Sheet Metal Workers International Association

National Labor Relations Board - Board Decisions

Jun 12, 1958

120 N.L.R.B. 1366 (N.L.R.B. 1958)

1366 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees, grouping them on the basis of their union affiliation. The
contract refers to the individual unions only in providing for sep-
arate stewards for each union and for representation of each union
on a grievance committee. Although members of one union, when
transferred to a department manned by members of a different union,
are required to transfer union affiliation, they are not required to pay
any initiation fee to the latter union. There is plant-wide seniority
and and employee may "bump" into any job held by an employee
junior in service to him, provided that he possesses the necessary
skill to perform the job. Employee benefits are uniform throughout
the plant.
From the foregoing and on the entire record, we find that the em-
ployees previously certified by the Board or recognized by the Em-
ployer as separate units have been merged into a single unit and
comprise the bargaining unit covered by the existing union-security
agreement contained in the 1955 contract.4 Accordingly, as the unit
in which a deauthorization election is sought is not coextensive with
the broader unit covered by the existing union-security contract, we
find that it is not appropriate for the purposes of a union-shop
deauthorization election.' We shall therefore dismiss the petition.
[The Board dismissed the petition.]
I Cf. San Juan Mercantile Corporation, 117 NLRB 8 , 10; Publicker Chemical Corpora-
tion, 117 NLRB 257; The Langenau Manufacturing Company, 115 NLRB 971.
s Publicker Chemical Corporation, supra; F. W. Woolworth Company, 107 NLRB
071, 673.
Sheet Metal Workers International Association, Local Union No.
99 and Charles C. Cox and Dohrmann Hotel Supply Company,
Party to the Contract. Case No. 19-CB-467. June 12,1958
DECISION AND ORDER
On August 30, 1957, Trial Examiner James R. Hemingway is-
stied his Intermediate Report in the above-entitled proceeding, find-
ing that the Respondent had engaged in and was engaging in certain
unfair labor practices and recommending that it cease and desist there-
from and take certain affirmative action, as set forth in the copy
of the Intermediate Report attached hereto. Thereafter, the Respon-
dent filed exceptions to the Intermediate Report and a supporting
brief.
The Board 1 has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
1 Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its
powers in connection with this case to a three-member panel [Chairman Leedom and
Members Bean and Jenkins].
120 NLRB No. 184.
SHEET METAL WORKERS INTERNATIONAL ASSOCIATION 1367
The rulings are hereby affirmed. The Board has considered the In-
termediate Report, the exceptions and brief, and the entire record in
this proceeding, and hereby adopts the findings, conclusions, and
-recommendations of the Trial Examiner with the additions and
modifications set forth below.2
We agree with the Trial Examiner that the Respondent Union
violated Section 8 (b) (1) (A) and 8 (b) (2) of the Act by operat-
ing and maintaining in a discriminatory manner an exclusive hiring
hall arrangement under a tacit agreement with the Employer herein.
Furthermore, we find this agreement violative of the Act in that it
fails to conform with the requirements prescribed by the Board in
Mountain Pacific Chapter of the Associated General Contractors,
Inc., et al., 119 NLRB 883. We also find, as did the Trial Examiner
and for the reasons set forth in the Intermediate Report, the ad-
ditional violation of Section 8 (b) (1) (A) and 8 (b) (2) by the
Respondent in causing the Employer to discriminate in regard to
the hire of Charles Cox.
ORDER
Upon the entire record in this case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Sheet Metal
Workers International Association, Local Union No. 99, its officers,
agents, successors, and assigns shall :
1. Cease and desist from :
(a) Causing or attempting to cause Dohrmann Hotel Supply Com-
pany to discriminate against Charles Cox or any other applicant for
employment who is not a member in good standing in the Respondent
or causing or attempting to cause Dohrmann to discriminate in favor
of applicants for employment who are members of the Respondent,
by operating a discriminatory dispatch system under tacit or other
agreement with Dohrmann or by controlling the hiring practices of
Dohrmann by rules to which any hiring agents of Dohrmann who are
members of the Respondent are subject.
(b) In any other manner restraining or coercing employees or
prospective employees of Dohrmann in the exercise of the rights
guaranteed in Section 7 of the Act, except to the extent that such
rights may be affected by an agreement requiring membership in the
Respondent as a condition of employment, as authorized in Section
8 (a) (3) of the Act.
2 After the issuance of the Intermediate Report, the Respondent filed a motion to adduce
additional evidence . As the Respondent makes no claim that the proffered evidence is
"newly discovered" or that it was not available at the time of the hearing , we hereby deny
the motion See Limestone Manufacturing Company, 117 NLRB 1689. The official tran-
script has been corrected in accord with the Respondent 's motion to correct certain in-
advertences therein.
1368 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Make whole Charles Cox for any loss of earnings he may have
suffered as a result of the discrimination caused against him by pay-
ing him a sum of money computed as set forth in section V of the
Intermediate Report, entitled "The Remedy."
(b) Notify Charles Cox and Dohrmann in writing that Dohrmann
is free to offer employment to Charles Cox at any time without dis-
patch or clearance by the Respondent.
(c) Mail to the Regional Director for the Nineteenth Region signed
copies of the notice attached to the Intermediate Report and marked
"Appendix," 3 for posting at Dohrmann's shop, the latter willing.
Copies of such notice shall also be posted by the Respondent in con-
spicuous places in its hall and dispatching office and in all places
where notices or communications to members or applicants for em-
ployment are customarily posted. Copies of said notice, to be fur-
nished by the said Regional Director, shall, after being duly signed
by the Respondent's representative, be posted by the Respondent im-
mediately upon receipt thereof and be maintained by it for a period
of 60 consecutive days thereafter. Reasonable steps shall be taken
by the Respondent to insure that said notices are not altered, defaced,
or covered by any other material.
(d) Notify the said Regional Director in writing, within ten (10)
days from the date of this Order, what steps the Respondent has
taken to comply herewith.
