Miami Valley Carpenters District Council

National Labor Relations Board - Board Decisions

Jun 10, 1960

127 N.L.R.B. 1073 (N.L.R.B. 1960)

MIAMI VALLEY CARPENTERS DISTRICT COUNCIL, ETC. 1073
employees in a particular labor organization or in a particular trade,
craft, or class rather than to employees in another labor organization
or in another trade, craft, or class, unless such employer is failing
to conform to an order or certification of the Board determining the
bargaining representative for employees performing such work."
We find that this case does not involve a dispute within the mean-
ing of Section 10 (k) of the Act. Such dispute as exists herein is not
the traditional jurisdictional dispute between two unions wherein each
union wishes to have certain duties assigned to its members rather
than to the members of its rival union. Nor is it a dispute between
Gordon and NABET over Gordon's assignment of work to one group
of employees rather than to another group comprised of members of
NABET. Instead, as the facts set forth above plainly establish, the
dispute concerns only Gordon's discharge of technicians whom
NABET represents and NABET's efforts to obtain the reemployment
of these employees. As was recently held,2 Congress did not intend
to proscribe such union activity by Section 8(b) (4) (D).
Upon the basis of the foregoing, we conclude that the dispute in this
case is not over the assignment of work within the meaning of Section
8(b) (4) (D). It is, therefore, not a dispute within the meaning of
Section 10(k). Accordingly, we shall quash the notice of hearing.
[The Board quashed the notice of hearing.]
2Inte7national Brotherhood of Electrical Workers, Local 292, AFL-CIO (Franklin
Broadcasting Company ( Radio Station WMIN) ), 126 NLRB 1212.
Miami Valley Carpenters District Council , United Brotherhood
of Carpenters and Joiners of America , AFL-CIO and James
McDonald and Bowling Supply and Service, Inc., H . W. Miller
Construction Company, and B. T. Boyd , doing business as
Boyd Construction Company. Case No. 9-CB-513. June 10,
1960
DECISION AND ORDER
On February 15, 1960, Trial Examiner Arthur E. Reyman issued
his Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the copy of the
Intermediate Report attached hereto. Thereafter, the General Coun-
sel and Respondent filed exceptions to the Intermediate Report, and
briefs in support thereof.
'The motion to remand and request for oral argument by Respondent Miami Valley
Carpenters District Council, United Brotherhood of Carpenters and Joiners of America,
127 NLRB No. 136.
560940-61-vol. 127-69
1074 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this ease to a three-member panel [Chairman Leedom and Members
Rodgers and Jenkins].
The Board has considered the Intermediate Report, the exceptions
and briefs, and the entire record in the case. We find merit in the
Respondent's exceptions and accordingly adopt the findings and con-
clusions of the Trial Examiner only insofar as they are not incon-
sistent with our decision herein.
We agree with the Trial Examiner's finding, as more fully set
forth in the Intermediate Report, that the Employers involved herein
were not restricted, by contract or by practice, to hire only union
members. On the contrary, the evidence shows that the Employers
were free to employ nonunion members, and that no union member
was required to obtain employment through the Unions
'The Trial Examiner found in effect that the Respondent Council
was a party to a closed-shop hiring arrangement because the Council
reserved to itself all the powers and privileges set forth in the bylaws,
trade, and working rules of the Council and its affiliated locals which
bound the carpenter foremen on the projects in question, who were
union members, to observe union laws requiring all jobs to be "strictly
union in every detail." We do not agree. No employer involved here
in fact was required to hire through the Union; and none of their
foremen hired only through the Union. Absent any evidence that the
Employers had agreed to be bound by the bylaws, trade, and working
rules, it cannot be found that closed-shop arrangements existed solely
by reason of such rules and bylaws. Mountain Pacific Chapter of the
Associated General Contractors, Inc., et al., 119 NLRB 883, relied
upon by the 'Trial Examiner does not support a finding of violation
here. In that case there was a contract in existence which granted
exclusive hiring to the union. No such contract exists in this case.
