Int'l Union of Operating Engineers, Local 624 A-B

National Labor Relations Board - Board Decisions

Mar 20, 1963

141 N.L.R.B. 615 (N.L.R.B. 1963)

INT'L FNION OF OPERATING ENGINEERS, LOCAL 624 A-B 615
International Union of Operating Engineers , Local 624 A-B
(D. S. McClanahan & Son, Inc. ) and Robert Walker. Case No.
26-CB-165. March 20, 1963
DECISION AND ORDER
On June 13, 1962, Trial Examiner A. Bruce Hunt 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 attached Intermediate
Report. He also found that the Respondent had not engaged in other
unfair labor practices and recommended that the complaint be dis-
missed as to them. Thereafter, the General Counsel and the Respond-
ent filed exceptions to the Intermediate Report and supporting briefs.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Rodgers and Fanning].
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudical error was committed. The
rulings are hereby affirmed. The Board has considered the Intermedi-
ate Report, the exceptions and briefs, and the entire record in this case,'
and hereby adopts the findings, conclusions, and recommendations of
the Trial Examiner to the extent that they are consistent with our
Decision herein.2
The complaint alleged that Respondent maintained and enforced
an arrangement, understanding, or practice with McClanahan requir-
ing clearance or referral by Respondent as a condition of employment
at McClanahan's project in Hamilton, Mississippi; that Respondent
violated Section 8(b) (2) and (1) (A) by refusing to clear Robert
Walker for employment with McClanahan in June 1961 because he
had opposed the election of incumbent union officers; and, that Re-
spondent further violated that section by refusing to register Walker
for employment with McClanahan and other employers on and after
July 1, 1961, because of his engagement in the foregoing protected
concerted activity. The Trial Examiner concluded that no exclusive
hiring arrangement, understanding, or practice existed between Re-
spondent and McClanahan or any other employer. He therefore
dismissed the complaint insofar as it alleged that Respondent violated
' Respondent 's request for oral argument is hereby denied as, in our opinion, the record,
including the exceptions and briefs , adequately presents the issues and positions of the
parties
3 Chairman McCulloch and Member Fanning, for the reasons set forth in the majority
opinion in Isis Plumbing A Heating Co., 138 NLRB 716, include the payment of 6 percent
interest per annum on the award of backpay ordered herein. However , for the reasons
given in his dissent in that case, Member Rodgers would not grant any interest here.
141 NLRB No. 57.
616 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Act by refusing to register Walker for employment with McClana-
han or any other employer after July 1. The Trial Examiner did
find, however, that Respondent unlawfully discriminated against
Walker when it refused to refer him for work with McClanahan on
and after June 19 because of his intraunion activities.
We adopt the Trial Examiner's finding that Respondent violated
Section 8(b) (2) and (1) (A) by its refusal to refer Walker in June
1961. We also agree that Respondent did not violate that section
by refusing to register Walker for employment with employers other
than McClanahan because there is no record evidence that any ex-
clusive hiring arrangement, understanding, or practice existed between
Respondent and such other employers pursuant to which Walker was
denied employment with them. Contrary to the Trial Examiner,
however, we conclude and find that Respondent and McClanahan
maintained and enforced a tacit arrangement or implicit understand-
ing which required clearance or referral by Respondent as a condition
of employment with McClanahan, and that Respondent acted un-
lawfully when it refused to register Walker for work with this em-
ployer after July 1.
McClanahan is a subcontractor which employs operating engineers.
The record shows that the entire project in question is a "union job,"
that is, only "union" craftsmen are employed. All operating engi-
neers who worked for McClanahan at the project were members of
Respondent. During the period from 1956 to 1959, McClanahan had
dealt with Respondent on an exclusive basis. According to Speed,
Respondent's assistant business representative at that time, Respond-
ent and McClanahan arrived at an oral agreement under which the
latter agreed to contact Respondent whenever in need of operating
engineers and to require that the engineers it then employed be mem-
bers of Respondent. The agreement further provided that McClana-
han would look exclusively to Respondent for the supply of men,
and only when Respondent was unable to refer them was McClanahan
permitted to seek employees elsewhere. Even in these circumstances,
McClanahan was obligated to require that the new employees join
Respondent?
When McClanahan commenced work on the Hamilton project in
mid-1961, the manner in which it recruited operating engineers was
strikingly similar to the agreement and practice with Respondent
outlined above. Thus, even before McClanahan bid on the job, it
inquired of Respondent about the availability of engineers. When
the bid was let, McClanahan called Respondent about furnishing men.
