Associated General Contractors of America, Inc.

National Labor Relations Board - Board Decisions

Jul 7, 1955

113 N.L.R.B. 41 (N.L.R.B. 1955)

ALASKA CHAPTER, ETC. 41
WE WILL NOT enter into, maintain , renew, or enforce any agreement with
Harold Hibbard and Ben R . Stein , Individually and as a Partnership, d/b/a
Hibbard Dowel Co., or any other employer, which requires employees to join,
or maintain their membership in, this or any other labor organization as a
condition of employment , unless such agreement has been authorized as pro-
vided in the National Labor Relations Act, as amended.
WE WILL NOT in any like or related manner cause or attempt to cause Harold
Hibbard and Ben R . Stein , Individually and as a Partnership , d/b/a Hibbard
Dowel Co., or any other employer, to discriminate against employees in violation
of Section 8 (a) (3) of the Act.
WE WILL NOT in any like or related manner restrain or coerce employees in
the exercise of the right to self-organization , to form, join, or assist labor organi-
zations, to bargain collectively through representatives of their own choosing,
and to engage in other concerted activities for the purpose of collective bargain-
ing or other mutual aid or protection , or to refrain from any or all of such
activities , except to the extent that such right may be affected by an agreement
requiring membership in a labor organization as a condition of employment,
as authorized in Section 8 (a) (3) of the Act.
LOCAL 189, BUILDING SERVICE
EMPLOYEES UNION, A.F.L.,
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.
Alaska Chapter of the Associated General Contractors of Amer-
ica, Inc. and International Union of Operating E ngineers,
Local No. 302 and A. B. Coates . Cases Nos. 19-CA-999 and 19-
CB-317. July 7,1955
DECISION AND ORDER
On January 18, 1955, Trial Examiner Martin S. Bennett issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondents had engaged in and were engaging in certain unfair
labor practices and recommending that they cease and desist there-
from and take certain affirmative action, as set forth in the copy of the
Intermediate Report attached hereto. Thereafter, Respondent Alaska
Chapter of the Associated General Contractors of America, Inc., re-
ferred to herein as the Association, and the General Counsel filed ex-
ceptions to the Intermediate Report and supporting briefs.
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record in the
case, and hereby adopts the findings,' conclusions, and recommenda-
1 The General Counsel agrees with the Trial Examiner's findings that the Respondents
were operating their exclusive hiring arrangement in a discriminatory manner. He
excepts, however, to the broad statement of the Trial Examiner in support of the finding,
that a contiact provision giving line and job tenure preference to employees refeired by
a labor organization is unlawful on its face unless the contract also contains a specific
113 NLRB No. 7.
42 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tions of the Trial Examiner with the following modifications
The Trial Examiner recommended asserting jurisdiction over the
Respondents on the basis of the Board's plenary jurisdiction over
commerce in the Territories. Since the date of the Intermediate Re-
port, however, the Board has decided that the standards for the asser-
tion of jurisdiction applicable in the continental United States should
2also be used in the Territories. In accordance with a stipulation of
the parties received after the issuance of the Intermediate Report, we
find that in 1954 employer-members of the Association, pursuant to
Government contracts, provided goods and services valued in excess
of $5,000,000 which were directly related to national defense. In the
foregoing circumstances, we find that it will effectuate the purposes
of the Act to assert jurisdiction herein.3
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that :
I. Respondent Association, Alaska Chapter of the Associated Gen-
eral Contractors of America, Inc., its officers, agents, successors, and
assigns, shall :
A. Cease and desist from :
1. Encouraging membership in International Union of Operating
Engineers, Local No. 302, or in any other labor organization of the
employees of its employer-members, by requiring A. B. Coates or any
other applicant for employment to obtain, or conditioning tenure of
employment on, clearance from the above-named Union as a condi-
tion of employment, or by discriminating in any other manner in re-
gard to hire or tenure of employment, except to the extent permitted
by the proviso to Section 8 (a) (3) of the Act.
2. Performing, enforcing, or giving effect to those provisions of its
contract, or to any extension, renewal, modification, or supplement
thereto, or to any understandings, oral or written, with International
provision that the hiring-hall arrangement will be operated in it nondiscriminatory man-
ner In view of the fact that there is no disagreement as to the Trial Examiner's finding
of a violation of the Act, we consider it unnecessary to decide in this case whether the
Geneial Counsel or the Trial Examiner has correctly stated the general principles which
deter mine the legality of exclusive hiring-hall arrangements. To the extent that the
Tiial Examiner seems to suggest that whenever a labor union is asked by an employer
to refer workers it violates the Act unless it does so on a nondiscriminatory basis even if
there is no arrangement in regard to referrals, we do not adopt and need not pass on
such dicta.
The Association objects to the issuance of any order against itself on the ground that
it previously had notified its members that a contiact with another union , containing a
preferential hieing provision identical with the one in this case, was in violation of the Act.
We do not consider that any such notice, if served, makes the present case moot or no
longer requires the issuance of an order.
