequately present the issues and the positions of the parties 2 The Trial Examiner inadvertently failed to find that Respondent Pi ommeyer & Com- pany is engaged in commeice within the meaning of the Act We hereby find that it is, and that it will effectuate the policies of the Act to assert jurisdiction over its operations. 117 NLRB No. 238. 1864 DECISIONS OF NATIONAL LABOR RELATIONS BOARD within the geographic area of its jurisdiction, to compel individual workmen to comply with the Local's internal working rules. Five ,separate individuals, each working for a different employer, filed charges accusing this one Local of causing their employers to dis- criminate against them, at the behest of the Union, each time in viola- tion of Section 8 (b) (2) of the statute. The record as a whole reveals a studied pattern of consistent misconduct in the Union's dealings with all of the companies. Only one of the employers is also named respondent. Case No. 4-CB-239 (McElhill, Charging Employee; Catalytic Construction Company, Employer) McElhill was originally sent to the Catalytic Construction Com- pany by Respondent Local 542 pursuant to this Company's practice of, -calling upon the Union for employees as needed. On September 13, 1954, Supervisor Davis told McElhill he was no longer needed on the particular work he had been doing, and that he would be put on new work, operating a tugger hoist, on September 15. Davis also told Union Steward Mogan of his intentions in this respect. The steward replied that he would get in touch with the business agent. On the 15th, Mogan told Davis that McElhill could not be put to work on the hoist. Also on the same day, Business Agent Piscatelli told Davis that McElhill only held an "A" card,' and therefore could not work on the tugger hoist. After some harsh words between them, McElhill and Piscatelli almost came to blows, but other employees intervened. McElhill finished only that day's work and was laid off. Two days later, he filed a charge against the Union. Within 10 ,days, Catalytic notified McElhill that it would employ him as a tugger operator on the 29th, and he was restored to his job. ,Case No. 4-CA-1102; 4-CB-218 (MacDougall, Charging Employee; Frommeyer & Company, Employer and Respondent) MacDougall was a "B" branch member of Local 542. During April and May 1954, he worked for H. K. Ferguson, a construction con- tracting company. At that time, Frommeyer & Company was a sub- contractor on the same project. MacDougall was told by his super- visor of the Ferguson Company that his job would end in several weeks, and that if he communicated with Local 542's business agent, Piscatelli, he might obtain work with Frommeyer on a hoist expected to arrive on the site. Instead, MacDougall first approached From- meyer Construction Superintendent Corrigan several times and asked for the job. Corrigan told him he could have it when it started. 3 The Respondent Local is composed of a parent body and three branches • A-for ap- prentice engineers or oilers ; B-for organizing purposes , and C-for employees in mate- rial yards LOCAL 542 1865 MacDougall then spoke about the job to Piscatelli, who informed him that he did not have the appropriate union book and threatened to bring charges against MacDougall if he accepted the job. On the day MacDougall's work for Ferguson ended, and he was laid off, Clayton, the Local 542 steward for the project, approached Corrigan and MacDougall as they were talking and said to both of them that MacDougall could not have the job unless he first cleared with Piscatelli. Again MacDougall called Piscatelli and again Piscatelli repeated that he could not have the job, and added that MacDougall would not work in Delaware-"to go to Pennsylvania if he wanted a job." The hoist job was eventually filled by a member of Local 542 sent by Piscatelli. Before accepting this man, however, Corrigan told MacDougall that he would not put him on the hoist unless MacDougall straightened things out with Piscatelli. Case No. 4-CB-246 (Naugle, Charging Employee; R. S. Noonan, Inc., Employer) Naugle was a member of a Florida local of the International Union of Operating Engineers. In 1954 he was working for the Noonan Company. While he was on the job, Smith, another business agent of Local 542, in the presence of Noonan's Superintendent Gould, asked Naugle to show his union book. Naugle displayed his Florida book, whereupon Smith turned to Gould and said : "I want this guy fired." A few days later, Gould told Naugle to leave the job and replaced him with a member of Local 542. Shortly thereafter, the business agent told George Noonan, the Company's executive vice president, that Naugle could not be employed because "he was not a member in good standing" of Local 542. Case No. 4-CB-251 (Dombroski, Charging Employee; G. H. D. Construction Co., Employer) Dombroski was a member of the Respondent Union's "parent body." On November 2,1954, he applied for a job with the G. H. D. Company, which was engaged on a project jointly with Cestone Construction Company. He asked DeMilia, a G. H. D. officer, for a job. DeMilia referred him to Cimarelli, the master mechanic, who was both super- visor on the job and union steward for Local 542. Cimarelli told Dombroski he had to "clear yourself through the union," and declined to take Dombroski's name and address because "Pete Pantaleo raised the heck with me." Pantaleo is another business agent of Local.542. Cimarelli then added, "you can't oil anyway, Stanley. Your book don't call for oiling."' He also told Dombroski, according to employee, Slatky, who was standing by, "you couldn't have the job because you; are a [member of the] parent body." 1866 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The next day, Dombroski returned to the job site and again spoke to DeMilia, who then also told him that he had to clear through the Union. And again Cimarelli repeated to Dombroski that he must clear with the Union, and that he would be put to work if he obtained the clearance. Whereupon Dombroski tried to communicate with Pantaleo but was unable to locate him at the union hall. About a week later, he returned to the Company and asked DeMilia to call Pantaleo for him; DeMilia refused. Finally, Dombroski made a last visit to the job site, where DeMilia said he had spoken to Pantaleo and the union official had refused to approve his employment. Dombroski never got the job. Case No. 4-CB-215 (Russell, Charging Employee; Koppers Company, Inc., Employer) Russell was also a member of the Union's parent body. He had worked for a year at a Koppers project in Philadelphia. When that work ended, Hoskins, in charge of the project, told him he would be needed at a new project in Bethlehem, Pennsylvania. When the Bethlehem job started, Hoskins told Clyde Smith, the Local 542 steward there, that he had arranged for Russell to come to work. The steward replied that Russell would have to be cleared with the steward's father, A. L. Smith, the Local's business agent, because there were unemployed members of the Local in the area. Hoskins at- tempted to obtain the clearance from the business agent, who simply refused to give it and stated flatly he did not want Russell on the job. Whereupon Hoskins reported the business agent's adamant position to Russell and assured him that if he could obtain the clear- ance himself, the job would be waiting for him. Russell made the attempt; he called Lavery, an official of the International Union, with authority over Local 542, reported Smith's action, and asked for direct, higher clearance. Lavery refused the request. At that point, Russell filed his charge against the Local. A few days later, on May 3, Lewis, the field agent of this Board on the case, called Russell and advised him that Hoskins had relented and agreed Russell could start work on May 5. When Russell re- ported for duty, Hoskins took him into the office where Union Stew- ard Clyde Smith demanded that Russell show his union book; be- cause Russell could not produce it then and there, the steward said he could not work. At Hoskins' request, Russell started back to Philadelphia to obtain a book. On the way, he reported his diffi- culties once again to Field Examiner Lewis. Lewis told him to turn back to the job, and when Russell arrived once again in the office, he was put to work. That Local 542 caused or attempted to cause outright loss of jobs to each of the five employees here involved is the clearest fact that LOCAL 542 1867 'emerges from this evidence. McElhill was scheduled to start work on a hoist for Catalytic on September 15, but instead was laid off that same day only because both the union steward and the business agent ,of Local 542 told the Company's supervisor that McElhill would not be permitted to operate the hoist. Corrigan, of the Frommeyer Com- pany, gave a job to MacDougall, but when another Local 542 steward, parroting ' Piscatelli-the same business agent-said the Company could not hire MacDougall, Corrigan took, on a 542 member in his .stead. Naugle was peacefully at work with the Noonan Company when another Local 542 business agent, Smith, ordered the Company to release him because he had the wrong book and "was not a mem- ber" of Local 542; Naugle was laid off. The G. H. D. Company