8 As the Trial Examiner noted, Speed's testimony was not wholly clear as to the precise
terms of the oral agreement reached between Respondent and McClanahan sometime
during the period between 1956 and 1959 . However, that testimony serves to corroborate
the existence of the arrangement or practice which is shown by other evidence in the
record
INT'L UNION OF OPERATING ENGINEERS, LOCAL 624 A-B 617
Respondent replied that "the Meridian office [Respondent's office in
the area of the project] had always handled the furnishing of the
people out there" and assured McClanahan that an agent "would,
look after that portion of it." McClanahan's project superintendent,
Forrester, conceded that it was the general practice at the project to
telephone Respondent's office when in need of men, and to require that
they produce a referral slip from Respondent as a condition of
employment.
Against this array of record facts, we are hard-pressed to accept
the Trial Examiner's conclusion that no arrangement, understanding,
or practice existed pursuant to which Respondent became the exclusive
source of supply of engineers for employment with McClanahan.
In view of the facts that McClanahan obligated itself to look exclu-
sively to Respondent for the supply of men from 1956 to 1959; that
McClanahan requested that Respondent furnish engineers to staff
the project requirements in mid-1961 and Respondent agreed to do
so in the same manner that it "had always handled the furnishing of
the people out there" ; and that Respondent conceded it was the
general practice to call the Respondent for men and to require that
they produce a referral slip as a condition to obtaining work with
McClanahan, we conclude that, at the very least, a tacit arrangement
or implicit understanding existed between McClanahan and Respond-
ent under which the latter functioned as the exclusive source of supply
of engineers for the former. Accordingly, we find that, by refusing
to register Walker for employment with McClanahan on and after
July 1 because he engaged in protected concerted activities, i.e., his
opposition to incumbent officials of Respondent, Respondent violated
Section 8(b) (2) and (1) (A) of the Act.'
ORDER
The Board adopts as its Order the Recommended Order of the
Trial Examiner 5 with the modifications listed below.'
' See Local 215, International Brotherhood of Electrical Workers, AFL-CIO (Eastern
New York State Chapter of the National Electrical Contractors Association ), 136 NLRB
1618; Cf. International Alliance of Theatrical Stage Employees and Moving Picture Ma-
chine Operators of the United States and Canada, Local No 409 , AFL-CIO ( Columbia
Broadcasting System, Inc.), 119 NLRB 810.
5 The Appendix attached to the Intermediate Report is hereby modified by deleting the
words "60 days after its date" in the next to the last sentence of said notice and inserting
11in its place , the words "60 consecutive days from the date of posting . . . .
'Paragraph 1(a) of the Recommended Order and the corresponding portions of the
notice are hereby deleted and the following shall be substituted therefor:
1. Cease and desist from:
(a) Causing or attempting to cause D. S. McClanahan & Son, Inc, or any other
employer having a similar arrangement, understanding , or practice with Respondent,
to refuse to hire a worker in violation of Section 8(a)(3) of the Act or otherwise to
discriminate against employees or applicants for employment in violation thereof, or
maintaining or enforcing any such arrangement , understanding, or practice under
which workers are denied registration for employment with employers in violation of
Section 8(a) (3) of the Act.
618 DECISION S OF NATIONAL LABOR RELATIONS BOARD
INTERMEDIATE REPORT
STATEMENT OF THE CASE
In this proceeding the charge was filed on September 25, 1961, the complaint was
issued on January 23, 1962, and the allegations are that the Respondent, Interna.
tional Union of Operating Engineers, Local 624 A-B, violated Section 8(b) (1) (A)
and (2) of the National Labor Relations Act, as amended, 29 U.S.C. Sec. 151, et .req.
On March 20 and April 26, 1962, Trial Examiner A. Bruce Hunt conducted a
hearing at Columbus, Mississippi, at which the General Counsel and the Respondent
were represented by counsel, and the Charging Party, Robert P. Walker, appeared
pro se. D. S. McClanahan & Son, Inc., whose business operations are the basis
of the Board's jurisdiction herein, is not a party to the proceeding. Upon the entire
record, and from my observation of the witnesses, I make the following:
FINDINGS OF FACT
I THE COMPANY'S BUSINESS
D. S. McClanahan & Son, Inc., herein called the Company, is engaged in the build-
ing and construction industry throughout Mississippi and has its principal place of
business at Columbus in that State. At times material, the Company was a sub-
contractor on a project at Hamilton, Mississippi, and, during a relevant 12-month
period, received directly from out of State materials valued in excess of $50,000.
There is no dispute, and I find, that the Company is engaged in commerce within
the meaning of the Act.
II. THE RESPONDENT
International Union of Operating Engineers, Local 624 A-B, is a labor organiza-
tion which admits to membership employees of the Company.'
