George D. Auchter Co.

National Labor Relations Board - Board Decisions

Feb 2, 1953

102 N.L.R.B. 881 (N.L.R.B. 1953)

GEORGE D. AUCHTER COMPANY 881
ment employees , parking lot attendants , motorcycle drivers and
porters, and service department clerk , but excluding front office
clerical employees , new and used car salesmen , plant guards , service
sales representative, and all supervisors as defined in the Act, consti-
tute a unit appropriate for the purposes of collective bargaining within
the meaning of Section 9 (b) of the Act.
[Text of Direction of Election omitted from publication in this
volume.]
GEORGE D. AUCHTER COMPANY AND NORTHEASTERN FLORIDA CHAPTER
OF THE ASSOCIATED GENERAL CONTRACTORS OF AMERICA and INTER-
NATIONAL ASSOCIATION OF MACHINISTS, DISTRICT LODGE 112
CARPENTERS DISTRICT COUNCIL OF JACKSONVILLE AND VICINITY AND
UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA and
INTERNATIONAL ASSOCIATION OF MACHINISTS, DISTRICT LODGE 112.
Cases Nos. 10-C.4-1251 and 10-CB-104. February 2, 1953
Decision and Order
On March 21,1952, Trial Examiner Alba B. Martin issued his Inter-
mediate Report in the above-entitled proceeding, finding that the
Respondents, George D. Auchter Company, Northeastern Florida
Chapter of the Associated General Contractors of America, and Car-
penters District Council of Jacksonville and Vicinity, had engaged
in and were engaging in certain unfair labor practices, and recom-
mending that they cease and desist therefrom and take certain af-
firmative action, as set forth in the copy of the Intermediate Report
attached hereto. The Trial Examiner also found that the complaint
was improperly issued under the proviso to Section 10 (b) of the Act
as to a fourth Respondent, United Brotherhood of Carpenters and
Joiners of America, and he recommended that the complaint be dis-
missed as to this Respondent.'- Thereafter joint exceptions and a
joint brief were filed by the Respondents George D. Auchter Com-
pany, Northeastern Florida Chapter of the Associated General Con-
tractors of America, and Carpenters District Council of Jacksonville
and Vicinity.2
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
1 As no exceptions have been taken to the Trial Examiner's fiuding and recommendation
concerning the Brotherhood , we shall adopt them.
2 Unless otherwise indicated the term "Respondents" when used below refers to these
three Respondents jointly.
102 NLRB No. 79.
882 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The rulings are hereby affirmed. The Board has considered the
Intermediate Report, the exceptions, the brief, and the entire record
in the case,3 and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner insofar as they are consistent
with this Decision and Order.
1. We find no merit in the Respondent Company's contention
that the record fails to establish that it is engaged in commerce
within the meaning of the Act. The Respondent Company's presi-
dent, George D. Auchter, conceded at the hearing that during the
calendar year 1950 the Company rendered construction services
valued at more than $5,000,000 to other employers located within the
State of Florida, and that approximately $108,000 of this amount
represented services rendered the National Container Corporation
at Jacksonville, Florida. The Company contends, nevertheless, that
the General Counsel has failed to establish the Board's jurisdiction
because it was not proved at the hearing that the project immedi-
ately involved in this proceeding affected interstate commerce. We
cannot accept this contention. The Board has heretofore deter-
mined to assert jurisdiction, without regard to other factors, when
an employer whose operations are confined to one State annually
furnishes services valued at $50,000 in the aggregate to other em-
ployers engaged in interstate commerce who annually ship at least
$25,000 worth of products out of the State .4 We have previously
found, as noted by the Trial Examiner, that the National Container
Corporation at Jacksonville is engaged in commerce within the
meaning of the Act. It follows therefore that the Respondent Com-
pany is so engaged and that the assertion of jurisdiction here will
effectuate the policies of the Act.5
2. The Trial Examiner has found that by executing the agreement
of September 27, 1950, the Respondent Association and the Respond-
ent Company violated Section 8 (a) (1) and (3) of the Act, and that
Respondent District Council violated Section 8 (b) (1) (A) and
8 (b) (2).3 Like the Trial Examiner we find that that contract was
unlawful because it contained a preferential hiring provision which,
when viewed in the light of the interpretation placed upon it by the
$ The joint request for oral argument made by the Respondents is hereby denied as the
record, including the exceptions and brief, adequately presents the issues and positions
of the parties.
4 Hollow Tree Lumber Company, 91 NLRB 635.
R See Denver Building and Construction Trades Council ( Gould d Preisner ), 81 NLRB
1195, affd. 341 U. S. 675.
6 The contract clause here in issue provides :
NOW, THEREFORE, the contractors do agree to give the Local [ the Council] the
first opportunity to supply their skilled mechanics for carpenter work provided that
if such labor requirements are not supplied within forty-eight ( 48) hours after
request, or if the men furnished on request are not qualified to perform their duties in
the opinion of the Contractors , then the Contractors shall be free to obtain their labor
requirements otherwise.
GEORGE D . AUCHTER COMPANY 883
Respondents, was clearly violative of the Act.' However, we are
precluded by reason of the 6-month period of limitation provided in
Section 10 ( b) of the Act from finding that the execution of this
agreement was unlawful . The record shows that that agreement was
executed more than 6 months before the filing of the original charges
on April 23, 1951, and the service of the charges on April 24, 1951.
Accordingly, the prohibition of Section 10 (b) applies so far as the
execution of the contract is concerned.'
However, the record establishes that the unlawful agreement of
September 27, 1950, continued in effect up to the time of the hearing
herein and was enforced , as noted below , by the Respondent Com-
pany and the Respondent District Council against George W. Kirby
within the statutory 6-month period . Accordingly , we find that by
enforcing and giving effect to the unlawful agreement of September
27, 1950, Respondent Company violated Section 8 (a) (1) and (3)
of the Act, and the Respondent District Council violated Section
8 (b) (1) (A) and 8 (b) (2) of the Act . We further find, for the
reasons stated by the Trial Examiner in his Intermediate Report,
that although the evidence in the record does not show that the
Respondent Association was affirmatively associated with any particu-
lar act of discrimination directed against a job applicant , as a par-
ticipant in a common enterprise with the Respondent Company it has
violated Section 8 (a) (1) and ( 3) of the Act by giving continued
effect within the statutory 6-month period to the agreement of Septem-
ber 27, 1950 . Accordingly, we shall order that each of these Respond-
ents cease enforcing or giving effect to their unlawful contract of
September 27, 1950.
3. We agree with the Trial Examiner 's findings that the Respondent
District Council violated Section 8 (b) (1) (A) and 8 (b) (2) of
the Act by refusing to clear George W. Kirby for referral to a job
with the Respondent Company at Fernandina , Florida. We further
4 See Utah Construction Co., 95 NLRB 196.
8 The Respondents challenge the validity of the complaint on the ground that the original
charge herein was not filed and served within 6 months of the first alleged act of discrim-
ination. The complaint alleges that on or about October 25, 1950, George W. Kirby was
discriminatorily refused a job referral by the Respondent District Council, and at the
same time was discriminatorily denied employment by the Respondent Company. The first
charges alleging discriminatory conduct by the Company and the District Council were
filed with the Board on April 23, 1951. The record establishes that copies of these charges
were sent to the Company and the District Council by registered mail, return receipt re-
quested, on April 24 , 1951 . The Respondents contend that because the District Council
and the Company did not receive their copies until April 25 and April 26, respectively,
the charges were not filed and served within the 6 -month period of limitation prescribed
by Section 10 (b) of the Act. We cannot accept this contention . Section 102 . 86 of our
Rules and Regulations , Series 6, which was in effect at the time of the service of the
charges, provides "in computing any period of time prescribed or allowed by these rules,
the date of the act, event , or default after which the designated period of time begins to
run, is not to be included ." It is apparent therefore that the original charges herein
were actually received by both the Respondent Company and the Respondent District
Council within the 6 -month statutory period.
884 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
agree with the Trial Examiner's findings that the Respondent Com-
pany violated Section 8 (a) (1) and (3) of the Act by refusing Kirby
a job on the ground that he had not been cleared for employment by
the Respondent District Council. However, unlike the Trial Exam-
iner, we find, for the reasons noted below, that the Respondent As-
sociation cannot be held responsible for the discrimination against
Kirby.
The record establishes, as the Trial Examiner has found, that on
October 25, 1950, Kirby, who had been employed at the Respondent
Company's Fernandina construction project until July 8, 1950, applied
to A. A. Pittman, the Respondent District Council's business repre-
sentative, for a job referral to that project. Pittman refused the re-
quest because Kirby, in addition to his membership in United Brother-
hood of Carpenters and Joiners of America, also carried a member-
ship card in the International Association of Machinists. During
their conversation Pittman told Kirby in effect that he could no noth-
ing for him so long as Kirby carried two cards .9
On the following day Kirby spoke to Marshall Sides, the Respond-
ent Company's job superintendent at the Fernandina project, and
stated that he understood that Sides had asked for a referral for him.