8 This notice is amended by substituting for the words "The Recommendations of a
Trial Examiner" the words `.'A Decision and Order ." In the event that this Order is
enforced by a decree of a United States Court of Appeals , there shall be substituted for
the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the
United States Court of Appeals , Enforcing an Order."
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
The charge initiating these proceedings was filed on March 14 , 1957 , by Charles
C. Cox against Sheet Metal Workers International Association , Local No. 99,
herein called the Respondent . Upon this charge, a complaint was duly filed against
the Respondent on May 14, 1957, in which Dohrmann Hotel Supply Company,
herein called Dohrmann, was named a Party to the Contract with the Respondent,
alleging that the Respondent had violated Section 8 (b) (1) (A) and (2) of the Labor
Management Relations Act, 1947, as amended , 61 Stat . 136, herein called the Act.
In substance the complaint alleged that the Respondent and Dohrmann (having
a contract under which the Respondent agreed to furnish Dohrmann with all needed
journeymen sheet metal workers and Dohrmann agreed to require membership in
the Respondent within 31 days following the date of employment or the date of the
contract , whichever was later ) had an unwritten understanding that Dohrmann
would hire all employees in the bargaining unit through the Respondent or with
the Respondent 's clearance , that Dohrmann followed a practice of hiring only
through the Respondent or with Respondent 's clearance , that , in dispatching workers
to Dohrmann , the Respondent gave preference to its members and dispatched
nonmembers only when members were not available , that (as the complaint was
amended at the hearing ) during the period from September 14, 1956 ( 6 months
prior to the date of the filing of the charge ), to the date of the hearing all employees
hired in the bargaining unit by Dohrmann were members of the Respondent at the
SHEET METAL WORKERS INTERNATIONAL ASSOCIATION 1369
time they were hired and paid dues and assessments customarily required of members.
The complaint further alleged that on March 6, 1957, Charles Cox, who was not a
member of the Respondent, applied to Dohrmann for work in the bargaining unit,
that Dohrmann offered Cox a job conditional on his securing clearance by the
Respondent and requested the Respondent to clear Cox for work but that the
Respondent refused to clear Cox or to dispatch him to the job at Dohrmann's
because of his nonmembership in the Respondent and that as a result Dohrmann
did not then or thereafter hire Cox.
Dohrmann and the Respondent filed answers. Dohrmann's answer admitted
that on March 6, 1957, Cox applied for work, but it denied all unfair labor practice
allegations. The Respondent's answer denied all allegations concerning unfair
labor practices including the allegation that Cox had, on about March 6, 1957,
applied to Dohrmann for a job.
Pursuant to notice, a hearing was held at Seattle, Washington, on June 18 and
19, 1957, before the duly designated Trial Examiner. The Respondent was repre-
sented by counsel. Dohrmann did not enter any appearance. At the opening of
the hearing, counsel for the General Counsel of the National Labor Relations
Board, herein called the Board, moved to amend the complaint by adding an allegation
heretofore mentioned. The motion was granted. At the close of the hearing, the
parties requested time in which to file briefs with the Trial Examiner, a time was
fixed, and briefs were received and have been considered.
From my observation of the witnesses, and on the entire record in the case, I
make the following:
FINDINGS OF FACT
1. THE BUSINESS OF DOHRMANN
Dohrmann is a Nevada corporation engaged in the manufacture, sale, distribution
and installation of hotel equipment and supplies. In Seattle, Washington, Dohrmann
maintains an office, warehouse, shops, and showroom, herein collectively called the
Seattle plant. The value of goods shipped annually to the Seattle plant from points
outside the State of Washington exceeds $50,000. Dohrmann annually sells and
ships to purchasers located outside the State of Washington from its Seattle plant
goods valued at more than $50,000.
II. THE LABOR ORGANIZATION
The Respondent is a labor organization admitting to membership employees of
various Employers, including Dohrmann.
III. THE UNFAIR LABOR PRACTICES
A. The contract and hiring practices
The complaint alleges and the answers of the Respondent and Dohrmann admit
that: "At all times material herein there was in effect between Dohrmann and
Respondent a collective-bargaining contract covering wages, hours, and working
conditions of sheet metal workers in an appropriate bargaining unit employed by
Dohrmann at its Seattle plant." This contract at all times material herein contained,
inter alia, the following provisions:
ARTICLE III, SECTION 1. The Union agrees to furnish at all times to the
Employer duly qualified journeymen sheet metal workers and registered appren-
tices in sufficient numbers as may be necessary to properly execute work
contracted for by the Employer in the manner and under the conditions specified
in this agreement.
ARTICLE IV, SECTION 1. The Employer agrees to require membership in the
Union as a condition of continued employment of all employees performing
any of the work specified in Article I of this agreement within thirty-one (31)
days following the beginning of such employment, or the effective date of this
agreement, whichever is the later, provided the Employer has reasonable
ground for believing• that the membership is available to such employees on
the same terms and conditions generally applicable to other members, and
that membership is not denied or terminated for reasons other than the failure
of the employee to tender the periodic dues and initiation fee uniformly
required as a condition of acquiring or retaining membership.
Between 1950 and 1954, the Respondent and Dohrmann operated under a contract
which had originally been entered into in 1943 between the Seattle Construction
Council (representing employers in the building trades) and Seattle Building & Con-
struction Trades Council (representing members of various unions, including the
1370 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent).' It was stipulated that, from 1954 (when a contract was signed be-
tween Dohrmann and the Respondent) to the date of the hearing, the parties hereto
had regarded as being in force between Dohrmann and the Respondent "a contract
containing provisions that are set forth" in paragraph IV of the complaint, as hereto-
fore quoted. On April 1, 1957, a contract was entered into between Dohrmann and
the Respondent which also contained the provisions already quoted.