III. THE UNFAIR LABOR PRACTICES
A. The issues
Our issues are whether. (1) During 1961, the Respondent maintained and en-
forced an understanding or practice pursuant to which the Company required clear-
ance or referral by the Respondent of all employees of the Company at the Hamilton
project; (2) about June 1, 1961, and again about July 1, 1961, the Respondent,
motivated by certain protected activities of Charging Party Walker, invalidly re-
fused to clear Walker for employment by the Company; and (3) about July 1, 1961,
the Respondent, similarly motivated, invalidly refused to register Walker for referral
to any employer.
B. Walker's intraunion activities; his disputes with union agents
Walker has been a member of the Respondent for several years. During 1959
he was a job steward. During the forepart of the same year, the Respondent's
branch office in Meridian, Mississippi, was headed by Edward Speed as assistant
business representative. Speed's employment was terminated and he was succeeded
by Stanley Byrd who was hired for the position by his brother, Robert Byrd, the
Respondent's business manager and financial secretary whose office is in Jackson,
Mississippi. Walker became active in a movement among members to have Robert
Byrd reemploy Speed, but the movement, which lasted for "some period of time,"
was unsuccessful. Also during 1959, Walker ceased being a job steward, but he
continued to obtain job referrals from the Respondent.
During 1961 Walker began a campaign to be elected as the Respondent's recording-
corresponding secretary. The campaign, it developed, was to be a lengthy one and,
as these pages are being written, it has not been concluded. On May 16, 1961,
shortly before Walker sought employment with the Company, at a meeting at which
candidates were to be qualified, Robert Byrd ruled that Walker was unqualified to
run. The ground advanced then or later was that Walker had been in arrears in
his dues and had not attended the necessary number of union meetings to qualify
as a candidate. Later that month, Walker appealed to the Respondent's executive
board. About the same time, Speed suggested to Stanley Byrd that Walker be re-
ferred for employment with the Company, whose operations at the Hamilton project
were to begin soon, and Byrd answered that "as far as Bobby Walker is concerned
'Local 624 has divisions A and B for apprentices and engineers , respectively.
INT'L UNION OF OPERATING ENGINEERS, LOCAL 624 A-B 619
he can starve to death for my part." 2 On June 11, Walker lost his grievance before
the Respondent's executive board. He promptly filed an appeal to the general execu-
tive board of the International Union. About June 20 the election was held.
Walker's name was not on the ballot. Succeeding events, insofar as they need be
recited, are that Walker enlarged the appeal by seeking to set aside the results of
the election on the ground that he had been improperly disqualified as a candidate,
the appeal was scheduled for hearing in Washington, D.C, Walker was notified but
failed to attend, the general executive board denied the appeal on September 13,3
Walker filed a complaint with the Secretary of Labor under 29 U.S.C., Sec. 482, and
about April 1962 the issues were settled by an agreement between the Respondent,
the International Union, and the Department of Labor whereby the election of
June 20, 1961, would be set aside, new nominations open to the membership of the
Respondent would be made on May 15, 1962, and a new election would be conducted
on June 19, 1962, for the unexpired terms of the officers who had been elected dur-
ing June 1961. We turn now to Walker's efforts to obtain employment during
May 1961 and thereafter.
C. The allegation that the Respondent maintained and enforced an understanding
or practice pursuant to which the Company required that its employees on the
Hamilton project be cleared through the Respondent
The construction project at Hamilton, Mississippi, arose from an award by Amer-
ican Potash & Chemical Corporation to a general contractor, Sterne & Rogers, of
Denver, Colorado. The record does not disclose the number of subcontractors or
the total number of their employees, but it does disclose that the Company was a
subcontractor which employed less than a dozen operating engineers at any one
time on the project. The record discloses too that the entire Hamilton project is a
"union job" and that "all the crafts [on the project] are union." Moreover, each
of 13 operating engineers who worked for the Company on the project were mem-
bers of the Respondent, some having been hired through the Respondent, others
having been transferred from the payrolls of other subcontractors on the project,
and perhaps others having been hired without referrals by the Respondent.
The Respondent and the Company are not parties to a written collective labor
agreement, and the testimony of their representatives is that they are not parties to
an oral agreement covering the Company's operations at any project.4 Nevertheless,
it is the Company's practice, whenever it is in need of engineers, to call the branch
office of the Respondent nearest the project where men are needed. That practice,
coupled with the fact that the Company required clearance by the Respondent for
all engineers employed by it on the Hamilton project, will not, however, warrant a
finding of unfair labor practices by the Respondent. The Company is not a party
to this proceeding and is not alleged to have violated the Act. The allegation is
that the Respondent "maintained and enforced an arrangement, understanding or
practice with" the Company which required "clearance or referral by Respondent
2 Speed so testified without contradiction . The fact, discussed below, that Walker
subsequently obtained a referral to the Company has been considered in my evaluation of
Speed's testimony.