Sides stated that he had, and Kirby told him that he was sorry but
Pittman would not grant the referral. Sides told Kirby that he would
be glad to hire him if he could get straightened out with the Carpen-
ters. However, when Kirby offered to go to work on his card from
the International Association of Machinists, Sides replied that if he
took Kirby on that basis the Carpenter's local union would "pull
their men off the job."
Thereafter, as correctly reported by the Trial Examiner, Kirby made
several efforts to secure a job referral from Pittman but was refused
clearance because of his continued membership in the International
Association of Machinists. Kirby also made several other job ap-
plications to the Respondent Company but was told on each occasion
that although the Company had work available it could not employ
him until he secured clearance from the Respondent District Council.
Kirby last asked the Company for employment on March 23, 1951.
Although the contract of September 27, 1950, contains no specific
requirement that job applicants be members in good standing of a
constituent member of the District Council or have a work permit
from the Council, it is clear from the record that the Respondents
9 The record reveals that in actual practice job referrals are made by the constituent
locals of the Respondent District Council and not by the Council itself. However, mem-
bers of Carpenters' locals which are outside of the jurisdiction of the Council are required
to secure clearance to member locals through the Council , and it was this clearance which
Pittman refused Kirby because of the latter 's membership in the International Association
of Machinists. Without clearance Kirby could not be referred to any job within the
geographical jurisdiction of the Council.
GEORGE B. , AUCHT&H . COMPANY, ' 885
so construed and ' enforced, the contract , provision which required
that, the Council be g^iiven. "the ,first opportunity to supply their skilled
mechanics for tourpentry work (emphasis supplied)." Thus
Pittman conceded: at,tlw hearing that Kirby , was ineligible for a job
referral until he gave up 'his membership in th e International As-
sociation of Machinists and was cleared by the District Council. Fur-
ther, the record establishes that the Respondent Company knew that
Kirby; was being denied clearance by the Council because of his mem-
bership in the International Association of M&ehbx st , but never-
thelese 'refused to hire him until he was cleared by the Council.
The Respondents contend thk t their " treatment of Kirby was not
unlawful because the Act does not,require a labor organization to
renderassistance to one who is not a member . ' Generally this proposi-
tion is correct. However, when a labor organization undertakes to
supply an employer with workmen, it violates Section 8 (b) (1) (A)
and 8 (b) (2) of the Act unless it carries out this undertaking on a
nondiscriminatory basis? ' This the'Respondent Council has not done.
Similarly when, as in ths case, an employer condones such conduct
and refuses to employ a job applicant whom it knows. has been dis-
criminatorily denied a' job referral , that employer violates Section
8 (a) (1) and (3) of the Act"
Unlike the Trial Examiner we do not find that the Association
can be held liable for the Respondent Company's refusal to employ
Kirby. The Association was first named as a party respondent in
the first amended charfe in Case No. 10-CA-1251, which was filed
on' September 25, 1951, and served September 26, 1951. Kirby last
applied to the Respondent Company for employment on March 23,
1951, or more than 6 months before the filing and service of the first
charge against the Association. Accordingly , a finding that the Asso-
ciation is liable for the discriminatory refusal to employ Kirby is
barred by the 6-month period of limitation contained in Section 10 (b)
of the Act. We shall therefore dismiss the complaint insofar as it
alleges that the Respondent Association has unlawfully discriminated
against Kirby.
The Remedy
Because it has been found that the Respondent Company, the
Respondent Association, and the Respondent District Council have
engaged in certain unfair labor practices, it will be ordered that they
cease and'desist therefrom and take certain affirmative action designed
to effectuate the policies of the Act. However, we have been admin-
16 Utah Construction Co., supra; National Maritime Union of America, at al., 78 NLRB
971, enfd. 175 F. 2d 686, cert. den. 338 U. S. 954. '
u See the cases cited in footnote 10, supra.
250983-vol. 102-53-57
'886 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
istratively advised that' after the conclusion of the, hearing herein
the Respondent District Council notified the Respondent Company
that it had no objection to the employment of George W. Kirby,
and the Respondent Company thereafter offered him immediate em-
ployment. In the -circumstances it would serve no worthwhile pur-
pose to order his, reinstatement at this time. Nevertheless, as - the
practices of the Respondent District Council;, and the Respondent
Company prevented Kirby from being employed at the Fernandina
project from October 26, 1950, the date of his original application
for employment, until employment was offered him by Respondent
Company, we shall order that these Respondents jointly and severally
make him whole, in the manner prescribed in the section of the Inter-
mediate Report entitled "The Remedy," for any loss he might have
suffered during' this period.
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 :
1. The Respondent, George D. Auchter Company, Jacksonville,
Florida, its officers, agents, successors, and assigns, shall :
(a) Cease and desist from:
(1) The practice of conditioning the hire of applicants for
employment in carpentry or millwright positions at its project at
Fernandina., Florida, upon clearance by Carpenters District Council
of Jacksonville and Vicinity, or any other labor organization, except
under a nondiscriminatory arrangement permitted by Section 8 (a)
(3) of the Act, as amended.
(2) Performing, enforcing, or giving effect to its contract of Sep-
tember 27, 1950, with Carpenters District Council, of Jacksonville
and Vicinity, or entering into or enforcing any extension, renewal,
modification, or supplement thereof, or any superseding agreement
-with said Council, or any other labor organization, containing union-
security provisions except as authorized by Section 8 (a) (3) of the
Act.
(3) In any other manner interfering with, restraining, or coercing
.employees in the exercise of the right to self-organization, to form
labor organizations, to join or assist District Lodge 112 of Inter-
national Association of Machinists, or any other labor organiza-
tion, to bargain collectively through representatives of their own
choosing, and to engage in collective bargaining or other mutual
aid or protection, or to refrain from any or all such activities except
to the extent that such right may be affected by an agreement requir-
ing membership in a labor organization as a condition of employ-
ment, as authorized by Section 8 (a) (3) of the Act.
GEORGE D. AUCHTER COMPANY 887
(b) Take the following affirmative action, which the Board finds
will effectuate the policies of the Act.
(1) Make whole George W. Kirby for any loss of pay he may have
suffered by reason of the discrimination against him in the manner
set forth in the section herein entitled "The Remedy."
(2) Post at each construction site in the jurisdiction covered by the
Respondent District Council, in conspicuous places including all places
where notices to employees or prospective employees are customarily
posted, copies of the notice attached hereto and marked "Appendix
A." Copies of said notice, to be furnished by the Regional Direc-
tor for the Tenth Region, shall, after having been duly signed by the
Respondent Company's representative, be posted by it immediately
upon receipt thereof and be maintained by it for sixty (60) con-
secutive days thereafter. Reasonable steps shall be taken by it
to insure that said notices are not altered, defaced, or covered by any
other material.
(3) Notify the Regional Director for the Tenth Region in writing
within ten (10) days from the date of this Order what steps the
Respondent Company has taken to comply herewith.
2. The Northeastern Florida Chapter of the Associated General
Contractors of America, its officers, agents, successors, and assigns,
shall :
(a) Cease and desist from :
(1) Enforcing or giving effect to any agreement between itself
or George D. Auchter Company on the one hand and Respondent
District Council or any of its affiliated local unions or any other labor
organization on the other hand, which conditions the hire of appli-
cants for employment upon clearance by Carpenters District Council
of Jacksonville and Vicinity, or any other labor organization, except
under a nondiscriminatory arrangement permitted by Section 8 (a)
(3) of the Act, as amended.
(2) In any other manner interfering with, restraining, or coerc-
ing employees in the exercise of the right to self-organization, to
form labor organizations, to join or assist District Lodge 112 of
International Association of Machinists, or any other labor organiza-
tion, to bargain collectively through representatives of their own
choosing, and to engage in collective bargaining or other mutual aid
or protection, or to refrain from any or all such activities except to
the extent that such right may be affected by an agreement requir-
ing membership in a labor organization as a condition of employ-
ment, as authorized by Section 8 (a) (3) of the Act.
(b) Take the following affirmative action which the Boards finds
will effectuate the policies of the Act :
(1) Post at each construction site of George D. Auchter Company
within the jurisdiction of Respondent District Council, in conspic-
888 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
uous places including all places where notices to employees or pros-
pective employees are customarily posted, copies of the notice attached
hereto and marked "Appendix B." Copies of said notice, to be
furnished by the Regional Director for the Tenth Region, shall, after
having been duly signed by the Respondent Association's represent-
ative, be posted by it immediately upon receipt thereof, and be
maintained by it for sixty (60) consecutive days thereafter. Reason-
able steps shall be taken by it to insure that said notices are not altered,
defaced, or covered by any other material.
(2) Notify the Regional Director for the Tenth Region in writing
within ten (10) days from the date of the receipt of this Order what
steps Respondent Association has taken to comply herewith.
3. The Respondent Carpenters District Council of Jacksonville and
Vicinity, its officers, representatives, agents, successors, and assigns
shall :
(a) Cease and desist from :
(1) Performing or giving effect to its contract of September 27,
1950, with George D. Auchter Company or Northeastern Florida
Chapter of the Associated General Contractors of America, or enter-
ing into or enforcing any extension, renewal, modification, or supple-
ment thereof, which conditions the hire of applicants for employment
upon clearance by the Council, or any other labor organization, except
under a nondiscriminatory arrangement permitted by Section 8 (a)
(3) of the Act, as amended.
