Int'l Assn. of Heat & Frost Insulators, Local 84

National Labor Relations Board - Board Decisions

Apr 6, 1964

146 N.L.R.B. 660 (N.L.R.B. 1964)

660 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, it is
hereby recommended that the consolidated complaint herein be dismissed in its
entirety.
International Association of Heat and Frost Insulators and
Asbestos Workers, Local #84, AFL-CIO [The Edward R.
Hart Company], Respondent and Randall Lutz, Charging
Party
International Association of Heat and Frost Insulators and
Asbestos Workers, Local #84, AFL-CIO [The Edward R.
Hart Company], Respondent and John R. Lutz, Charging
Party. Cases Nos. 8-CB-680-1 and 8-CB-680-2. A pril 6, 1964
DECISION AND ORDER
On August 6, 1963, Trial Examiner George L. Powell issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in sand 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 attached Inter-
mediate Report. Thereafter, the Respondent filed exceptions to the
Intermediate Report and a supporting brief.'
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with these cases to a three-
member panel [Members Leedom, Fanning, and Brown].
The Board has reviewed the rulings of the Trial Examiner made
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 brief, and the entire record in
these cases, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner with the modifications noted herein.
1. We agree with the Trial Examiner that the Respondent Local
operated an exclusive hiring system in an unlawful fashion by placing
only local members' names on the register for referral and clearing
other persons only after all members of Respondent Local were em-
ployed, and that it thereby violated Section 8(b) (1) (A) and (2) of
the Act.
2. Randall and John Lutz applied for work in Akron, Ohio, to
Riddle, secretary of The Edward R. Hart Company, at a time when
job openings were available and were told to secure a clearance from
Rice, Respondent's business agent. When Riddle, on behalf of the
two brothers, requested that Rice clear them, Rice stated that he did
'Respondent 's request for oral argument is hereby denied as the record . the exceptions,
and brief adequately present the issues and the positions of the parties.
146 NLRB No. 85.
INT'L ASSN. OF HEAT & FROST INSULATORS, LOCAL 84 661
not want them working in his territory because a third brother had
filed charges with the Board against another local and that one Lutz
brother was as bad as the other. It was not until the two brothers
communicated with their own business agent in Youngstown, Ohio,
that Rice cleared them and they were hired by The Edward R. Hart
Company.
The Trial Examiner concluded that the Respondent unlawfully
discriminated against Randall E. Lutz and John R. Lutz. We agree
but rely only on one of the two grounds set forth in the Intermediate
Report. Thus, the record establishes that the Respondent Local re-
fused to clear the two Lutz brothers because of unfair labor practice
-charges filed by their brother against a sister local of Respondent, and,
like the Trial Examiner, we find that The Edward R. Hart Company
was thereby caused to discriminate against the two brothers in viola-
tion of Section 8(a) (3) of the Act,' and hence Respondent violated
Section 8 ('b) (1) (A) and (2) of the Act.'
3. Contrary to the Trial Examiner, we are unable to conclude on
this record that the Respondent attempted to cause The Edward
R. Hart Company to discharge the Lutz brothers 'and shall dismiss the
complaint insofar as it alleges such a violation of the Act. The sole
action by the Respondent which was addressed to the Employer was a
telephonic request by Rice that Riddle lay off "the travelers" and re-
place them with unemployed Local 84 members. Upon the Employer's
refusal to accede to this request, the Local responded that it would
"see about getting rid of them." Subsequently, the Respondent com-
municated with the Lutzes' own business agent and asked that they be
requested to return to their home area. The Lutz brothers were un-
aware of the request to their Employer, and the only communication
to them was by their own business agent, who asked that they leave
the job. As a result of this request, and not because of any action by
The Edward R. Hart Company,' Randall and John Lutz left the em-
ploy of that Company.
4. We agree with the Trial Examiner's further finding that the Re-
spondent, by its Agent Doolittle's telling Randall Lutz that if he
wanted to work in the Akron territory again, he had better cooperate
by leaving The Edward R. Hart Compay job as requested by the
Youngstown business agent, engaged in threats in violation of Section
8(b) (1) (A) of the Act.
5. The Trial Examiner, having found that the Respondent attempted
to cause the discharge of Randall and John Lutz in violation of the
z As there is no evidence in this record that the refusal to refer, involved herein, was
based on the two brothers' nonmembership in the Respondent, we do not adopt or rely on
the Trial Examiner 's finding insofar as it is based on the requirement of clearance,
standing alone
8 Cf. Marydale Producta Company, Inc., 133 NLRB 1232, 1233 ,. -
d In fact, the two brothers left despite the urging of the Employer that they remain
until the job was completed.