1. Dohrmann's hiring practices
Although these contract provisions do not require membership in the Respondent
at the time of hire, it is conceded by the Respondent that since September 14, 1956
(6 months prior to the date of the filing of the charge), all employees hired by
Dohrmann have been members of the Respondent at the time of hire. Edward
Ritchie, branch manager of Dohrmann, testified that it is Dohrmann's practice to call
the Respondent when it needs sheet metal workers and that since 1950 it has not hired
anyone except through the Respondent.2
Donald Doyle, shop foreman of Dohrmann's for the past 5 years and a member of
the Respondent, testified that he is the one who decides when men need to be hired
and that, when he needs men, he hires them by telephone call to the Respondent and
never except through the Respondent. He further testified that he seldom has men
apply to him for jobs but that when they do, if they are union men, he tells them they
have to be dispatched by the Respondent, and if they are nonunion men he does not
hire them but refers them to the Respondent. When a man comes to him with a dis-
patch slip from the Respondent, he testified, he questions him "about his experience
and where he's worked, and sometimes . if he's got a dues receipt paid up. . .
He asks about the dues receipt, he testified, because "it's just been a practice all
through the years that a man be a member in good standing with the union." There
is no shop steward at Dohrmann's. Doyle testified that he hires only through the
Respondent because that is the only place where good men are available. In view
of his previous testimony that he would not hire a nonunion man who applied, how-
ever, I infer that Doyle had other reasons to hire only through the Respondent, that
is, to permit the Respondent to determine whether or not the applicant for employ-
ment should be employed and to comply with the Respondent's working rules herein-
after set forth.
2. The Respondent's practices in supplying men to employers, including Dohrmann
On January 1, 1954, the Respondent adopted a set of 30 working rules which had
not been superseded by the time of the hearing. Among the working rules are
the following:
RULE No. 11. No member shall be permitted to subcontract or in any other
manner secure work for a job except by the established rule and law of working
only through a recognized Sheet Metal contractor, or being placed on a job by
the business representative or some official of the local union where the work is
to be performed unless otherwise agreed.
RULE No. 18. Shops recognized by the local unions shall be those only where
Journeymen and recognized apprentices are employed and who are in good
standing with the local union in accordance with the Constitution and By-Laws
of the Sheet Metal Workers' International Association. At least one Journey-
man must be employed.
RULE No. 19. The unions assume all obligations and responsibility for the
continued membership of all the men furnished by them and for the collection
of their dues and assessments; Provided, however, that if the union advises the
contractor that an employee is no longer a member in good standing in his local
union, such employee shall forthwith be replaced by a member in good standing
with the union.
3 This contract was the subject of litigation in International Association of Heat &
Frost Insulators & Asbestos Workers, Local No. 7, A. F. L., 92 NLRB 753; enf. denied
199 F. 2d 321 (C. A. 9).
2 The only exception mentioned earlier than 1950 was the case of an employee hired in
1942 or 1943 as a "youngster" to do a number of things around the plant. Later he did
service work and became a helper By 1949 or 1950 he had acquired enough experience to.
be considered a mechanic His foreman then asked the Respondent to classify him as a
journeyman, and the Respondent did so, although he had never been classified as an,
apprentice.
SHEET METAL WORKERS INTERNATIONAL ASSOCIATION 1371
There is nothing to indicate that these rules were canceled or superseded , although
they may have been relaxed to the extent that nonmembers were given jobs and the
union -shop agreement was applied to them after 30 days.
The Respondent keeps a record of the names of two classes of workmen. The
first group consists of nonmembers who have not made application for membership
with a payment on initiation fee. Their names and employment records are kept
on blue cards . Blue cards are made of all nonmembers or nonapplicants for member-
ship who are employed by a company , regardless of whether they have been dispatched
by the Respondent , hired from the street , through the State Employment Service or
some other service. Thus , the blue cards are not made merely for those nonmembers
who apply to the Respondent for jobs. I conclude that the primary purpose of
preparing and keeping such records is to enable the Respondent to require member-
ship after a blue-card man has been employed by one employer for 30 days. But,
secondarily , blue cards are sometimes used to find workmen for certain employers who
call for men. No other records are kept of blue-card men except what is on the
blue card.
The second group consists of members and applicants for membership who
have made a payment on initiation fee. Their names and employment status are
kept on white cards . Until an applicant for membership makes a payment on his
initiation fee his name is kept on a blue card . Other records than that showing
employment status are also kept of the white -card men . The names of those in
the latter group , when they apply for work, go on an out-of-work list. This list
is made up by the following procedure : When a member or applicant for mem-
bership requests work, the dispatcher writes the man's name on a slip of paper
and puts it on a spindle . Clerk-typists take the slips from the spindle and type
the out-of-work list under the date of the day when the members or applicants
requested work. The clerk-typists are required to note after the name of each
man whether he is a journeyman , applicant for membership , helper , or apprentice.
No explanation was offered of the reason for the second category, and no logical
reason is apparent except to enable the dispatcher to discriminate against the
applicant for membership . The Respondent 's dispatcher uses the out-of-work list
and the blue cards to select men for jobs when calls come in from employers for
sheet metal mechanics , albeit not without differences in methods hereinafter
described.
The Respondent sometimes has men referred to it by the Washington State Em-
ployment Service. These men are usually referred to the various shipyards, where
the pay scale is lower than at the various sheet metal shops in town. The shipyard
jobs are usually of short duration , too, although occasionally they run for a con-
siderable time. Neal Magnuson , the Respondent 's treasurer and assistant business
agent who acted as dispatcher, testified that when there is a journeyman member
who is qualified and wants a job which is open and, if there is a call in for a man,
he would get the job, possibly without any reference to the blue-card list unless
the employer requested the blue-card man. I infer that this would not be likely
to happen except in possible instances of recall of someone laid off. Although
Magnuson testified he did not differentiate between shipyards and shops in town
in dispatching blue-card men, he was unable to say that he even looked at the blue
cards before checking the out -of-work list in March 1957 when a substantial
number of members were out of work , and when no blue-card men were dispatched
to ships in town ( so-called "uptown shops" ) as distinguished from shipyards,
although the evidence indicates that a number of dispatches were made of members
to uptown shops in March . However, in June 1957 , when practically no one was
unemployed , 13 blue-card men were dispatched to uptown shops. It is a reasonable
inference that blue-card men are dispatched to uptown shops only when there
are no members interested in such jobs.