(2) In any other manner causing or attempting to cause Respondent
Company, Respondent Association, or any other employer to discrimi-
nate against any employee or prospective employee in violation of
Section 8 (a) (3) of the Act.
(3) In any other manner interfering with, restraining, or coercing
employees in the exercise of the right to self-organization, to form
labor organizations, to join or assist District Lodge 112 of Interna-
tional Association of Machinists, or any other labor organization, to
bargain collectively through representatives of their own choosing,
and to engage in collective bargaining or other mutual aid or protec-
tion, or to refrain from any or all 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
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) Make whole George W. Kirby for any loss of pay he may have
suffered by reason of the discrimination against him in the manner
set forth in the section herein entitled "The Remedy."
(2) Post at its office in Jacksonville, Florida, and at each con.
struction site of Respondent George D. Auchter Company within the
GEORGE D. AUCHTER COMPANY 889
jurisdiction of Respondent District Council, in conspicuous places
including all places where notices to employees or prospective em-
ployees are customarily posted, copies of the notice attached hereto
and marked "Appendix C." Copies of said notice, to be furnished
by the Regional Director for the Tenth Region, shall, after having
been duly signed by the Respondent District Council's representative,
be posted by it immediately upon receipt thereof, and be maintained
by it for sixty (60) consecutive days thereafter. Reasonable steps
shall be taken by it to insure that said notices are not altered, defaced,
or covered by any other material.
(3) Notify the Regional Director for the Tenth Region in writing
within ten (10) days from the date of the receipt of this Order what
steps Respondent District Council has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be and it hereby is dis-
missed insofar as it alleges (1) that the United Brotherhood of Car-
penters and Joiners of America has engaged in any unfair labor prac-
tices; (2) that the execution of the contract of September 27, 1950,
by George D. Auchter Company, Northeastern Florida Chapter of the
Associated General Contractors of America, and Carpenters District
Council of Jacksonville and Vicinity constituted an unfair labor
practice; and (3) that Northeastern Florida Chapter of the Asso-
ciated General Contractors of America has unlawfully discriminated
against George W. Kirby.
MEMBERS STYLES and PETERSON took no part in the consideration of
the above Decision and Order.
Appendix A
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
prospective employees that :
WE WILL NOT maintain, give effect to, renew, or enforce any
agreement between CARPENTERS DISTRICT COUNCIL OF JACKSON-
VILLE AND VICINITY or any labor organization , and ourselves or
Northeastern Florida Chapter of the Associated General Con-
tractors of America, which requires job applicants to be members
in good standing of any labor organization or to secure a work
permit from any labor organization, nor will we maintain, re-
new, or enforce any agreement which contains union-security
provisions except as authorized by Section 8 (a) (3) of the Na-
tional Labor Relations Act, as amended.
WE WILL NOT interfere with, restrain, or coerce our employees
or prospective employees in the exercise of the right to self-
890 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
organization, to form labor organizations, to join or assist DIS-
TRICT LODGE 112, INTERNATIONAL ASSOCIATION OF MACH INISTS, or
any other labor Organization, to bargain collectively through rep-
resentatives of their own choosing, and to engage in concerted
activities for the purpose of collective bargaining or other mutual
aid or protection, or to refrain from any or all such activities ex-
cept to the extent that such right may be affected by an agree-
ment requiring membership in a labor organization as a condition
of employment, as authorized in Section 8 (a) (3) of the Act.
WE WILL make whole George W. Kirby for any loss of pay suf-
fered by him as a result of the discrimination against him.
All our employees and prospective employees are free to become,
to remain, or to refrain from becoming or remaining members of
DISTRICT LODGE 112, INTERNATIONAL ASSOCIATION OF MACHINISTS, or
any other labor organization, except to the extent that this right may
be affected by an agreement in conformity with Section 8 (a) (3) of
the Act.
GEORGE D. AUCHTER COMPANY,
Employer.
By ----------------------------------
(Representative ) (Title)
Dated --------------------
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
Appendix B
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 the employees and pros-
pective employees of George D. Auchter Company that :
WE WILL NOT maintain, give effect to, renew, or enforce any
agreement between CARPENTERS DISTRICT COUNCIL OF JACKSON-
VILLE AND VICINITY, or any labor organization, and ourselves or
George D. Auchter Company, which requires job applicants to
be members in good standing of any labor organization or to
secure a work permit from any labor organization, nor will
we maintain, renew, or enforce any agreement which contains
union-security provisions except as authorized by Section 8 (a)
(3) of the National Labor Relations Act, as amended.
WE WILL NOT interfere with, restrain, or coerce the employees
or prospective employees of George D. Auchter Company in the
exercise of the right to self-organization, to form labor organiza-
GEORGE D . AUCHTER C©EiPANY 891
tions, to join or assist DISTRICT LODGE 112,3NTERNATWWNAL Asso-
cIATION or MACHINISTS, or any other labor organization, to bar-
gain collectively through representatives of their own choosing,
and to engage in concerted activities for the purpose of collective
bargaining^or other mutual aid or protection, or to refrain from
any or all such activities except to the extent that such right may
be affected by an agreement requiring membership in a labor
organization as a condition of employment, as authorized in Sec-
tion 8 (a) (3) of the Act. I ,
All of the employees and prospective employees of George D. Auch-
ter Company are free to become, to remain, or to refrain from becom-
ing or remaining members of DISTRICT LODGE 112, INTERNATIONAL
ASSOCIATION OF MACHINISTS, or any other labor organization, except
to the extent that this right may be affected by an agreement in con-
formity with Section 8 (a) (3) of the Act.
NORTHEASTERN FLORIDA CHAPTER OF THE ASSOCIATED
GENERAL CONTRACTORS OF AMERICA,
Employer Association.
By ---------------------------------------------
Dated -------------------- ( Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
Appendix C
Pursuant to it 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 the employees and
prospective employees of GEORGE D. AUCHTER CosPANY that :
WE WILL NOT maintain, give effect to, renew, enforce or attempt
to enforce any agreement between ourselves, and NORTHEASTERN
FLORIDA CHAPTER OF THE ASSOCIATED GENERAL CONTRACTORS OF
AMERICA OR GEORGE D. AUCHTER COMPANY, which requires job
applicants to be members in good standing of any labor organiza-
tion or to secure a work permit from any labor organization, nor
will we maintain, renew, or enforce any agreement which con-
tains union-security provisions except as authorized by Section 8
(a) (3) of the National Labor Relations Anti as amended.
WE WILL NOT cause or attempt to cause GEORGE D. AucHTEIt
COMPANY or NORTHEASTERN FLORIDA CHAPTER OF THE ASSOCIATED
GENERAL CONTRACTORS OF AMERICA, or any other employer, to dis-
criminate against any employee or prospective employee in viola-
tion of Section 8 (a) (3) of the Act. '
892 DECISIONS' € P NA' ZONAL' LABOR ` RELATIONS BOARD
WE WILL make whole George W. Kirby for any loss of pay suf-
fered by him as a result of the discrimination against him.
GCAlWBNTERS DIsmior COUNCIL of
JACKSONVILLE AND VICINITX,
Labor Organization.
By -------------------------------------
(Representative ) ( Title)
Dated --------------------
This notice must remain posted for 60 days from the date hereof,
and must not bq altered , defaced, or covered by any other material.
Intermediate Report
STATEMENT OF THE CASE
Upon charges filed April 23, 1951 , May 16 , 1951 , and September 25, 1951, by
International Association of Machinists , District Lodge No. 112, herein called
the Machinists , the General Counsel of the National Labor Relations Board,
herein called the General Counsel and the Board , by the Regional Director for
the Tenth Region ( Atlanta, Georgia ), issued his complaint dated September 28,
1951 , against George D . Auchter Company ( herein called Respondent Company),
Northeastern Florida Chapter of the Associated General Contractors of America
(herein called Respondent Association ), Carpenters District Council of Jack-
sonville and Vicinity , ( herein called Respondent District Council or the District
Council ), and United Brotherhood of Carpenters and Joiners of America (herein
called United Brotherhood),' alleging that Respondents had engaged in and were
engaging in unfair labor practices affecting commerce within the meaning of
Section 8 (a) (1) and ( 3), Section 8 (b) (1) (A ) and (2 ), and Section 2 (6) and
(7) of the National Labor Relations Act as amended , 61 Stat. 136, herein called
the Act. Copies of the charges and complaint , together with an order consolidat-
ing the cases and notice of hearing, were duly served upon the parties.