For the foregoing reasons we shall dismiss the complaint.
[The Board dismissed the complaint.]
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
After a charge duly filed by James McDonald, on September 12, 1958, the
General Counsel of the National Labor Relations Board, by the Regional Director
for the Ninth Region , on September 24, 1959, caused a complaint and notice of
hearing to be issued under Section 10(b) of the National Labor Relations Act, as
amended ( 61 Stat . 136), alleging that Miami Valley Carpenters District Council,
United Brotherhood of Carpenters and Joiners of America , AFL-CIO, hereinafter
sometimes called the Union or the Council , had and was engaging in unfair labor
practices in that "pursuant to the oral agreements and hiring practice alleged therein,
AFT -CIO, is hereby denied as the record, exceptions, and briefs, in our opinion, adequately
present the issues and positions of the parties.
MIAMI VALLEY CARPENTERS DISTRICT COUNCIL, ETC. 1075
the Respondent [Council] regularly collected from the carpenter employees . .
dues, non-membership dues, assessments, dobie and work permit fees ...." in
violation of Section 8(b)(1)(A) and (2) of the Act.
The Respondent filed timely answer to the complaint, effectively denying violations
of the Act, as alleged.'
On the issues framed by the complaint and the answer, this case came on to be
heard before the duly designated Trial Examiner at Dayton, Ohio. The hearing
was opened on December 7, 1959, and closed on December 9. At the hearing the
Respondent Union and the General Counsel were represented by counsel, and the
Charging Party, McDonald, appeared in proper person. At the hearing each party
was afforded opportunity to call and examine witnesses, to cross-examine, and
otherwise to participate fully in the proceeding. Counsel for the General Counsel
and for the Respondent have filed briefs.
Upon the record as a whole, and due consideration having been given thereto, and
after observing the witnesses at hearing, this Trial Examiner makes the following:
FINDINGS OF FACT
I. THE BUSINESSES OF EMPLOYERS BOWLING, BOYD, AND MILLER
(a) Bowling Supply and Service, Inc. (Bowling), is an Ohio corporation having
its principal office located in Cleveland, Ohio, from which it directs the business of
installing bowling alleys and related equipment in several of the States of the
United States, including the work performed by Bowling during the times material
hereto for the Varsity Bowl in Dayton, Ohio. During the 12 months preceding the
filing of the complaint herein, a representative period, Bowling received in excess of
$100,000 for its products and services which were sold, shipped, delivered, and
performed by it directly to or for persons, firms, and corporations located outside the
State of Ohio.
(b) B. T. Boyd, doing business as Boyd Construction Company (Boyd), main-
tains his principal office and place of business in Dayton, Ohio, and is engaged in
the building and construction business. During the 12 months first preceding the
issuance of the complaint herein, a representative period, Boyd received in excess
of $100,000 for goods and services furnished to an Illinois corporation in a certain
metropolitan housing project in Dayton, Ohio, for which this Illinois corporation
received in excess of $200,000 during that period.
(c) H. W. Miller Construction Company (Miller), a Kentucky corporation, main-
tained during all times material hereto its principal office and place of business in
Covington, Kentucky, from which it directed building and construction operations
in several of the States of the United States, including the construction of a sewage
disposal plant for the city of Fairborne, Ohio.' During the 12 months immediately
preceding the issuance of the complaint herein, which is a representative period,
Miller received in excess of $100,000 for its goods, products, and services which
were sold, shipped, delivered, and furnished directly to the said sewage disposal site
at Fairborne, Ohio.2
H. THE LABOR ORGANIZATION INVOLVED
Miami Valley Carpenters District Council, United Brotherhood of Carpenters and
Joiners of America, AFL-CIO, the Respondent herein, its affiliated local unions,
and all of the local unions affiliated with United Brotherhood of Carpenters and
Joiners of America, AFL-CIO, are and each of them has been at all times material
hereto a labor organization as defined in Section 2(5) of the Act.