662 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Act, recommended that the Respondent be ordered to make them
whole for any loss of earnings which they suffered between the time
they left The Edward R. Hart Company job and the time the work
would have been completed. However, as the Board does not award
backpay against a respondent labor organization unless it is found
to have caused the employer to discriminate against the employee,"
we shall not adopt the Recommended Order insofar as it includes back-
pay for that 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 Respondent, International As-
sociation of Heat and Frost Insulators 'and Asbestos Workers, Local
#84, AFL-CIO, its officers, agents, representatives, successors, and
assigns, shall:
1. Cease and desist from :
(a) Operating an exclusive hiring system for the preferential bene-
fit of Local #84 members by placing only members' names on the
register for referral and by clearing nonmembers and nonunion em-
ployees for employment only after members are employed.
(b) Refusing to refer John R. or Randall E. Lutz to The Edward
R. Hart Company, or any other employer, when requested to do so,
because their brother filed an unfair labor practice charge against a
local union.
(c) Threatening Jolui R. and Randall E. Lutz with loss of future
employment in the Akron area unless they give up their jobs in the
Akron area to unemployed Local #84 members.
(d) In any like or related manner restraining or coercing the em-
ployees of The Edward R. Hart Company, or of any other employer,
in the exercise of their right to engage in or refrain from engaging in
any or all of the activities guaranteed by Section 7 of the Act, except
to the extent that such right might be affected by an agreement re-
quiring membership in a labor organization as a condition of employ-
ment, as authorized in Section 8(a) (3) of the Act, as amended.
2. Take the following affirmative action which we deem necessary
to effectuate the policies of the Act:
(a) Make whale Randall E. Lutz and John R. Lutz for any loss of
pay each may have suffered because of the discrimination against
them, in the manner set forth in the section of the Intermediate Re-
port entitled "The Remedy," as modified in this Decision and Order.
(b) Post at the office, hiring hall, and meeting places of the Re-
spondent in Akron, Ohio, copies of the attached notice marked
United Mine Workers of America, et al. (Blue Diamond Coal Comp any), 143 NLRB 795.
INT'L ASSN. OF HEAT & FROST INSULATORS, LOCAL 84, 663
"Appendix." 6 Copies of said notice, to be furnished by the Regional
Director for the Eighth region, shall, after being duly signed by
official representatives of the Respondent, be posted by it immediately
upon receipt thereof, and be maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all places where notices to
its members are customarily posted. Reasonable steps shall be taken
by the Respondent labor organization to insure that said notices are
not altered, defaced, or covered by any other material.
(c) Mail signed copies of the notice to the Regional Director for the
Eighth Region for posting by The Edward R. Hart Company, said
Company willing, at all Akron, Ohio, locations where notices to the
Company's employees are customarily posted.
(d) Notify the Regional Director for the Eighth Region, in writ-
ing, within 10 days from the date of this Order, what steps the Re-
spondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint herein be, and it hereby
is, dismissed insofar as it alleges violations of the Act not found in
this Decision and Order.
6 In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "A Decision and Order" the words "A
Decree of the United States Court of Appeals , Enforcing an Order."
APPENDIX
NOTICE TO ALL MEMBERS OF INTERNATIONAL ASSOCIATION OF HEAT AND
FROST INSULATORS AND ASBESTOS WORKERS, LOCAL #84, AFL-CIO,
AND TO EMPLOYEES OF THE EDWARD R. HART COMPANY
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify you that:
WE WILL NOT operate an exclusive hiring system for the prefer-
ential benefit of Local #84 members by placing only members'
names on the register for referral and by clearing nonmember
and nonunion employees for employment only after members are
employed.
AVE WILL NOT cause or attempt to cause The Edward R. Hart
Company, or any other employer, to discriminate against appli-
cants for employment in violation of Section 8(a) (3) of the Act.
WE WILL NOT refuse to refer John R. Lutz or Randall E. Lutz
to The Edward R. Hart Company, or any other employer, when
requested to do so, because their brother filed an unfair labor prac-
tice charge against a local union.
WE WILL NOT threaten John R. Lutz or Randall E. Lutz with
loss of future employment in the Akron area unless they give up
their jobs in the Akron area to unemployed members of Local #84.
664 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT in any like or related manner restrain or coerce
any employees in the exercise of the rights guaranteed them in
the National Labor Relations Act, as amended, except as a condi-
tion of employment as permitted in Section 8(a) (3) of the Act.
WE WILL make whole employees John R. Lutz and Randall E.
Lutz for any loss of pay they may have suffered from November,5,
1962, until they were hired in November 1962.