With respect to the unfair labor practices , the complaint as amended at the
hearing alleged , in substance, that on or about September 27, 1950 , Respondent
Association and Respondent Unions entered into a contract under which Respond-
ent Association, in hiring employees for carpentry work , was required to give
first preference to employees referred by Respondent Unions; that at all times
since then Respondent Company has given effect to this contract and in practice
has given such preference ; that at all times since Respondent Unions have fol-
lowed the practice of, referring to the Respondent Company only employees who
are members of, or who have secured working permits from , Respondent Unions;
that on or about October 25 , 1950, and at all times thereafter , because of the
contract and practices described above and because of his membership in the
Machinists , Respondent Unions refused to refer to Respondent Company for
employment one G . W. Kirby , and Respondent Company refused to employ said
Kirby as a carpenter because of the contract and practices described and because
Kirby was not referred by Respondent Unions. In their answers Respondents
denied the commission of any unfair labor practices.
Pursuant to notice a hearing was held October 16 , 17, 18 , 1951 , in Jacksonville,
Florida , before Alba B. Martin, the undersigned Trial Examiner duly designated
' Respondent District Council and United Brotherhood are sometimes referred to jointly
as Respondent Unions.
GEORGE D. AUCHTER COMPANY $93,
by the Chief Trial Examiner . All parties were represented by counsel ,and par-
ticipated in the hearing . Furl opportunity to be heard, to examine and cross-
examine witnesses , and to introduce evidence bearing on the issues was afforded
all parties.
At the hearing Respondent United Brotherhood filed a special appearance and
moved to set aside the service of process on it and to dismiss the complaint as to
it. It also made certain subsidiary motions. Decision on these motions was
reserved, and Respondent United Brotherhood permitted to participate in the
hearing fully without waiving the point for 'which it appeared specially. Deci-
sion on these motions is hereby made in accordance with the findings and con-
clusions made herein. The General Counsel's' motion for summary judgment
against the United Brotherhood' was denied. Denied also was Respondents' mo-'
tion for dismissal of the complaint for want of proof, made at the con" ion
of the General Counsel's case-in,chief . This motion was renewed at the conclu-
sion of rebuttal testimony, at which time decision was reserved . Decision on
this motion is hereby made in accordance with the findings and.couclusions made
herein. At the conclusion of the hearing, counsel for Respondent Association,
Respondent Auchter Company, and Respondent District Council moved, in effect,
that the case involving those Respondents be severed from the case involving
the United Brotherhood ; and on this motion decision was reserved. la view of
the findings and conclusions herein this motion is hereby denied . At the conclu-
sion of the taking of evidence the General Counsel presented oral argument.
Counsel for Respondent Association, Respondent Aucllter Company, and Respond-
ent District Council waived oral argument and filed a brief.
Upon the entire record in the case and from observation of the witnesses, I
make the following:
FINDfNGS OF FACT
1. THE EUSINUSS OF RESPONDENT
George D. Auchter Company, a Florida corporation with its principal place
of business in Jacksonville , Florida , is engaged in business as it general con-
tractor in the building and construction industry. During the calendar year 1950,
which period is representative of all times material herein , it performed services
of a value in excess of $5,000,000 for customers within the State of Florida,
including services for National Container Corporation, Jacksonville, (Florida,
valued in excess of $108,000. The Board has held both of National Container
Corporation's plants in Jacksonville to be engaged in commerce within the
meaning of the Act' It is held that Respondent George D. Auchter Company
is engaged in commerce within the meaning of the Act and that it will effectuate
the policies of the Act for the Board to exercise jurisdiction.'
II. THE ORGANIZATIONS INVOLVED
United Brotherhood of Carpenters and Joiners of America, Carpenters District
Council of Jacksonville and Vicinity, and International Association of Machinists,
District Lodge No. 112, are organisations in which employees participate and
which exist for the purpose , in whole or in part , of dealing with employers
concerning grievances, labor disputes, Wages, rates of pay, hours of employment,
or conditions of work. They are, therefore, labor organizations within the
meaning of the Act.
275 NLRB 770 , 87 NLRB 1065.
• Hollow Tree Lumber Company, 91 NLRB 895.
894 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Associated General Contractors of America, and the Northeastern Florida
Chapter thereof, is an unincorporated association of firms engaged in the general
contracting business.
HI. THE UNFAIR LABOR PRACTICES
A. Unfair labor practices committed by Respondent Association, Respondent
Company, and Respondent District Council
1. The contracts
On September 27, 1950, Respondent District Council and Respondent Associa-
tion entered into a written contract, referred to herein as the 1950 contract
containing the following pertinent clauses :
THIS AGREEMENT, Made this 27 day of September A. D. 1950, by and
between the NORTHEASTERN FLORIDA CHAPTER OF THE ASSOCIATED GENERAL
CONTRACTORS OF AMERICA, hereinafter called the Contractors and the CARPEN-
TER'S DISTRICT COUNCIL OF JACKSONVILLE AND VICINITY, hereinafter called the
Local.
WHEREAS, the Contractors wish to employ workmen best suited to their
operations and
WHEREAS, the Local maintains an employment service and has available
an ample Supply of skilled workmen and
WHEREAS, the Contractors desire to avail themselves of such employment
service.
Now, THEREFORE, the Contractors do agree to give the Local the first oppor-
tunity to supply their skilled mechanics for carpentry work provided that
if such labor requirements are not supplied within forty-eight (48) hours
after request , or if the men furnished on request are not qualified to perform
their duties in the opinion of the Contractors, then the Contractors shall be
free to obtain their labor requirements otherwise.
The contract then provided for wages, holidays, overtime pay, no prohibition
on the use of labor-saving equipment, and contained a no-strike clause. The
closing phrase read as follows :
IN WITNESS WHEREOF , the above parties have executed this agreement as
of the date above written.
The contract was then signed for Respondent Association by its president and
for Respondent District Council by both its president and its business represent-
ative, A. A. Pittman.
This 1950 contract was negotiated for its members by Respondent Association,
although according to the testimony of George D. Auchter, president of Respond-
ent Company, it was understood that the contract was to be binding upon only
those members of Respondent Association who ratified it. In fact, according to
Auchter , of the member-firms some 20 including Respondent Company' ratified
' George D. Auchter testified that at the time the 1950 contract was negotiated Re-
spondent Company was a member of Respondent Association , that he then considered
Respondent Company as bound by the terms of the contract "by virtue of our member-
ship and our acceptance or ratification ." Asked if Respondent Company ratified that
instrument , Auchter replied , "I believe we did . It was our intention to do so either in
writing or orally with no mental reservations." He stated also that in any case Re-
spondent Company undertook to abide by that agreement and has done so "to the best of
our ability " Respondent Company does not deny its responsibility under the 1950 con-
tract . It is held that Respondent Company ratified this contract and is responsible
for the execution and enforcement of it.
GEORGE D. AUCHTER COMPANY 895
and accepted the contract and some 5 or 6 did not "because they were not
engaged in building construction or they were operating open shop."
A similar "first opportunity" preferential hiring clause appeared in a contract
dated May 12, 1947, referred to herein as the 1947 contract. According to the
uncontradicted and credited testimony of George D. Auchter this contract con-
tinued in effect , as modified from time to time by oral agreement or exchange of
letters, until the execution of the 1950 contract. It is not claimed that the 1947
contract is still in effect. It is held that the 1947 contract, which contained con-
tinuation clause until canceled by either party , was canceled at the time of the
execution of the 1950 contract.
George D. Auchter testified also that he has always considered the 1950 con-
tract to be an amendment of the 1947 contract. Although the real parties in
interest to the 2 contracts may have been the same, this was not clearly proven
to be the fact, and on their faces the 2 contracts are between completely different
parties. The 1947 agreement was between 3 individuals , representing certain (un-
designated ) contracting firms, and 3 other individuals , representing certain
(undesignated) labor organizations in the construction industry. The 1950
contract, as stated above, was negotiated and executed by Respondent Associa-
tion and Respondent District Council. Further, the 1950 contract, as received in
evidence, was a complete instrument in itself, and it made no reference to the
1947 agreement or to itself as being an amendment to any previous contract.
In the light of the entire record it is held that the 1950 contract was a new con-
tract and was not merely an amendment of the 1947 contract.
Insofar as the record discloses, no election was ever held under Section 9 (e)
(1) of the Act prior to its amendment following the hearing in this case.
2. Clearance, referral, and hiring practices under the 1950 contract
a. In the ease of George W. Kirby
(1) Background
George W. Kirby was employed by Respondent Company from January 1949
until July 8, 1950 (except for several layoffs), as a millwright on a job it was
performing in Fernandina , Florida ( referred to herein as the Fernandina job),
which geography and craft were within the jurisdiction covered by Local 627.
The latter local was the largest local union affiliated with Respondent District
Council. During this period Kirby was a member of Local 1778 of the United
Brotherhood, Columbia, South Carolina, and also of Local Lodge 731 of the
Machinists , Jacksonville , Florida. During at least 6 of these months , including
the last, he worked under special working permits for which he paid a fee
monthly to the job steward. The money was received by Local 627 and not
returned to Kirby. On July 8, 1950, Kirby quit his employment in protest
against paying, in addition to the permit fee, an added assessment to support a
strike in Jacksonville. When he told the superintendent that he was quitting
as a millwright , he offered to go to work immediately as a machinist , which offer
was not accepted.