i At the time of the filing of the answer to the complaint, the Respondent filed a motion
to strike which was denied by an order of a Trial Examiner prior to the opening of the
hearing herein. The order of that Trial Examiner denying the motion to strike was based
principally on the sufficiency of charges filed with the Regional Director betore the
issuance of the complaint The Respondent renewed its motion at the hearing hereof,
the motion then being denied
2 The Respondent at the hearing herein objected to the introduction of any tectmiony,
written or in oral form, concerning the activities of Boyd and Miller with respect to
materiality and relevancy in connection with the issues framed by the answer and com-
plaint The Trial Examiner allowed evidence, both written and oral, regarding the busi-
ness affecting interstate commerce of each of these concerns on the premise that the
record In whole context would show the materiality of such evidence After hearing the
whole case, the Trial Examiner will accept the position of counsel for the General Counsel,
with the jurisdictional features presented.
1076 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE UNFAIR LABOR PRACTICES
The Issues
The General Counsel states the issue involved herein to be that it clearly has
been shown from the testimony herein that there were exclusive hiring hall arrange-
ments between the Council and the three employers named in section L of this report,
above, and that such agreements are presumptively illegal under the rule of the
Board in Mountain Pacific Chapter of the Associated General Contractors, Inc.,
et al., 119 NLRB 883, 893, absent any showing that the Council and the named
-Employers complied with the safeguards announced in that case.
The Respondent Council says the simple issue in this case is whether or not on
the three construction projects involved (discussed below), the Respondent varied its
established hiring practices and required contractors on these construction projects
to obtain their employees exclusively through the Union.
The Factual Situation
Bowling performed two separate jobs at Varsity Bowl, after damage as the result
of a fire. The first job was to lift the alleys, place them on end, and put them
through a drying process to determine whether or not they could be straightened
without further work to be done in the way of repair. Until final determination
could be made, particularly under the instructions of an insurance company, no
carpentry was needed on the job. When the first attempted repair of the damaged
alleys had been found to be unfeasible , work of reconstruction began, which involved
the use of carpenters.
On the second job, one Trout was first hired and consequently (under union
procedure) became the job steward. His testimony is to the effect that as the job
proceeded certain employees were hired at the jobsite and others were referred
through the Union. It is shown by the testimony of Trout, a credible witness, that
Bowling had employed some five men, carpenters, from Cleveland, Ohio, where
Bowling had its home headquarters. One Clark, a carpenter, was referred to the
Varsity Bowl first job (the attempt to straighten the alleys) by the Union; he
solicited and obtained his own employment on the second Varsity Bowl job.
With respect to the Varsity Bowl job, the whole two operations took some 17
days. McDonald, with another carpenter, Teckenbrock, applied for jobs on the
project on the morning of March 11, 1958, and were refused employment. Late in
the afternoon of that day, Teckenbrock secured employment through referral from
the Carpenter's hall. McDonald claims that the Union had varied its regular and
established hiring practices through the hiring of Teckenbrock who, McDonald
says, did not have the job rights that McDonald, under union hiring hall practices,
held at the time. McDonald had been a member of Local 104 of the Carpenters'
Union since about 1941, served a number of years as a delegate to the District
Council, and was fully cognizant of the constitutional and bylaw requirements for
the hiring of carpenters in this area. He had heard of the need for carpenters on
the Varsity Bowl job to be performed by Boyd, talked to Hanus, the superintendent
in charge of the work on the project, after talking to Trout, who told him that more
carpenters were to be hired but "they will have to come through the union hall."
