Loc. Un. No. 513, Operating Engineering, AFL-CIO

National Labor Relations Board - Board Decisions

Jun 25, 1970

183 N.L.R.B. 1134 (N.L.R.B. 1970)

1134 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Local Union No. 513 , affiliated with International
Union of Operating Engineers , AFL-CIO (Maxon
Construction Company , Inc.) and John R. Davis.
Case 14-CB-1940
June 25, 1970
DECISION AND ORDER
BY MEMBERS MCCULLOCH, BROWN, AND JENKINS
On March 27, 1970, Trial Examiner Paul Bisgyer
issued his Decision in the above-entitled proceed-
ing, 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 Trial Examiner 's Decision.
Thereafter, the Respondent filed exceptions to the
Decision and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended , the Na-
tional Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
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
Trial Examiner 's Decision , the exceptions and brief,
and the entire record in the case, and hereby
adopts the findings , conclusions , and recommenda-
tions of the Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended , the National Labor
Relations Board adopts as its Order the Recom-
mended Order , of the Trial Examiner and hereby
orders that the Respondent , Local Union No. 513,
affiliated with International Union of Operating En-
gineers , AFL-CIO, Farmington , Missouri, its of-
ficers , agents, and representatives , shall take the ac-
tion set forth in the Trial Examiner 's Recom-
mended Order.
' The complaint is based on a charge filed on November 5, 1969, a copy
of which was duly served on the Respondent by registered mail on the same
day
' Sec 8 (b)( I )(A) of the Act, in relevant part, makes it an unfair labor
practice for a labor organization or its agents "to restrain or coerce em-
ployees in the exercise of rights guaranteed in Section 7" which includes,
inter al,a, the right to refram from engaging or supporting union activities
with certain qualifications not here applicable
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
PAUL BISGYER , Trial Examiner: This proceeding,
with all the parties represented, was heard on
January 12, 1970, in St. Louis, Missouri, on the
complaint of the General Counsel issued on
December 11, 1969,' and answer of Local Union
No. 513, affiliated with International Union of
Operating Engineers, AFL-CIO, herein called the
Respondent or Union. In issue is the question
whether the Respondent, in violation of Section
8(b)(1)(A) and (2) of the National Labor Rela-
tions Act, as amended,' refused to refer John R.
Davis for employment as an oiler on the jobsite of
Maxon Construction Company, Inc.,' herein called
Maxon or the Company, because his uncle, James
F. Davis, was involved in an internal union dis-
agreement with Business Agent Lester Straughan.
At the close of the hearing, no party availed himself
of the opportunity to argue his position orally.
Thereafter, only the General Counsel submitted a
brief.
Upon the entire record, and from my observation
of the demeanor of the witnesses, and with due
consideration being given to the arguments ad-
vanced by the parties, I make the following:
FINDINGS AND CONCLUSIONS
I. THE BUSINESS OF THE COMPANY
Maxon, an Ohio corporation with its principal of-
fice in Dayton, Ohio, is engaged in the building
construction industry. At the time of the hearing,
the Company had construction projects in progress
in various States, including the one located in St.
Jude Industrial Park in New Madrid, Missouri,
which is here involved. During the year ending
December 31, 1969, it purchased goods and
materials valued in excess.of $50,000 which were
shipped directly to the New Madrid jobsite from
points outside the State of Missouri.
It was stipulated, and I find, that Maxon is an em-
ployer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
It is admitted , and I find, that the Respondent is a
labor organization within the meaning of Section
2(5) of the Act.