2 Homer TV Robisisoie d/b/a Alaska Beverage Co , 111 NLRI3 995
3 Maytag An craft Corp , 110 NLRB 594.
ALASKA CHAPTER, ETC. 43
Union of Operating Engineers, Local No. 302, by which the hiring or
retention of employees or prospective employees is conditioned upon
clearance from said Union, except to the extent permitted by the pro-
viso to Section 8 (a) (3) of the Act.
3. Interfering with, restraining, or coercing the employees or pro-
spective employees of its employer-members in the exercise of the rights
guaranteed by Section 7 of the Act, except to the extent that such
rights may be affected by an agreement requiring membership in a
labor organization as a condition of employment, as authorized by
Section 8 (a) (3) of the Act.
B. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
1. Jointly and severally, with Respondent Union, make whole A. B.
Coates for any loss of pay suffered by reason of the discrimination
against him, in the manner set forth in section V of the Intermediate
Report entitled "The Remedy."
2. Upon request make available to the Board, or its agents for ex-
amination and copying, all payroll records, social-security payment
records, timecards, personnel records and reports, and all other records
maintained by Respondent Association and the Max J. Kuney Com-
pany, necessary to determine the amount of back pay due.
3. Post at its place of business and at each construction site of each
employer-member within the geographical jurisdiction of the Re-
spondent Union, in conspicuous places, including all places where no-
tices to employees or prospective employees are customarily posted,
copies of the notice attached hereto and marked "Appendix A." 4 Cop-
ies of said notice to be furnished by the Regional Director for the Nine-
teenth Region, shall. after being duly signed by the manager of Re-
spondent Association, be posted by each employer-Inember at each con-
struction site as above, immediately upon receipt thereof and be main-
tained by them for sixty (60) consecutive days thereafter. Each em-
ployer-member shall take reasonable steps to insure that said notices
are not altered, defaced, or covered by any other material.
4. Transmit to each employer-member who employs employees cov-
ered by the terms of the contract mentioned in paragraph I, A, (2),
above, a copy of the notice which said Union will prepare pursuant to
paragraph II, B, (2) of this Order, and notify each employer-member
of the terms of this Order, and request each of them to take all steps
necessary to insure that persons employed by them and applicants for
employment will not be discriminated against except to the extent per-
mitted by the proviso to Section 8 (a) (3) of the Act, and invoke such
powers and rights as respondent Association may have as to each
4 In the event that this 01 del 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 Decice of the United States Couit of Appeals, Enforcing an Order."
44 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
member , in order to insure the cooperation of each such employer-
member in effectuating the terms of this Order.
II. Respondent Union, International Union of Operating En-
gineers, Local No. 302, its officers , representatives , and agents , shall:
A. Cease and desist from :
1. Causing or attempting to cause the Max J . Kuney Company, or
any other employer -member of Respondent Association , to discrimi-
nate against employees or applicants for employment, including A. B.
Coates, in violation of Section 8 (a) (3) of the Act.
2. Performing , enforcing, or giving effect to those provisions of its
contract or to any extension , renewal , modification , or supplement
thereto, or to any understandings , oral or written, with Respondent
Association by which the hiring or retention of employees or pro-
spective employees is conditioned upon clearance from the above-
named labor organization , except to the extent permitted by the pro-
viso to Section 8 (a) (3) of the Act.
3. Restraining or coercing A. B. Coates or any other employee or
prospective employee of the Max J. Kuney Company, or any other
employer -member of the Respondent Association , in the exercise of
the rights guaranteed by Section 7 of the Act, except to the extent
that such right may be affected by an agreement requiring member-
ship in a labor organization as a condition of employment , as author-
ized by Section 8 (a) (3) of the Act.
B. Take the following affirmative action which the Board finds
will effectuate the policies of the Act:
1. Jointly and severally , with Respondent Association , make whole
A. B. Coates for any loss of pay suffered by the discrimination against
him in the manner set forth in section V of the Intermediate Report
entitled "The Remedy."
2. Notify the Max J. Kuney Company and Respondent Association,
in writing, and furnish copies to A. B. Coates, that Respondent Union
has no objection to the employment of A. B . Coates on any construction
project within its jurisdiction, without regard to his dispatch by
Respondent Union and without prejudice to his seniority or other
rights and privileges.
3. Post in conspicuous places at its office , at the office of the Respond-
ent Association , and at each construction site of employer -members of
Respondent Association within the geographical jurisdiction of Re-
spondent Union, including all places where notices to employees or
prospective employees customarily are posted , copies of the notice
attached hereto and marked "Appendix B." 5 Copies of said notice
to be furnished by the Regional Director of the Nineteenth Region,
shall, after being duly signed by a representative of Respondent
6 See footnote 4, supra
ALASKA CHAPTER, ETC. 45
Union, be posted by it at each construction site as provided in para-
graph I B (3), above, immediately upon receipt thereof and be
maintained for sixty (60) consecutive days thereafter. Reasonable
steps shall be taken to insure that said notices are not altered, defaced,
or covered by any other material.