Immediately thereafter McDonald and Teckenbrock went to the office or Carpenters'
hall of the District Council, talked to the business agents, Solomon, Moore, and
George, told them that he had been to the Varsity Bowl job and had been directed
to the Carpenters' hall for referral, asked if anyone had gone to that job and was
told "the man out there" said that he had to get his help through the union hall, and
that Moore told him "Yes, Jim, we did that to put the men back to work that had
been out of work longest"; that after further conversation he asked for a referral to
the job, and after some altercation with George, with Teckenbrock present, left after
having been refused a referral to the Varsity Bowl job. McDonald brought his
grievance before a meeting of the District Council on March 17, 1958, asked for
an explanation of the hiring policies in effect upon instruction by the District
Council:
He [Moore] said that the policy was to register and send the men out that
had been out of work longest, and that the contractor called in for the men
and they sent them out on that basis. . . .
McDonald , at this time, was a dues-paying member and in good standing in his
local union and in the Council.
The Miami Valley Carpenters District Council as such employs three business
agents to take care of the work under its jurisdiction and to protect the rights of
NATIONAL ASSOCIATION OF BROADCAST EMPLOYEES, ETC. 1077
local unions affiliated with the Council. In effect, the Council has territorial jurisdic-
tion in the organization sense with respect to the administration of trade rules, bylaws,
and constitutional provisions governing union activity within its territorial jurisdic-
tion. Forrest Solomon, secretary of the District Council, testified concerning the
amount of monthly dues required from each member of a local union and concerning
the payment of per capita from each local to the District Council in respect to the
financing of the operations of the Council in its dealings with employers within the
jurisdiction of the Carpenters' Union in this area.
The business agents employed by the Council conduct contract negotiations on
behalf of the Council and its affiliated locals with committees appointed by the
Council. It appears that the prime duties of the business agents involve the repre-
sentation of the members of the locals affiliated with the District Council in their
dealings with employers within the jurisdiction.
The carpenter members of the local unions affiliated with the Council solicit their
own work at times. A member is not required to obtain employment through the
Union ; no employer is required in practice to obtain his employees through the
Union . The member carpenter , taking advantage of the service maintained in the
hall of the Carpenters' Union, may place his name on a daily list of those members
other than himself who are available for employment and who choose to come to the
hiring hall and register to signify their availability for work. A daily list is kept at
the hall and in voluntary registration the member puts down his name and the date
on which he was last employed. An employer may take advantage of this facility,
a source of labor supply for him, and can call the union hall, whereupon the business
agent for the Union may call out the name of the man who is shown on this list
to have been out of employment for the greatest length of time and qualified for
the job. Should a member be present, desire the job, and be qualified, he is given
a referral slip by the business agent and sent to the job . Should such a man not be
present in the union hall at the time his name is called , the next qualified man has
an opportunity to take the job. Should a carpenter member not register or be present,
or is not in need of employment , or chooses to seek his own job, that is his privilege.
Carpenters , members of a local affiliated with the Council , within its jurisdiction, may
have particular knowledge of a certain job and are free to apply for employment
there.
It is contended and this Trial Examiner believes proved on the facts in this case,
that the employers within this jurisdiction, in practice, are not restricted under con-
tract , written or oral, to hire only union members but , on the contrary , are free to
employ nonunion members. However, when nonunion members are employed, they
generally are required to become members of the union within the proper jurisdic-
tion on the 31st day of employment.3
There is no real divergence of testimony in fact regarding the hiring practices of
the Council in this case. Thomas B. McQain, a member of Local 104 and a delegate
to the Council; James Napier, a member of Local 104 who, at the times material
hereto, was carpenter foreman on the Boyd job; James B. Clark, a member of Local
104; Charles R. George, a business agent for Local 104 during the times material
hereto and now a working carpenter, among the other witnesses who testified herein,
all credible witnesses , reflect the essential fact that it was not an apparent require-
ment for-either a member of Local 104 ( the Dayton local) or carpenters brought in
by a contractor or a subcontractor into the area on the three projects mentioned
above, to have completed clearance through the Carpenters' hiring hall in Dayton
except as according to their obligations as members of the United Brotherhood of
Carpenters and Joiners of America ( the International Brotherhood ) according to
existing bylaws and constitutional requirements, before being put to work on a job.