re- ferred Dombroski's application for employment to its master me- chanic, the supervisor with hiring authority for the Company, who was also the union steward representing Local 542 on the job. This hiring boss-union agent refused to hire Dombroski, candidly admitting the sole reason as the Union's objection to him 4 Finally, Russell had worked for a year for Koppers when a Local 542 business agent told the Company to deny him a particular assignment because he was not acceptable to the Union; promptly the Company conditioned its continued employment of Russell upon union approval, and only re- stored him to his job after an unfair labor practice charge had been filed and a Board agent stepped into the picture. As stated above, the complaint alleges that all this conduct aimed at causing employment discrimination against these employees was in violation of Section 8 (b) (2). We agree with the Trial Examiner's ultimate conclusion that in each instance Respondent Local 542 caused or attempted to cause the discrimination "to encourage" mem- bership in the Union as that phrase is used in the statute.5 In his dis- cussion of the case, the Trial Examiner commented on certain con- tracts in existence-some very old and some new-between Local 542 and various of the separate employers involved. There is no allega- tion, however, that any existing contract is in itself a continuing un- 4 For a very recent court reaffirmation of the principle that in the construction industry a hiring supervisor who represents the union as steward on the job binds both the employer and the union business conduct, see N L P B. v. Local 1976, United Brotherhood of Carpenters (Sand Door ii Plywood Co ), 241 F. 2d 147 (C A. 9), enfg 113 NLRB 1210. 5 We also adopt the Trial Examiner's finding that by denying employment to MacDougall at the insistence of Local 542, the Fronimeyer Company, a respondent here, violated Sec- tion 8 (a) (3) and (1) of the Act. In its exceptions, Frommeyer rests principally upon an attack of the Trial Examiner's credibility resolutions. The record furnishes no basis for reversing the Tiial Examiner's credibility findings. See Standard Thy Well Products, Inc, 91 NLRB 544 One of this Respondent's main arguments is that MacDougall never asked for a job, and they advert to the testimony of Corrigan, who denied that MacDougall had done so. However, later in his testimony, Corrigan stated that he told MacDougall, "Look buddy, will you go look foi a job somewhere else"This one key contradiction alone suffices to support the Tiial Examiner's credibility resolution, and nothing appears in the record to cast doubt upon the ciedibihty of MacDougall, on whose testimony the Trial Examiner largely ielies for his findings 1868 DECISIONS OF NATIONAL LABOR RELATIONS BOARD fair labor practice apart from the events which prompted this proceed- ing. It may well be that, if fully litigated, some of these contracts would prove to be unlawful, as the Trial Examiner found, or perhaps quite legal, as the Union contends. As they were not put in issue, and as, in our view of the case, there is no other necessity to evaluate them, even tangentially, we do not adopt the Trial Examiner's comments or recommended findings with respect to any agreements, written or otherwise.' To the extent that the Trial Examiner found it necessary to rely, even in part, on any contract or agreement between the parties as az predicate for his ultimate conclusion, we part from his theory of the case. We are satisfied instead, and we find, entirely apart from any agreement With the Employers, that the Union's outspoken motiva- tion was to compel the employees to accede to the Union' s, or its agent's, conception of what form of union activities these employees should engage in. This purpose is clear on the record as a whole, was revealed to the employees themselves, and may not, on now well- settled law, be effectuated through discrimination in employment.7 The root dissatisfaction of Local 542 with the Charging Employees• in this case resulted from their apparent unwillingness to conform with the Union's requirement of membership in the Union, or in par- ticular of its branches, and an agreed condition precedent to accepting certain types of work assignments. Thus, the evidence was presented generally in terms of failing to possess the right "union book." As in other cases in which a number of separate but related violations are, charged, the affirmative proof as to some will be unmistakable and direct, while as to others it may be indirect, or slightly weaker. The overall picture of singleness of purpose, however, is not thereby less, persuasive. The situation is quite analogous to multiple discharges for union activities, where the inference of illegal motivation as to a few is strengthened by the unequivocal proof of unlawful object in the discharge of others. The evidence as to Naugle is very direct. Business Agent Smith first told Gould to discharge Naugle when the latter showed a Florida "book" instead of a local one. He ended by telling the Company's executive vice president that Naugle could not work there because he was not a member in good standing of Local 542. A clearer violation O Although the Intermediate Report is not clear on this point, it may be read as mean- ing that the Trial Examiner found, even apart from any contract or understanding, that a practice of carrying on activity violative of Section 8 (b) (2) and ( a) (3) existed be- tween Local 542 and some of the Employers involved in this case Indeed, the General Counsel in his brief urges that such finding be definitely made now. As the entire record reveals only one instance of unlawful conduct by the Union with respect to any single Employer, we find the evidence insufficient to warrant any conclusion as to the ex- istence of a general practice of like conduct We therefore do not find that any unlawful practices existed 7 County Electric Co., Inc, et al , 116 NLRB 1080; North East Texas Motor Lines, Inc., 109 NLRB 1147, 1149; Myles Woo stell, et al, 114 NLRB 503. LOCAL 542 1869 of the law could not be proved ! Business Agent Piscatelli made the Catalytic Company discharge McElhill for the stated reason that he held only an "A" card. Again, there can be no question but that all that was involved was membership in the right labor organization. MacDougall lost his job because, in the words of Piscatelli again, he did not have the "appropriate union book." When Union Steward Cimarelli first refused to hire Dombroski he said only that union clear- ance was required; he added, however, "your book don't call for oiling." But here again the Union's objections to Dombroski was not an abstraction in a vacuum, but rather some form of wrong member- ship, for the phrase "union book" has already taken on such clear meaning in this very case. Cimarelli also said "you couldn't have the job because you are a parent body." And lastly, the ostensible objec- tion to Russell was that he was from another area. However, Union Steward Clyde Smith also refused to let him work because Russell could not forthwith produce his union book, and A. L. Smith, the business agent, admitted at the trial that he had no objection to Russell 's employment " as long as his union dues were paid." We deem the foregoing evidence more than sufficient as substantive proof that in each and every instance involved, Local 542 was de- termined, not always successfully, to enforce its internal union rules of organization upon the individual employees who brought charges. The various defenses urged in the exceptions are entirely without merit. It is late in the day for the Union to argue that because the International constitution requires the Local's consent before a non- member could work in the jurisdiction, a discrimination in employ- ment based on union membership or lack thereof becomes lawful.' Nor do we accept the contention that all that was involved in some of these incidents was a matter of geography, an objective criterion unrelated to union membership. In the light of the total picture of this case, this assertion rings hollow. If Russell's Philadelphia resi- dence was the sole cause of the Union's concern in Bethlehem, why did the steward ask for his union book later, or the business agent say that Russell's unpaid dues prevented his employment? Naugle's Florida residence was also urged as the Union's concern, but as to him the General Counsel proved directly that the real reason was outright preference for Local 542 members. In any event, the overall unlawful conduct is clear and we find that Respondent Local 542 violated Sec- tion 8 (b) (2) and 8 (b) (1) (A) by causing discrimination in em- ployment against Russell, McElhill, MacDougall, and Naugle, and in attempting to cause a discrimination in employment against Dom- broski. We also find that the Respondents, Edward Piscatelli and A. L. Smith, business agents of Local 542, violated Section 8 (b) (2) 8 See Utah Construction Co. 95 NLRB 196, 206 The proviso to Section 8 (b) (1) (A) "does not excuse unlawful hiring practices made pursuant to Union regulations " 1870 DECISIONS -OF NATIONAL LABOR RELATIONS 1 BOARD and 8 (b) (1) (A) by causing a discrimination in employment against McElhill and Naugle. ORDER Upon the entire record in these cases, and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that : 1. Respondent A. C. Frommeyer, Charles M. Foley and Joseph E. Murphy, a partnership doing business as Frommeyer & Company, its officers, agents, and assigns shall : a. Cease and desist from : (1) Encouraging membership in Local 542, International Union of Operating Engineers, AFL-CIO, or in any other labor organization, by conditioning the employment of properly qualified applicants for employment upon membership in or referral by the said labor organi- zation, or by discriminating in any other manner in regard to hire and tenure of employment of employees, or any term or condition of their employment. (2) In any manner interfering with, restraining, or coercing em- ployees or applicants for employment in the exercise of their right to self-organization, to form labor organizations, to join or assist the above-named or any other labor organization, and to engage in other concerted activities for the purposes of collective bargaining-or other mutual aid or protection, or to refrain from any or all such activities, 'except to the extent that such right may be affected by an agreement authorized by Section 8 (a) (3) of the Act, requiring membership in a labor organization as a condition of employment. b. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (1) Jointly and severally with the Respondent Union, make William T. MacDougall whole in the manner set forth in the section of the Intermediate Report entitled "The Remedy." (2) Preserve and make available to the Board or its agents upon request, for examination and copying, all payroll records, social- security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of back pay due MacDougall and the rights of employment under the terms of this Order. (3) Post at its office in Philadelphia, Pennsylvania, copies of the notice attached hereto marked "Appendix A." Copies of said notice, to be furnished by the Regional Director for the Fourth Region, shall, after being duly signed by the Respondent's representative, be posted by it immediately upon receipt thereof, and conspicuously maintained by it for sixty (60) consecutive days thereafter in all places where notices to employees are customarily posted. Reasonable steps shall LOCAL 542 1871 be taken by the Respondent to insure that such notices are not altered, defaced, or covered by any other material. (4) Notify the Regional Director for the Fourth Region in writing, within ten (10) days from the date of this Order, what steps it has taken to comply herewith. 2. Respondent Local 542, International Union of Operating En- gineers, AFL-CIO, and its officers, representatives, and agents, and Business Agents Edward Piscatelli and A. L. Smith, shall : a. Cease and desist from : (1) Causing or attempting to cause Frommeyer & Company, its officers, agents, successors, or assigns, or any other employer to dis- charge, refuse to hire, or otherwise discriminate against employees or applicants for employment in violation of Section 8 (a) (3) of the Act. (2) In any other manner restraining or coercing employees of any employer within its jurisdiction in the exercise of the rights guaran- teed in Section 7 of the Act, except as such rights may be affected by an agreement authorized under the Act. b. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (1) Jointly and severally with the Respondent Frommeyer make William T. MacDougall whole in the manner set forth in the section of the Intermediate Report entitled "The Remedy." (2) Notify the Charging Parties named herein and respective em- ployers that it has no objection to their hire or reinstatment, as the case may be. (3) Make whole James J. Russell, William J. McElhill, Harold E. Naugle, and Stanley Dombroski for any loss of pay they may have suffered as a result of the discrimination against them, in the manner set forth in the section of the Intermediate Report entitled "The Remedy." (4) Post in conspicuous places at the business office of the Re- spondent Union, and in all places where notices or communications to. its members are customarily posted, copies of the notice attached hereto marked "Appendix B." Copies of said notice, to be furnished by the Regional Director for the Fourth Region, shall, after being duly signed by the Respondent Union's representative, be posted by it immediatley upon the receipt thereof, and maintained by it for a period of sixty (60) days thereafter. Reasonable steps shall be taken to insure that said notices are not altered, defaced, or covered by any other material. (5) Notify the Regional Director for the Fourth Region in writing, within ten (10) days from the date of this Order, what steps the Respondent Union has taken to comply herewith. 1872 DECISIONS OF NATIONAL LABOR RELATIONS BOARD MEMBER MURDOCK, dissenting in part : In this case, as in the recent Marley decision,9 the majority, faced squarely with the issue of whether an employer and a union can law- fully agree to require all employees to be cleared through a union hir- ing hall, again refuses to pass upon that issue. This matter is of such paramount importance to employers, employees, and unions, par- ticularly those in the maritime and construction industries, that I must view with concern the Board's continual refusal either to re- affirm and apply precedents which establish that a union and an em- ployer may lawfully agree on an exclusive nondiscriminatory hiring hall or to reverse existing precedent and hold that they may not. Section 8 (b) (2) makes it an unfair labor practice for a labor organization or its agents "to cause or attempt to cause an employer to discriminate against an employee in violation of subsection [8] (a) (3) . . ." Neither that section of the Act nor Section 8 (b) (1) (A) makes it an unfair labor practice for a union to insist that its members conform to union rules. Indeed, the latter section specifically provides that "this paragraph shall not impair the right of a labor organization to prescribe its own rules with respect to the acquisition or retention of membership therein." Nowhere in this statute is a union forbidden to require that one of its members show his union book when requested by a union steward or other authorized agent. Nowhere in this statute is a union required to refer to a particular job any em- ployee merely because the employee requests that the union do so. The prohibition of Section 8 (b) (2) is against employer, not union, discrimination. The evidence in this case, in my opinion, clearly reveals, as the Trial Examiner found, that there was a tacit agreement or under- standing between the Respondent Union and these Employers pro- viding for the clearance of workmen by the Union for the several projects involved. Having made that finding, which the majority refuses to adopt, I believe the Trial Examiner did not correctly apply Board and court decisions in holding that the Union violated Section 8 (b) (2) and (1) (A) in 4 of these 5 cases. The Trial Examiner does not find nor is there any evidence in those cases that the Charging Parties were denied referral by the Union because they were not members of the Union. Indeed, the record shows that the latter employees were all members of the Union and were denied referral to the particular jobs they wanted because they lacked the proper quali- fication for such jobs or because other unemployed workmen were entitled to such referrals on a rotation basis. Thus, McElhill was denied referral as an operator of heavy equipment because his "A" book classified him as an oiler or apprentice. Russell was denied a referral only because there were other unemployed members who were 0 The Marley Company, 117 NLRB 107. LOCAL 542 1873 already registered ahead of him for employment with the Union. McDougall could not be referred because his "B" book did not qualify him as an operator of a tugger hoist. Dombroski demanded to be referred to the job of an oiler when his classification called for the more highly skilled job of an operator of heavy equipment, the type of job McElhill was denied because he could only classify as an oiler. It seems to me quite clear that the Union 's reasons for denying refer- rals to these particular individuals can hardly be considered discrimi- natory. In the processing of employees through a hiring hall, as in an employment agency, no applicant can always have the particular job he wants. First, he must be qualified for the job and, second, his right to be referred cannot be superior to the rights of other unem- ployed applicants. If an applicant's right is paramount, regardless of qualification or his place on an unemployment roster, then, as the Court of Appeals for the Sixth Circuit has held,10 affirming my dissent- ing opinion in the Turner Construction case, the employee who would normally have been referred "could more realistically complain of dis- crimination as to him. " To establish that the Union violated the Act in the administration of its hiring hall the burden was on the General Counsel to prove that the Union's categorization of its members, ostensibly on the basis of their qualifications to perform certain types of work and rotation of employment opportunities , was, in