INTERNATIONAL ASSOCIATION OF HEAT AND FROST
INSULATORS AND ASBESTOS WORKERS, LOCAL #84,
AFL-CIO,
Labor Organisation.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 consecutive days from the
date of posting, and must not be altered, defaced, or covered by any
other material.
Employees may communicate directly with the Board's Regional
Office, 720 Bulkley Building, 1501 Euclid Avenue, Cleveland, Ohio,
Telephone No. Main 1-4465, if they have any question concerning this
notice or compliance with its provisions.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon a charge filed January 14, 1963, amended March 8, 1963, by Randall Lutz
and upon a charged filed January 14, amended on March 8 , 1963, by John R. Lutz,
an order consolidating cases, complaint , and notice of hearing issued on March 13,
alleging that International Association of Heat and Frost Insulators and Asbestos
Workers, Local #84, AFL-CIO, herein referred to as Local #84 or Respondent,
had violated Section 8 ( b) (1) (A) and ( 2) of the Act in various aspects as will
hereinafter be set forth.'
The Respondent's answer denied the commission of any of the unfair labor practices
alleged.
A hearing was held before Trial Examiner George L. Powell at Akron, Ohio, on
April 1 , 1963. All parties participated fully in the hearing. Respondent gave oral
argument at the conclusion of the hearing and the General Counsel filed a brief.
Both the argument and the brief have been carefully considered.
' The pertinent portions of the Act are as follows:
Sec. 7. Employees shall have the right to self-organization, to form, join , or assist
labor organizations , to bargain collectively through representatives of their own
choosing, and to engage in other concerted activities for the purpose of collective
bargaining or other mutual aid or protection, and shall also have the right 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).
Sec. 8. ( b) It shall be an unfair labor practice for a labor organization or its
agents-
(1) to restrain or coerce ( A) employees in the exercise of the rights guaran-
teed in section 7 . . .
(2) to cause or attempt to cause an employer to discriminate against an em-
ployee in violation of subsection ( a) (3) or to discriminate against an employee
with respect to whom membership in such organization has been denied or
terminated on some ground other than his failure to tender the periodic dues
and the initiation fees uniformly required as a condition of acquiring or retain-
ing membership ;
INT'L ASSN. OF HEAT & FROST INSULATORS, LOCAL 84 665
Upon the entire record 2 in the case , and from my observation of the witnesses,
I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF EMPLOYER
The Employer, The Edward R. Hart Company, is an Ohio corporation with its
principal place of business at Canton, Ohio, where it is engaged in the wholesale
distribution and jobbing of asphalt, asbestos, and insulation products and building
specialties; and in the operation of a contracting department which applies insula-
tion and roofing materials. The Employer's gross volume of business for 1962,
which period is representative of all times material herein, was in excess of $2,500,000,
of which in excess of $50,000 was derived from services performed for or products
sold and shipped directly to, customers outside the State of Ohio. I find that at
all times material herein the Employer has been engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
If. THE LABOR ORGANIZATION INVOLVED
International Association of Heat and Frost Insulators and Asbestos Workers,
Local #84, AFL-CIO, is a labor organization within the meaning of Section 2(5)• of
the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
There are many individual issues involved in the case, but generally the case is
about whether there is an exclusive hiring arrangement and if so whether it is being
administered in a discriminatory manner under Section 8(b) (1) (A) and (2) of the
Act, and if so in what particulars.
At the start of the proceeding, the parties stipulated as follows: (1) Neal A. Rice
is and at all times material herein has been business agent of International Association
of Heat and Frost Insulators and Asbestos Workers, Local #84, AFL-CIO, and
is an agent of that organization within the meaning of Section 2(13) of the Act; (2)
Harold Doolittle is and at all times material herein has been vice president of
Respondent Local #84 and chairman of the executive board of Respondent Local
#84; and (3) the Employer is a member of Master Insulators Association and is
bound by that Association's contract with the Respondent.
A. The exclusive hiring arrangement, agreement, practice, or understanding
between Respondent and the Employer
Through General Counsel's Exhibit No. 2 and the testimony of Neal Rice, the
Respondent's business agent, it was established that there is a hiring agreement be-
tween the Master Insulators Association and Respondent. It was stipulated that
the Employer is a member of the Master Insulators Association and is bound by
the hiring agreement or practice between the Association and the Respondent. The
language of the hiring arrangement in the agreement is as follows: "Hireing [sic]
hall with Contractors choice of complete list of unemployed." On the theory that
this language of the contract was ambiguous and vague, evidence as to the under-
standing between the parties was adduced by the General Counsel.