III. Respondent Association and the Respondent Union shall notify
the Regional Director of the Nineteenth Region in writing, within
ten (10) days of the date of this Order, what steps they have taken
to comply herewith.
APPENDIX A
NOTICE TO ALL EMPLOYEES AND APPLICANTS FOR EMPLOYMENT
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees and appli-
cants for employment that :
WE WILL NOT encourage membership in International Union
of Operating Engineers, Local No. 302, or in any other labor
organization, by requiring any applicant for employment to
obtain, or by conditioning tenure of employment on, clearance
from the above-named Union as a condition of employment, or
by discriminating in any other manner in regard to hire or tenure
of employment, except to the extent permitted by the proviso to
Section 8 (a) (3) of the Act.
WE WILL NOT perform, enforce, or give effect to any agree-
ment or understanding with International Union of Operating
Engineers, Local No. 302, by which the hiring or retention of
employees and prospective employees is subject to a clearance
from the above-named Union.
WE WILL NOT interfere with, restrain, or coerce our employees
or applicants for employment in the exercise of the rights guar-
anteed by Section 7 of the Act, except to the extent that such right
may be affected by an agreement requiring membership in a labor
organization as a condition of employment, as authorized by Sec-
tion 8 (a) (3) of the Act.
WE WILL make whole A. B. Coates for any loss of pay he may
have suffered as a result of our discrimination against him.
ALASKA CIIAPTER OF TIIE ASSOCIATED GENERAL
CONTRACTORS OF AMERICA, INC.,
Employer.
Dated---------------- By-------------------------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
46 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX B
NOTICE TO ALL MEMBERS OF INTERNATIONAL UNION OF OPERATING
ENGINEERS, LOCAL No. 302, AND TO ALL EMPLOYEES OF TITS MAX J.
KUNEY COMPANY AND OTHER EMPLOYER-MEMBERS OF ALASKA
CHAPTER OF THE ASSOCIATED GENERAL CONTRACTORS OF AMIERICA,
INC.
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify you that :
WE W1LL NOT cause or attempt to cause the Max J. Kuney Com-
pany, or any other employer-member of Alaska Chapter of the
Associated General Contractors of America, Inc., to discriminate
against any employee or applicant for employment in violation
of Section 8 (a) (3) of the Act.
WE WILL NOT perform, enforce, or give effect to any agreement
or understanding with Alaska Chapter of the Associated Gen-
eral Contractors of America, Inc., by which the hiring or reten-
tion of employees and prospective employees is subject to our
clearance.
WE WILL NOT restrain or coerce employees or prospective em-
ployees of the Max J. Kuney Company, or of other employer-
members of Alaska Chapter of the Associated General Contrac-
tors of America, Inc., in the exercise of the rights guaranteed by
Section 7 of the Act, except to the extent that such right may be
affected by an agreement requiring membership in a labor organ-
ization as a condition of employment, as authorized by Section 8
(a) (3) of the Act.
WE WILL make whole A. B. Coates for any loss of pay suffered
as a result of the discrimination against him.
INTERNATIONAL UNION OF OPERATING
ENGINEERS, LOCAL No. 302,
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.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
This proceeding is brought tinder Section 10 (b) of the National Labor Relations
Act, 61 Stat. 136, herein called the Act, and is based upon charges duly filed on May
19, 1954, by A. B. Coates, an individual, against Alaska Chapter of the Associated
General Contractors of America, Inc., and against International Union of Operating
Engineers , Local No. 302, herein respectively called Respondent Association or AGC
ALASKA CHAPTER, ETC. 47
and Respondent Union. Pursuant to said charges, the General Counsel of the Na-
tional Labor Relations Board issued a consolidated complaint dated August 23, 1954,
against Respondents , alleging that they had engaged in unfair labor practices, Re-
spondent Association , within the meaning of Section 8 ( a) (1) and ( 3), and Respond-
ent Union , within the meaning of Section 8 (b) (1) (A ) and (2 ) of the Act . Copies
of the charges , the consolidated complaint , and notice of hearing thereon were duly
served upon both Respondents.
In substance , the complaint alleged that Respondent Association , in behalf of its
employer-members , including the Max J. Kuney Company , and Respondent Union
had, during the 6-month period preceding the filing of the charges herein, adminis-
tered and given effect to a collective -bargaining agreement , the unlawful terms of
which appear below; that during the same period Respondent Union had operated a
hiring hall for employer-members of the AGC and for employers observing the terms
of AGC contracts ; that in the operation of said hiring hall, Respondent Union requires
applicants for employment to join the Union or have a permit issued by the Union
before giving a clearance or dispatching the applicants to employment ; and that the
officers and agents of Respondent Union who operate the hiring hall determine that
certain applicants who are not members of the Union or have not been issued permits
shall not be dispatched to employment available to them
The complaint further alleged that the Max J. Kuney Company offered A. B . Coates
employment as a fireman on May 14, 1954 , provided that he obtain a clearance from
Respondent Union; that Respondent Union caused Kuney Company to refuse Coates
employment because it , the Union , refused to issue a clearance to Coates ; and that
this refusal was bottomed upon the fact that Coates was not a union member and for
reasons other than his failure to tender the periodic dues and initiation fees required
by Respondent Union.