Further relevant evidence of the Respondent's practices are revealed in con-
nection with the case of Charles Cox, hereinafter set forth.
3. Issues and conclusions regarding hiring practices
It is contended by the General Counsel that the Respondent and Dohrmann had
an understanding that Dohrmann would hire all its employees through or with
clearance of the Respondent and that , in dispatching employees to Dohrmann, the
Respondent discriminated in favor of its own members . It is undisputed that the
Respondent and Dohrmann had had a closed -shop contract which continued in
effect until 1954 . Although no written evidence was produced , it was stipulated
that since 1954 there was regarded as being in effect an agreement containing the
1372 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
hiring provisions and union-shop provision heretofore described. This agreement
continued in force until a new agreement was made as of April 1, 1957.
Under the 1954 agreement, which is not contended, by its own terms, to be un-
lawful, the Respondent agreed to furnish Dohrmann with all sheet metal journeymen
and apprentices needed by Dohrmann. The agreement did not contain a reciprocal
promise by Dohrmann to hire all such needed workmen only through the Respondent.
Presumably, therefore, Dohrmann might have been free to hire the men it needed
from any source unless a collateral agreement, either express or tacit governed its
hiring practices. Because there is no evidence of such an express agreement, I con-
clude that, if an agreement existed, it was a tacit agreement. With respect to this,
Manager Ritchie testified that Dohrmann did not have a "policy" of hiring only
through the Respondent and that its practice of doing so was more a matter of
habit than a policy. Ritchie appeared to use the word "policy" in the sense of a
previously pronounced rule promulgated by him or by someone higher in the
management hierarchy rather than a rule of practice adopted or followed by the
foreman who did the hiring. Of course, a policy might grow out of fixed practice
without a formal promulgation of a rule. Certainly in the absence of a pronounced
policy to the contrary, Foreman Doyle had been privileged to follow and did follow
such a practice. If Dohrmann hired through the Respondent as a matter of habit
only, it would not have declined to hire applicants for employment who did not
have dispatches from the Respondent, but the evidence is that the Respondent did
require such dispatches. Dohrmann must have known that Doyle was a member
of the Respondent because he, was in Dohrmann's employ as a nonsupervisory
employee during the period of the closed-shop contract and he was made foreman
while that contract was still in effect. There is no evidence that at any time since
1954, Dohrmann had required that its foremen be nonmembers of the Respondent.
As Doyle was still a member at the time of the hearing, I conclude that he was
permitted to be both foreman and union member simultaneously. Through Doyle,
if not Ritchie, Dohrmann would be expected to infer that it could get workmen
through the Respondent at times and in numbers required only if it was a "recog-
nized shop" under the Respondent's rule 18. I find that Dohrmann is chargeable
with knowledge that Doyle, as a member, was bound to follow the Respondent's
constitution and working rules, particularly rules 18 and 19, heretofore quoted.
Being charged with such knowledge, Dohrmann must be presumed to have given
tacit approval thereto. Doyle testified that he never hired a nonmember but re-
ferred to the Respondent any that applied to him for work,3 and occasionally he
even checked on those that were dispatched by the Respondent to be sure they
were in good standing with the Respondent. Considering Dohrmann's knowledge
of the Respondent's rules and dispatching practices, together with Dohrmann's own
unvarying hiring practices and all the evidence, I conclude that for at least 6
months prior to the filing of the charge in this case, Dohrmann had a tacit agreement
with the Respondent that it would hire only those sheet metal mechanics who were
cleared and dispatched by the Respondent.
In drawing conclusions with respect to the charge of discrimination in dispatching
practices, I take into account that, except to the extent that the evidence related to
Cox and was testified to by himself or Doyle, the evidence of dispatching practices
came through witnesses friendly to the Respondent's cause. The witness, Magnuson,
who gave most of the testimony concerning dispatching practices, appeared at times
inclined to quibble on examination by counsel for the General Counsel and to be
easily led by leading or suggestive questions of counsel for the Respondent. Infer-
ences, therefore, have been more strongly drawn against than in favor of the Respond-
ent on this subject.
The Respondent adduced evidence that it dispatched nonmembers as well as mem-
bers and had on hand perhaps 200, but in any event more than 100, blue cards as
evidence of the fact that it was not confining itself to the welfare of members. If
the blue-card men were listed in the order in which they applied for work, some sig-
nificance might be given to the number of blue cards. But, as already shown, blue
cards are made up by the Respondent even if the employee gets his employment
other than through the Respondent. Hence a blue card could not be considered of
S Ritchie testified that since the Cox incident, herein related, he had instructed Doyle to
hire applicants for employment, if needed, without clearance by the Respondent. This
indicates an intention to avoid commission of unfair labor practices in the future but does
not prove that, before the Cox incident, Dohrmann had not tacitly consented to the
practice of requiring a clearance or dispatch from the Respondent.
SHEET METAL WORKERS INTERNATIONAL ASSOCIATION 1373
itself as an application for employment, even if the man whose name it bore were
no longer employed by the employer whose name was recorded thereon. Magnuson
admitted that many of the men whose names were on the blue cards produced at
the hearing might not even be in Seattle at the time of the hearing. This means
that not only were such men not applicants for work but were not even available
for assignment. I conclude, therefore, that the blue cards do not indicate that the
unemployed blue-card men are current applicants for employment. Rather, they
signify merely that, at some time, the men whose names are on the blue cards, had
worked in the capacity of sheet metal mechanics within the Respondent's jurisdic-
tional territory, regardless of how they got their jobs in the first place. Unless the
Respondent runs out of its own men whose names are on the out-of-work list, there
is no reason for the Respondent even to refer to the blue cards when calls come in
to the Respondent for men. Considering all the evidence, including the fact that no
blue-card men were shown to have been dispatched to uptown shops in March 1957,
I infer that the blue cards merely furnish a possible source of labor supply when
calls come in for men whom the Respondent cannot supply from its own members
or applicants for membership.