Albert C. Riddle, secretary of the Employer, credibly testified that he is responsible
for hiring the construction crews for the Employer and that under the contract he
must hire through the business agent of Local #84 and accordingly he is supposed to
call Rice when he needs men. The practice is that Rice, when called, reads Riddle a
list of employees who ". . . are always men of Local 84."
This accords with the pretrial affidavit of Rice, made under oath, in which he said
(in General Counsel's Exhibit No. 4) :
The only men on our [Local #841 referral list therefore would be Local #84
members. This list would not contain names of members of other Local unions
of the Asbestos workers or of non-union members.
Rice repudiated this affidavit at the trial but I find his explanations and denials of the
above to be not credible and I credit the above affidavit as an admission against his
and Respondent's interest. Wigmore, Code 980; Anthony C. Markitell and John
H. Dent, Partners, d/b/a Trafford Coach Lines, et al., 99 NLRB 399. See also
Electric City Dyeing Co., a corporation and Fred L. Nuttall and Catherine A.
Nuttall, Co-partners, doing business as the Electric City Dyeing Company, 79 NLRB
a Respondent's motion to dismiss the proceedings Is considered ruled on in the disposi-
tion of this case.
666 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
872; D. Gottlieb & Co., 102 NLRB 1708; Fruit & Vegetable Packers and Ware-
housemen Local 760 aff/w IBT v. N.L.R.B. (Yakima Frozen Foods), 316 F. 2d 389
(C.A.D.C.).
Other evidence in the record shows that Riddle's interpretation of the contract is
the correct interpretation.
When the Lutz brothers, members of Local No. 35, Youngstown, Ohio, approached
Riddle and asked for work , Riddle inquired if they could get a clearance from Rice
to come down from Youngstown and work. Thereafter, knowing that Randall and
John Lutz were available for work, Riddle asked Rice "if I could have those two men
[the Lutz brothers] come in and work for me." Rice told Riddle "that one Lutz
brother was just as bad as the other , and that he [ Rice] didn 't want them working
in his territory."
On cross-examination, Respondent attempted to show that Riddle had the right
to hire employees without first clearing with the Respondent . However, Riddle's
testimony on cross-examination was that when members of Local #84 applied for
work he hired them without first clearing with the Respondent. Later in Riddle's
testimony he named Worster , Thomas, and Bushong as employees who had been
hired by him without first clearing with the Union. However, on redirect examina-
tion Riddle explained that these men had been members of Local # 84 for years
and that be knew this because he had a complete roster of Local #84 members and
because these employees had worked for him before. It was for this reason that
Riddle did not bother to clear these employees through Local #84 before hiring
them.
The only other employee named specifically was Robert Steel . He was a 'nonunion
employee. However, Riddle testified that he only asked permission from Rice to use
Steel as a helper and it was only after Rice's permission was given that Riddle hired
Steel.
Riddle's testimony was that he had a right under the law to hire any employee
without first clearing with Respondent but that under his contract he had to first
clear with the Respondent. Finally, Riddle used the word "courtesy" to explain
why he cleared employees with the Respondent before hiring them in Local #84
territory. But he testified that as a matter of fact he always extended to Local #84
the courtesy of clearing an employee before putting him to work in that Local's
territory. This "courtesy" when always extended, I find, is a practice observed
between the Employer and the Respondent.
Analysis of the Contract Issue
Under the interpretation of the law as given by the Board, an understanding, even
though not articulated , is sufficient to make a union responsible with an employer
for any unlawful practice . (See, for example , International Union of Operating
Engineers , Local 624 A-B (D. S. McClanahan & Son, Inc. ), 141 NLRB 615; Local
568, Hotel, Motel & Club Employees Union , AFL-CIO ( Warwick Hotel , Inc.),
141 NLRB 310.) Riddle 's testimony above clarifies the ambiguous languge in the
hiring clause in the collective-bargaining agreement and supports the finding that
it is and the parties are operating under an exclusive hiring agreement , arrangement,
practice, or understanding between the Employer and the Respondent . The agree-
ment was dated July 1, 1961 , but as the first charge was not filed until January 14,
1963, the earliest time under Section 10(b) of the Act to bring the contract under
the charge would be July 14, 1962.
B. The discriminatory operation of the Respondent's exclusive hiring system
As noted above, Riddle credibly testified and Rice admitted that the employees
on Local #84's referral list were always members of Local #84, and that he
(Riddle ) had never known of a single instance where a nonunion employee or an
employee not a member of Local #84 was put on the referral list.
Riddle credibly testified that he received permission from Rice before he hired
Steel, the only nonunion employee mentioned in the record.
Randall and John Lutz
Randall E. and John R. Lutz came to Riddle and asked him for work. On this
point Riddle credibly testified:
I asked them [the Lutz brothers] if they could get cleared with Neal Rice
to come down and work.