Sec 8(b)(2) makes it an unfair labor practice for a labor organization or
its agents "to cause or attempt to cause an employer to discriminate against
an employee in violation of [Section 8] (a)(3) "The latter provi-
sion prohibits an employer "by discrimination in regard to hire or tenure of
employment or any term or condition of employment to encourage
membership in any labor organization "
' The name of the Company appears as amended at the hearing
183 NLRB No. 117
LOC. UN. NO. 513, OPERATING ENGINEERS , AFL-CIO
111. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Evidence
1. The Respondent's hiring hall; refusal to refer
John R. Davis
Pursuant to the terms of the Respondent's collec-
tive-bargaining contract with Associated General
Contractors and other employer associations,' the
Respondent maintains an exclusive hiring hall for
the referral of operating engineers, oilers, and re-
lated classifications. Under this contract, the em-
ployers are required to secure needed employees
through the hiring hall and the Respondent, in turn,
is obligated to refer qualified job applicants on a
nondiscriminatory basis. An order of referral priori-
ty depending on the job applicant's employment
history with the contracting employers-not
claimed to be unlawful-is also set forth in section
3.03 of the contract, and controls referral of job ap-
plicants, "except as modified below and subject
also to the Employer additional preferences
hereinafter provided under Section 3.04." After
listing five categories in descending order of priori-
ty, the contract states:
The order of referral shall be from the current
monthly appropriate registration lists on a first-
in, first-out basis, except as to registrants
requested by name.
Then follows section 3.04 which provides:
Additional Employer Preferences. Employers
may request also the referral of specific in-
dividuals by name desired by them as em-
ployees, irrespective of their position on the re-
gistration list, and these persons shall be
referred to such Employer, regardless of the
fact that other job applicants would otherwise
be entitled to prior referral ....g
It was stipulated that at all material times, the
foregoing referral provisions governed the hiring of
employees in the operating engineer trade at the
Maxon jobsite where the Company was construct-
ing a dock facility. The unfair labor practice charge
herein arose out of Union Business Agent
Straughan's refusal to refer John Davis, an oiler, to
the Maxon jobsite under the circumstances related
below.
' This agreement , which is commonly known as the St Louis A G C
Agreement or the Building Trade Agreement , is for a term of 5 years, ex-
piring in 1974, and names as parties the Respondent and Associated
General Contractors of St Louis , Concrete Contractors Association,
Home Builders Association of Greater St Louis, Mason Contractors As-
sociation , and Site Improvement Association
' The number of employees who may be so requested by name in catego-
ries second through fifth established in sec 3 .03 of the contract is limited
to 50 percent of the bargaining unit at a particular job There is no claim,
nor can one be validly made , that the Company's referral request for John
R Davis, hereinafter discussed , exceeded this limitation
° Unless otherwise indicated, all dates refer to 1969
r John Davis subsequently received showup pay for reporting for work
that day
' It was either November 4 or 5 when John Davis next heard from Drew
1135
Before seeking work at the Maxon jobsite, John
Davis, a member of the Respondent , was employed
by Drew Construction Company at Portageville,
Missouri. When he reported for work at the Drew
project on Friday, October 31, 1969,8 he found no
one there and left . No notice had been given him
that the jobsite would be closed down, although it
appears that it rained that day.7 On Saturday, he
returned to the project and again found it shut
down. Assuming that he was laid off,8 John Davis
visited the Maxon jobsite where his uncle, James
Davis, was the job steward, to seek employment. At
that time Maxon had openings for two oilers.
The next day, November 2, James Davis unsuc-
cessfully tried to reach Lester Straughan, the busi-
ness agent in charge of the Respondent 's Farming-
ton, Missouri, office, to request referral of two
oilers, one of whom would be his nephew, John
Davis. He thereupon telephoned Business Agent
Bill G. Tinker, Straughan's assistant, advised him of
Maxon's need for two oilers, and asked that John
Davis be one of the oilers referred. Tinker stated
that he would have to check the registration list be-
fore sending John out. When Davis remarked that
in the past the list had never been relied upon,
Tinker agreed but added that he was instructed by
Straughan to go by the "book" (meaning the col-
lective-bargaining contract). Tinker then inquired
whether John was not working. James Davis replied
that John was laid off and would register for work
Monday morning. The conversation ended with
Davis stating that he was going to call Straughan.9
Later in the afternoon, James Davis telephoned
Straughan at his home and repeated his request for
referral of his nephew and another oiler to the
Maxon jobsite. In response, Straughan declared
that he would not refer John Davis for the reasons
that he had not registered and had another job.10
About 8 o'clock Monday morning (November
3), John, at the suggestion of James Davis, ap-
peared at the Respondent's Farmington office and
placed his name on the registration list. In the
meantime , James Davis asked Maxon superinten-
dent, Tom Perala, whether he would employ John
as an oiler. Perala answered that he had no objec-
tion if John was capable of performing the work."