Although the evidence of the Respondent's handling of the Cox application for
work, hereinafter related, should not be taken by itself to be proof of a practice, it
must be considered as fortifying other evidence of a disposition to discriminate in
dispatching employees. On the entire record, therefore, I find that the Respondent,
under a tacit agreement with Dohrmann, operated an exclusive hiring hall primarily
for the benefit of its own members and treated others who were applicants for work
as entitled only to secondary rights. By so doing, the Respondent restrained and
coerced employees in the exercise of their right to refrain from joining the Respond-
ent or from engaging in union activities, thereby violating Section 8 (b) (1) (A)
of the Act. By such agreement and by its control of Dohrmann's foreman-union
member under its rules, the Respondent caused Dohrmann to discriminate against
nonmembers of the Respondent in hiring its employees, contrary to the provisions
of Section 8 (a) (3) of the Act, thereby violating Section 8 (b) (2) of the Act.
B. Causing discrimination in violation of Section 8 (b) (1) (A) and (2) of the Act
respecting Cox
Charles Cox transferred from another local into the Respondent in 1951. For
many years he had been a journeyman specializing in work on stainless steel and
fabrication of kitchen equipment. From 1952 to 1954 Cox was shop superintendent
for a company named Washington Industrial Products. In 1953, while there, he
invited Austin St. Laurent, a member of the Respondent, to work for him, and
St. Laurent did so until January 1954. Cox testified that during the week ending
January 24, 1954, he discharged St. Laurent for appearing on the job drunk. St.
Laurent denied that he was discharged at all, testifying that he quit during a period
of a strike. Neither side produced any record of the company to prove the date of
St. Laurent's termination or the reason therefor. Cox testified that St. Laurent
thereafter made a complaint (presumably to the Respondent) that Cox was a stock-
holder in the company contrary to a rule of the Respondent and, he testified, he
was thereafter called before the Respondent's executive board. It does not appear
what action the executive board took, but Cox testified that he quit paying dues and
he was suspended by the Respondent in May 1954. I find it unnecessary to resolve
the conflict in testimony regarding the reason for the termination of St. Laurent's
employment at Washington Industrial Products in 1954 because, whether or not
there was cause for personal animus arising out of the incident or the subsequent
charge against Cox, I find that such animus was not a motivating factor in the
Respondent's initial failure or refusal to dispatch Cox to Dohrmann Hotel Supply
Company, which is the basis of the charge in this case.
Cox left Washington Products in December 1954 and went to Alaska, returning
to Seattle in July 1955. Sometime after his return he applied to the Respondent
for membership and for a job. Between July 29, 1955, and May 21, 1956, Cox was
dispatched by the Respondent to 6 different employers, 2 of them for 2 separate
periods. While employed, he paid $20 toward his initiation fee of $298.50.4 If this
was less than would normally be expected for the amount of his earnings during
that period, no issue was made of it at the hearing,, and Cox apparently remained in
* He made his first payment of $10 on February 20, 1956, and, for the first time since
his suspension , his record was then transferred from a blue to a white card.
1374 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the status of an applicant for employment, although his work card was put in the
"dead file" on October 10, 1956.
In May 1956 Cox again went to Alaska , returning to Seattle on March 5, 1957.
Late that afternoon Cox telephoned Magnuson the dispatcher , and asked about the
work situation around Seattle. Magnuson said that it was not good, that he had 73
men out of work.5 Cox said that he had heard, through the local in Alaska, that
there was plenty of work in Seattle . Magnuson replied that they had had plenty of
work, but that there was a big layoff 2 weeks before.6
On March 6, Cox spoke with Donald Doyle , shop foreman for Dorhmann,7 when
he was there to talk to a couple of men he knew, and learned from Doyle that Dohr-
mann needed kitchen equipment men. That same day he went to the Respondent's
office and spoke with Magnuson , the dispatcher , to learn what the work situation
was. Magnuson told him that it did not look good and that he had heard that there
was plenty of work in San Jose, California . Cox replied that if he went that far,
he might as well return to Texas , where he had come from and where he had heard
there was a great deal of work . Cox gave Magnuson his name, address , and tele-
phone number on a slip of paper and also a matchbook showing the name of the
motel at which he was staying . I infer that by doing this, Cox was requesting the
Respondent to assign him to a job when it became available. Usually when a member
reports in to Magnuson that he is out of work , Magnuson writes that man's name
on a slip of paper and puts the slip on a spindle, from which the typist takes it to
type the out-of-work list for the day . Magnuson admittedly did not put Cox's name
on the spindle for the out-of-work list on March 6.8 After conversing with Mag-
nuson, Cox left the Respondent 's office, telephoned Doyle , 9 and asked about how
much work he had at the shop . Doyle told him he had a great deal of work, with
more coming in, and that he had already called the Respondent for two men. Cox
told Doyle that he had just talked with Magnuson and that Magnuson had told him
he had no call in from any shop. Doyle told Cox that he had put in a call a couple
of days before , io that probably Loreman (with whom he had spoken ) had forgotten
5 This was apparently an estimate . I am not thoroughly convinced of the accuracy of
this estimate Dean Loreman , the Respondent 's business agent , testified that at the time
of the hearing about 60 men were on the out-of-work list. But Magnuson , the dispatcher,
testified that he did not believe anyone was out of work at the time of the hearing.