(2) The facts
On October 25, 1950,° Kirby called on A. A. Pittman , business representative
of Respondent District Council, at the latter' s office in Jacksonville. During the
5 This date is accepted because it ties in with a precisely ascertainable date , the date of
a Board hearing . Kirby testified that the same day he talked with Pittman , which was
October 25 , he spoke with Paul Chipman , a representative of the International Associa-
tion of Machinists , at the Machinists ' hall in Jacksonville , Florida . D. W. Milian,
business representative of District Lodge 112 of the Machinists , testified that Chipman
896 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
conversation, according to the uncontradicted testimony of Kirby, the latter
asked Pittman for a referral to the job at Fernandina so that Kirby could go
back to work for Respondent Company. Pittman refused the request, giving as
the reason that Kirby was carrying a Machinists' card and that Pittman would
not represent Kirby while the latter was carrying two cards. Pittman added
that he would forget about the strike assessment that Kirby had not paid.
Kirby told Pittman that he was not going to drop his Machinists' card, that there
was nothing in the constitution of the United Brotherhood which prevented him
from carrying two cards.
The following day, October 26, 1950, Kirby spoke with Marshall Sides, Re-
spondent Company's job superintendent on the job at Fernandina. According
to his uncontradicted testimony Kirby told Sides that he understood Sides had
asked for a referral for Kirby, and Sides confirmed that he had. Kirby expressed
the thought that he was sorry he could not come to work for Sides, because
Pittman had refused to refer him over. Sides replied that he would be glad
to hire Kirby if the latter could get straight with the Carpenters' union. Kirby
then offered to go to work for Sides on his Machinists' card. Sides replied that
if he hired Kirby on his Machinists' card, he would get in trouble with the
Carpenters ' local union, that "they would pull all the men off the job."
At a disputed date, in either early November or late December 1950 or early
January 1951, Kirby had a further conversation with A. A. Pittman, at the
site where the latter was building a new home near Callahan, Florida. Kirby
had sought for Pittman at Pittman's office in Jacksonville, where he had learned
Pittman was then in Callahan, a town not far distant. On this occasion Kirby
again asked Pittman to give him a referral to go to work on the Fernandina
job. According to the testimony of Kirby, which is credited, Pittman maintained
his position that he could not represent Kirby when Kirby was carrying two
cards, and stated that unless Kirby dropped his Machinists' card, Pittman would
not give him a permit to work. In his testimony Pittman admitted that he
asked Kirby "if he still carried the two cards," and Kirby replied that he
did. Pittman told Kirby that he was on vacation and out of his office for
2 weeks, and that Kirby could take the matter up with him after that. In
his testimony Pittman did not specifically deny that on this occasion he told
Kirby that unless Kirby dropped his Machinists' card, Pittman would not give
him a permit to work.
On about October 25, 1950, according to Kirby, during November 1950 ac-
cording to Pittman, Marshall Sides telephoned Pittman that Kirby had been
in to see him about a job as a millwright. According to Pittman' s testimony
(Sides although still employed by Respondent Company did not testify),
Pittman asked Sides if Kirby had presented to Sides a work card or a dues
book showing that he was a member of the (United) Brotherhood. To Sides'
was in Jacksonville on October 25 when Millan conferred with him about what positions
they should take at a hearing in Palatka, Florida, involving Hudson Pulp & Paper Cor-
poration, which hearing was to take place the following day. The transcript of testimony
in Hudson Pulp tf Paper Corporation, 94 NLRB 1018, indicates that the hearing in that
case took place in Palatka on October 26 and 27, 1950, and that Millan and Chipman
appeared at the hearing each day on behalf of one of the petitioners. A. A. Pittman
testified that he was not in his office on October 25, that his office diary or journal indicated
that he spent all of that day on a matter in the outskirts of Jacksonville. Pittman's
entire testimony indicated to me that he had no independent recollection of when he
talked with Kirby or what he did on October 25, 1950, and that his testimony was based
upon the entry in his journal. As the testimony showed, the journal did not accurately
account for all of Pittman's movements and whereabouts. Pittman's best recollection
was that the date of his conversation with Kirby was October 23. Kirby's date of
October 25, 1950, is credited.
GEORGE D. AUCHTER COMPANY 897
negative reply Pittman then asked what local Kirby belonged to. Sides replied
again that he did not know, that he had not asked Kirby for a card or a book
or anything . Pittman then said "Up until now, I don't know Mr . Kirby even
belongs to an organization . He claims to belong to one in North Carolina or
South Carolina or some place.... He'd not eligible to work because he don't
have a clearance, he don't have a work card or a paid foreign dues." Whereupon
Sides replied , "Well , just forget the matter."
March 12 or 13, 1951, Kirby again asked Sides on the job at Fernandina If
Sides could use him. Sides replied, according to Kirby's uncontradicted testi-
mony, that "he could very well and would like mighty well to have me If I
could get straight with" the Carpenters local union in Jacksonville. Sides added
that they had quite a bit of work then and that they needed Kirby on the job,
that he was going to "call for some men the next morning and . . . he was going
to call for me...."
The next day Kirby called on Pittman's office, told the latter that Sides had
said he was going to ask for Kirby, and again asked Pittman for a referral
to the Fernandina job. Pittman again talked of Kirby 's dropping his Machinists'
card and stated that he would not give Kirby a permit to work unless he would
drop his Machinists' card or sign an affidavit that he would do so. Pittman
observed that there was a notary public there in the office who could notarize
the affidavit. Kirby replied in effect that even if he wanted to get out of the
Machinists, to do so in an honorable way would require a little time. During
the conversation Pittman placed a long distance telephone call to the office
of the United Brotherhood in Indianapolis , Indiana , to seek an interpretation
of a clause in the United Brotherhood's constitution reading as follows :
No member of the United Brotherhood can remain in or become a mem-
ber of more than one Local Union, or any other organization of carpenters
or joiners or any mixed union of building tradesmen, under the penalty of
expulsion. . . .
Pittman testified that he believed he talked with John R. Stevenson, executive
secretary of the United Brotherhood, but that it might have been Mr. Steven-
son's secretary ; that Pittman related that Kirby claimed to be a member of both
a Carpenters' local and a Machinists' local. Pittman then asked for an inter-
pretation of the above clause and received the reply that it was written in
plain English language and spoke for itself. Upon hanging up, Pittman told
Kirby that he would have to comply with that language of the constitution,
that (according to Pittman) if Kirby did not wish to comply with the constitution,
he should be "on his merry way."
The following day Kirby went to the job again and told Sides he was sorry
that he could not come to work for him, that "they wouldn't give me a referral
over there to go to work." Sides said that he, too , was sorry.
On March 17, 1951, according to Kirby's chronology, after making a telephone
appointment, Kirby and D. W. Milian, business representative of District Lodge
No. 112 of the Machinists, called at the office of Respondent Company in Jackson-
ville and talked with James T. Monahan, its executive vice president. Kirby
related the date of this conversation to his conversations in March with Sides
and Pittman, set forth just above. Milian "believe (d) " the date was March
31, but this date was not related to any other date or event and Milian was
not asked the basis of his belief . Kirby 's date is accepted . Milian reviewed
with Monahan the difficulties Kirby had been having with the "carpenters'
union," told Monahan that Kirby was contemplating filing a charge and that
he preferred not including the company in the charge . Mohanan replied that
898 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent Company had a contract to call the Carpenters' union for employees,
and that there was nothing much he could do about it ; however that he would
look into the matter and if Kirby would get in touch with him in a few days
Monahan would tell Kirby if there was anything he could do about it.
The following Friday, March 23, 1951, Kirby again called on Monahan, who
told Kirby that "it seemed to him that the thing to do would be to take a with-
drawal from the Machinists' Union," that if Monahan put him to work it would
have to be on some kind of machine, such as a lathe or boring mill, etc. Kirby
replied that he was a general machinist and that Monahan could hire him as
an erecting machinist. Monahan did not hire him.
Since Friday, March 23, 1951, Kirby has made no further effort to obtain a
referral or to go to work for Respondent Company.
On the above evidence it is held that on October 26, 1950, and again on March
12 or 13, 1951, Kirby applied for work with Respondent Company at its job in
Fernandina, Florida, at a time when Respondent Company had work for him as
millwright on that job. Respondent Company's contention that because Kirby
filed no application in writing on these occasions, he in fact did not apply for
work, is not accepted.
b. Generally
As the statement of James T. Monahan to Millan and Kirby indicated, Re-
spondent Company considered itself bound under the 1950 contract to "call the
union for employees," just which union-whether the District Council or Local
627-not being specified. The question arises as to how and by whom the "first
opportunity" clause of the 1950 contract was carried out on the union side.
At all times herein pertinent the District Council carried on its activities under
the constitution and laws of the United Brotherhood and under its own laws
not inconsistent with those of the United. The United's constitution and laws
were received in evidence ; the District Council's were not offered.
The District Council was composed of approximately 30 delegates from some
8 local unions in the construction trades in the Jacksonville area. All of the
local unions were chartered by the United Brotherhood, whose constitution au-
thorized it to charter district councils also. Representation on the District
Council being according to the size of the local, the largest local, Local 627, had
approximately 10 members on the District Council, including A. A. Pittman.