There is no question that John was a qualified oiler.
To comply with the contractual hiring hall require-
Construction Company On that day , he received a telephone call from
Drew 's superintendent , Bill Starke, who asked him whether he was return-
ing to work Davis answered in the negative
° The above findings reflect the essence of the testimony of James Davis
and Tinker.
10 The findings concerning this conversation are based principally on
Straughan 's uncontradicted testimony While James Davis might have also
mentioned in this conversation possible recourse to the Labor Board, as
Davis testified , I am not persuaded from the context of the discussions that
this was one of Straughan's asserted reasons for refusing to refer John In-
deed , the General Counsel does not urge such a reason as a ground for find-
ing a violation of Sec 8(b)(2) and ( I) of the Act
" When Straughan received a copy of the charge herein on or about
November 6, he spoke to Perala who confirmed James Davis' authority to
ask for John 's referral by name if John could perform the work.
1136 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ments, James Davis advised Perala to instruct
Foreman James Below to call the union hall and
request John's referral by name. Thereupon, Below
told James Davis to make the telephone call to the
Union, which he did, with Below listening in on an
extension telephone. In the ensuing conversation,
James Davis informed Straughan that Maxon
needed an oiler and was asking for John Davis by
name . Straughan responded that the Company
could not have him. This elicited James Davis'
inquiry whether John was not on the list. Although
Straughan conceded that John was on the list, he
nevertheless refused to refer him. In answer to
Davis' charge that Straughan was ignoring the con-
tract, Straughan denied that the contract required
him to honor the Company's request. When Davis
then called Straughan's attention to the Additional
Employer Preferences provision in the contract
(see. 3.04), quoted above'12 Straughan simply
replied that he would send a man , adding, in
response to Davis' inquiry, that he did not know
whether he would send John.
After John Davis had registered at the union hall
for work, he came to the Maxon jobsite where his
uncle informed him of his requested referral.
Between 11 and 12 the same morning, John called
the Union, spoke to Bess Straughan,13 and asked
why he had not been sent to the Maxon job.
Without answering that question directly except to
indicate that neither Lester Straughan, Tinker, nor
she decided to do so, Bess Straughan told him that
he was being referred to the Penzel job in Haiti,
Missouri. 14 John declined the job because it did not
pay as well and did not offer as much overtime as
the Maxon job did.
Because no oiler was referred to the Maxon job
on November 3, James Davis again called Business
Agent Straughan the following morning and asked
whether he intended to send a man. Straughan an-
swered that his wife had received the impression
from John that he was going to work for Maxon.
Denying that he would hire him unless he was
referred by the Union, James Davis asked
Straughan whether he intended to refer John.
Straughan answered no but would send someone
else. About noon a qualified oiler arrived at the
jobsite and went to work.
According to Straughan's testimony, he ad-
ministers the hiring hall in the following manner: It
is his general practice to refer qualified job appli-
cants in the order in which their names appear on
the registration list. With one exception, discussed
below, he adheres to this practice even where the
"Although Straughan testified that only the employer , the master
mechanic, and foreman may request referral by name, it is undisputed that
this was not one of the reasons given James Davis for not honoring his
request for John 's referral At any rate, James Davis was authorized to act
on behalf of Maxon for such purpose
" She is the wife of Business Agent Lester Straughan and works in the of-
fice Among other things , she handles the clerical details with respect to the
referral system and, on instructions from her husband and Business Agent
Tinker , refers applicants to jobs
employer requests a particular employee by name.