fact, designed to discriminate against some members in favor of others. But the General Counsel has not alleged that the Union engaged in such discrimination , the Trial Examiner has not found it, and the record contains no evidence from which such a finding can be inferred. The correct rule of law with regard to exclusive hiring halls is by now judicially well established and can be found in the decisions of three circuit courts of appeals. In Eichleay Corporation v. N. L. R. B., 206 F. 2d 799, 803, the Court of Appeals for the Third Circuit stated the principle as follows: We agree with Eichleay that "The factor in a hiring-hall arrangement which makes the device an unfair labor practice is the agreement to hire only union members referred to the em- ployer." Del E. Webb Construction Co. v. N. L. R. B., 8 Cir., 1952, 196 F. 2d 841, 845 . A referral system is not per se improper, absent evidence that the union unlawfully discriminated in sup- plying the company with personnel. N. L. R. B. v. Swinerton; 9 Cir., 1953, 202 F. 2d 511; Hunkin-Conkey Construction Co., 95 NLRB 433 (1951). In the Swinerton case, supra , at page 514 , the Court of Appeals for the Ninth Circuit held that the burden of proving discrimination by iu Al L R B v Turner Construction Company, 227 F 2d 498, 501, reversing 110 NLRB 1860 428784-57--vol 117-119 1874 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the union in the administration of a referral system was on the General Counsel : An employer violates § 8 (a) (3) and (1) of the Act if he requires membership in a labor organization as a condition precedent to employment. N. L. R. B. v. Cantrell, 9 Cir., 1953, 201 F. 2d [C. A. 9]. The Board has contended that adoption of a system of union referral or clearance also violates the Act absent a "guarantee that the union does not discriminate against non- members in the issuance of referrals." We do not believe Na- tional Union of Marine Cooks and Stewards, 90 NLRB 1099 (1950), supports this view. Although it was there noted that the provisions of an applicable labor contract prohibited such dis- crimination, the Board did not indicate that a referral system was per se improper absent a "guarantee" of non-discrimination. Such a rule would in practical effect shift the burden of proof on the question of discrimination from the General Counsel of the Board to the respondent. The rule which we deem proper was recognized by the Board in Hunkin-Conkey Const. Co., 95 NLRB 433 (1951), where it was said an agreement that hiring of em- ployees be done only through a particular union's office does not violate the Act "absent evidence that the union unlawfully dis- criminated in supplying the company with personnel." 95 NLRB at 435. Cf. Del E. Webb Const. Co. v. N. L. R. B., 8 Cir., 1952, 196 F. 2d 841, 845." [Emphasis supplied.] The doctrine of the above cases has been cited with approval by the Court of Appeals for the Sixth Circuit in N. L. R. B. v. F. H. McGraw and Co., 206 F. 2d 635, 640. There is no contention by the General Counsel that the arrangement between the Union and the several Employers in these cases contem- plated the referral of union members only. Indeed, 4 of the 5 Charg- ing Parties were members of this very Local and can scarcely complain that nonmembership was the reason for their failure to obtain the jobs they sought. I would therefore dismiss the complaints in all of these cases, except Case No. 4-CB-246, which I shall discuss below. I turn now to a discussion of what the majority is actually deciding in this consolidated case and the serious impact of that decision in the field of labor relations. If I understand its decision correctly, the majority assumes, first, that there was no agreement "written or other- wise" between the Union and the Employers involved. The majority then holds that the unilateral action of the Union in refusing to refer certain of its members to the jobs they wanted, without regard to their qualifications or positions on an unemployment roster, is a violation of Section 8 (b) (2) and (1) (A). The majority relies upon no finding that these Employers were in any manner obligated to hire the LOCAL 542 1875 employees referred by the Union. Nevertheless, the conclusion is reached that the Union by its refusal to refer them somehow caused the Employers to discriminate against the Charging Parties. No de- cision cited by the majority supports this conclusion. Three cases cited in footnote 3 of its decision all find a violation of Section 8 (b) (2) of the Act on the basis of an unlawful contract or arrangement between the Respondent Union and an employer. The majority's de- cision is, I believe, squarely contrary to decisions of the Courts of Appeals for the Sixth and Tenth Circuits. In a most recent decision the Court of Appeals for the Tenth Circuit, N. L. R. B. v. Brotherhood of Painters, etc., 242 F. 2d 477, modifying the Board's decision in Brotherhood of Painters, etc. (Spoon Tile Company), 114 NLRB 1171,1173, held as follows : There is no evidence that the union ever negotiated with the employer to channel job applicants through the union. The facts relied on by the Board, if sufficient to show an illegal hiring practice, show only that such a practice existed as a unilateral policy of the employer with nothing more than passive acquies- cence upon the part of the union. Neither employer nor union can be held accountable for the unilateral actions of the other. Neither is bound to police the other nor can it be inferred that an unfair labor practice indulged in by one is caused by the un- disclosed activity of the other or through the tacit understanding of both. Evidence of such activity or understanding is necessary. Webb v. N. L. R. B., supra [Del E. Webb Construction Co. v. N. L. R. B., 196 F. 2d 841 (C. A. 8)]. We find nothing in this record to indicate that Spoon Tile was not free to employ non- union men at the jobsite or to discontinue, at its pleasure, the use of the union's facilities for procuring workmen. We conclude that the evidence is insufficient to sustain the Board's finding that the union enforced an illegal hiring practice under these cir- cumstances. [Emphasis supplied.] A similar situation was presented in N. L. R. B. v. Turner Con- struction Company, supra. There the Court of Appeals for the Sixth Circuit upheld my dissenting opinion that a Union does not violate Section 8 (b) (2) of the Act merely because it refuses to refer 1 of 2 available workmen for a particular job. If the majority's decision in this case becomes established law, con- trary to existing precedent, I believe it will create havoc in this area of labor relations. For it means that no union can lawfully operate a hiring hall on a businesslike basis. It means that construction super- intendents, moving into an area in which they are unfamiliar with the skills of particular workmen, cannot rely on a union to send them the men qualified to perform particular jobs. A union that cannot 1876 DECISIONS OF NATIONAL LABOR RELATIONS BOARD classify men into various branches of a local on the basis of their skills or fairly list them on an unemployment roster cannot possibly be of any use to its members or others who come to the union hall seeking jobs. No workable referral system is possible if any employee must be referred by the union to any job he desires, regardless of his par- ticular skills, and in derogation of the rights of his fellow members. Such a situation, in my opinion, creates anarchy in what would other- wise be a fair and reasonable system of finding the right job for the right man when he is rightfully entitled to be referred on a seniority basis. This Union was performing a service for its members in op- erating a hiring hall for the benefit of all of them. If McElhill was referred to the job of an' operator when he was classified as an oiler or apprentice, what of the unemployed operator waiting patiently to be' referred to the job for which his "book" called? If Dombroski was referred to an oiler's job when he was listed as an operator, would there not be an oiler, perhaps McElhill himself, who was rightfully entitled to that referral?' What of other employees, unemployed longer than the Charging Parties, who might believe, not unreason- ably, that the Union should refer them first? To hold, as the majority does, that these Charging Parties were the objects of unlawful dis- crimihation seems to me the ultimate in irony. In my opinion, this decision of the majority discriminates in favor of the Charging Parties to the detriment of their fellow union members. More important, the majority's decision virtually outlaws any referral system. The result may well be that employees will be forced to find jobs as best they can, expending time and energy in fruitless quest's. Employers will be deprived of the valuable assurance that men referred by a craft union are qualified to perform the jobs of that particular craft. Lastly, there-will be dissatisfaction and bitterness among workmen in a locality where jobs are scarce because the available work is no longer fairly divided among them without favoritism to any individual or group. The case of Harold E. Naugle presents a problem different from that of the other Charging Parties. If I were to