Q. Do you recall telling the boys that you would call Rice yourself?
A. I asked Neal [Rice] if I could have those two men come in and work.
INT'L ASSN. OF HEAT & FROST INSULATORS , LOCAL 84 667
Riddle's testimony on asking Rice for clearance of the Lutz brothers is:
I called and asked Neal [Rice ] if he had any men available from Local 84.
Knowing that John and Randall [Lutz ] were available to work , I asked him if
they could come in and work for me.
And that was when this thing came up that he didn't want them working in
his territory . I had five or six other men come in after I asked him.
"This thing" referred to by Riddle above , was a charge filed with the Board in
Case No. 8-CB-658 against Local No. 2 of the International Association of Heat
and Frost Insulators and Asbestos Workers, AFL-CIO, a sister local to Respondent.
This charge was filed by Merrill Lutz, a brother of Randall and John Lutz. The
charge was filed on October 25, 1962.
Accordingly, when Riddle asked Rice for clearance of the Lutz brothers, Rice
told Riddle that "one Lutz brother was just as bad as the other, and that be [Rice]
didn't want them working in his territory ." This is taken from Riddle 's credited
testimony . But Rice also admitted telling Riddle about Merrill Lutz, before the
Lutz brothers were hired , that, "I didn't think that a guy was nothing for my money,
wasn ' t very good to sue his own local."
As noted above , Rice sent four or five other men to Riddle after refusing to clear
the Lutz brothers . Riddle hired them and again asked Rice for the two Lutz brothers.
This time Rice cleared them . In the words of Riddle's testimony, "That's when he
told me they could work in his territory."
The Time Involved in Hiring the Lutz Brothers
Randall E. Lutz took the stand and credibly testified that "seven to ten days"
elapsed between when he (and John ) had asked Riddle for work before he could
get in touch with his own union business agent , Kirschner, in Youngstown, Ohio.
When he reached Kirschner , Randall testified , "[Kirschner ] informed me that he
had to get the okay from Mr. Rice." Randall Lutz further testified , "Mr. Kirschner
was told by Mr. Rice for me to report to the office [of The Edward R. Hart Com-
pany] at 7:30 in the morning ." Once he had gotten in touch with Kirschner,
Randall Lutz testified that he was cleared in 24 hours and he and his brother John
reported to Riddle and were hired . He then sent a report card to Rice that he
was working.
In conclusion , it thus appears that the two Lutz brothers were refused clearance by
Rice when they first asked Riddle for a job and "seven to ten" days later they were
able to reach their own business agent Kirschner who within 24 hours, or 1 day,
successfully obtained Rice's clearance . They reported to Riddle a second . time and
began working for the Employer . Thus it might have been as long as 11 days since
they first applied for work before they were cleared and hired . Also, it might have
been only 8 days. But whatever the length of time, it was the refusal by Rice to
clear them that caused the loss of work . There is no evidence that the Lutz brothers
were derelict in attempting to get in touch with Kirschner.
The General Counsel argues in his brief that it was from 2 to 4 weeks after
Riddle first asked Rice for the Lutz brothers before they were finally cleared for
employment . I cannot agree with this set of figures . As noted above, Randall
Lutz would only fix the time between "seven to ten" days plus another day. Riddle
testified on cross-examination that it was the latter part of November when he
asked Rice for the Lutz brothers and he fixes the time of their employment "from
November [ 1962] until the 3rd of January [1963 ]." If Riddle was referring to the
second time he asked Rice to clear the Lutz brothers for a job rather than the first
time he asked him for clearance, the earliest time the Lutz brothers could have begun
work would have been November 16 (which would be the first day of the "latter
part" of the month ), and the earliest time the first request for work could have been
addressed to Riddle would have been 11 days earlier or November 5. The record
is blank on just when they began work in November and it is immaterial to this
proceeding.
However, the General Counsel amended the complaint at the close of his case to
allege that , since on or about October 25, 1962, Respondent refused to refer John
and Randall Lutz for employment pursuant to its hiring arrangement with the
Employer, because of the charge filed by Merrill Lutz on that day . The only evi-
dence of a refusal to refer based on this charge is when Riddle first called Rice.
As the earliest date he could have called Rice was November 5, as set out above,
I find this allegation must be changed to "on or about November 5, 1962."
668 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As noted above, Randall and John Lutz worked from the latter part of November
1962 until January 3, 1963. On the 2d of January, Rice called Riddle and told
him that he had a Local #84 man available for work. Riddle said that he could
not use him. Rice told Riddle at that time that the Employer had "travelers" 3
working for it and that Riddle should "get rid of the travelers." Riddle refused
and Rice said, "Well, we will see about, getting rid of them then."