However, he will not refer any employee if he is
employed at the time on another job,15 unless there
are no qualified applicants on the list. In the latter
event, he probably would take the requested in-
dividual off the job he was then holding and refer
him to the new job.
Concerning the exception, Straughan further
testified that the only referral priority he recognizes
is the first category in the order of referral set forth
in section 3.03 of the contract. Such registrants are
required to have worked for the employer
requesting their referral by name at least 30 days in
the preceding 12-month period to be entitled to
referral, regardless of their position on the registra-
tion list. Admittedly, this priority does not apply to
the Maxon job as the Company's last construction
project within the Respondent's territorial jurisdic-
tion antedated 1958. However, the contract also
contains section 3.04 entitled "Additional Em-
ployer Preferences," quoted above, which accords
an employer other than one mentioned in the first
category the right to have referred to him a limited
number of employees requested by name, "ir-
respective of their position on the registration list,
and ... regardless of the fact that other job appli-
cants would otherwise be entitled to prior referral. .
.." When Straughan, under cross-examination, was
confronted with this provision and was questioned
whether he was familiar with it, he testified, "Not
too well, no." I find Straughan's professed un-
familiarity with this provision less than candid,
especially in view of his incumbency as the Respon-
dent's business agent for 16 years and his adminis-
tration of its hiring hall for the past 3 or 4 years.
There is uncontradicted testimony by James
Below, foreman of the Maxon project, which I
credit, that in September Straughan referred five
employees,16 whom he had specifically requested by
name , although all of them were then employed on
other projects under the Union's jurisdiction.
Straughan , however, explained that three of them
were referred because they possessed special
qualifications in "driving piling" and no other em-
ployees with comparable qualifications were availa-
ble, while the other two were sent to the job
because the Union was "short of people." 7
James Davis also testified to instances where
Straughan granted job referrals to individuals who
were then employed on other union projects, nam-
ing four such employees and the jobsites involved.
Davis further testified to occasions when Straughan
refused to refer individuals solely because they
" It is not clear whether the Penzel job was to begin immediately or a few
days later. The Respondent 's employment record of John Davis shows that
he was referred to the Penzel job on November 7, 1969
"Straughan testified that , if he were aware that an employee held
another job, he would not permit him to register
"They were Jimmy Joe Below , Darns Dalton, James Davis, Lloyd
Swain , and Harry Swinger
"The Respondent did not produce the registration lists or other records
to substantiate the asserted shortage
LOC UN. NO. 513, OPERATING ENGINEERS , AFL-CIO 1137
were out of favor with him. Specifically, Davis
testified that Straughan refused to refer an appli-
cant , Bruce Shelton , whom an employer had
requested , because Shelton had once directed
Straughan 's brother-in-law to do an undesirable
chore while they were working together on a pro-
ject . Concerning another episode , Davis testified
that in August Straughan initially refused to send
James Below , Jim Mitchell , and Floyd Estes to a
prospective cement plant job because these in-
dividuals had accompanied Davis to St. Louis to
discuss his forced resignation as business agent with
John Murphy , Straughan 's superior , which will later
be discussed . However , Davis testified that, upon
his insistence , Straughan changed his mind and
made those jobs available to the named individuals.
It is further noted that when the cement plant pro-
ject did not materialize Below was referred to the
Maxon project and became foreman . Davis and
Mitchell were also thereafter referred to that
jobsite , while Estes retained his old job . The forego-
ing testimony of Davis is not contradicted and I
credit it.
Subsequent to the filing of the unfair labor prac-
tice charge herein , John Davis was referred to
several jobs which it appears were not as desirable
as the Maxon job , either because of wage rates,
available overtime , expected duration , or other
terms or conditions of employment. However,
Davis accepted such employment.