The Contractual and Constitutional and Bylaw Requirements of the Council and
the Union
a. Applicable contractual provisions
An agreement between the Dayton District Building Trades Employers Association,
Dayton, Ohio, and the Miami Valley Carpenters District Council of Dayton, Ohio,
was put into effect on May 26, 1958 , to run through April 30, 1960.
3 Some exceptions are made , as witness the case of William Freeman, hired by Boyd for
a comparatively short period of time and who thereafter made application for member-
ship but because of delay in paying his initiation fee, did not become a member for some
months.
1 078 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Among the provisions of that agreement are these:
Declaration of Principles
XIII. The carpenter is at liberty to work for whomever he sees fit, but he
shall demand and receive the wages agreed upon by this Agreement.
* * * * * * *
Article X-Union Shop Clause
All employees who are members of the Union on the effective date of this
Agreement, shall be required to remain members of the Union as a condition
of employment during the term of this Agreement. New employees shall be
required to become and remain members of the Union as a condition of em-
ployment from and after the 31st day following the dates of their employment
or the effective date of this Agreement whichever is later.
During the first thirty (30) days after his original date of employment with
the employer, a new employee shall be on a trial basis and may be discharged
at the discretion of the employer.
* * * * * * *
Article XVII-Request for Men
When an employer calls for men through the Union's office, said men shall
be supplied with an introductory card for identification purposes. Should any
employer order a carpenter to report for work, and failing to put him to work,
said carpenter shall be allowed two (2) hours time, except for rain or extreme
cold weather.
This agreement in whole context defines wages, hours, and general conditions of
carpenters employed by employers subject to this agreement .4
b. Constitutional and bylaw requirements
The constitution and laws of the United Brotherhood of Carpenters and Joiners
of America and rules for subordinate bodies under its jurisdiction, effective during
the times material hereto, provides in part:
Jurisdiction of District Councils
A. SEcTioN 26. Where there are two or more Local Unions located in any
one city they must be represented in a Carpenter's District Council, composed
exclusively of delegates from Local Unions of the United Brotherhood, and
they should be governed by such Laws and Trade Rules as shall be adopted by
the District Council and approved by the Local Unions and the First General
Vice-President. The General President shall have power to order such Local
Unions to affiliate with such District Council, and to settle the lines of jurisdic-
tion of such District Council, subject to appeal.
The Miami Valley Carpenters District Council, Respondent herein, is comprised
of more than two local unions.
The bylaws, trade, and working rules of the Council and affiliated locals in Dayton,
Ohio, contain, among others, the following provisions:
SEc. 16. All members will be required to carry their working cards while
working, and show their working cards when requested. Transient members
coming into this jurisdiction to work shall secure a working permit from the
office of the Secretary of the District Council, before going to work. This
rule shall apply to men with clearance in their book and the permit shall
expire on the date of the next regular meeting of the Local Union in which he
wishes to clear; said permit to cost no less than the highest dues of any local
in the District and subject to all District Council assessments levied from
time to time. Members of other Districts wishing to work on permits may be
issued a permit to work. Permits shall be good for a period of 30 days from
date of issue, and the amount charged for said permits shall be determined by
the District Council. The only exception to the issuance of the above permits to
transient workers when there are idle men in the District shall be to Superin-
4 This agreement superseded one effective from May 3, 1956, to April 30, 1958, which
contained provisions similar to those quoted above with the exception of the union
maintenance-of-membership provision.
MIAMI VALLEY CARPENTERS DISTRICT COUNCIL, ETC. 1079
tendents or Foremen of alien contractors and to men whose special skill require
their presence in this District.