Rice denied that he asked Riddle to "get rid" of the travelers but admitted then
telephoning Kirschner, the business agent for the Youngstown local, of which the
brothers Lutz were members, and asking Kirschner to talk to the Lutz brothers.
Randall Lutz credibly testified that he was asked on January 2, 1963, by his business
agent Kirschner to leave the Employer. Kirschner told him that Neal Rice was
having trouble with the Employer because Rice had a man available for work, but
the Employer would not put him to work. Kirschner then told Lutz to take his
tools and leave the job.
After receiving the telephone call from Kirschner, Randall Lutz asked Doolittle 4
the next morning at the jobsite what was the problem. Doolittle told Lutz, in the
words of Lutz, "If I wanted to work in the Akron territory again, I better cooperate "
The two brothers Lutz then took their tools and left their job although the work
would have lasted "approximately 10 days to 2 weeks."
Analysis as to the Operation of the Hiring System
The record shows that it was not often necessary for Riddle to call Rice for men
and that Riddle did not necessarily go to Rice for specific clearance in every case.
For example, if known Local #84 members showed up at the jobsite, they were
hired immediately without the necessity for further clearance. It was only when a
union member from another local appeared at the jobsite or when a nonunion em-
ployee appeared at the jobsite that specific clearance with Local #84 became
necessary.
When Riddle asked Rice for men, at the time he specifically asked for Randall
and John Lutz, Riddle was sent some four or five other employees. After he hired
them, he again called Rice and, following this call, the Lutz brothers reported for
work. Clearly this shows discriminatory treatment of the Lutz brothers. They were
discriminated against in two particulars. One, because not being members of Local
#84, they had to be specifically cleared before they could work and, two, that Rice
was discriminating against them because of charges that another brother had brought
against his union before the Board. Also it is clear that Local #84 members would
always be referred before nonmembers of that local. The Board has held in effect,
that a discriminatory referral for any reason except to enforce a valid union-security
provision under Section 8(a)(3) is violative of Section 8(b)(1) (A) and (2) of the
Act, unless the lack of referral is pursuant to objective criteria set up and spelled
out in a collective-bargaining agreement .5
3"Travelers" are members of union locals other than Local #84. Randall and John
Lutz were the "travelers" referred to
4After the parties had stipulated that Doolittle was a vice president of Local #84 and
chairman of the executive board for Local #84, he testified that he was a trustee and at
that time was not an officer or vice president or chairman. According to article XXI,
section 15 of the constitution and bylaws of the Respondent (General Counsel's Exhibit
No. 6) :
SECTION 15 Local unions shall elect three (3) Trustees who shall have general
supervision over all funds and property of the local union including all officers' bonds
and keep in their possession all property of the local union not otherwise provided
for; they shall see that local union funds are properly deposited and shall sign no
orders for withdrawal of said funds unless authorized by motion of the local union.
The Trustees shall, when required by decision of the International Association or local
union meeting, deliver all moneys, checks, or other property in their possession to
persons designated by the International Association or local union to receive same
r, New York Mailers' Union, Local 6, International Typographical Union, AFL-CIO
{New York Times Company, and Publishers ' Association of New York City), 133 NLRB
1052 (1961) ; Bricklayers, Masons and Plasterers' International Union of America, Brick-
layers, - Masons, Marble Masons, Tile Layers and Terrazza Workers Union No 28, AFL-
CIO (Plaza Builders, Incorporated), 134 NLRB 751. Cf. Local 294, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Inde-
pendent (Valletta Motor Trucking Co , Inc ), 137 NLRB 1023, enforcement denied 317 F
2d 746 (C A. 2).
INT'L ASSN. OF HEAT & FROST INSULATORS, LOCAL 84 669
Additionally, the fact that Rice attempted to cause the Employer to discharge the
"travelers," because a Local #84 member was without work is further evidence that
the exclusive referral system was being operated in a discriminatory fashion, pre-
ferring Local #84 members over others. This also is substantial evidence in support
of the theory that Rice's practice was not to refer travelers to jobs while Local #84
members were without jobs.
It seems abundantly clear to me that Rice operated his hiring hall for the exclusive
benefit of Local #84 members and that members of other locals and nonunion em-
ployees, if cleared at all for jobs, would be cleared only for so long as there were no
members of Local #84 not working. Thus, it appears that members of Local #84
can be hired immediately without clearance with Rice, whereas travelers and non-
members must wait for the necessary clearance. In the construction industry where
jobs are short-lived, this is an unlawful substantial deprivation of the right to work.
It violates Section 8(b)(1)(A) and (2) of the Act.