find, as the majority does, that no understanding or agreement of any kind existed between the Local and the Noonan Company, I would not find that the Union violated Section 8 (b) (2) by telling Naugle in the presence of Super- intendent Gould that he could not work on the project and requesting that Gould discharge him. Such conduct on the part of the Union would be unilateral in nature. Mere persuasion is not, in my opinion, prohibited "cause" within the meaning of Section 8 (b) (2). See my dissenting opinions in American Pipe and Steel Corporation, 93 NLRB 54, 61 and Sub-Grade Engineering Company, 93 NLRB 406, 411; see, also, the decision of the Court of Appeals for the Tenth Cir- cuit in Brotherhood of Painters, etc., supra. In view of my finding, however, that there was an arrangement between Noonan and the LOCAL 542 1877 Local providing for clearance of all employees through the Local, I must conclude that the Local was obligated under Board and court de- cisions to refer all applicants for employment on a nondiscriminatory basis. It is not entirely clear to me from the record that the Local did, in fact, discriminate against Naugle. Superintendent Gould testified that Business Agent Smith told Naugle he could not work on the project because Local men were unemployed, which by itself does not indicate unlawful discrimination. The Trial Examiner, however, credits the testimony of Naugle that Smith demanded the former's discharge because he was not a member of the Local. As I am loathe to disturb a Trial Examiner's credibility findings, I accept his resolu- tion of the conflict in testimony and find that the Union violated Section 8 (b) (2) and (1) (A) of the Act by causing the discharge of Naugle. On the basis of the foregoing I concur in the majority's decision in Case No. 4-CB-246 and dissent as to the remainder. MEMBERS RODGERS and JENKINS took no part in the consideration of the above Decision 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, as amended, we hereby notify our employees and appli- cants for employment that : WE WILL NOT encourage membership in Local 542, Interna- tional Union of Operating Engineers, AFL-CIO, or in any other labor organization of our employees or applicants for employment, by conditioning the employment of properly qualified applicants for employment upon membership in, or referral by, the above- named labor organization, or by discriminating in any manner in regard to the hire and tenure of employment of our employees, or any term or condition of employment, except insofar as such activity may be affected by an agreement, authorized in Section 8 (a) (3) of the Act, requiring membership in a labor organization as a condition of employment. WE WILL NOT in any manner interfere with, restrain, or coerce our employees or applicants for employment in the exercise of their right to self-organization, to form labor organizations, to join or assist the above-named or any other labor organization, to bargain collectively through representatives of their own choos- ing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities, except to the extent that 1878 DECISIONS OF NATIONAL LABOR RELATIONS BOARD such right may be affected by an agreement, authorized in Sec- tion 8 (a) (3) of the Act, requiring membership in a labor organ- ization as a condition of employment. WE WILL jointly and severally with the above-named labor organization make William T. MacDougall whole for any loss of pay suffered as a result of the discrimination against him. A. C. FROMMEYER, CHARLES M. FOLEY AND JOSEPH E. MURPHY, A PARTNERSHIP DOING BUSINESS AS FROMMEYER & COMPANY, Employer. Dated---------------- By------------------------------------- (Representative) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. APPENDIX B 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 cause or attempt to cause A. C. Frommeyer, Charles M. Foley and Joseph E. Murphy, a partnership doing business as Frommeyer & Company or any other employer to dis- charge, refuse to hire, or in any manner to discriminate against employees or applicants for employment in violation of Section 8 (a) (3) of the Act. WE WILL NOT restrain or coerce employees or applicants for em- ployment of the above-named employer or any other employer in the exercise of their rights under Section 7 of the Act, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized by Section 8 (a) (3) of the Act. WE WILL jointly and severally with Frommeyer & Company make whole William T. MacDougall, and ourselves make whole James J. Russell, William J. McElhill, Harold E. Naugle, and Stanley Dombroski for any loss of pay suffered as a result of the discrimination against them. LOCAL 542, INTERNATIONAL UNION OF OPERATING ENGINEERS, AFL-CIO, Union. Dated---------------- By------------------------------------- (Title of Officer) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. LOCAL 542 INTERMEDIATE REPORT 1879 STATEMENT OF THE CASE Charges having been duly filed and served; complaints, an order consolidating cases, and notices of hearing thereon having been duly issued and served by the General Counsel of the National Labor Relations Board; and answers having been filed by the above-named Respondents, a hearing involving allegations of unfair labor practices in violation of Section 8 (a) (1) and (3) and 8 (b) (1) (A) and (2) of the National Labor Relations Act, as amended, 61 Stat. 136, herein called the Act, was held in Philadelphia, Pennsylvania, before the duly designated Trial Examiner on January 5, 6, 7, 12, 13, and 14, 1955. Consolidated during the hearing, the complaints against the Respondent Local 542 allege in substance, and the answers deny that: (1) It caused an Employer, Koppers Company (Case No. 4-CB-215), to discriminate against James J. Russell in April 1954; (2) it caused an Employer, Catalytic Construction (Case No. 4-CB-239), to discriminate against William J. McElhill in September 1954; (3) it caused an Employer, Frommeyer (Case No. 4-CB-218), to discriminate against MacDougall in May 1954; (4) it caused an Employer, R. S. Noonan (Case No. 4-CB-246), to discriminate against Naugle in July 1954; (5) it caused Employers G. H. D. Construction and Cestone (Case No. 4-CB-251) to discriminate against Dombroski in November 1954; and (6) by causing said Employers to engage in discrimination, either as to hire or term of employment, it restrained and coerced employees in the exercise of rights guaranteed by Section 7 of the Act. As to Case No. 4-CA-1102, the complaint alleges and the answer denies that Respondent Frommeyer discriminated against MacDougall by refusing to hire him unless cleared by Respondent Local 542, and thereby interfered with, restrained, and coerced employees in the exercise of rights guaranteed by the Act. At the hearing all parties were represented and were afforded full opportunity to be heard, to examine and cross-examine witnesses, to introduce evidence pertinent to the issues, to argue orally upon the record , and to file briefs and proposed findings of fact and conclusions of law. Briefs have been received from the General Counsel and counsel for the Respondents. Disposition of the motions to dismiss the several complaints, upon which ruling was reserved at the close of the hearing, is made by the following findings, conclusions, and recommendations. Upon the entire record, and from his observation of the witnesses, the Trial Examiner makes the following: FINDINGS OF FACT I. THE BUSINESS OF THE EMPLOYERS INVOLVED A. Koppers Company, Inc. Koppers Company, Inc., is a Delaware corporation with its principal office in Pittsburgh, Pennsylvania. During the past year Koppers directly purchased various raw materials from points outside the Commonwealth of Pennsylvania valued at more than $500,000, and during the same year performed work outside Pennsylvania valued at more than $1,000,000.1 It is concluded and found that Koppers is engaged in commerce within the meaning of the Act. B. Catalytic Construction Company Catalytic Construction Company is a Delaware corporation with its principal office in Philadelphia , Pennsylvania . It is engaged in constructing refineries in five States of the United States. During 1953 it performed work outside Pennsylvania valued at more than $38,000,000. It is concluded and found that Catalytic is engaged in commerce within the meaning of the Act. C. Frommeyer & Company Frommeyer & Company is a Pennsylvania partnership composed of A. C. Frommeyer, Charles M. Foley, and Joseph E. Murphy, engaged in the construction business as a bricklaying contractor, with principal office in Philadelphia, Pennsylvania. During the past year it performed work outside Pennsylvania valued at more than $1,000,000. 1 The findings as to Koppers are based upon the complaint as amended and a stipulation of facts entered into during the hearing. 