SEC. 38. All foremen and sub-foremen must be members of the United
Brotherhood and be in possession of current working cards, and paid up. All
foremen shall comply with the BBy-Laws and Working Rules of the Miami
Valley Carpenters' District Council.
* * * * * * *
SEC. 43. Any foreman found guilty of breaking any rule of the District
Council or causing men to do so under his direction, shall be fined not less
than ten ($10) dollars.
SEC. 44. All foremen shall cooperate with the steward and the Business Rep-
resentative to make the job strictly Union in every detail; failing to do so, said
foremen shall be fined not less than ten ($10) dollars.
* * * * * *
SEC. 59. Foremen shall notify all men put to work who the steward is and
said workmen shall immediately report to same.
* * * * * * *
SEC. 71. Any member of the United Brotherhood working in this District
who sends outside of this jurisdiction for men or brings men into this District
at a time when there are a sufficient number of men idle, without first applying
to the Business Representative or Secretary of the District Council, shall be
fined not less than five ($5) dollars and ruled off the job.
The General Counsel contends on the basis of the facts set forth through testi-
mony and written evidence introduced into the record herein, that Napier, Hanus,
and other supervisors for Bowling were all members of the Union; that Napier (a
Local 104 member affiliated with the Council) and Hanus and other supervisors
were at all times subject to the control and discipline of the United Brotherhood
of Carpenters and Joiners. The General Counsel points out that under the ex-
clusive hiring hall agreements between the parties, McQain, Napier, Clark, and
George, as shown by testimony, were bound by the existing bylaws and constitutional
requirements of the Council and the Union, and the contractual position between
the Council and employers of union members .5
The Respondent, through counsel, argues in brief that no hiring hall agreements
existed on any job. Denver Building and Construction Trades Council, et al., 90
NLRB 1768; Sullivan Electric Co., IR-892, Trial Examiner Downing (November
17, 1959); and reports of the legislative history of the Act, cited by him in support
thereof, are inapposite. On behalf of the Respondent Council, too, it is argued
that employers may obtain men through union referral without the Act being
violated and competent authority is cited in support thereof. On the facts in this
case, while I agree with the statement, this argument seems to me to be beside
the point.
Concluding Findings
Without regard to whether or not Bowling, Boyd, or Miller were members or
parties to the agreement between the Council and the Employers, it is abundantly
clear from the record herein that the Council reserved to itself all the powers and
privileges set forth in the bylaws, trade, and working rules of the Council and its
affiliated locals.
This reservation of power, as is proven by the testimony of witnesses called for
each side, shows that the several carpenter foremen on the projects mentioned above
were members of the Union and were bound by its laws.
This case on the facts disclosed at hearing must be governed by the doctrine stated
by the Board in Mountain Pacific Chapter of the Associated General Contractors,
Inc., et al., 119 NLRB 883, remanded N.L.R.B. v. Mountain Pacific Chapter, etc.,
270 F. 2d 425 (C.A. 9), for further consideration. This Trial Examiner deems
himself bound by the Decision and Order of the Board.
In Cadillac Wire Corp., IR-825, October 27, 1959 [128 NLRB No. 128], I wrote:
The Mountain Pacific decision stated that an arrangement under which an
employer agrees to hire all of its employees through a union violates the Act,
unless the arrangement includes certain provisions (safeguards) which obviate
the unlawful encouragement of union membership otherwise inherent therein.