C. The attempt to cause the discharge of the Lutz brothers
Rice did telephone Riddle and attempt to have him terminate the employment of
the Lutzes. As noted above, Riddle credibly testified that Rice called him on
January 2, 1963, and told him that he had a Local #84 man available for work.
Riddle said he could not use the man. Rice then said to Riddle, "Well, you have
travelers working for you. Get rid of the travelers." When Riddle refused to lay
the travelers off, Rice said, "Well, we will see about getting rid of them then." I do
not credit Rice's denial of the statement that he asked Riddle to get rid of the
travelers for reasons appearing later.
A simple request that an employee be discharged under the above circumstances is
enough to violate Section 8(b) (1) (A) and (2) of the Act and an express demand
is not essential.6 The request for discriminatory action need not be accompanied
by threats or promises in order to be violative of the Act,7 nor does the fact that the
Employer refused to lay off the travelers in this case save Respondent from violating
Section 8(b)(l)(A) and (2). I find the attempt to cause the Employer to lay off
an employee because he was not a member of the Union under the circumstances
in this case, is a violation of Section 8(b) (1) (A) and (2) because it would cause
the Employer to discriminate in violation of Section 8(a)(3) of the Act.
Clearly the Lutz brothers left their jobs because of Doolittle's threat that if they
ever wanted to work in the Akron territory again , they had better "cooperate." Know-
ing of the practice that existed between the Employer and the Respondent, namely,
that the Employer would always clear travelers with the Respondent before hiring
them, they knew the threat could be effectuated and so they quit their work although
there was from 7 to 10 days remaining on the job. Accordingly, the Union, rather
than succeeding in inducing the Employer to lay off the Lutz brothers threatened
to use the hiring power delegated to it by the Employer to accomplish this result.
This likewise violates Section 8(b) (1) (A) and (2) of the Act.
D. Resolution of credibility
Where there was conflict in testimony between Rice and Riddle, I have resolved
the credibility in favor of Riddle and have credited him over Rice
Riddle, although called by the General Counsel as a witness, is an officer of
Employer and his interest in the case tends to conflict with that of the General Coun-
sel because the success of the latter makes the Employer a party to an illegal arrange-
ment. Riddle appeared to be a most reluctant witness but was candid and uncon-
fused when pressed by either counsel even though his testimony would embarrass him
and make for possible strained relations between the Employer and the Respondent
in the future.
On the other hand, Rice appeared to be more interested in presenting a pretty
picture of his side of the case rather than a true picture. He testified in direct
contradiction to his sworn pretrial affidavits which would corroborate Riddle's testi-
mony. His denials at the hearing that he swore under oath that -employees must
clear with Local #84 in order to get a job in Local #84's jurisdiction, and his
denial that Local #84's exclusive hiring arrangement is discriminatorily operated
for the sole benefit of Local #84's members is discredited. He attempted to explain
6 See Northwestern Montana District Council of Carpenters' Unions, et at (Glacier
Park Company), 126 NLRB 889.
'' See Turner Construction Company, 110 NLRB 1860 (1954) ; Sub Grade Engineering
Company, 93 NLRB 406.
670 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
away his pretrial statements but I find he did not successfully do so. The affidavits
are clear and his explanation would only reduce them to nonsense. He impressed
me as being too intelligent to practice nonsense.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in con-
nection with the operations of the Employer 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
Having found that the Respondent has engaged in unfair labor practices violative
of Section 8(b)(1) (A) and (2) of the Act, it will be recommended that it cease
and desist therefrom, and take certain affirmative action designed to effectuate the
policies of the Act.
Having found that there was an exclusive hiring arrangement between The
Edward R. Hart Company and the Respondent and that, accordingly, Respondent
violated Section 8(b) (1) (A) and (2) in that: (1) Since July 14, 1962, Respondent
operated the exclusive hiring system for the exclusive benefit of Local #84 members
by placing only members' names on the register for referral and by clearing non-
members and nonunion employees for employment only after all members were
employed; (2) on January 2, 1963, through its business agent, Rice, Respondent at-
tempted to cause The Edward R. Hart Company to terminate the employment of
Randall E. and John R. Lutz in order to make room for employment of a member
of Local #84; (3) since on or about November 5, 1962, until their hire some 7 to
10 days later in the "latter part" of November 1962, Respondent, through Rice,
refused to refer John R. and Randall E. Lutz to work for The Edward R. Hart Com-
pany because their brother filed a charge with the Board against a sister local of
Local #84; and (4) on January 3, 1963, through its officer and trustee, Harold
Doolittle, Respondent threatened John R. and Randall E. Lutz with continued loss
of employment in the Akron area unless they left their jobs with The Edward R.