1880 DECISIONS OF NATIONAL LABOR RELATIONS BOARD D. G. H. D. Construction Co. and Cestone Construction Company, Inc. G. H. D. Construction Co. and Cestone Construction Company are New Jersey corporations, the former with its principal office in Montclair, New Jersey, and the latter with its principal office in Bloomfield, New Jersey. In October 1954 the two Employers began, as a joint venture, a sewer construction job at Morrisville, Pennsylvania, the contract price being $497,000. It was expected, at the time of the hearing, that the job would be completed in October 1955. All checks to employees on this job are signed by both Employers. It is concluded and found that G. H. D. and Cestone are engaged in commerce within the meaning of the Act. E. R. S. Noonan, Inc. R. S. Noonan, Inc., is a Pennsylvania corporation with its principal office in York, Pennsylvania. It is engaged in the general contracting business, and during 1954 performed work outside Pennsylvania valued at more than $500,000, and received shipments of materials directly from outside Pennsylvania valued at more than $500,000. It is concluded and found that Noonan is engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED Local 542, International Union of Operating Engineers, AFL, is a labor organiza- tion within the meaning of Section 2 (5) of the Act. Edward Piscatelli and A. L. Smith, named as Respondents in Cases Nos. 4-CB-239 and 4-CA-246 respectively, are business agents of Local 542. III. THE UNFAIR LABOR PRACTICES A. The Koppers project (Case No. 4-CB-215) 1. Events in issue This case involves the alleged attempt by the Respondent Union to cause Employer Koppers, in violation of Section 8 (a) (3) of the Act, to discriminate in the hiring of James Russell. General Counsel claims that the attempt was in violation of Section 8 (b) (2) and 8 (b) (1) (A).2 The findings are based upon the credible portions of the several individuals involved. In April, 1953, James Russell, a member of the Respondent Local, began work for Koppers on a job in Philadelphia under T. G. Hoskins, in charge of the project. Late in April 1954 the Philadelphia job was finished. Shortly before its completion Hoskins told Russell that he would need him as a crane operator on another Koppers job getting underway at Bethlehem, Pennsylvania. Hoskins promised Russell that he would communicate with him when ready for him to report for work. Hoskins, upon starting the Bethlehem job, told Clyde Smith, the union steward covering the project, that he had made arrangements to have Russell come up as the engineer. Clyde Smith told Hoskins that there were unemployed Local members in the Bethlehem area, reminded him that when a contractor moved into the area he must contact the business agent of Local 542, and said that before Russell could be hired he would have to be cleared through his father, A. L. Smith, who was the business agent for Local 542 in that area. Hoskins telephoned to A. L. Smith, who declined to clear Russell, but told Hoskins he did not want him on that job. Hoskins thereupon communicated with Russell and told him A. L. Smith would not have him on the job, but that if he could get clearance from the Local the job would be waiting for him. Russell then called Harry W. Lavery, an official of the International Union having supervision over Local 542, reported that 9 The relevant parts of the Act referred to are as follows Section 8 (a) (3) • It shall be an unfair labor practice for an employer-by dis- crimination in regard to hire . . . to encourage or discourage membership in any labor organization. Section 8 (b) (2) It shall be an unfair labor practice for a labor organization or its agents-to cause or attempt to cause an employer to discriminate against an em- ployee in violation of subsection (a) (3) . Section 8 (b) (1) (A) : It shall be an unfair labor practice for a labor organization or its agents-to restrain or coerce . . employees in the exercise of the rights guar- anteed in section 7. .. . LOCAL 542 1881 Smith was blocking his getting the Bethlehem job, and asked for a letter of clearance. Lavery refused the request. Russell then went to the Board's Regional Office in Philadelphia and filed a charge against the Respondent Union. The next Monday morning, May 3, the Board agent whom Russell had consulted the previous week, Draper Lewis, called Russell and told him that Hoskins had said he could report for work the morning of May 5. On May 5 Russell reported at the Bethlehem job, ready for work. Hoskins was ready to put him to work and took him to the office. There the union steward, Clyde Smith, demanded that Russell show his union book. Russell said he did not have it with him. The steward told him he could not work without it. Hoskins then asked Russell to go back to Philadelphia and get it, to avoid "a rumpus." Russell started for Philadelphia, but on the way telephoned to Lewis at the Board's office. Lewis told Russell to go on back to the job. He did so, went to work that afternoon, and was paid for the full day. The evidence warrants no other finding than that Russell lost no actual time or pay as a result of the attempted discrimination against him. At the relevant period Koppers was under contract with the International Union. At the hearing counsel for the Respondent Union stated that Koppers is still under the same contract, which he placed in evidence, known as an "International Agree- ment," covering the Employer's operations anywhere in the country. He further stated that in such multistate enterprises it was not customary for the employer to sign agreements with the locals of the International. The contract in evidence contains the following relevant provisions: Article III, Section 2. When new or additional employees are needed, Em- ployer shall notify Union of the number and classifications of employees required. It shall be the responsibility of the Union to furnish the necessary men requested by the Employer. . . . Hoskins' testimony makes it clear, and it is found, that it has been his practice, "in recent years," and was at the time material herein, to hire employees through the union stewards. 2. Conclusions The issue of the validity of the agreement between Koppers and Local 542 is not raised in the complaint. No finding as to its legality will be made. Its existence, however, when considered in the light of the practice, is relevant to the issue of discrimination against Russell. Credible evidence establishes, and it is concluded and found, that Respondent Local 542, through the conduct of its agents , A. L. and Clyde Smith, attempted to cause Koppers to discriminate against applicant James Russell in violation of Section 8 (a) (3) of the Act. Under the circumstances above described, including the tacit agreement and practice existing that hiring should be done through Local 542, Respondent Local 542 by the said conduct of its agents violated Section 8 (b) (2) and (1) (A) of the Act. B. The Catalytic project (Case No. 4-CB-239) 1. Events in issue This case involves the alleged discrimination in the hiring of William J. McElhill by Employer Catalytic, such discrimination being caused by Respondent Local 542. McElhill has been a member of the Respondent Local for about 8 years. In September 1954 he had been working for 4 or 5 months for Catalytic, first as a bull- dozer operator and then as a front end loader. On September 13 H. N. Davis, craft supervisor for Catalytic on the job being performed, told McElhill that because the front end loader was no longer needed he would put him on the tugger hoist on September 15. About the same time Davis informed the union steward on the job, Thomas Mogan, of his intended transfer of McElhill to the other job. Mogan replied that he would get in touch with the business agent. On September 15 Mogan in- formed Davis that he could not put McElhill on the tugger hoist, and that the business agent would be out later that day. Business Agent Edward Piscatelli (also known as Edwards) appeared on the job that day and told Davis that McElhill only held an. "A" card and so could not operate the tugger. Davis went to McElhill and told the employee, "It looks like they are giving you the business, Bill. Of course, you know I got to remain neutral." Later McElhill approached Edwards, before the latter left the job, and protested his not letting him transfer to the tugger hoist. When Edwards refused to let him take the job, McElhill said he would take the matter to the Board. Edwards countered by threatening to bring McElhill 1882 DECISIONS OF NATIONAL LABOR RELATIONS BOARD before the Union's executive board. An altercation ensued. Whatever violence might have occurred as a result of the quarrel was prevented by bystanders. McElhill finished his work that day and was paid off by Davis. McElhill filed charges with the Board against the Respondent Union on September 17. On Sep- tember 27, by letter, Catalytic informed McElhill that a job would be available for him on September 29 as a tugger operator. He accepted, and at the time of the hearing was still working at the same job. In September 1954, as well as at the time of the hearing, the Respondent Union and Catalytic were under contractual agreement. A pertinent provision reads: The Company agrees . to employ only members in good standing in the Union on work coming under its jurisdiction. 