8 Austin ,St Laurent , assistant business agent for the Respondent , testified that "on
January 25 , 57 of our men were laid off at one shop, more in other shops ." I infer that
the big layoff Magnuson was referring to in his conversation with Cox on March 5 was the
one that took place on January 25
7 According to Cox he had a conversation at the shop where he had gone to speak with
a couple of men there whom he knew . At first Doyle testified that the only conversation
lie had with Cox on March 6 took place over the telephone . Later he remembered that Cox
had been to the shop and asked how business was and that he had answered that he was
very busy.
8 Although the typist puts the names on the out-of-work list under the date the slip is
prepared by Magnuson rather than the day when she types the list from the slips and
although no reason appears for the entry of Cox's name subsequent to March 6 , the day
he was in to talk with Magnuson , Cox's name does appear at the bottom of the list for
March 8 The physical appearance of the typing of his name at this point gives rise to the
suspicion that the entry of Cox 's name at the bottom of the March 8 list may have been
made after the list for the succeeding day had already been typed , hence that it was made
by Magnuson sometime between March 8 and the date of the hearing in an attempt to
substantiate his testimony of dates and sequence of events.
9 Magnuson testified that on 1 or 2 occasions when he had spoken with Cox, the latter
had talked about a job at Dohrmann 's and that during 1 conversation Cox had asked
permission to telephone Dohrmann 's himself , that he had told Cox it was against the
rule, but that as far as he was concerned he could go ahead. Magnuson testified that
the rule he had in mind was "the working rules that we used to live np to " I infer that
he was referring to rule 11 heretofore quoted which forbids solicitation of jobs by mem-
bers. Cox did not testify to having made such request but it is possible that it may have
occurred.
'o On the Respondent 's case, Loreman testified that this call from Doyle for men had
come on March 8, that he was busy getting ready to leave town on the 10th and that he
had forgotten to put Dohrmann 's request for men in the book. Magnuson then testified
that the -first notice he had of the fact that Doyle had called for men came on March 11
SHEET METAL WORKERS INTERNATIONAL ASSOCIATION 1375
to mark it down and that he would call the Respondent again because he was in
great need of the help. Cox asked Doyle if he would ask for him when he called
the Respondent. Doyle answered that he would. According to Doyle's credited
testimony, shortly after Cox had hung up, he (Doyle) telephoned Magnuson, told
him he had put in a call 2 days before for a couple of men, that Cox had told him
he had talked to Magnuson and that the latter had not said anything about Doyle's
call, so he assumed that Magnuson did not know of the call. Magnuson checked the
book and found no call for Dohrmann. He asked Doyle if he still wanted the two
men. Doyle said, "Yes, and how about Cox?" 11 Magnuson answered, according
to Doyle, "Well, Doyle, we have a lot of our own men that is out of work and
Cox don't belong to our union." Magnuson asked if Doyle still wanted the two
men. Doyle said he did.
After Cox had made his call to Doyle, he returned to the Respondent's office
and told Magnuson that Doyle had said he had a call in for men. Magnuson told
him he did not know anything about it.
On March 7, Cox went to Dohrmann's shop and asked Doyle if he had called
the Respondent.12 Doyle said that he had made the call and had asked that Cox
be sent and that he had been told that Cox was not a member. Cox told Doyle
that the Respondent had never done that before and that, although he was not a
member, he was paying on a new membership card. According to Cox, Doyle
said that he thought he could still put Cox to work if he could get cleared by the
Respondent. Cox returned to the Respondent's office and told Magnuson that
Doyle had said he had requested him and that if he could not get work he could
not get a membership card paid for. Magnuson told him he was not going to
send him out ahead of the men on the list.13 Two other men were dispatched to
when Doyle called in to ask why he had not received the men he had asked Loreman for.
But according to Doyle, although apparently at first confused about the dates, he testified
after his recollection had been refreshed by his affidavit given to the Board's field ex-
aminer, that he called the Respondent first on Maich 4 or 5 and spoke with Loreman,
then telephoned Magnuson on March 6 right after speaking with Cox. An examination of
the Respondent's record of calls from employers for men indicated that dates of the calls
were not shown each day, that the date "March 5" appeared opposite a call a number of
lines ahead of that entered for Dohrmann and that the next date shown, considerably
after the entry of Dohrmann's request, was March 18 The Respondent's records also
show that, two lines below the line on which Dohrmann's call appeared, a call was put in
by an employer named Halladie Machine and that, in response to Halladie's call, a man
was dispatched on March 8 If Halladie's call came in after Dohrmann's second call (the
one that was recorded), as it must have, and if a man was dispatched in response to
Halladie's call on March 8, I conclude that Dohrmann's recorded call (the second call)
could not have been made after that date and consequently could not have been made as
late as March 11 as the Respondent's witnesses testified, because obviously a man would
not have been dispatched to Halladie on March 8 if Halladie's call had not been made on
or before March 8. Consequently, as Dohrmann's call to Magnuson was entered before
Halladie's, Dohrmann must have made its recorded, or second, call on or before March 8
That puts the first call, the one Loreman took, as at least 2 days before that On all
the evidence, I place the time of Doyle's first call as on March 4 or 5 as he testified and
his second call (the one hereinafter related) as on March 6.
li Magnuson at first testified that Doyle did not "outright" ask for Cox, although he
admitted that he and Doyle had mentioned Cox in the conversation Later he admitted
that Doyle might have said, "How about Cox?",but added, "That isn't asking for him."
13 According to Doyle, Cox telephoned him to ask, "How about the job?" and that he
had told Cox he was sorry but that Magnuson had told him that "we have a lot of our
own members out of work and you don't belong to our local, of which I didn't know."
Because Doyle forgot certain incidents until his recollection was refreshed by his affidavit,
it is possible that he forgot that this conversation took place at the shop instead of on the
telephone, but actually it makes no difference where it took place. It seems probable,
therefore, that Doyle had forgotten Cox's March 7 visit to his shop. Magnuson admitted
having told Doyle that Cox was not a member.