Pursuant to notice , a hearing was duly held at Fairbanks , Alaska, on October 11,
1954, before Trial Examiner Martin S Bennett , duly designated by the Associate
Chief Trial Examiner . Respondent Association , although duly served with the com-
plaint, and with notices postponing the hearing, did not appear . Nor did it file an
answer or similar document to the same purport. Ruling was reserved on a motion
by the General Counsel for judgment on the pleadings against Respondent Associa-
tion . Respondent Union was represented and was permitted to file an oral answer at
the hearing . This answer stated a denial of the allegations herein and further alleged
that it did "not have a thorough knowledge of a need for this man's [Coates '] services
by the employer at the time that he states , and we are prepared to show that we have
no knowledge . . . .' Respondent Union then participated in the hearing, was
afforded full opportunity to be heard , to examine and cross-examine witnesses, and
to introduce relevant evidence . The parties were afforded an opportunity to argue
orally and to file briefs . Oral argument was waived by the parties , although the
General Counsel cited cases in support of his position herein. No briefs have been
received.
Upon the entire record in the case, and upon my observation of the witnesses, I
make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT ASSOCIATION
Alaska Chapter of the Associated General Contractors of America , Inc., is an
association of general contractors and employers of construction craft workmen,
including workmen in the operating engineers ' craft in the Territory of Alaska. The
members of this Association are known as employer-members. The AGC is the agent
of its employer-members and represents them for the purpose of collective bargain-
ing. The gross construction business of these employer -members is in excess of
$1,000 ,000 per annum.
The Max J. Kuney Company is a general contractor and employer -member of AGC
which is engaged in construction work in the vicinity of Fairbanks , Alaska. It per-
forms construction work valued in excess of $100,000 per annum . I find that the
operations of Respondent AGC and its employer-members , including the Max J.
Kuney Company , constitute commerce falling within the Board 's plenary jurisdiction
in the Territory of Alaska and that it would effectuate the policies of the Act to assert
jurisdiction herein. United Brotherhood of Carpenters and Joiners of America, Local
No. 1281 , 109 NLRB 874.1
1 These findings are based upon the allegations of the complaint . Respondent Associa-
tion has not filed an answer and appearance herein and , pursuant to Section 102 20 of
the Rules and Regulations of the Board , all allegations of the complaint are "deemed to
48 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
II. THE LABOR ORGANIZATION INVOLVED
International Union of Operating Engineers, Local 302, is a labor organization
admitting to membership the employees of employer-members of Respondent
Association.
III. THE UNFAIR LABOR PRACTICES
A. Introduction : the case against Respondent Association
Turning first to the case against Respondent Association , it has been found that
the Board has jurisdiction herein and that there has been proper service of process.
The allegations of the complaint have been unanswered , are undenied , and Respondent
Association has made no appearance herein. I therefore grant the motion of the
General Counsel for judgment on the pleadings , and the findings and conclusions
that follow are based upon the unanswered and undenied allegations of the complaint,
pursuant to the provisions of Section 102.20 of the Rules and Regulations of the
Board. See Mission Oil Co., 88 NLRB 743. See also National Candy Company v.
Federal Trade Commission , 104 F. 2d 999 ( C. A. 7), cert. denied 308 U. S. 610, and
cases cited therein, and 31 Amer. Jur . 131, 137.
(1) During the 6-month period preceding the filing of the charges herein on
May 19, 1954 , Respondent Association in behalf of its employer -members, including
the Max J. Kuney Co ., has administered and given effect to a collective -bargaining
agreement with Respondent Union, the terms of which provide:
ARTICLE III-Employment Clearance
Section 1. The Contractors will call upon the Unions having jurisdiction, or
their Agent, for such men as they may from time to time need and the Unions
or their Agent shall immediately furnish to the Contractors the required number
of qualified and competent workmen and skilled mechanics of the classifications
needed by the Contractors . Reasonable advance notice ( but not less than 48
hours except Saturday , Sunday or holidays ) will be given by the Contractors
to the Unions or their Agent upon ordering such workmen or mechanics, and in
the event that after such notice the Unions or their Agent shall not furnish
such workmen , the Contractors may employ men procured from any other
source or sources , provided, however , that immediate written notice, not to ex-
ceed seven days from date of hire , shall be given the Unions of men so hired.
Section 2. The Contractors agree to give priority of hire and job tenure to
men dispatched in conformity with the procedures outlined in Section 1 of this
Article who are legal residents of Alaska when such men are qualified and
available and who have remained in continuous employment including excusable
absences.