3 On September 25, Walker filed the charge in this case which , of course , involves differ-
ent issues than those which were the subject of his appeal to the International Union
Speed testified for the General Counsel that, sometime during the period of 1956-59
when he was the Respondent's assistant business representative , he reached an oral agree-
ment with a representative of the Company. According to Speed, he could not remember
the date that the agreement was reached, but he did remember that the Company agreed
to call the Respondent whenever in need of engineers and to require its engineers then
employed to join the Respondent. Speed testified further that the oral agreement pro-
vided that, if the Respondent should be unable to refer an engineer, the Company could
hire from another source but would require the new employee to join the Respondent.
On cross-examination, however, Speed testified that the Company retained the right to
hire persons who were not members of the Respondent and that this retention was in
accord with Mississippi's right-to-work law I cannot reconcile Speed's testimony con-
cerning observance of the right-to-work law with his testimony that the Company required
all its engineers to join the Respondent , and the cross-examination casts doubt upon the
exact nature of any oral agreement which may have been reached sometime during the
period 1956-59. In any event, our issues involve matters during 1961, and the record will
not support a finding that an oral agreement reached by Speed and the Company during
the 1950's continued in effect into 19961 when Speed was no longer a representative of
the Respondent.
620 DECISIONS OF, NATIONAL LABOR RELATIONS BOARD
as a condition of employment at" the Company's operations on the project. We have
seen that the entire project is a "union job." On the facts in the record, it is less
reasonable to infer that the Respondent required the Company to restrict job open-
ings to union members than it is to infer that management on the project, perhaps
the prime contractor, required the Company to observe employment practices which
had been established for the entire project. Accordingly, the evidence will not sup-
port a finding that the Respondent maintained and enforced an invalid hiring
practice.
D. The questions whether the Respondent (1) caused, or attempted to cause, the
Company to deny employment to Walker, and (2) refused to register Walker for
referral to any employer
This issue involves alleged conduct by the Respondent in early June 1961, which
was followed by a referral of Walker to the Company where he worked for 1 week,
and about July 1 which was not followed by Walker's referral to any employer. The
Company's operations on the Hamilton project began during May 1961 but it did
not hire any engineers until June 12. On May 31, Walker, who testified that his
job with another employer was approaching its end, went to the Hamilton project
and talked with Ted McClanahan, a representative of the Company, about a job.
McClanahan said inter alia that Walker would have to have clearance from the
Respondent. I need not go into detail to resolve the issue whether, during early
June, the Respondent invalidly refused to clear Walker for employment by the
Company. This is so because the Company hired its first engineer on the project,
John Hendley, on June 12, the same date that the Respondent referred Hendley.
The Company hired Walker on June 13, several days after the Respondent had mailed
a referral slip to Walker. The slip was mailed by Stanley Byrd to an address in
Columbus at which the Respondent's records showed that Walker resided. Walker
had moved to another local address, however. The slip was returned by the Post
Office Department to Byrd's office in Meridian, and he drove to Columbus where
he personally delivered the slip. It is reasonable to conclude that, if the Post Office
Department had been able to deliver the slip, Walker would have been the first
engineer hired by the Company on the project. That being so, and there being no
evidence that the Company needed an engineer before Walker would have reported
for work if he had received the slip by mail, it cannot be found that the Respondent
caused, or attempted to cause, the Company to discriminate against Walker during
early June. Walker's employment lasted only 1 week, however.5 This brings us
to the Respondent's alleged refusal about July 1 to clear him for employment by
the Company and to register him for referral to any employer.
1. The facts
When Walker's employment ended on June 19, Hendley was still at work. No
other engineers had been hired by the Company. About mid-July, the Company
hired three additional members of the Respondent, and later other members were
hired. Walker was not among them although he had asked the Respondent for
referral. The General Counsel, pointing to the fact that Walker was engaeed in
processing his grievance against the Respondent, and that he had filed an appeal with
the International Union's executive board as set out above, asserts that Walker's ac-
tivities were the basis of the Respondent's refusal to refer him to the Company. On
the other hand, the Respondent. with the support of testimony by representatives
of the Company, asserts that Walker was not referred because the Company had
found him to be an unsatisfactory employee and had asked that he not be referred
again.