2. Conclusions The contract involved in this case is the one of several introduced into evidence in the consolidated proceedings. It is the only one which, in his brief, General Counsel claims to contain "unlawful hiring conditions." The provision above quoted amply supports his claim. Since the contract itself was not raised as a specific issue in the complaint , however, no finding as to its legality will here be made. Its existence is relevant , nevertheless , to the issue of discrimination against McElhill. Credible evidence makes it plain, and it is concluded and found, that Respondent Local 542, by conduct of its agent, Piscatelli, caused Employer Catalytic to dis- criminate, in violation of Section 8 (a) (3), in the employment of McElhill, and that by its exclusive hiring agreement with the Employer and particularly by its refusal to permit McElhill to work upon the job assigned to him by the Employer, Respondent Local 542 violated Section 8 (b) (2) and (1) (A) of the Act. The Trial Examiner believes the evidence insufficient, however, to find, as General Counsel urges, that by his altercation with McElhill Business Agent Piscatelli engaged in an independent violation of Section 8 (b) (1) (A) of the Act. C. The Frommeyer project (Cases Nos. 4-CA-1102 and 4-CB-218) 1. Events in issue These cases involve the alleged discrimination in the hiring of William T. Mac- Dougall by Employer Frommeyer, such discrimination being caused by Respondent Local 542. In the spring of 1954 Frommeyer was engaged in certain work in Wilmington, Delaware, under subcontract with another construction concern , H. K. Ferguson. Charles Corrigan was Frommeyer's construction superintendent on this job. At this time, and for some months previously, MacDougall had been working on the same job site but for Ferguson. Two or three weeks before May 26 MacDougall was told by his supervisor, Master Mechanic Clayton, who was also the union steward on the job, that because of shortage of work he would soon be laid off, and suggested that he get in touch with Business Agent Piscatelli, previously identified, and see about getting on one of the hoists which he expected Frommeyer would soon be operating on the same site. Upon learning of this new job prospect, MacDougall approached Corrigan, who told him that he could have the job when it started, but he did not know precisely when it would be ready. This was on May 19. MacDougall called Piscatelli on May 24 and asked if he could take the hoister job when it was ready. The business agent told him he could not, because he did not hold the appropriate union book, and warned him that if he did take it charges would be brought against him by the Union. MacDougall was laid off by Ferguson on May 26. That same day, while talking with Corrigan about the setting up of the hoist, the union steward, Clayton, came up to them and informed Corrigan that MacDougall could not take the job unless he cleared with Piscatelli. That night, after being laid off, MacDougall again called Piscatelli about the hoist job. Piscatelli told him, "You can't have the hoist . . . I will call up Frommeyer and tell him not to hire you." Piscatelli further told him that "you can't work in the State of Delaware," and if he wanted work to go to Pennsylvania. MacDougall, however, continued to go to the job site. On one occasion, shortly before the hoist job was filled by another union member sent to the job by Piscatelli, Corrigan came to MacDougall and told him, "I can't do nothing about putting you on that hoist: Your business agent was down here , raising the dickens . . . my LOCAL 542 1883 hands are tied. If you want to go on the hoist, you will have to get straightened out with the Union or Mr . Edwards [ Piscatelli]." MacDougall had operated similar equipment before then , and clearly was fully qualified to operate the hoist . He was not hired on this job which , apparently, had been completed before the hearing .3 Frommeyer has no formal contractual agreement with the Respondent Union. That a tacit agreement to hire only through Local 542 existed between the two parties at the period relevant to the issues here is reasonably inferrable from Corrigan's testimony and the practice. Corrigan's testimony establishes that Local 542 was asked , on his behalf, to supply an operator to fill the job he had promised to MacDougall . All openings on this job thereafter were filled by members of Local 542. Neither the Respondent Company nor the Respondent Union offered any credible evidence that any operator on this job was not hired through the Local. In short, it is found that: ( 1) On June 4 , 1954 ( the day the union operator re- ported for work ) the Respondent Company refused to hire MacDougall because the Respondent Union would not clear him for the job ; ( 2) a tacit agreement between the Respondent Company and the Respondent Union existed whereby clearance by the Respondent Union was a requirement for employment ; and (3 ) by this agreement and particularly by its failure to clear MacDougall for the job the Respondent Union caused the Respondent Company to discriminate as to MacDougall 's hire. 2. Conclusions The Trial Examiner concludes and finds that: ( 1) By discriminatorily refusing to hire MacDougall on June 4 , 1954 , because the Union would not clear him, the Respondent Company violated Section 8 ( a) (3) and ( 1) of the Act; and (2) by the aforesaid tacit hiring agreement with Frommeyer and particularly by its refusal to clear MacDougall the Respondent Union violated Section 8 (b) (2) and (1) (A) of the Act.4 D. The Noonan project (Case No. 4-CB-246) 1. Events in issue This case involves the alleged discrimination in the employment of Harold E. Naugle by Employer Noonan , such discrimination being caused by the Respondent Local 542. In 1954 Noonan was engaged in a construction job near Reading, Pennsylvania. Sometime in July Noonan bought a crane from another contractor and agreed to hire as its operator Harold Naugle , who had been working for the other contractor and was to deliver the equipment. Naugle reported on the job with the crane on July 13. For about 12 years Naugle has been a member of the International Union of Operating Engineers , but in July 1954 was 'a member of a Florida local and not a member of Local 542. On July 19 A. L: Smith , business agent for Local 542, came to the job and, in the presence of Earl Gould, the superintendent , asked Naugle to show his union book. Naugle complied . Upon being shown the book for the Florida local , Smith an- nounced that Naugle could not work on the job , turned to Gould and said, "I want this guy fired ." Naugle asked why . Smith said because he belonged to another local. Naugle was permitted to work until Wednesday , July 21 , when Gould asked him to leave and "argue about it later ." Naugle left the job, and filed charges with the Board . Smith replaced Naugle on the job with a member of Local 542, still working on the job at the time of the hearing . A few days after the discharge of Naugle, George S. Noonan , executive vice president of the Company, asked Smith about the hiring of Naugle. Smith told him that he could not employ him because he was not 'a member in good standing of Local 542. Since his discharge on July 21, 1954 , Naugle has not been employed by Noonan. Noonan and Local 542 are parties to a contract , due to expire April 30, 1955, which contains the relevant preferential hiring provision: ... the Employers agree to employ only engineers and apprentices who are members of the Union in good standing .. . 3 The findings are based largely upon MacDougall 's credible testimony . The Trial Ex- aminer, having observed their demeanor as witnesses , and because of Corrigan 's confused and self-contradictory testimony plainly recorded , can place no reliance upon the testi- mony either of Corrigan or Piscatelli 4 See Consolidated Western Steel Corporat ion, et al., 108 NLRB 1041. 1884 DECISIONS OP NATIONAL LABOR RELATIONS BOARD As to this contract Noonan said , unequivocally, ". . we go by it." And docu- mentary and other evidence establishes that, with the brief exception of Naugle's service, only Local 542 members have been employed on the job. It is found that the Respondent Union caused Noonan to discharge Naugle on July 21, 1954, because he was not a member in good standing. 2. Conclusions As in other cases herein , General Counsel does not attack , as illegal , the contract or the above-quoted preferential hiring provision. On the contrary, in his brief he refers to it as an "ostensibly lawful contract ," despite its above -quoted provision. For this reason the Trial Examiner makes no finding as to the legality of that provision. That it existed, however, at the time Naugle was discharged by Noonan, is undisputed. It is likewise undisputed that Local 542, by its agent, Smith, caused Noonan to discharge Naugle long before the expiration of a 30-day period pro- vided for in any legal union -shop agreement , and that the reason advanced by Smith was that Naugle was not a member in good standing of the Respondent local. Under the circumstances above described, the Trial Examiner concludes and finds that by causing Noonan to discharge Naugle on July 21, 1954, because he was not a member in good standing , Respondent Local 542 violated Section 8 ( b) (2) and (1) (A) of the Act. E. The G. H. D.-Cestone project (Case No. 4-CB-251) 1. Events in issue This case involves the alleged discrimination in the hire of Stanley Dombroski by Employer G. H. D.