John Maxim was financial secretary of Local 627 and secretary and treasurer
of the District Council. The president of Local 627 was also president of the
District Council. The office of the District Council was in the building owned
by Local 627.
The general laws of the United Brotherhood provided for a system of clear-
ance cards when a member of one local left that local's jurisdiction and wished
to work in the jurisdiction of another local. Under this system the member in
good standing received a clearance card from his own local, and presented it at
the office of the District Council in the new jurisdiction "before securing work."
"He shall pay the prevailing charge for a Working Permit in the jurisdiction
where he goes to work." Under the heading "Miscellaneous," the United Brother-
hood's constitution included this language until it was eliminated when the con-
stitution was amended as of January 1, 1951: "Resolved, That we recommend
to all District Councils . . . to establish and maintain an employment office
that will afford the employer the opportunity to apply to for help and our members
to apply to when in search of work."
As found above, during at least 6 of the months he worked for Respondent
from January 1949 until July 8, 1950, including the last, Kirby worked under
GEORGE D. AUCH.TER COMPANY 899
special working permits for which he paid a•monthly fee. The "special working
permit" was a printed card the size of an ordinary calling card, which bears all
the earmarks of having been printed for the District Council and issued with
its authority. John Maxim testified that these cards were furnished to the
affiliated local unions by the District Council "in order to have a uniform card."
No reason was shown why the affiliated locals could not each have purchased a
supply of identical cards from a given printer.
In large letters across the top of the face of the cards were printed the words
"CARPENTERS DISTRICT COUNCIL ," under which followed the words "of
Jacksonville, Fla., and Vicinity , United Brotherhood of Carpenters ' and Joiners
of America." The words , "Special Working Permit, " in largest type with extra
space between each letter , appeared on three lines superimposed upon the rest
of the printing, spaced to cover most of the face of the card . On the back side
of the card were the names of the "Carpenters' locals affiliated With" the Dis-
trict Council . The printed form provided space on the front of the card for the
name of the recipient and for the expiration date of the card . It also provided
space above a line for a signature and under the line, in print , the word "Secre-
tary." The words "John Maxim" in handwriting appeared on this line above
the word "Secretary ," on the last such card received by Kirby , expiring July 7,
1950. At that time Maxim was secretary of the District Council and , insofar as
the evidence discloses , secretary of no local union affiliated with the District
Council . Under the handwritten words "John Maxim" appeared in handwriting
the words "W. H. Majors ." At the time this card was issued to Kirby , Majors
was business agent of Local 627 . John Maxim testified that he himself did not
sign this card, that his signature was placed there by either Lois Grimsley, a
clerk employed by Local 627 , or by Majors . It is concluded that the authorized
signature of the secretary of the District Council was necessary in order to
validate the card.
The receipts Kirby received when he handed over the money for the special
working permits though on their face bearing the name of Local 627 and space
for the signature of its financial secretary ,' on the reverse side purported to quote
from the constitution and bylaws of the District Council.
John Maxim testified that from about 1936 or 1937 until A. A. Pittman took
office as business representative of the District Council on July 1 , 1949, the Dis-
trict Council maintained an employment service and issued referral tickets,
that when Pittman took office he "stopped the practice of issuing referrals by
the Council ," that thereafter "the jobs were filled by each business agent of the
local unions. . . ." Neither Pittman nor Maxim testified, however , in what way,
if any, authority of the District Council 's business representative to refer men
to jobs was then reduced . Pittman testified to the conclusion that it is not
within the scope of his duties as business representative of the District Council
to refer applicants to jobs, but he did not testify by what acts of the United
Brotherhood , under whose constitution and laws the District Council operated,
or by what acts of the District Council itself, or by what acts of the local union
affiliates of the District Council, the power and authority to make references
which inhered in the position during the incumbency of his predecessors had
changed during his term of office.
If in fact Pittman had no authority over the filling of jobs , it seems highly
probable to me that sometime during the 0-month period that Kirby was trying
Kirby 's last receipt bore the written words "John Maxim" on this signature line, and
the words were put there , according to Maxim , by Loie Grimsley. Maxim was then
financial secretary of Local 627.
ittivi DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to get a job, Pittman would have expressed this limitation of his authority to
'either Kirby or Sides, would have told them they were dealing with the wrong
man and referred them to the business agent of the appropriate local, Local
Union 627. There is no proof that he ever did so. If in fact Pittman had
nothing to do with the filling of jobs, it seems highly improbable to me that
Sides, the superintendent on the job who presumably was responsible for the
hiring and therefore familiar with the channels for hiring, would have wasted
his time contacting Pittman on the Kirby matter . That Sides contacted Pitt-
man rather than the business agent of Local 627 suggests that he knew that he
could learn from Pittman whether he could safely hire Kirby withou t incurring
a strike and that the ultimate control over the situation lay in Pittman.
As stated above, during Kirby's efforts to secure work in 1950 the lUnited's
constitution contemplated and recommended the maintenan ce of an employment
office by the District Council, and at all times material herein it was compulsory
under the United's constitution for a visiting member, such as Kirby, to present
his clearance card from his own local to Respondent District Council "before
securing work." There was nothing in the constitution and laws of the United
which deprived the District Council or Pittman of the power and authority to
refer men to jobs, and Pittman's doing so was in no conflict with said constitu-
tion and laws.
On the record as a whole I conclude that at all times material herein the Dis-
trict Council and Pittman had and exercised authority to grant or withhold a
referral of Kirby and others for employment, and that Pittman's actions and
statements in the Kirby matter, as outlined above, were made in the exercise of
this authority.
Regardless of whether Pittman or the business agents of the locals sent spe-
cific individuals to fill specific jobs, the testimony is uncontradicted that members
of locals beyond the jurisdiction of Respondent District Council who wished to
work within that jurisdiction had to have the approval of the District Council
before they could be referred to a job. Also uncontradicted was Pittman's
testimony with respect to persons who were not members of any Carpenters'
local but who nevertheless wished to work as carpenters within the jurisdiction
of the District Council : Pittman would not grant them clearance to an affiliated
local for referral to a job.
That Respondent Company knew that all carpenters supplied it by the Dis-
trict Council were and had to be members of some Carpenters' local and approved
for employment by the District Council, cannot be doubted on this record, the
practice having been going on at all times since 1936 or 1937. If it had not
known of this practice before, it learned it in the conversations between Sides
and Pittman over the Kirby matter. Thus, on October 25, 1950, as found above,
'Pittman asked Sides if Kirby had shown Sides a work card or dues book show-
;ing that Kirby was a member of the United, and told him in effect that Kirby
could not work unless - he was.
It becomes clear and it is concluded that as mutually interpreted and admin-
istered by Respondent District Council and Respondent Company, the 1950 con-
'tract required Respondent Company to hire through the District Council,
clearance by the District Council being conditioned upon membership in some
local of the United Brotherhood and in addition approved for employment by the
District Council. In the case of Kirby, a member of a local , this approval for
employment was conditioned upon his withdrawing from the International
Association of Machinists and his paying a strike assessment.
GEORGE D. AUCHTER COMPANY 901
3. Conclusions
As interpreted and administered by the parties the preferential hiring clauses
of the 1950 contract amounted to a closed-shop arrangement no longer permitted
under the Act. By entering into this contract Respondent Association and
Respondent Company violated Section 8 (a) (3) and 8 (a) (1) and Respondent
District Council violated Section 8 (b) (2) and 8 (b) (1) (A) of the Act 7
By enforcing and giving effect to these unlawful clauses in the 1950 contract
Respondent Company violated Section 8 ( a) (3) and 8 (a) (1) of the Act, and
Respondent District Council violated Section 8 (b) (2) and 8 (b) (1) (A) of
the Act.
It is held that on October 26, 1950, and again on March 14 or 15, 1951, Re-
spondent Company refused to hire George W. Kirby because he was not cleared
for employment by Respondent District Council. By such refusal to employ
Kirby and its failure to employ him at any time since those dates, Respondent
Company has violated Section 8 ( a) (3) and 8 (a) (1) of the Act 8
It is held that Respondent Company's refusal to employ George W. Kirby was
caused by Respondent District Council's enforcement of its illegal contract to
prevent Kirby from being employed unless he obtained clearance from Respondent
District Council, paid monthly for a special working permit, paid a strike assess-
ment, and withdrew his membership in the International Association of Machin-
ists. By causing Respondent Company to refuse to employ Kirby, as found
above, Respondent District Council violated Section 8 (b) (2) of the Act and
also Section 8 (b) (1) (A)
In executing the 1950 agreement, the Respondent Association necessarily con-
templated that its affiliated contracting firms would give effect to the unlawful
provisions in it. The relationship between Respondent Association on the one
hand, and Respondent Company and other members of the Association on the
other, was, therefore, that of cosponsors of the illegal agreement and practices
under it. Such cosponsorship, under well-established legal and equitable prin-
ciples, carries with it the responsibility of joint participants in a common enter-
prise for one another's acts performed in furtherance of the enterprise. Accord-
ingly, although the evidence in the record does not show that Respondent
Association was affirmatively associated with the events leading to Respondent
Company's unlawful discriminatory refusal to hire George W. Kirby, or to its
enforcement of the contract generally, I find that because of its participation in a
common enterprise with the Respondent Company, the latter's conduct is to be
imputed to Respondent Association, and the Company's liability becomes the
liability of Respondent Association. Paul W. Speer, An Individual, Paul W.