The factual question is whether Walker was unsatisfactory to the Company for
reasons other than his ability to operate machinery. There is no dispute that he
was an able engineer. His unsatisfactoriness, according to two representatives of
" Walker was on the Company's payroll from June 13 to 19, inclusive He had little
work to do, however The Company rented a machine which was used as a hnekhoe,
dragline, and crane. The owner, Warren Gardner, employed an engineer , a nonunion
man, for the machine and he wanted his own employee to operate it. Ted McClanahan,
so he testified, wanted "to keep peace with" both Gardner and the Respondent and, with-
out any request to him by anyone, he decided to reimburse Gardner for the services of
Gardner's employee and simultaneously to employ a member of the Respondent to "stand
by " The Company rented Gardner 's machine by the hour . When the need for it ended,
Walker was laid off
INT'L UNION OF OPERATING ENGINEERS, LOCAL 624 A-B 621
the Company who testified for the Respondent , was that on a few occasions when
Walker had worked for the Company during preceding years he had been "more
interested in going around talking to different people on the job and not paying
attention to his job" and that such disinterest in his work was reflected by his having
used a telephone to excess during working hours. There is also testimony that
during the one week in June when Walker worked he was inattentive to his duties
which, according to Robert Forrester, the Company's superintendent at the Hamilton
project, were to be present on the jobsite as a "stand-in or sit-in for the union on"
the machine which was being rented from Gardner. I cannot credit the testimony
that the Company regarded Walker as an unsatisfactory employee. He was an able
operator, as is admitted, and, if he had incurred the Company's displeasure by going
around jobsites "talking to different people," I do not believe that the Company
would have hired him as a stand-in with little or no work to do and thus with hours
of opportunity per day to wander around the jobsite. Moreover, no representative
of management ever expressed displeasure to Walker concerning his alleged inatten-
tion to his work, but, instead, told him that he would have to have a referral in
order to go to work. Under these circumstances, I must reject the defense that the
Company regarded Walker as an unsatisfactory employee and that the Respondent
refused to clear him for employment with the Company for that reason. The ques-
tion remains why the Respondent refused to refer him to the Company, as well
as to other employers, and we turn to Walker's futile efforts to secure a referral
to any employer.
About July 1, while Walker's grievance was pending on appeal before the general
executive board of the International Union, Walker obtained employment as assistant
business representative in the Columbus area for a Hod Carriers and Common
Laborers Union, herein called the Laborers. Soon after Walker obtained that em-
ployment, he asked Stanley Byrd for referral. Byrd told him that Byrd would not
refer him to any job so long as he should work for the Laborers. A refusal on
that basis has no merit, and for reasons set out in the footnote I believe that such
basis was a pretexts Byrd also refused to refer him unless he would visit the
Respondent's office in Meridian, about 87 miles from Walker's residence in Colum-
bus, and sign a blackboard or book on which appeared the names of the Respondent's
members who wished to be referred. This basis was clearly discriminatory, as set
out in the footnote.1
At an undisclosed date during 1961, Walker ceased working for the Laborers.
He did not reapply to the Respondent for referral nor, insofar as appears, did he
inform the Respondent that his employment with the Laborers had ended. Byrd
testified that he had heard, while Walker was still working for the Laborers, that
Walker contemplated quitting, that Byrd had sent word to Walker by Hendley that
Byrd would refer Walker to a job, but that Byrd had never learned whether the
message was delivered. Byrd testified also that he had referred other members to
jobs. It does not appear that Hendley, if really asked to deliver the message, de-
livered it.
9 Byrd testified that , in talking with Walker , he had tried to explain that Walker's em-
ployment by the Laborers was a barrier to referral because Walker might attempt to
handle the business of the Laborers while working on a project as an engineer. In an
affidavit, however, Byrd said that he thought that a referral for Walker while Walker
was working for the Laborers would have been contrary to the Respondent 's constitution.
Nothing in the constitution would have prohibited it Byrd's final testimony on the point,
also unpersuasive , is that he considered that as long as Walker should work for the
Laborers , Walker was employed and, therefore , was not referable by the Respondent.
° Olivia Tallent, a witness for the General Counsel , testified that about July 1 she over-
heard Byrd tell Walker that if there were a thousand job vacancies, Byrd would not refer
him to one unless he would first go to Meridian and sign . Byrd testified that when he
talked with Walker in Tallent 's presence he was angry , lost his temper , did not recall
what he had said , and that he probably did say that he would not refer Walker unless
the latter would make a trip to Meridian and sign . Byrd testified further , incongruously,
that Walker's name already was on the blackboard , having been put there by someone,
and that Byrd had never removed it. It is clear that Byrd, in insisting that Walker sign
the board , was seeking to place a burden upon Walker which was not placed upon other
members who were out of work. The practice is for members who do not live in Meridian,
but who obtain referrals through the Respondent 's office there , to telephone the office
when they are out of work and have someone write their names on the board Walker,
who had never been required to sign the board , refused to go to Meridian to do so.