Hart Company because they were not members of Local #84; I shall recommend that
Respondent cease and desist (a) from operating the said exclusive hiring system
for the exclusive benefit of Local #84 members in the manner found, (b) from
attempting to cause The Edward R. Hart Company or any other employer to
discriminate against John R. or Randall E Lutz or any employee in violation of
Section 8(a)(3) of the Act, (c) from refusing to refer Randall E. and John R. Lutz
for employment because of charges brought against a labor organization by a
brother, and (d) from threatening John R. and Randall E. Lutz, or any other em-
ployee, with loss of employment in the Akron area because they are not members
of Local #84.
Since, as has been found, Respondent was responsible for depriving Randall E.
and John R. Lutz of employment for from "seven to ten days" by not referring them
for employment and for causing them to quit their employment when there was
work from "ten days to two weeks" available, it will be recommended that Re-
spondent make whole John R. and Randall E. Lutz for any loss of earnings they may
have suffered by reason of the Respondent's illegal conduct, by paying them the dif-
ference between what they earned in the two said periods and what they would
have earned had they not be discriminated against, with interest as computed in the
manner set forth in Isis Plumbing & Heating Co., 138 NLRB 716. As the backpay
involved covers only the two periods of time set out above, I find the quarterly
time periods used in F. W. Woolworth Company, 90 NLRB 289, inapplicable and
will not use those quarterly time periods.
Since the unlawful conduct of Respondent, found herein, strikes at the heart of
the rights guaranteed employees by Section 7 of the Act,8 a broad cease-and-desist
order will be framed.
Upon the foregoing findings of fact, and the entire record in this case, I make
the following-
CONCLUSIONS OF LAW
1. The Edward R. Hart Company is an employer engaged in commerce within the
meaning of Section 2(2) and Section 2(6) and (7) of the Act.
2. The International Association of Heat and Frost Insulators and Asbestos Work-
ers, Local #84, AFL-CIO, is a labor organization within the meaning of Section 2(5)
of the Act.
8 N L R B. v. Entwai8tle Mfg. Co., 120 F. 2d 532 (C.A. 4).
NORTH COUNTRY MOTORS, LTD. 671
3. By operating an exclusive hiring system for the exclusive benefit of Local #84
members by placing only members ' names on the register for referral and by clear-
ing nonmembers and nonunion employees for employment only after all members
were employed , by attempting to cause The Edward R . Hart Company to terminate
the employment of Randall E. and John R. Lutz on January 2, 1963, in violation
of Section 8 (a) (3) of the Act, by refusing to refer John R. and Randall E. Lutz to
work for The Edward R. Hart Company when requested to do so on or about
November 5, 1962, because their brother had filed a charge against a sister local
union, and by threatening John R. and Randall E. Lutz with continued loss of em-
ployment in the Akron area unless they left their jobs with The Edward R. Hart
Company because they were not members of Local # 84, the Respondent has engaged
in and is engaging in unfair labor practices within the meaning of Section 8(b) (1) (A)
and (2) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
[Recommended Order omitted from publication.]
North Country Motors, Ltd. and Local 259, International Union,
United Automobile , Aerospace and Agricultural Implement
Workers of America (UAW, AFL-CIO). Case No. 2-CA-8725.
April 6, 19611,
'DECISION AND ORDER
On February 27, 1963, Trial Examiner Wellington A. Gillis issued
his Intermediate Report in the above-entitled proceeding, recom-
mending that the complaint be dismissed in its entirety, as set forth
in the attached Intermediate Report. Thereafter, the General Coun-
sel and the Charging Party filed exceptions to the Intermediate Re-
port and supporting briefs, and the Respondent filed a brief in
support,of the Intermediate Report.
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
Intermediate Report, the exceptions, the briefs, and the entire record
in the case, and finds merit in the Charging Party's and General
Counsel's exceptions. Accordingly, the Board adopts the Trial Ex-
aminer's findings only to the extent consistent with the following,
but not his conclusions or recommendations.
The facts may be briefly summarized. On or about November 16,
1960, a majority of the Respondent's employees in the appropriate
bargaining unit' designated the Union as their bargaining agent.
Subsequently, in a Decision and Order issued on October 27, 1961,
in Case No. 2-CA-7696 (133 NLRB 1479) the Board found that
the Respondent had engaged in various unfair labor practices,
1 All service shop employees , inclusive of mechanics , mechanics ' helpers , partsmen,
porters , and exclusive of salesmen , guards, watchmen , clerical employees , and all super-
visory employees as defined in Section 2(11) of the Act.
146 NLRB No. 82.
744-670-65-vol . 146-44