2. Alienated relations between Business Agent
Straughan and James Davis
The General Counsel attributes Business Agent
Straughan's refusal to refer John Davis to the
Maxon job to Straughan 's internal union dif-
ferences with James Davis, John's uncle, arising
out of the following events: James Davis, a member
of the Union since 1957, became business agent
and Straughan's assistant on the latter's recom-
mendation on November 1, 1968, and served in
that capacity until his forced resignation on August
15, 1969. During his incumbency, Davis had sev-
eral "run-ins" with Straughan, one of which in-
volved Straughan's son, Joe. In about July, Davis
complained to Lester Straughan that his son, as
foreman on a Proctor and Gamble project , was pay-
ing several employees for time not worked while
refusing to do the same for other employees . Lester
Straughan thereupon called a meeting at his home,
which 10 or 12 employees attended, to consider
this charge . After some discussion , Joe Straughan
accused Davis of siding with the Teamsters Union
whenever a dispute arose on the jobsite . Davis, in
turn , placed substantial blame on Joe Straughan for
those quarrels , suggesting that "he ought to back
off a little " in those disputes . When Lester
Straughan tried to end the meeting , Davis insisted
on continuing the discussions "to get [at] the
truth" of his charge of unequal employee treat-
ment . Finally , the meeting was closed with Lester
Straughan instructing the men " to go back to work
and to forget the whole thing ." Davis, nevertheless,
told Lester Straughan that he intended to pursue
the matter further and secure the timecards to
prove his charge . Subsequently , Davis produced the
timecards but Lester Straughan declined to look at
them and, instead , admonished Davis that "You
don't pull the time cards on the foremen" or the
steward who Davis stated was also involved. In
response , Davis remarked that that was the only
way to get at the truth.
A little more than a month later , Straughan in-
formed Davis that Business Manager Murphy, their
superior , wanted Davis to resign and Straughan ad-
vised him to do so . Davis stated that he would let
him know . In the meantime , Davis telephoned
Murphy at his office in St . Louis and asked what
the trouble was. Murphy replied that "he was
getting some heat ." Despite Davis' insistence that
he was entitled to a more informative answer,
Murphy was evasive and invited his resignation on
Friday of that week , apparently August 15 . Before
concluding the conversation , Murphy and Davis ar-
ranged for a meeting at Murphy 's office on August
19. This meeting was held and was no more en-
lightening than their prior telephone conversation.'8
Straughan disavowed any responsibility for Davis'
resignation as business agent . He testified that there
were "quite a few ruckuses" in the area involving
arguments and physical combat as a result of which
he was warned by Murphy that such conduct had to
cease because the "pressure" or "heat" was on
from "up above ," which Straughan presumed
meant the International Union . Straughan further
testified that about a month later, after Davis and
he had become involved in separate incidents, he
received a telephone call from Murphy in which
Murphy alluded to his prior warning and directed
him to see that Davis "step[ped] down " from his
job, as business agent , adding that , if this conduct
persisted , Straughan would be similarly treated.
Murphy was not produced as a witness nor was
his absence accounted for. In these circumstances,
and considering the sequence of events and the am-
biguous reason given to Davis for his forced
resignation as business agent , I am not persuaded
that Straughan played an innocent role in Davis'
removal ; rather , I find, he was the moving cause.
18 The foregoing findings pertaining to the events leading to James Davis'
resignation as business agent are derived from Davis' uncontroverted
testimony, which I credit
1138 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. Concluding Findings
It is the General Counsel's contention that Busi-
ness Agent Straughan's refusal to refer John Davis
to the Maxon job as required by the contractual
hiring hall provisions was motivated by Straughan's
enmity incurred by John's uncle , James Davis, as a
result of an intraunion dispute and that for this
reason the Respondent violated Section 8(b)(2)
and (1)(A) of the Act. The Respondent, on the
other hand, argues that Straughan's action was
compelled by legitimate hiring hall practices. I am
satisfied that the General Counsel's position is
amply supported by the evidence.