622 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Conclusions concerning Walker's inability to obtain employment with the
Company after June 19
We have seen that the Company would not hire Walker unless he first obtained
clearance from the Respondent , that other engineers were hired after June 19,
that the Respondent refused to clear Walker , that the reason advanced by the Re-
spondent is that the Company regarded Walker as an unsatisfactory employee and
objected to rehiring him, and that the evidence does not support such reason. We
have seen too that Walker , a capable engineer , had utilized the Respondent's em-
ployment service for several years, that the service was denied to him shortly after
he refused to accept the decision of the Respondent 's executive board that he was
not qualified to be a candidate for office , and that the denial continued as he sought
for months to bring about a new election in which he could be a candidate. I
cannot escape the conclusion that the Respondent determined to deny its employ-
ment service to Walker because of his activities which one or more persons among
the Respondent 's leadership disapproved . There are several reasons : first, the ab-
sence of persuasive evidence that the Company objected to having Walker work
for it; second , Stanley Byrd's unwarranted and discriminatory insistence that Walker
go to Meridian to sign the board ; and third , Byrd's unpersuasive testimony that he
thought that a member who had secured employment in another field should be
denied referral as an engineer until the other work had ended. I find that the Re-
spondent, by denying Walker clearance to the Company, caused the Company to
discriminate against him in violation of Section 8(a)(3), and that the Respondent
thereby violated Section 8(b) (2) and (1) (A).
3. Conclusions concerning the Respondent 's refusal to register Walker for referral
At the outset of this discussion I emphasize that the Company is not involved in
this issue . It should be noted too that the record does not disclose ( 1) the names
of more than a few employers to whom Walker might have been referred , ( 2) that
the Respondent had any arrangement with any employer that engineers would be
referred exclusively by the Respondent , or (3) that Walker sought employment any-
where and was denied it because he could not obtain a clearance . The questions
are two: whether the Respondent , by refusing to register Walker for referral and
thereby denying him the benefits of its employment service, violated Section 8(b) (2)
by causing or attempting to cause an employer to discriminate against him, and
whether the Respondent violated Section 8(b) (1) (A ) by restraining or coercing him
in the exercise of the rights guaranteed in Section 7.
The basic service of the Respondent to its members , which was denied to Walker,
is its service as an employment agency. Unlike many unions in manufacturing
industries , which do not represent employees until they have obtained jobs through
their own efforts, the Respondent's principal function is to keep aware of job
vacancies in an industry in which employment is not permanent, and to refer its
members to employers. As a building trades union, the Respondent , through the
knowledge that its representatives have of construction activities , through visits to
jobsites by the representatives , and through arrangements with contractors to supply
the latter with engineers, acts as a source of labor for contractors and as an employ-
ment agency for its members.
The Respondent 's employment service was closed to Walker because of his efforts
to run for office. The service was not closed to him because he was no longer a
member of the Respondent ; insofar as appears , no steps were taken by the leader-
ship to suspend or expel him from membership . The intent of the closure was to
limit Walker 's employment opportunities by denying to him his right to be referred
to contractors who use the Respondent as a partial or exclusive source of labor,
and to make it necessary that Walker seek employment directly from employers.
From June 19, 1961, to at least the next April 26 when the hearing closed, Walker
received no referral.
At first glance it may appear that Stanley Byrd 's refusal to refer Walker was an
invalid attempt to cause contractors who hire through the Respondent to deny
employment to Walker. Of course , the contractors to whom Walker would have
been referred but for Byrd 's discrimination against him were unaware of the dis-
crimination. The fact remains, however , that Byrd 's action was the most effective
discriminatory action readily at hand and was calculated to have a widespread effect
Indeed , that effect was perhaps greater than would have been the effect of requests
by Byrd to contractors that they not hire Walker This is so because contractors
who use the Respondent as a labor source, if put on notice of Byrd's effort to limit
Walker 's job opportunities , might have declined to be parties to it, whereas the same
contractors, if unmindful of the effort, would have continued to hire through the
INT'L UNION OF OPERATING ENGINEERS, LOCAL 624 A-B 623
Respondent without being aware that the door to their payrolls was closed to Walker
by Byrd. My understanding of the decisional law, however, is that it is against the
General Counsel's contentions. Stanley Byrd's refusal to register Walker did not
constitute a violation of Section 8(b) (2) because there is no proof that the Respond-
ent (1) was the exclusive source of engineers for any contractor to whom Walker
was denied referral, or (2) sought, in dealing with a contractor, to have the con-
tractor itself deny Walker a job. Columbia Broadcasting System, Inc., 119 NLRB
.810, 814.
Turning to the alleged violation of Section 8 (b) (1) (A), it is clear that Walker's
-effort to be a candidate for office from the first step to the final one which resulted
in the agreement to hold a new election, was an exercise of his rights under Section
7. It is an unfair labor practice under Section 8(b)(1) (A) for a labor organiza-
tion or its agents to restrain or coerce an employee in the exercise of those rights.