Speer, Inc., 98 NLRB 212. Osterink Construction Company, 82 NLRB 228. Re-
spondent Association, therefore, being responsible for the enforcement of the
illegal contract generally and for the refusal to hire Kirby, it is held that by
these acts Respondent Association violated Section 8 (a) (3) and 8 (a) (1)
of the Act.
7New York State Employers Association, Inc. et at ., 93 NLRB 127; Utah Construction
CO. et at., 95 NLRB 196.
"Respondents contend there was no violation because Kirby was not an employee within
the meaning of Section 8 (b) (2). The Board has recently refhsed to accept such a con-
tention. Utah Construction Co., et at., supra. See National Maritime Union of Amerroa,
et al., 78 NLRB 971.
"Local 57, International Union of Operating Engineers, et al., 97 NLRB 386. Del B.
Webb Construction Company et al., 95 NLRB 75. International Brotherhood of Boiler-
makers , et al., 94 NLRB 1590.
250983-vol. 102-53-58
902 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. Alleged unfair labor practices committed by the United Brotherhood
1. The charges
In all , three charges were filed against Respondent Unions in this case, the
original charge filed April 23, 1951, a first amended charge filed May 16, 1951,
and a second amended charge filed September 25, 1951 . The original charge was
brought against "United Brotherhood of Carpenters and Joiners of America,
Carpenters' District Council of Jacksonville, Florida and vicinity, and its busi-
ness agent, A. A. Pittman" and alleged in the singular that "the said labor
organization and its agents" committed certain unfair labor practices. The
charging party immediately addressed a single copy of this charge to the Union
and Pittman exactly as named above , with the comma but no "and" after "Amer-
ica" and with the "its" business agent . The Board 's Regional Office immediately
served a copy upon the Union exactly as named above and a separate copy to
"A. A. Pittman, Bus. Agt. United Bro. of Carpenters and Joiners of America,
Carpenters ' District Council of Jacksonville, Florida and Vicinity." Pittman
was then business representative of the District Council and he held no office
with the United Brotherhood. Both the charging party and the Regional Office
addressed the copies to 920 Main Street, Jacksonville, Florida, where the office
of the District Council is located. The principal office of the United Brother-
hood is in Indianapolis , Indiana . No copy of this original charge was sent to
the United Brotherhood at either Jacksonville or Indianapolis. On this evidence
it is held that the original charge was not intended to and did not name the
United Brotherhood as a party respondent.
The first amended charge was brought against the same parties as the original,
the District Council and his business agent, A. A. Pittman, but not against the
United Brotherhood. The record does not disclose whether the charging party
served a copy of this charge upon the "person against whom" the charge was
made. The Board 's Regional Office sent 3 copies to 920 Main Street , Jacksonville,
Florida, in separate envelopes: 1 to the United Brotherhood, 1 to the District
Council, and 1 to A. A. Pittman. As the charge did not name the United
Brotherhood as a party respondent , sending a copy to it did not make it a
party respondent.
The second amended charge clearly named the United Brotherhood as well
as the District Council as a party respondent, and dropped Pittman. The
Regional Office served separate copies upon the United Brotherhood and the
District Council, each copy being addressed to 920 Main Street, Jacksonville,
Florida. United Brotherhood contends that serving it in Jacksonville was not
proper service upon it, in view of the fact that its principal office is in Indianap-
olis-although it admitted that this charge together with the complaint , notice
of hearing, and other charges, was forwarded to it in Indianapolis and received
by it some 14 days before the hearing. In view of the holdings below it is not
necessary to resolve this question.
2. Impact of the Section 10 (b) proviso
The proviso to Section 10 (b) of the Act prohibits the issuance of a com-
plaint based upon any unfair labor practice occurring more than 6 months
prior to the filing of the charge with the Board and the service of a copy
thereof upon the person against whom such charge is made. No question con-
cerning this proviso arises as to the original and first amended charges since, as
found above, they did not name United Brotherhood as a party respondent.
The second amended charge , which for the first time named United Brother-
hood as a party respondent , was filed with the Board 's Regional Office on
GEORGE D. AUCHTER COMPANY 903
September 25, 1951, and was served upon the United Brotherhood in Jackson-
ville, Florida, on October 1, 1951.
As has been seen above in this Intermediate Report, the evidence in the
record discloses no act by the United Brotherhood during the 6-month period
prior to either September 25 or October 1, 1951. Any responsibility attaching
to it must be based, therefore, upon some act or acts which, though they oc-
curred prior to the 6-month period, were in the nature of continuing acts which
carried into or through the 6-month period. The 1950 contract or the continu-
ing to refuse a referral to Kirby could be considered to be such continuing
acts.
As is reflected above in this report the United Brotherhood did not, itself,
sign the 1947 or the 1950 contracts; and insofar as the record shows it took
no part in the negotiation of either of those contracts." Nothing in the evidence
or in the constitution and laws of the United Brotherhood indicates that the
1950 contract was ever ratified by the United or that United reserved the right
to do so before the contract became valid. The United cannot, therefore, be
held responsible for the contract as a cosponsor of it with the District Council.
In oral argument the General Counsel suggested that the relationship between
the United Brotherhood and the District Council was so close, their working
relationship was so integrated, that the United should be held responsible for
the illegal acts of the District Council. Such responsibility would presumably
rest upon the conception that the District Council was a mere administrative
arm or agent of the United and that it did not have sufficient autonomy to be
solely responsible for its illegal acts.
The United Brotherhood's constitution and laws in operation at the time
of the events herein provided, among other things, that the organization should
be known as the United Brotherhood of Carpenters and Joiners of America,
and should "consist of an unlimited number of Local Unions and members sub-
ject to its laws and usages...." It provided that one of the "objects" of
the United Brotherhood was "to assist each other to secure employment."
Under the heading "Jurisdiction" the constitution provided that the power to
establish and charter "Subordinate Local . . . Unions" and District Councils
should be vested in the "International Body" of the United Brotherhood, and
that its "mandates must be observed and obeyed at all times." The right was
reserved in the "International Body" to "regulate and determine all matters
pertaining to fellowship in its various branches and kindred trades." To
subordinate local unions and district councils the right was conceded to make
all necessary laws for themselves "which do not conflict with the laws of the
International Body." The right was reserved for the United Brotherhood to
"establish jurisdiction" over any local unions or district councils "whose affairs
are conducted in such a manner as to be a menace to the welfare of the Inter-
national Body." The constitution provided further that "The United Brother-
hood shall enact and enforce laws for its government and that of Subordinate
Locals and District . . . Councils and members thereof." It provided that
the charter of a local union remains at all times the property of the United
Brotherhood , that any local or district council could be suspended for "will-
fully or directly" violating the "Constitution, Laws or principles" of the United
Brotherhood or acts "in antagonism to its welfare." The United retained
power, in certain circumstances, to order the consolidation of two or more locals.
The constitution gave the general president of the United Brotherhood power
to take possession, for examination purposes, and summarily when he deems
12 Cf. Chicago Newspaper Publishers et at ., 8,6 NLRB 1,041, 1045-1048.
904 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
it necessary, of all books, papers, and financial accounts of any local or dis-
trict council, permitting a representative of the local or district council to be
present during the examination. The general president had power to "decide
all points of law, appeals and grievances, except death and disability
claims. . . ." When a local or district council "asked the assistance of the
General Office," the general president had power, "with the consent of the
General Executive Board," to "make settlement with employers, and the
said . . . Local Union, or District Council . . . must accept the same." The
constitution provided, further, that "Whenever, in the judgment of the General
President, subordinate bodies of the members thereof are working against the
best interests of the United Brotherhood or are not in harmony with the Consti-
tution and Laws of the United Brotherhood, the General President shall have
power to order said body to disband under penalty of suspension."
The general executive board of the United Brotherhood, consisting of 7
members elected from each of 7 geographical divisions throughout the country,
was given power to "make agreements with employers covering our juris-
diction ; provided such agreements require employers to conform with the trade
rules of the district where the work is located." It was given power, also,
to "order strikes in any locality , regardless of agreements that may have
been entered into by any Subordinate Union, District . . . Councils, unless such
agreements have been approved by the General President."