As discussed above, Straughan on November 2
initially refused Davis' request for John's referral
for the asserted reasons that John was not on the
registration list and had other employment. Yet, the
next morning after John had registered and
Straughan 's assistant , Business Agent Tinker, had
been informed that John had been laid off his prior
job, Straughan was no more disposed to honor
Davis' renewed request for John's referral made on
Maxon's behalf pursuant to the Additional Em-
ployer Preferences clause in the controlling collec-
tive-bargaining agreement. Unquestionably,
Straughan's action cannot be defended on the basis
of the contractual hiring hall procedures.
Moreover, his professed unawareness of this provi-
sion, which obligates the Respondent to refer
requested job applicants, "irrespective of their posi-
tion on the registration list, and ... regardless of
the fact that other job applicants would otherwise
be entitled to prior referral" is equally incredible.
Not only has Straughan, the Respondent's business
agent for 16 years, been administering the Union's
hiring hall for the past 3 or 4 years, but also his at-
tention was specifically called to that provision by
James Davis in his unsuccessful effort to persuade
Straughan to change his mind.
Similarly unconvincing is Straughan's purported
reliance on nondiscriminatory practices to justify
his treatment of John Davis. From the evidence
recited above, it appears that those practices ac-
tually were departures from the contractual hiring
hall requirements to suit Straughan's purposes and
that otherwise he did refer employees specifically
requested by employers, regardless of their position
on the registration list and whether or not they held
other jobs. Moreover, even under Straughan's al-
leged practices, his refusal to refer John Davis to
the Maxon job is not adequately explained. The
very same morning of November 3, when Maxon's
request for John Davis was turned down,
Straughan's wife offered to send John to a less
desirable job (Penzel), although it is highly im-
19 As previously discussed, James Davis on one occasion succeeded in in-
ducing Straughan to reverse himself and to refer employees Mitchell,
Below, and Estes to a prospective cement plant job At first, Straughan
refused these employees referral because they had accompanied Davis to
St Louis to see Business Manager Murphy regarding Davis' forced resigna-
tion as business agent
probable that another oiler higher up on the regis-
tration list was then available for referral to the
Maxon job. Apart from the fact that the registration
list was not produced to show availability of other
applicants, it was not until noon of the following
day (November 4) that an oiler was sent to Maxon
in place of Davis.
In view of the foregoing, I am led to the inescapa-
ble conclusion that the tenuous reasons advanced
for not referring John Davis to the Maxon job were
really pretexts to conceal Straughan's true motiva-
tion. From a realistic appraisal of the evidence, I
find that the only plausible explanation for
Straughan's action was his enmity for James Davis
attributable to the latter's stubborn determination
to prove to Straughan that Straughan' s son, as
foreman on a project, was playing favorites among
employees working under him, as well as Davis'
refusal to heed Straughan's admonition to forget
the whole affair. As noted above, James Davis was
subsequently forced to resign as business agent.
While it does not appear that James Davis was also
personally subjected to discrimination in employ-
ment as a reprisal measure ,19 I have taken this fact
into consideration in assessing Straughan's treat-
ment of Davis' nephew, John.
It is settled law that a union which undertakes to
operate an exclusive hiring hall established by con-
tract or other arrangement violates Section 8(b)(2)
and (1)(A) of the Act if it refuses to refer a job ap-
plicant for any union-related reason whether it in-
volves membership, loyalty, or conduct respecting
internal union matters.20 This is precisely the case
here where Straughan's discriminatory refusal to
refer John Davis to the Maxon job served no less as
an object lesson to other job applicants to avoid in-
curring Straughan's disfavor or risk job discrimina-
tion, than would discrimination practiced against
James Davis himself.21 In a classic sense , such con-
duct amounts to discrimination to encourage mem-
bership in a labor organization within the meaning
of Section 8(a)(3) of the Act.
Accordingly, I find that the Respondent at-
tempted to cause, and did cause Maxon to dis-
criminate against John Davis in violation of Section
8(a)(3) and that the Respondent thereby violated
Section 8(b)(2) and (1)(A) of the Act.
IV. THE REMEDY
Pursuant to Section 10(c) of the Act, as
amended, I recommend that the Respondent be or-
dered to cease and desist from engaging in the un-
fair labor practices found and in like and related
conduct and take certain affirmative action
designed to effectuate the policies of the Act.