The Board did not in Mountain Pacific change the principle that an exclusive
hiring arrangement constitutes discrimination which unlawfully encourages
union membership within the meaning of the Act. The Board there adhered
5 See supra.
1080 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to its prior holding that an employer engaged in discrimination which encourages
union membership, within the meaning of Section 8(a)(3), by entering into an
exclusive hiring arrangement binding the employer to hire only men referred
by the union and prohibiting him from hiring men not preferred by the union;
that such a provision is illegal on its face, without regard to the practices under
it because by its terms it causes the employer to discriminate in hiring between
employees with union work permits and those who do not have such permits
and that this discrimination encourages union membership. The Board further
affirmed the principle that a union which is a party to such an agreement violates
Section 8(b)(1)(A) and (2). E.g., N.L.R.B. v. United Brotherhood of Car-
penters and Joiners of America, AFL-CIO, Local No. 517, AFL (Gil Wyner
Construction Co.), 230 F. 2d 256-258 (C.A. 1); N.L R.B. v. Gottfried Baking
Co., Inc., et al., 210 F. 2d 772, 777-780 (C.A. 2). The provisions constituting
an arrangement which would it is thought negate the unlawful encouragement
of union membership, as intended in Mountain Pacific, is summarized in the
concurring opinion of Member Jenkins in Local 363 affiliated with the Inter-
national Brotherhood of Boilermakers, etc. (Anchor Welding & Manufacturing
Company, et al.), 123 NLRB 1877:
First, the selection of applicants for referral to jobs must be on a non-
discriminatory basis, and not based upon, or affected by, union member-
ship bylaws, rules, regulations, constitutional provisions, or any other
aspect of obligation of membership, policies, or requirements. Second,
the employer retains the right to reject any applicant referred by the
Union. And third, the parties to the agreement must post at customary
places all provisions relating to the functioning of the hiring arrangement,
including the safeguards deemed essential to the legality of an exclusive
hiring arrangement.
Following this summary, in his concurring opinion, Member Jenkins goes on
to explain what is required by each one of the three safeguards he summarized.
The Board issued its order, together with a dissenting opinion by Member
Murdock, in Mountain Pacific, on September 14, 1957. Thereafter the Board
issued its decision in that case. Almost immediately after the Board's Decision
and Order (March 27, 1958), the General Counsel of the National Labor Rela-
tions Board announced or suggested that suitable time should be given unions
,and employers to conform to the principle enunciated and be given a reasonable
time to correct any agreement or arrangement which did not conform to the
safeguards set out in Mountain Pacific. Thereafter, the General Counsel
announced a moratorium until September 30, 1958, in pending cases wherein
it might have been charged that employers and unions that engaged in unfair
labor practices by virute of illegal hiring hall arrangements contained in collec-
tive agreements; subsequently, he announced an extension of that policy to
November 1, provided, however, that parties to such illegal contracts on or
about September 30 were engaged in negotiations looking forward to putting
into effect the safeguards laid down in Mountain Pacific.
In Shear's Pharmacy, Inc., IR-830, November 6, 1959 [128 NLRB No. 124], I wrote:
The rationale set forth in Mountain Pacific clearly shows that by entering into
the agreement that the company obtain its employees through the union, by
this conduct alone Local 1199 violated Section 8(b)(1)(A) and (2). Also
implicit in that case is the principle that an employer engages in discrimination
which encourages union membership, within the meaning of Secton 8(a)(3),
by entering into a bare exclusive hiring arrangement-an arrangement which
binds the employer to hire only persons referred by the union and prohibits
him from hiring persons not referred by the union. The Board holds that such
a provision is illegal on its face, without regard to the practices under it, because
first, by its terms it causes the employer to discriminate in hiring between em-
ployees from the union hall and those from outside; second, this discrimination
encourages union membership, because of the character and history of exclusive
hiring arrangements. This case stands for the proposition that a union which
is a party to such an agreement violates Section 8(b)(1)(A) and (2); the
position of the Board is sustained by uniform judicial authority that a union
violates these provisions when it enters into an agreement which on its face
enables the union to cause the employer to violate Section 8(a)(3). N.L.R.B.
v. Gottfried Baking Co., Inc., et al., 210 F. 2d 772, 777-780, 782 (C.A. 2);
Eichleay Corporation v. N.L.R.B., 206 F. 2d 799, 803-804 (C.A. 3); Leo Katz,
et al., d/b/a Lee's Department Store v. N.L.R.B., 196 F. 2d 411, 415 (C.A. 9).