The general laws of the United Brotherhood, under the heading "Jurisdiction
of District Councils," provided that where there were 2 or more local unions
located in 1 city they "must be represented in a Carpenters' District Council,
composed exclusively of delegates from Local Unions of the United Brotherhood,
and they shall he governed by such Laws and Trade Rules as shall be adopted
by the District Council and approved by the Local Unions and the First General
Vice-President. The General President shall have power to order such Local
Unions, as he may deem in his wisdom for the best interests of the organization
at large, to affiliate with such D. C., as in his judgment they should, agree to
settle the lines of jurisdiction of such D. C., subject to appeal." District councils
were given the power to make and enforce bylaws, working and trade rules for
the government of local unions and members of the United Brotherhood working
in their districts, "which shall in no way conflict with the Constitution and the
International Laws of the United Brotherhood, and must be adopted by refer-
endum vote of the members and approved by the First General Vice-President
before becoming law. . . ." The general laws provided further that bylaws and
trade rules "for the government of the District Council and Local Unions must be
submitted by the District Council to the Local Unions represented in said district,
and must be adopted by a majority of members voting, at a special meeting called
therefor, and shall in no way conflict with the Constitution and International
Laws of the United Brotherhood."
The trades rules of Respondent District Council provided among other things
that:
When a member goes on a job he must ascertain through proper inquiry if
it is a union job ; if the job is not union and he works on same, he shall be
fined. A member must notify the Steward and sign the report card before
going to work, or be subject to fine of $5.00.
The trade rules provided also that "Every member under the jurisdiction of this
Council shall quit work when requested to do so by the legally authorized party
or parties."
GEORGE D. AUCHTER COMPANY 905
3. Conclusions
From the above previsions of the constitution and laws, and from all the other
testimony in the case, emerges a picture of the Respondent District Council with
powers somewhat as follows : It had power to make its own laws , so long as they
did not conflict with the laws of the United and were approved by its constituent
locals and the first vice president of the United . It had power to and did nego-
tiate the terms of and execute collective-bargaining contracts to be binding upon
its constituent locals, which contracts were not subject to the ratification of the
United Brotherhood before they became binding. There was no restriction
upon its power to negotiate the settlement of grievances or disputes with em-
ployers unless it requested the assistance of the United. It had and exercised
authority to grant or withhold permits to work. Nothing in the constitution and
laws of the United required the District Council to negotiate and enter into the
illegal 1950 contract, without whose color of legality Pittman would not have been
able to bar Kirby from employment as found above.
Although United Brotherhood had considerable authority under its constitu-
tion and laws to make Respondent District Council adhere to the constitution,
laws, and principles of the United, the District Council was otherwise left a large
amount of autonomy in the running of its affairs and the affairs of its con-
stituent locals ; and it had a large amount of freedom in dealing with employers
within its geographical jurisdiction.
On the record as a whole it is held that the United Brotherhood lacked that
right of control over all the activities of Respondent District Council which
would be necessary for a finding that the District Council was a mere adminis-
trative arm or agent of the United.u Rather it is held that the District Council
had sufficient autonomy to be considered a separate entity and to be solely
responsible for its own illegal acts. It is held, therefore, that the United
Brotherhood was not responsible for the illegal 1950 contract or for causing dis-
crimination against Kirby. Therefore I find that the complaint against the
United Brotherhood was improperly issued under the proviso to Section 10 (b)
and should be dismissed.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondents set forth in section III, above, occurring in
connection with the operations of Respondent George D. Auchter Company,
described in section I, above, have a close, intimate, and substantial relation to
trade, traffic, and commerce among the several States, and tend to lead to labor
disputes burdening and obstructing commerce and the free flow of commerce.
V. THE REMEDY
Because it has been found that the Respondent Company, Respondent Asso-
ciation, and Respondent District Council have engaged in certain unfair labor
practices, it will be recommended that they cease and desist therefrom and take
certain affirmative action designed to effectuate the policies of the Act. As the
practices of the District Council and Respondent Company, as well as Respond-
ent Association, prevented Kirby from being employed on the Fernandina job,
it will be recommended that they jointly and severally make him whole for any
loss he may have suffered as a result thereof by paying to said Kirby an amount
equal to that which he would have earned as a millwright from October 26,
'u Cf. Rock Hill Printing and Finishing Company, 82 NLRB 932; F. Strauss and Son,
Inc., 80 NLRB 26.
906 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1950, the date he applied for work as a millwright and Respondent Company
had work for him as a millwright, until the date when, pursuant to the recom-
mendations herein contained, Respondent Company shall offer Kirby employ-
ment as a millwright, less Kirby's net earnings during said period. 12 Loss of
pay shall be determined by deducting from a sum equal to that which Kirby
would normally have earned for each quarter or portion thereof, his net earn-
ings, if any, in other employment during that period. Earnings in one par-
ticular quarter shall have no effect upon the back-pay liability for any other
quarter. The quarterly periods described herein shall begin with the first day
of January, April, July, and October."' It is recommended further that Respond-
ent Auchter Company make available to the Board upon request payroll and
other records, in order to facilitate the checking of the amount of back pay
due.'
Because of the Respondents' unlawful conduct and its underlying purpose and
tendency, I find that the unfair labor practices found are persuasively related
to other unfair labor practices proscribed and that danger of their commission
in the future is to be anticipated from the course of the Respondents' conduct
in the past'' The preventative purpose of the Act will be thwarted unless the
order is coextensive with the threat. In order, therefore, to make effective the
interdependent guarantees of Section 7, to prevent a recurrence of unfair labor
practices, and thereby to minimize industrial strike which burdens and obstructs
commerce, and thus effectuate the policies of the Act, I will recommend that
Respondents cease and desist from in any manner infringing upon the rights
guaranteed in Section 7 of 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. George D. Auchter Company is engaged in commerce within the meaning
of Section 2 (6) and (7) of the Act
2. Carpenters District Council of Jacksonville and Vicinity is a labor organiza-
tion within the meaning of Section 2 (5) of the Act.
3. By executing and enforcing the unlawful provisions of the 1950 contract,
and by discriminating in regard to the hire and tenure of employment of George
W. Kirby, Respondent Company and Respondent Association have engaged in
and are engaging in unfair labor practices within the meaning of Section 8 (a)
(3) of the Act.
4. By the conduct stated in paragraph numbered 3, above, Respondents Com-
pany and Association have interfered with, restrained, and coerced employees
in the exercise of the rights guaranteed in Section 7 of the Act in violation of
Section 8 (a) (1) of the Act.
5. By executing and enforcing the unlawful provisions of the 1950 contract,
and by causing Respondent Auchter Company to discriminate against George
W. Kirby in the hire and tenure of his employment, Respondent District Council
has engaged in and is engaging in unfair labor practices within the meaning
of Section 8 (b) (2) and Section 8 (b) (1) (A) of the Act.
12 Crossett Lumber Company , 8 NLRB 440 , 497--8 ; Republic Steel Corporation Y. N. L.
R. B., 311 U. S. 7.
18 F. W . Woolworth Company, 90 NLRB 289.
14 F. W. Woolworth Company, supra.
15 N. L. R. B. v. Express Publishing Co., 312 U . S. 426.
INTERNAT'L LONGSHOREMEN'S AND WAREHOUSEMEN'S UNION 907
6. The aforesaid unfair labor practices are unfair. labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
'[Recommendations olritted:from publication in this volume.]
INTERNATIONAL LONGSHOREMEN'S AND WAREHOUSEMEN'S UNION, LooAL
10, ILWU, and TRUE KNOWLEDGE . Case No. 00-CB-216. Febru-
ary 0,1953
Decision and Order
On June 16, 1952, Trial- Examiner David F. Doyle issued his Inter-
mediate Report in • the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. Thereafter, the Respondent filed
exceptions to the Intermediate Report and a supporting brief.
The Board has reviewed the rulings made by the Trial Examiner at
the hearing and finds that no prejudicial error was committed. The
rulings, with the exception noted below, are hereby affirmed., The
Board has considered the Intermediate Report, the exceptions, and
brief, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner with the following additions and
modifications.
1. We agree with the Trial Examiner that the Respondent Union
violated Section 8 (b) (1) (A) and (2) of the Act, but for different
reasons. The pertinent facts, as more fully set forth in the Inter-
mediate Report, are as follows :
The Pacific Maritime Association, referred to herein as the PMA,
representing various shipping, stevedoring, and terminal companies,
and the Respondent Union established many years ago a hiring hall
on the San Francisco waterfront. At present; there are 2 groups of
personnel working as longshoremen on the waterfront-about 2,500
are dispatched via the hiring hall in gangs and about the same number
1 At the hearing and in his Intermediate Report the Trial Examiner indicated that he
took judicial notice of certain findings of fact in a prior proceeding before the Board in-
volving True Knowledge and the Respondent Union. (International Longshoremen's and
Warehousemen 's Union et al., 90 NLRB 1021.) However , at the hearing the Trial Exam-
iner stated that these findings having been litigated were conclusive upon the Respondent
Union and it would not have the right to rebut the facts. The Trial Examiner was in
error in this regard. The Board has held that a Trial Examiner can take official notice
of proceedings before the Board in other cases, provided that fact is stated on the record
by the Trial Examiner or in his Intermediate Report, and the parties are given an oppor-
tunity to show to the contrary. J. S. Abercrombie Company, 83 NLRB 524. However,
as we have not relied on these facts in arriving at our decision herein, the Respondent
Union was not prejudiced thereby.
102 NLRB No. 87.