Manifestly, Byrd's efforts to limit Walker's employment opportunities were calculated
to restrain or coerce Walker, but it does not follow that the restraint and coercion
violated the Act. Again Columbia Broadcasting, at page 814, is controlling. Absent
an exclusive referral system, the Respondent was not legally obligated to register
Walker or to refer him to contractors who requested engineers, and the Respondent
was free, insofar as the Act is concerned, to discriminate against Walker in that way.
It may be said, in an attempt to distinguish Columbia Broadcasting, that the employee
there had been suspended from membership and was not entitled under the union's
constitution and bylaws to be referred to employment, whereas here Walker had
not been suspended and was still an active member. Nevertheless, the language of
that case is so broad that I am constrained to apply the precedent here. Accord-
ingly, I shall recommend that this allegation be dismissed. In Summary, I shall
recommend that the complaint be dismissed insofar as it alleges that the Respondent
violated the Act in any respect other than by its refusal to clear Walker for employ-
ment by the Company after June 19, 1961.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The unfair labor practices set forth above, occurring in connection with the opera-
tions of the 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
Having found that the Respondent has engaged in unfair labor practices, I shall
recommend that it cease and desist therefrom and that it take certain affirmative
action designed to effectuate the policies of the Act. I shall recommend that (1)
the Respondent notify the Company in writing, with a copy to Walker, that the
Respondent has no objection to the employment of Walker by the Company or any
other employer, and (2) the Respondent make Walker whole for any loss of pay he
may have suffered as a result of the Respondent's having caused the Company not
to hire him after June 19, 1961, by payment to him of a sum of money equal to
that which he normally would have earned as an employee of the Company between
that date and a date 5 days after notification by the Respondent to the Company
and Walker as provided above, less his net earnings (Crossett Lumber Company, 8
NLRB 440, 497-498) during said period, the payment to be computed on a quarterly
basis in the manner established in N.L.R.B. V. Seven-Up Bottling Company, of
Miami, Inc., 344 U.S. 344. The General Counsel asks that I recommend that the
backpay bear interest. Insofar as I have been able to learn, the Board has never
awarded interest on backpay, or expressly declined to do so, simultaneously with a
determination that there has been a violation of the Act.8 The issue is now pending
before the Board in a number of cases and doubtless will be resolved before a
decision is issued in this proceding.9 I make no recommendation on the General
Counsel's request.
Upon the basis of the above findings of fact, and upon the entire record in the
case, I make the following:
8In Sifers Candy Company, 92 NLRB 1220, the Board refused to award interest in a
backpay proceeding. The Board gave no reason for the refusal It may be observed,
however, that such an award could have been interpreted as an enlargement of the
Board's original Order In the case.
e One such case is Puget Sound Bridge and Dry Dock Company, et al., Case No
19-CA-2283 (not published in NLRB volumes).
624 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CONCLUSIONS OF LAW
1. The Respondent is a labor organization within the meaning of the Act
2. The Company is engaged in commerce within the meaning of the Act.
3. By causing the Company to discriminate against Walker in violation of Sec-
tion 8(a)(3), the Respondent has engaged in and is engaging in unfair labor prac-
tices within the meaning of Section 8(b)(2) and (1)(A) and Section 2(6) and (7).
4. The allegations of the complaint that the Respondent violated the Act have
been sustained only insofar as it is alleged that the Respondent caused the Com-
pany to discriminate invalidly against Walker after June 19, 1961.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and
pursuant to Section 10(c) of the Act, I hereby recommend that the Respondent,
International Union of Operating Engineers, Local 624 A-B, its officers, agents,
representatives, successors, and assigns, shall:
1. Cease and desist from •
(a) Causing or attempting to cause D. S. McClanahan & Son, Inc., to refuse to
hire a worker in violation of Section 8(a) (3) of the Act or otherwise to discriminate
against employees or applicants for employment in violation thereof.
(b) In any like or related manner restraining or coercing employees or applicants
for employment in the exercise of the rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action which is necessary to effectuate the policies
of the Act:
(a) Notify said Company and Robert P. Walker that the Respondent has no
objection to the employment of Walker, in the manner set forth in the section en-
titled "The Remedy."
(b) Make Walker whole for any loss of pay, as set forth in the section entitled
"The Remedy."
(c) Post in all its offices and union halls, copies of the attached notice marked
"Appendix." 10 Copies of said notice, to be furnished by the Regional Director for
the Twenty-sixth Region, shall, after being duly signed by the Respondent's repre-
sentative, be posted by it immediately upon receipt thereof, and be maintained by it
for at least 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 to insure that said notices are not altered, defaced, or
covered by any other material.