Section 3 The Unions recognize that the Contractors have had in their em-
ploy on other projects certain employees who are particularly valuable to the
Contractors . The Contractors agree to designate a responsible representative
for each project through whom they will call on the Union to effect proper job
clearance as to these men in accordance with this Agreement and the Unions
agree that such employees may be admitted to membership in the Unions with-
out discrimination... .
ARTICLE IV-Union Membership and Dues
The Unions assume all obligations and responsibilities for the continued
membership of their members and the collection of their dues , and the Unions
shall retain the right to discipline their members at all times . [Emphasis sup-
plied.]
(2) During the 6-month period preceding the filing of the charges herein,
Respondent Union has operated a hiring hall for employer-members of AGC in
the operation of which Respondent Union requires applicants for employment to
become members of said Union or have a permit issued by it before giving clearance
to and dispatching applicants to available employment . The officers and agents
of Respondent Union who operate the hiring hall determine that certain ap-
plicants for employment , because they are not members of the Union and be-
be admitted to be true and may be so found by the Board " Respondent Union did not
deny or refute these allegations of the complaint and, in fact, stipulated that it was doing
business with the Kuney Company pursuant to the provisions of the AGC agreement
described below.
ALASKA CHAPTER, ETC. 49
cause they have not been issued permits by the Union, shall not be dispatched for
employment available to them.
(3) On May 14, 1954, A. B. Coates was offered employment by Superintendent
J. L. Johnston, of the Max J. Kuney Company, as a fireman on the night shift
on a construction project near Fairbanks, Alaska, provided that Coates obtain
a clearance from Respondent Union.
(4) On May 14, 1954, Respondent Union caused the Max J. Kuney Company
to refuse to employ Coates for the reason that it did not issue Coates a clearance,
because he was not a member of Respondent Union and for reasons other than
his failure to tender the periodic dues and initiation fee required by Respondent
Union.
(5) Respondent Association, by engaging in the above-described conduct ascribed
to it, has engaged in unfair labor practices within the meaning of Section (8) (a)
(1) and (3) of the Act.
B. The case against Respondent Union
The complaint herein attacks both the maintenance of unlawful union-security
provisions in contract form as well as, in one instance, the refusal to clear an
applicant for employment. Unlike the case against Respondent Association, con-
sideration is given herein to the testimony and stipulations contained in the tran-
script of testimony. The representative for Respondent Union stipulated that Re-
spondent Union and Max J. Kuney Company, during 1953 and 1954 have done,
and still do, business pursuant to the provisions of the contract between Respondent
Association and Respondent Union. The provisions of the contract have been here-
tofore set forth. The findings that follow are based upon the uncontroverted and
credited testimony of Coates, the only witness herein, whose testimony Respondents
chose not to attempt to refute 2
Coates was a resident of California until March of 1953, when he moved to
Alaska, arriving there the following month. He had applied for membership in
Local No. 3, a sister local of Respondent Union in California, prior to leaving for
Alaska and, after his arrival, he was advised by mail that he had been accepted
therein. At an undisclosed date thereafter, he applied for and received a transfer
card from Local No. 3. However, shortly after arriving in Alaska, he attempted
to transfer his membership from Local No. 3 to Respondent Union, Local No. 302,
and discovered that the transfer was not acceptable to the latter organization. As
of the date of this hearing, his transfer has still not been accepted and he is not
a member of Local 302. He appears to be making his permanent residence in
Alaska, and, for the purposes of this record, must be deemed to be a resident of
Alaska.
On or about May 12, 1954, Coates was asked by Foreman Koski of the Max J.
Kuney Company if he would consider entering the employ of that concern. Coates
had not previously worked for this company. Coates replied that he would indeed
relish the prospect, but expressed doubt that Respondent Union would dispatch him
to the job without a letter from the Kuney Company requesting Respondent Union
to do so. On the morning of May 14, Superintendent J. L. Johnston of that concern
personally gave Coates a letter to be taken to the offices of Respondent Union. It
was addressed to one "Whitey," not identified by the record, and signed by Johnston.
The letter stated that "It would be greatly appreciated if you would dispatch the
bearer, A. B. Coates, to us, today, as a fireman for our night shift."
Coates promptly proceeded to the offices of Respondent Union. These offices
apparently consist of an outer office and an inner office, and it is possible for one
in the outer office to observe what is taking place in the inner office. Coates spoke
to the female office secretary and asked to see either Business Agent Walker or
his colleague, Business Agent Langberg. He apparently was asked to wait by the
office secretary, and did so until noon with no success The girl closed down the
office at noon for lunch and left, Coates perforce did likewise, but returned when
she reopened the office. He then handed her the letter given him by Superin-
tendent Johnston and asked her to take it to a business agent, stating that he
2 Although available, the representative and business agent for Respondent Union did
not testify herein. His above-cited stipulation is considered heicin only as binding upon
Respondent Union As the findings against Respondent Association are based solely upon
the provisions of Section 102 20 of the Rules and Regulations of the Board, no problem
is piesented as to the binding effect of this stipulation upon Respondent Association.