-Cestone, such discrimination being caused by the Respond- ent Local 542. For the past 9 years Dombroski has been a member of the Respondent Local. Early in November he met Gino DeMilia, an officer of G. H. D., in Morrisville, Pennsylvania, where that Company, jointly with Cestone, was engaged in a con- struction job. He asked DeMilia for a job. DeMilia referred him to the master mechanic on the job, Tony Cimorelli, who was also the union steward. Dombroski went to the job site, and told Cimorelli that DeMilia had told him to leave his name and address with him. He did so and asked Cimorelli to call him when needed. Cimorelli demurred, and said that he did not want to do that be- cause "Pete Pantaleo raised the heck with me." Pantaleo is the Union 's business agent in that territory . Upon Dombroski 's insistence Cimorelli finally took his name and telephone number. The next day, November 3, Dombroski returned to the job, and applied to DeMilia. The Employer told the applicant that he had an oiler's job opening shortly and asked him if he would take it and then transfer later to a tamping machine. Dombroski agreed to the proposal. DeMilia told him that he must, however, first clear through the Union. Later Dombroski saw Cimorelli, who told him he would put him to work if he cleared. Dombroski next appeared at the job site on November 9. DeMilia told him a job was available for him the next day, if he had cleared with the Union. Dom- broski, who in the interim had made unsuccessful efforts to reach Pantaleo, asked DeMilia to call the business agent for him. DeMilia declined. Dombroski returned the next day . DeMilia told him that he had called Pantaleo the night before and asked to have him referred to the oiler's job, but that the business agent had refused and had said that he would send his own man. Dom- broski then left, and returned to Philadelphia, where he filed charges with the Board against the Union. Company records in evidence show that another oiler was hired that day. It is found that: (1) A job was available for Dombroski on November 10; and (2) he was refused employment that day because he had failed to obtain clearance through Local 542. G. H. D.-Cestone are parties to a contract , and were at the time Dombroski was denied employment, providing for preferential hiring. The relevant terms are: . . . the Employers agree to employ only engineers and apprentices who are members of the Union in good standing, providing the Union is able to supply them. LOCAL 542 1885 2. Conclusions As in preceding cases, General Counsel does not attack the validity of the contract. That it exists, however, is a clear fact, and the above-quoted clause is plainly relevant, under the circumstances, to a determination of the issue as to whether or not the Union caused DeMilia to refuse to hire Dombroski. To the Trial Examiner it appears that its existence is more persuasive of the "presence of a tacit understanding that clearance by the Union was a condition of employment," to quote from General Counsel's brief, than the grounds advanced by him: that both DeMilia, the Employer, and Cimorelli, the union steward, told Dombroski that he must clear with the Union. For under the same contract the duties of Cimorelli, as a steward, were specifically restricted to "collect dues, initiation fees and assess- ments." In any event, the Trial Examiner concludes and finds that at the material period the Employer and Respondent Local 542 had an agreement or understanding requir- ing, as a condition of employment, clearance of job applicants by the Respondent. By this discriminatory hiring arrangement, and particularly by DeMilia's refusal to hire Dombroski because of his failure to obtain job clearance from the Union's business agent, the Respondent Local 542 violated Section 8 (b) (2) and (1) (A) of the Act .5 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 operations of the Employers 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 burdening and obstructing com- merce and the free flow of commerce. V. THE REMEDY It has been found that Respondents Frommeyer and Local 542 have engaged in certain unfair labor practices. It will be recommended that they cease and desist therefrom, and take certain affirmative action to effectuate the policies of the Act. It has been found that Respondent Local 542 has caused and/or attempted to cause specifically named Employers, including Frommeyer, to discriminate, in violation of Section 8 (a) (3) of the Act, as to the hire and tenure of employment of certain named employees and/or applicants for employment. It has also been found that Respondent Frommeyer discriminated in regard to the hire of applicant MacDougall. As to MacDougall, it will be recommended that Respondents Frommeyer and Local 542 jointly make him whole for any loss of pay he may have suffered by reason of the discrimination against him. As to the other discriminatees, named above, it will be recommended that Local 542 make them whole for any loss of pay they may have suffered by reason of the discrimination against them. All such employees, or appli- cants for employment, shall be made whole by payment to each of them of a sum of money equal to that which he would normally have earned from the date of the discrimination against him to the date he normally would have been laid off, in the case of jobs completed, or to the date 5 days after the Union has formally notified the Employer concerned that it has no objection to the hire or reinstatement of the applicant or employee involved, or, as with McElhill, during the period of actual discrimination, as the case may be Back-pay computation shall be consistent with the Board's policy set forth in F. W. Woolworth Company, 90 NLRB 289. The unfair labor practices found to have been engaged in by the Respondents are of such character and scope that, in order to insure employee and prospective em- ployees of contractors within the area over which Local 542 has jurisdiction, of their rights under the Act, it will be recommended that the Respondents, and each of them, cease and desist from in any manner interfering with, restraining, and coerc- ing employees or prospective employees in the exercise of rights guaranteed by Section 7 of the Act. On the basis of the foregoing findings of fact, and upon the entire record in the case, the Trial Examiner makes the following: CONCLUSIONS OF LAW 1. Local 542, International Union of Operating Engineers, AFL, is a labor organ- ization within the meaning of Section 2 (5) of the Act. 5 See Mohawk Valley and Vicinity District Council, et at ., 109 NLRB 522. 1886 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. By discriminating in the hire of William T. MacDougall , thereby encouraging membership in the above -named labor organization , Respondent Frommeyer has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (3) of the Act. 3. By causing and attempting to cause the Respondent Frommeyer and other Employers named in section I, herein , to discriminate in the hire and tenure of employ- ment of applicants for employment and employees , in violation of Section 8 (a) (3) of the Act, Respondent Local 542 has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (b) (2) of the Act. 4. By restraining and coercing employees and applicants for employment in the exercise of rights guaranteed by Section 7 of the Act, Respondent Frommeyer has engaged in unfair labor practices within the meaning of Section 8 (a) (1) of the Act, and Respondent Local 542 has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (b) (1) (A) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2 (6) and (7) of the Act. [Recommendations omitted from publication.] Endicott Johnson Corporation and Amalgamated Meat Cutters and Butcher Workmen of North America , AFL-CIO, Peti- tioner. Case No. 3-RC-1707. May 31,1957 DECISION AND ORDER Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before William J. Cavers, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. Upon the entire record in this case, the Board finds : 1. The Employer is engaged in commerce within the meaning of the National Labor Relations Act. 2. The labor organizations involved claim to represent certain em- ployees of the Employer. At the hearing and through an "Auxiliary Motion" filed with the Board after the hearing under the title and number of this case, the Employer raised two issues with respect to the Petitioner's compliance status with the filing requirements of Section 9 (f), (g), and (h) of the Act. One involved the adequacy of compliance arising out of the alleged failure of Coyle to file a timely affidavit required by the Act; while the other involved the necessity of the Fur and Leather Workers Department of the Petitioner, herein called the Department, to comply with the Act. The Employer requested that these issues be resolved in the instant proceeding or in a collateral proceeding. The Board, in its recent decision in Standard Cigar Company, 117 NLRB 852, restated its policy not to permit parties to litigate the adequacy of a union's compliance status in representation or com- plaint proceedings and that parties may seek an administrative deter- mination of such matters which the Board may properly decide in an 117 NLRB No. 246. Copy with citationCopy as parenthetical citation