20 Local 357, International Brotherhood of Teamsters (Los Angeles-Seat-
tle Motor Express) v N L R B , 365 U S 667, Local Union 136, Muskingum
Valley District Council (Frank Vlack Company), 165 NLRB 1040, United
Brotherhood of Carpenters & Joiners of America, Local 1281, AFL-CIO
(Raber-Kief, Inc ), 152 NLRB 629
T' Murray Golub d/bla Golub Bros Concessions, 140 NLRB 120
LOC. UN. NO. 513, OPERATING ENGINEERS , AFL-CIO
To redress the discriminatory refusal to refer
John Davis to the Maxon jobsite, I recommend that
the Respondent notify Maxon in writing, and
furnish a copy of such notice to John Davis, that it
has withdrawn its objection to Davis' employment
with Maxon, without prejudice to his seniority and
other rights and privileges, and that it will not
otherwise discriminate against Davis or any other
job applicant in the selection or referral for em-
ployment through its hiring hall procedures. In ad-
dition, I recommend that the Respondent make
Davis whole for any loss of earnings he may have
suffered by reason of the discrimination against him
by payment to him of a sum of money equal to that
which he normally would have earned from the
date of the discrimination to the date 5 days after it
serves the written notice of withdrawal of objection
mentioned above, less his net earnings during the
said period. Backpay shall be computed with in-
terest on a quarterly basis in the manner prescribed
by the Board in F. W. Woolworth Company, 90
NLRB 289, and Isis Plumbing & Heating Co., 138
NLRB 716.
To facilitate the computation, as well as to clarify
Davis' right to referral and employment, the
Respondent shall make available to the Board,
upon request, the registration lists and other
records necessary and appropriate for such pur-
poses . I further recommend that the Respondent
notify Davis of his right to nondiscriminatory refer-
ral, on application, if he is serving with the Armed
Forces of the United States. The posting of a notice
is also recommended.
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. Maxon is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. The Respondent is a labor organization within
the meaning of Section 2(5) of the Act.
3. By discriminatorily refusing to refer John
Davis on November 3, 1969, for employment by
Maxon pursuant to the exclusive hiring hall
procedures set forth in the Respondent's collective-
bargaining agreement with Associated General
Contractors of St. Louis and other employer as-
sociations, the Respondent has attempted to cause
and caused Maxon to discriminate against John
Davis in violation of Section 8(a)(3) of the Act and
has thereby engaged, and is engaging, in unfair
labor practices within the meaning of Section
8(b)(2) and (1)(A) of the Act.
n In the event no exceptions are filed as provided by Section 102 46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions , recommendations , and Recommended Order herein
shall, as provided in Section 102 48 of the Rules and Regulations, be
adopted by the Board and become its findings , conclusions , and order, and
all objections thereto shall be deemed waived for all purposes In the event
1139
4. The aforesaid unfair labor practices affect
commerce within the meaning of Section 2(6) and
(7) of the Act.
RECOMMENDED ORDER
Upon the basis of the above findings of fact, con-
clusions of law, and the entire record in the case,
and pursuant to Section 10(c) of the National
Labor Relations Act, as amended, it is recom-
mended that the Respondent, Local Union No.
513, affiliated with International Union of Operat-
ing Engineers, AFL-CIO, Farmington, Missouri, its
officers, agents, and representatives, shall:
1. Cease and desist from:
(a) Refusing to refer any applicant for employ-
ment pursuant to its exclusive hiring hall
procedures established by collective-bargaining
agreement or other arrangement with employers,
for reasons related to union membership, loyalty to
union officials, or conduct involving internal union
affairs.
(b) Causing or attempting to cause Maxon Con-
struction Company, Inc., or any other employer, to
discriminate against John R. Davis or any other job
applicant or employee in violation of Section
8(a)(3) of the Act.