Cf N. L. R. B. v. Haddock-Engineers, Limited, et at., 215 F. 2d 734 (C. A. 9).
50 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
desired an answer. The girl agreed to do so and, in the observation of Coates,
forthwith entered the inner office and handed the letter to Business Agents Walker
and Langberg, who had apparently entered in the interim. Coates observed both
men stop what they had been doing and inspect the letter. They retained the letter
and took no action in the direction of talking to Coates or calling him to the inner
office. The girl returned to the outer office and Coates waited for the remainder
of the afternoon.
Although both business agents were in the office that afternoon, they sent no word
to Coates. The latter asked the office girl each time she entered and returned from
the inner office if he could see a business agent and she replied that he could; how-
ever, Coates was not invited in or sent for. Coates waited in the outer office for the
remainder of the afternoon and renewed his request to see either of the business
agents. The girl replied that he could and that she would make an appointment for
him. Precisely when, if at all, this would have been made does not appear in the
record. Coates patiently waited until closing time when the office girl invited him
to leave, pointing out that both business agents had left for the day and that she
had to lock the office. Coates duly obliged.
On the following morning Coates reported to Johnston and informed him that
Respondent Union would not dispatch him to the project. Johnston asked the reason
and Coates replied that he "couldn't understand why." Johnston, according to Coates,
said something unprintable in reply and stated that he "would have liked to had me
on that job." According to Coates' hearsay but uncontroverted testimony, the fore-
man of the job, Koski, informed him, Coates, that someone else had been dispatched
to the job.
On May 24, one or the other of the two business agents did dispatch Coates to a
job with the Kuney Company, and he was put to work. It may be noted that the
original position Coates sought was that of night fireman and that on May 24 he was
put to work in that identical position by the Kuney Company, although dispatched
by Respondent Union as a dozer operator. As is apparent, the alleged discrimination
against Coates involves a loss of 10 days' pay.
Conclusions
A. B. Coates, the complainant herein, and, insofar as this record demonstrates a
legal resident of Alaska, was offered a job by the Max J. Kuney Company, an em-
ployer-member of Respondent Association, but was first referred to Respondent
Union by the superintendent of the Kuney Company with a written request that
Respondent Union "dispatch" Coates to the job. Coates promptly proceeded to the
union office, was most persistent in his attempt to be dispatched by the Respondent
Union, and forcefully brought the request to their attention Nevertheless, the request
by the employer was met with patently evasive treatment which can only be viewed as
amounting to a refusal by Respondent Union to dispatch Coates, without saying so in
so many words. I find that Respondent Union refused to dispatch Coates despite
the request of the Kuney Company that it do so.
Coates, however, had the right, in the absence of a valid collective-bargaining agree-
ment withdrawing such right, to disregard any contractual provision or union policy
with respect to the issuance of work permits or clearances, and to obtain employment
on his own instead of through the Union. The Supreme Court has stated, "The
only limitation Congress has chosen to impose on this right is specified in the proviso
to Section 8 (a) (3) which authorizes employers to enter into certain union security
contracts. . . . Congress intended to prevent utilization of union security agreements
for any purpose other than to compel payment of union dues and fees . an
employer can discharge an employee for nonmembership in a union if the employer
has entered a union security contract valid under the Act with such union, and if the
other requirements of the proviso are met. No other discrimination aimed at en-
couraging employees, to join, retain membership, or stay in good standing in a union
is condoned." Radio Officers' Union of the Commercial Telegraphers Union, AFL
v. N. L. R. B., 347 U. S. 17.
The Board has also pointed out that Section 7 of the Act protects employees in
their negative right not to join or assist a labor organization, except to the extent
that such right is modified by the provisions of Section 8 (a) (3) which create an
exception to Section 7 of the Act. As a result, the exception of Section 8 (a) (3)
must be strictly construed so as to remove from the purview of Section 7 only those
subjects expressly freed from the operation of the statute. Union Starch & Refining
Co., 87 NLRB 779, enfd. 186 F. 2d 1008 (C. A. 7), cert. denied, 342 U. S. 815. See
Pacific Intermountain Express Co., 107 NLRB 837.
ALASKA CHAPTER, ETC. 51
Turning to the language of the contract, it provides, inter alia, that: (1) the em-
ployer-member of Respondent Association will give Respondent Union 48 hours
advance notice of all requirements for men needed on construction projects; (2) if
Respondent Union does not provide the necessary employees after such notice, the
employer can then proceed elsewhere, provided that Respondent Union is notified
within 7 days of all additional hirings; and (3) priority of hire and job tenure will
be given "to men dispatched in conformity with the procedures" outlined above who
are legal residents of Alaska. The contract does not define the term legal resident
of Alaska.