MIAMI VALLEY CARPENTERS DISTRICT COUNCIL, ETC. 1081
Neither of these cases has been decided by the Board, yet I adhere to what I then
said. I think the law as it should be applied to the facts in this case is the same.
I expressly find that the Respondent Council has engaged in unfair labor practices
as defined in Sections 8 (b) (1) (A) and (2) of the Act, as alleged in the complaint .6
W. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent Council as set forth in section III, above, occurring
in connection with the operations of the Employers as 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
commerce and the free flow thereof.
V. THE REMEDY
In order to remedy the unfair labor practices as found, the Trial Examiner shall
recommend an order requiring the Respondent Council to cease and desist therefrom
and to take certain affirmative action designed to effectuate the policies of the Act.
Having further found that the Respondent Council is a party to an illegal closed-shop
hiring arrangement with certain companies or employers mentioned above and having
tried to enforce or maintain in effect certain closed-shop provisions above mentioned,
the Respondent has inevitably coerced employees to pay dues, fees, and assessments
necessary to achieve and retain membership in their respective local unions, it shall
be recommended that in order to expunge the coercive effect of these illegal exactions,
and adequately to remedy the unfair practices herein found, the Respondent Union
be required to reimburse to James McDonald, and any other employee similarly
situated, any dues, fees, assessments, permit fees, or other moneys that have been
so unlawfully exacted from him or them as a condition of obtaining or retaining em-
ployment. The liability for reimbursement shall include the period beginning 6
months prior to the filing and service of the original charge against the Respondent
Union and shall extend to all such moneys thereafter collected until the abandonment
by the Respondent Union of the unlawful hiring practice.
CONCLUSIONS OF LAW
1. Miami Valley Carpenters District Council, United Brotherhood of Carpenters
and Joiners of America, AFL-CIO, is a labor organization within the meaning of
Section 2(5) of the Act.
2. By maintaining in effect an unlawful union-security agreement between it and
certain employers within the Dayton, Ohio, area, the Respondent Union has engaged
in and is engaging in unfair labor practices within the meaning of Section 8(b) (1) (A)
and (2) of the Act.
3. The activities of the Respondent Council, above described, occurring in con-
nection with the operation of the businesses of the several employers mentioned
above, have a close, intimate, and substantial relation to trade, traffic, and com-
merce among the several States, and tend to lead to labor disputes burdening and
obstructing commerce and the free flow of commerce and constitute unfair labor
practices as noted in paragraph numbered 2, above.
4. 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.] 7
8 Also see Houston Maritime Association, Inc., etc, 121 NLRB 389.
4 This recommended order is intended to follow the decision of the Board in Nassau and
Suffolk Contractors ' Association, Inc., et al., 123 NLRB 1393, wherein the Board held In
part :
In holding that the Respondent Union and Respondent Eastern [Employer] have
inevitably coerced employees to pay moneys to the Union as a condition of employ-
ment , the Board has reconsidered the applicability of a Brown-Olds remedy to cases
involving alleged closed-shop violations of the Act , particularly the decisions In
Farnsworth & Chambers, Inc., 122 NLRB 300, and Rochester Davis-Fetch Corporation,
122 NLRB 269. To the extent those decisions hold , contrary to our findings herein,
that proof of the actual exaction of moneys from employees under an unlawful con-
tract is required to warrant the remedy of reimbursement , they are hereby overruled.
In our opinion, the existence of an unlawful contract is sufficient in and of itself to
establish the element of coercion in the payment of moneys by employees pursuant to
the requirements of such a contract . Accordingly, the above remedy Is applicable to
all closed-shop and exclusive hiring-hall agreements , which do not provide the safe-
guards set forth in the Mountain Pacific decision (119 NLRB 883, 893) whether or not
proof of the actual exaction of payments is established.