(c) In any like or related manner restraining or
coercing job applicants or employees in the exer-
cise 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) Make whole John R. Davis for any loss of
pay he may have suffered by reason of the dis-
crimination against him, in the manner set forth in
"The Remedy" section of the Trial Examiner's
Decision.
(b) Notify Maxon Construction Company, Inc.,
and John R. Davis, in writing , that it has no objec-
tion to Davis' employment and will not discriminate
against him or other job applicants in the selection
and referral for employment pursuant to its exclu-
sive hiring hall procedures established by contract
or other arrangement with employers.
(c) Preserve and, upon request, make available
to the Board or its agents , for examination and
copying, all records pertaining to employment
through its hiring hall and all records relevant and
necessary for compliance with above paragraph
(a).
(d) Post at its business office, hiring halls, and
meeting places copies of the attached notice
marked "Appendix."22 Copies of said notice, on
forms provided by the Regional Director for Region
that the Board 's Order is enforced by a Judgment of a United States Court
of Appeals, the words in the notice reading "Posted by Order of the Na-
tional Labor Relations Board " shall be changed to read " Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board "
427-258 O-LT - 74 - 73
1140 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
14, after being duly signed by the Respondent's
authorized representative, shall be posted by the
Respondent immediately upon receipt thereof, and
be maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all
places where notices to members are customarily
posted. Reasonable steps shall be taken by the
Respondent to insure that said notices are not al-
tered, defaced, or covered by any other material.
(e) Mail to the Regional Director for Region 14
signed copies of the attached notice for posting by
Maxon Construction Company, Inc., at its business
offices, and its New Madrid and other jobsites
within the geographical area of the Respondent's
jurisdiction, if it is willing to do so.
(f) Notify the Regional Director for Region 14,
in writing, within 20 days from the receipt of this
Decision, what steps have been taken to comply
herewith.23
23 In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read "Notify the Regional Director for
Region 14, in writing , within 10 days from the date of this Order, what steps
Respondent has taken to comply herewith "
APPENDIX
NOTICE TO MEMBERS AND JOB APPLICANTS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to refer any applicant
for employment pursuant to our exclusive hir-
ing hall procedures established by collective-
bargaining agreement or other arrangement
with employers for reasons related to union
membership, loyalty to union officials, or con-
duct involving internal union affairs.
WE WILL NOT cause or attempt to cause
Maxon Construction Company, Inc., or any
other employer, to discriminate against John
R. Davis or any other job applicant or em-
ployee in violation of Section 8(a)(3) of the
Act.
WE WILL NOT in any like or related manner
restrain or coerce job applicants or employees
in the exercise of rights guaranteed in Section
7 of the Act.
WE WILL reimburse John R. Davis for any
loss of earnings suffered by him because of our
failure and refusal to refer him to the jobsite of
Maxon Construction Company, Inc.
WE WILL notify Maxon Construction Com-
pany, Inc., and John R. Davis, in writing, that
we have no objection to Davis' employment
and that we will not discriminate against him
or other job applicants in the selection and
referral for employment pursuant to our exclu-
sive hiring hall procedures established by con-
tract or other arrangement with employers.
WE WILL notify the above-named employee
if presently serving in the Armed Forces of the
United States of his right to nondiscriminatory
selection and referral for employment pursuant
to our exclusive hiring hall procedures
established by contract or other arrangement
with employers, upon application in ac-
cordance with the Selective Service Act and
the Universal Military Training and Service
Act of 1948, as amended, after discharge from
the Armed Forces.
LOCAL UNION No. 513,
AFFILIATED WITH
INTERNATIONAL UNION OF
OPERATING ENGINEERS,
AFL-CIO
(Labor Organization)
Dated By
(Representative ) (Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecu-
tive days from the date of posting and must not be
altered , defaced , or covered by any other material.
Any questions concerning this notice or com-
pliance with its provisions may be directed to the
Board 's Office , 1040 Boatmen's Bank Building, 314
North Broadway, St. Louis, Missouri 63102,
Telephone 314-622-4167.