Thus, as set forth, this contract did not provide solely for advance notice to Re-
spondent Union of employment opportunities. Assuming that such a provision,
standing alone, would not do violence to the policies of the Act regarding union
security, I believe that the coupling of this provision with a provision for priority
of hire and tenure to workmen referred by Respondent Union does constitute
the imposition of a greater degree of union security than is permitted under the
Act. For the realities of the situation are that this contract is providing job
preference for workmen being provided by a partisan organization. This is not
a case where workmen are being referred by an employment agency or by the
United States Employment Service, but rather one where preference of hire is
being given to workmen referred by a labor organization, which is an organiza-
tion admittedly primarily interested in furthering the interests of its own mem-
bership, and not illogically would be expected to find jobs for them in pref-
erence to nonmembers. This, of course, is one of the prime reasons for the
existence of a labor organization, namely to improve the lot of its members, and
is one of the reasons why its members pay a portion of their earnings as dues
therein.
I am of the belief and find that a provision of this nature, giving priority of hire
and job tenure to employees referred by a labor organization constitutes on its
face an illegal contractual provision. In view of Board decisions which recognize
that the operation of a hiring hall may be legal under certain circumstances, I be-
lieve and find that absent specific evidence that the contract also contains a pro-
vision that the hiring-hall arrangement or job-referral system will be operated in
a nondiscriminatory manner, and that it is actually so operated, the contract pro-
vision contained herein does violence to the union-security provisions of the Act.
Moreover, the only evidence of the application of this contract, namely, the at-
tempt of Coates to get a job pursuant to it, demonstrates that the contract was
not applied in a nondiscriminatory manner. Coates had attempted unsuccess-
fully to obtain membership in Respondent Union and hence there is no issue as to
him being in poor standing and subject to discrimination for a reason recognized
under the Act.3
Furthermore, even if the contract did contain a legal union-security clause, the
parties herein imposed a degree of union security which is in excess of that per-
mitted under the Act. As the Supreme Court pointed out in the Radio Officers'
case, supra, "Congress intended to prevent utilization of union-security agreements
for any purpose other than to compel payment of union dues and fees. . . No
other discrimination aimed at encouraging employees to join, retain membership,
or stay in good standing in a union is condoned."
Respondent Union and Respondent Association, in sum, were signatories to a
contract regulating the hire of employees by employer-members of Respondent As-
sociation. As found, it contained an unlawful hiring provision. Coates had ap-
plied for membership in Respondent Union and had not been admitted. On the
day in question, May 14, 1954, he was referred by an employer-member of Re-
spondent Association to Respondent Union with a request for a dispatch slip, was
refused the slip by Respondent Union, and as a result lost 2 weeks' work. Whether
this be termed the imposition of closed-shop conditions or the imposition of a
degree of union security in excess of that permitted under the Act, the fact is
that, pursuant to the application of its unlawful contractual arrangement with Re-
spondent Association, Respondent Union unlawfully caused a loss of employ-
9 That the provisions of article III, sections 1 and 2 are unlawful in their purport Is
demonstrated by a reference to section 3 of that article. That section recognizes that
the contractors may have certain employees on other projects who are valuable to their
respective employers and piovides that the 'Union will give job clearance to those men and
admit them to membership This serves only to highlight and demonstrate that the pro-
cedure provided for applicants for employment not falling in this fortunate category was
an unlawful one.
52 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ment to Coates for a reason not permitted under Section 8 (a) (3) of the Act.4
It is noteworthy herein that Respondent Union offered no evidence that its failure
to dispatch Coates was for any nondiscriminatory reason, assuming such a con-
tention to constitute a defense herein.
The statutory scheme is to divest both employers and labor organizations of
control over employment directed to advancing or retarding an employee's partici-
pation or nonparticipation in union activities, except to compel payment of dues
and initiation fees pursuant to a valid union-security agreement. When a labor
organization undertakes to supply an employer with workmen, it violates Section
8 (b) (1) (A) and (2) of the Act unless it carries out this undertaking on a
nondiscriminatory basis. But for the action of Respondent Union, taken under
the color of its contractual arrangement with Respondent Association, Coates, I
find, would have been hired by an employer-member of Respondent Association on
May 14, and the failure to hire him was the intended and foreseeable result of the
action by Respondent Union.
I find that by refusing to dispatch Coates for work with an employer-member
of Respondent Association, Respondent Union has engaged in conduct violative of
Section (8) (b) (1) (A) and (2) of the Act. N. L. R. B. v. Daboll, 216 F. 2d 143
(C. A. 9); N. L. R. B. v. International Association of Machinists, Local No. 504,
203 F. 2d 173 (C. A. 9); N. L. R. B. v. George D. Auchter Co., 209 F. 2d 273
(C. A. 5); N. L. R. B. v. Philadelphia Iron Works, Inc., 211 F. 2d 937 (C. A. 3);
N. L. R. B. v. Gottfried Baking Co., Inc., 210 F. 2d 772 (C. A. 2); N. L. R. B. v.
Construction Specialties Co, 208 F. 2d 170 (C. A. 10); Turner Construction Co.,
110 NLRB 1860; Local 595, International Association of Bridge, Structural and
Ornamental Iron Workers, AFL, 108 NLRB 1070, and United Brotherhood of Car-
penters and Joiners of America, Local No. 1281, 109 NLRB 874.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondents, set forth in section III, above, occurring in connec-
tion with the operations of Respondent Association, 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 thereof.