(d) Promptly after receipt of unsigned copies of said notice from the Regional
Director, return to him signed copies for posting, D. S. McClanahan & Son, Inc,
willing. at all places where notices to the Company's employees are customarily
posted, including all sites where the Company will be engaged in operations during
a period of 60 days after the date of the notice.
(e) Notify said Regional Director, in writing, within 20 days from the receipt
of this Intermediate Report, what steps the Respondent has taken to comply here-
with.ii
It is further recommended that the complaint be dismissed insofar as it -alleges
that the Respondent engaged in unfair labor practices other than by causing the
Company to discriminate invalidly against Walker after June 19, 1961.
10If this Recommended Order should be adopted by the Board, the words "As Ordered
by" shall be substituted for "As Recommended by a Trial Examiner of" in the notice
In the further event that the Board's Order be enforced by a decree of a United States
Court of Appeals, the words "Pursuant to a Decree of the United States Court of Appeals,
Enforcing an Order of" shall be inserted immediately following "As Ordered by."
11 If this Recommended Order should be adopted by the Board, this provision shall be
modified to read: "Notify said Regional Director, in writing, within 10 days from the
date of this Order, what steps the Respondent has taken to comply herewith "
APPENDIX
NOTICE TO ALL OUR MEMBERS, OFFICERS, AND REPRESENTATIVES AND TO ALL
EMPLOYEES OF D. S. MCCLANAHAN & SON, INC.
As recommended by a Trial Examiner of the National Labor Relations Board and
in order to conduct the business of Local 624 A-B as required by the National Labor
Relations Act, we notify you that:
INDUSTRIAL CONFERENCE BOARD, ETC. 625
WE WILL NOT try to cause D. S. McClanahan & Son, Inc., to refuse to hire
any worker because he does not have clearance to the job from Local 624 A-B
or has not been referred by us.
WE WILL NOT try to cause D. S. McClanahan & Son, Inc., to refuse to hire
any worker because he has engaged in lawful union activities which do not
meet with our approval.
WE WILL NOT try to cause D. S. McClanahan & Son, Inc., to discriminate
against any employee or applicant for employment in any way that violates
the National Labor Relations Act.
WE WILL pay Robert P. Walker for the time he lost from work with D. S.
McClanahan & Son, Inc., because of our having caused that Company not to
hire him, and we will notify Walker and that Company that we do not object to
Walker's working for any employer.
All our members in Mississippi are free to remain members of our Union and to
engage in any or all lawful union activities , and they also are free to terminate their
memberships and to cease any or all union activities.
INTERNATIONAL UNION OF OPERATING ENGINEERS , LOCAL 624 A-B,
Union.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 days after its date, and must not be altered,
defaced, or covered by any other material.
If employees have any questions about this notice or whether Local 624 A-B is
complying with its provisions , they may communicate with the Board's Regional
Office, Seventh Floor, Falls Building, 22 N. Front Street, Memphis, Tennessee,
Telephone No. Jackson 7-5451.
Industrial Conference Board and Kitsap County Retail Drug-
gists' Association and its Member Employers I and Retail
Clerks Local Union No. 381 , Retail Clerks International Asso-
ciation, AFL-CIO. Case No. 19-CA-2511. March 20, 1963
DECISION AND ORDER
Unfair labor practice charges were filed by Retail Clerks Local
Union No. 381, herein called the Union, on September 21,1962, against
Respondents, Industrial Conference Board, Kitsap County Retail
Druggists' Association, and the Association's member employers.
Thereafter, on October 12, 1962, the General Counsel of the National
Labor Relations Board, by the Regional Director for the Nineteenth
Region, issued a complaint and notice of hearing, alleging that the
Respondents had engaged in and were engaging in unfair labor prac-
tices affecting commerce within the meaning of Section 8(a) (1) and
(3) and Section 2(6) and (7) of the Act, as amended. Respondents
filed their answer on October 23,1962.
1 The 12 member employers named as Respondents are: Milan J. Booth and Robert E.
Brown, d/b/a Booth 's Bremerton Drug ; Clyde F. Allen , d/b/a -Clyde's Pharmacy ; Vern
N. Castle, d/b/a Castle's Drug; Hannah & Powell Drug Corporation ; Smalley Drug, Inc.,
d/b/a Lakeside Drug; Duwaine McBride, d/b/a McBride's Westgate Pharmacy; Nelson
Thrifty Drugs , Inc. ; Payless Drug Store , Inc. ; Smalley Drug, Inc., d/b/a Smalley 's Drug ;
Chester H. Swanson , d/b/a Swanson 's 'Charleston Drug; Wallach Thrifty Drugs, Inc.;
and West Bay Drug Corporation.
141 NLRB No. 58.