13 This is based on Cox's testimony. Magnuson testified that he told Cox it was the
Respondent's procedure not to send him out ahead of the men on the list-"I didn't tell
l im I couldn't send him out." That Magnuson could have sent Cox out even ahead of
others on the list if he had chosen to appears from his answer that, if a man at the
bottom of the list asked for a particular job, he would probably dispatch him to it ahead
of others
1376 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Dohrmann on March 11 . The Respondent 's work record of one of them-William
D. Petrie-contained no notation that he was unemployed (as was customary to be
noted on cards of those whose employment had ended ) before he was dispatched to
Dohrmann . Magnuson testified that he did not dispatch Cox to Dohrmann on
March 11 because he had lost the slip of paper on which Cox had written his
telephone number . This testimony was based on the contention that Doyle's first
recorded call for men was made on March 11 and that Cox 's slip got lost over the
weekend . As Doyle's call for men , made to Magnuson, came on March 6, the
very day when Cox had given the slip to Magnuson , I do not credit the testimony
of Magnuson that he could not locate Cox when Doyle 's call was made.
On March 13 , 1957, Cox went to the Respondent 's office and asked Magnuson
if he was ready to dispatch him, that here had been a call put in for him to be sent.
Cox did not explain in his testimony what employer was supposed to have called
for him . No testimony was given of Magnuson 's reply. Cox asked Magnuson if
he might speak with Austin St . Laurent , who had once worked .for Cox at Washington
Industrial ' Products and who was now assistant business agent of the Respondent.
St. Laurent came to the dispatcher 's window and Cox asked him why he was not
being treated fairly, suggesting that St . Laurent might have a personal grudge
because he (Cox) at one time had "discharged him for things that were beyond .
[his] control ." St. Laurent told Cox that, if a job came in, he would get it and
that as far as St. Laurent was concerned "it wasn 't necessary for him to go around
and solicit a job because we [the Respondent ] were fairly short of restaurant
equipment men." According to St . Laurent, Cox accused him of having solicited
jobs too. St . Laurent replied , "I never have, and if you start any word around
town like that , which are lies, I'll break your jaw." St. Laurent then threatened to
bring charges against Cox for soliciting work. However, learning that , under the
Respondent 's constitution , he could not file charges against an applicant for mem-
bership, he told Cox that he intended to file a motion before the executive board
that night and he told Cox that he could appear and defend himself. Cox said
that if St . Laurent did that , he would file a charge [unfair labor practice charge]
with the Board.
At the meeting of the executive board that night, March 13, St . Laurent moved
that because Cox had solicited work at 3 shops-Dohrmann , Van Vetter , and United
Fabricators-he not be dispatched to any of the 3 for 3 months. St. Laurent
testified that he made this motion because he believed that Cox had broken one
of the Respondent 's rules regarding solicitation, referring to rule 11, the working
rule as previously quoted. One of the executive board members ( Judy ) asked Cox
if he did not know he was not even supposed to go to the shop without first going
through the Respondent , and he read something to Cox out of a little book about
not soliciting jobs and saying that all jobs were supposed to come through the
Respondent . Cox asked if he was going to be blackballed from the three com-
panies and whether he would be given a job. A member named Norman told Cox
that after the other men were put to work, he would be sent out as jobs came in.
The executive board did not take action on St. Laurent's motion that night, how-
ever, deciding to put it over for a week, when Loreman would be back. The
Respondent's records show no further action on the motion . The following day,
March 14 , 1957, Cox filed the charge with the Board which initiated these
proceedings . On March 20, the Respondent dispatched Cox to a job with an
employer other than the three mentioned in St . Laurent's motion.
The Respondent sought to discredit Cox's testimony, because, in response to a
question by Respondent's counsel as to what employment he had had between
March 5 and March 20, Cox had answered that he had had none until he was
dispatched to Harbor Island Sheet Metal on March 19 or 20. Without more specific
questioning of Cox concerning the kind of employment referred to, the Respondent
put on its own witnesses to prove that another local had dispatched Cox to a job
as a heliarc welder ( a job for which he actually was not qualified ) on March 11 and
that Cox had worked at this job for periods of 21/2 to 8 hours on succeeding days
for a total ' of 34 hours , for which he received pay. Cox testified that he thought
the question of Respondent 's counsel referred to employment at his own trade and
for that reason he had said he was not employed in that period. Although I myself
would have given counsel's question the broader meaning, I am not convinced that
Cox did not understand it in the limited sense as he testified , especially since he
was not specifically asked about work outside of his trade . Wholly aside from this,
however , I find that Cox's testimony respecting the subject matter of the charge was
SHEET METAL WORKERS INTERNATIONAL ASSOCIATION 1377
sufficiently corroborated by other evidence to justify reliance on it in making the
findings that I have already made.
On the basis of the findings heretofore made, I note three possible reasons for
the Respondent's failure to honor Doyle's request for Cox: (1) the fact that, as a
mere applicant who was probably behind in his initiation fee payments, Cox' was
placed by the Respondent in a second-class category behind members in good
standing; (2) the fact that, to the belief of Magnuson and St. Laurent, Cox had
violated a union rule by soliciting a job with Dohrmann; (3) the fact that there
may have been personal animosity against Cox on the part of St. Laurent. I reject
the latter as the cause for Magnuson's failure to honor Doyle's request for Cox (a
request which the evidence discloses he would have honored without demurring if
Cox had been a member in good standing), because there is no evidence that St.
Laurent influenced Magnuson in respect to Cox and because St. Laurent denied that
he had been discharged by Cox in former employment and so ttiere would have
been no cause for animosity if this were true. Furthermore, St. Laurent is not shown
to have had anything to do with Cox in connection with his application for employ-
ment until March 13, long after Magnuson had failed to honor Doyle's request for
Cox.