V. THE REMEDY
Having found that Respondents, and each of them, have engaged in unfair labor
practices , I shall recommend that they cease and desist therefrom and take certain
affirmative action designed to effectuate the policies of the Act.
It has been found that Respondent Union has caused an employer -member of
Respondent Association to discriminate against A . B. Coates, thereby encouraging
membership in Respondent Union. Inasmuch as Coates has since been employed
by this employer-member of Respondent Association, it will be recommended that
Respondent Association and Respondent Union jointly and severally make him whole
for any loss of pay suffered by reason of the discrimination against him . Said loss
of pay, based upon earnings which he normally would have earned from the date of
the discrimination against him to the date he was given employment , less net
earnings , shall be computed in the manner established by the Board in F. W. Wool-
worth Company, 90 NLRB 289. See N. L. R. B. v. Seven-Up Bottling Co., 344
U. S. 344.
Having found that the contract between Respondents contains illegal provisions,
and there being no violations of Section 8 (a) (2) alleged in this proceeding , it will
be recommended that Respondents be ordered to cease giving effect only to the
unlawful union -security provisions of the contract , or to any other provisions which
impose a degree of union security in excess of that permitted under the Act.
Upon the basis of the foregoing findings of fact and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. International Union of Operating Engineers, Local No. 302, is a labor organiza-
tion within the meaning of Section 2 (5) of the Act.
2. By discriminating in regard to the hire and tenure of employment of A. B.
Coates, thereby encouraging membership in a labor organization, Respondent Associa-
* In view of the contractual relationship between Respondent Union and Respondent
Association, I deem the present situation to be distinguishable from that present in
N. L R B. v. Thomas Rigging Co, 211 F. 2d 153 (C. A 9).
INTERNATIONAL MINERALS & CHEMICAL CORPORATION 53
tion has engaged in unfair labor practices within the meaning of Section 8 (a) (3)
of the Act.
3. By maintaining a contract containing unlawful security provisions , thereby
encouraging membership in Respondent Union , Respondent Association has engaged
in unfair labor practices within the meaning of Section 8 (a) (3) of the Act.
4. By interfering with, restraining, and coercing employees in the exercise of the
rights guaranteed by Section 7 of the Act, Respondent Association has engaged
in unfair labor practices within the meaning of Section 8 (a) (1) of the Act.
5. By causing an employer-member of Respondent Association to discriminate
against A. B. Coates in violation of Section 8 (a) (3) of the Act, and by maintaining
a contract containing unlawful union-security provisions , Respondent Union has
engaged in unfair labor practices within the meaning of Section 8 (b) (2) of the Act.
6. By restraining and coercing employees in the exercise of the rights guaranteed
in Section 7 of the Act, Respondent Union has engaged in unfair labor practices
within the meaning of Section 8 (b) (1) (A) of the Act.
7. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication.]
International Minerals & Chemical Corporation (Potash Divi-
sion) and International Union of Operating Engineers, Local
855, A. F. L., Petitioner . Case No. 33-RC-505. July 7,1955
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before Harold L. Hudson, hearing
officer. The hearing officer's rulings made at the hearing are free from
prejudicial error and are hereby affirmed.
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of
the Act.,
2. The labor organizations involved claim to represent certain em-
ployees of the Employer.'
3. A question affecting commerce exists concerning the representa-
tion of employees of the Employer within the meaning of Section 9
(c) (1) and Section 2 (6) and (7) of the Act .2
1 The International Union of Mine , Mill and Smelter Workers, Local Union 415, Inde-
pendent, herein called Smelter Workers , and the International Association of Machinists,
Permian Basin Lodge 1900 , herein called IAM, were permitted to intervene at the hearing
on the basis of existing contracts with the Employer covering employees in the unit sought
by the Petitioner. United Stone and Allied Products Workers of America, CIO , herein
called CIO , and Carlsbad Potash Basin Union, Independent, herein called Independent,
were permitted to intervene on the basis of a proper showing of interests.
The Petitioner, IAM, and Smelter Workers do not agree that the Independent is a labor
organization . As the Independent exists for the purpose of representing employees in
collective bargaining with employers , we find that the Independent is a labor organization
within the meaning of Section 2 (5) of the Act.
2In its brief to the Board , the IAM filed motions to dismiss the petition , insofar as it
concerned the various groups of employees represented by fAM, on the grounds that the
Petitioner was not the traditional union and had not made a sufficient showing of interest
for each group of said employees , The motions are hereby denied. As no severance prob-
lem is involved herein, the Petitioner need not be the traditional representative of the
employees sought. Furthermore , we are administratively satisfied that the Petitioner has
made a proper showing of interest in the unit in which an election is directed herein.
113 NLRB No. 3.