I find that Cox's solicitation of a job from Dohrmann was not the reason, or at
least not the primary reason, for Magnuson's failure to honor Doyle's request for
Cox on March 6, although it quite apparently was at least one of the reasons for
the Respondent's failure or refusal to dispatch Doyle to other employment between
March 11 and 20. Violation of union rules by members may be punished within
the framework of the union, but the punishment may not extend to interference
with a man's employment except as authorized by the Act. Such authority is cer-
tainly not given by the Act in such a case as this. Furthermore, Cox was not yet
a member of the Respondent and was not even subject to punishment as a member,
according to the Respondent's own witnesses.
I conclude and find that the Respondent declined to dispatch Cox to Dohrmann
on March 6 primarily because he was not a' member of the Respondent and because
the Respondent made a practice of favoring its own members in dispatching them
to desirable jobs. Magnuson appeared to rationalize his statement that he did not
refuse to dispatch Cox to Dohrmann by testifying that he did not specifically say
he would not do so. This, however, is quibbling just as much as Magnuson's testi-
mony that Doyle did not specifically ask for Cox. When Doyle told Magnuson
that he wanted two men and asked,' "How 'about Cox?" that would be taken by
any normal individual to be a specific request for Cox if he were available. When
Magnuson replied to this query by telling Doyle that Cox was not a member and
that members were unemployed, the normal inference would be that this was being
given as a reason for not dispatching Cox. I conclude that Magnuson intended
thereby to influence Doyle as, in fact, he did. Doyle certainly understood Mag-
nuson's remark to constitute a refusal to clear Cox before members who were
unemployed, and, being a member of the Respondent himself, Doyle could be ex-
pected to react as he did, dropping his request for Cox and permitting the Respond-
ent to determine who should be employed by Dohrmann. It is apparent, and I find,
that if the Respondent had dispatched Cox on March 6, Dohrmann would have
employed him. By its tacit agreement with Dohrmann and by its control over
the hiring practices of Doyle through his membership in the Respondent, I find
that the Respondent caused Dohrmann not to employ Cox on March 6 or thereafter,
thereby violating Section 8 (b) (1) (A)'and.(2) of the Act.14
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in
connection with the operations of Dohrmann, 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.
14 A. Cestone Company, 118 NLRB 669; Gil Wyner Construction Company, 112 NLRB
714; Teller Construction Co., 110 NLRB 463; Grove Shepherd Wilson it Kruge, Inc, et at.,
109 NLRB 209. And see N. L. R. B. v. Cement Masons Local 555, etc., AFL, 225 F. 2d
168 (C. A. 9).
483142--59-vol. 120 - --- A
1378 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
V. THE REMEDY
Since it has been found that the Respondent has engaged in certain unfair labor
;practices , it will be recommended that it cease and desist therefrom and take certain
affirmative action designed to effectuate the policies of the Act.
As it has been found that the Respondent caused Dohrmann not to employ Cox
on March 6, 1957, in violation of the Act, it will be recommended that the Respond-
ent serve written , notice on Dohrmann that Dohrmann is free to employ Cox or
.anyone else without clearance or dispatch from the Respondent , serving copies of
such notice on Cox and the Regional Director for the Nineteenth Region of the
Board . It will further be recommended that the Respondent make Cox whole for
any loss of earnings which he may have suffered as a result of the discrimination
-caused by the Respondent , by paying Cox a sum equal to that which he would have
earned in the employ of Dohrmann from March 6, 1957, to the date of the service
of the aforesaid notice on Dohrmann , less Cox's net earnings elsewhere during said
period, the loss of pay to be computed on a quarterly basis in accordance with the
formula adopted by the Board in F. W. Woolworth Co., 90 NLRB 289.
CONCLUSIONS OF LAW
1. Dohrmann is an employer within the meaning of Section 2 (2) of the Act.
2. Dohrmann is engaged in commerce within the meaning of Section 2 (6) and
(7) of the Act.
3. The Respondent is a labor organization within the meaning of Section 2 (5)
of the Act.
4. By maintaining a tacit understanding for an exclusive dispatch system, by
-operating this system in a discriminatory manner, the Respondent has engaged in
and is engaging in unfair labor practices within the meaning of Sections 8 (b) (1)
(A) and (2) of the Act.
5. By causing Dohrmann to discriminate in regard to the hire of Charles Cox,
-the Respondent has violated and is violating Section 8 (b) (2) and 8 (b) (1)
(A) of the Act.
6 The aforesaid unfair labor practices are unfair labor practices within the
meaning of Section 2 (6) and (7) of the Act.
[Recommendations ' omitted from publication. I
APPENDIX
NOTICE TO ALL MEMBERS OF SHEET METAL WORKERS INTERNATIONAL ASSOCIATION,
LOCAL UNION No. 99; TO ALL EMPLOYEES OF DOHRMANN HOTEL SUPPLY COM-
PANY; AND TO ALL APPLICANTS FOR EMPLOYMENT THROUGH THE DISPATCH SYSTEM
Pursuant to the recommendations of a Trial Examiner of the National Labor Rela-
tions Board, and in order to effectuate the policies of the Labor Management Rela-
tions Act we hereby notify you that:
WE WILL NOT cause or attempt to cause Dohrmann Hotel Supply Company
to refuse to hire prospective employees because they are not members in good
standing or have not been cleared , approved, or dispatched by the undersigned
labor organization or in any manner to discriminate against prospective em-
ployees because they are not members of this labor organization.
WE WILL NOT in any other manner restrain or coerce employees or prospective
employees of Dohrmann Hotel Supply Company in the exercise of the rights
guaranteed in Section 7 of the Act, except to the extent that such rights may
be affected by an agreement requiring membership in a labor organization as
a condition of employment , within the limits authorized in Section 8 (a) (3)
of the Act.
WE WILL make Charles Cox whole for any loss of pay he may have suffered
as a result of the discrimination caused against him.
SHEET METAL WORKERS INTERNATIONAL ASSOCIATION,
LOCAL UNION No. 99,
Labor Organization.
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.