Southern Electrical and Pipefitting Corp.

National Labor Relations Board - Board Decisions

Apr 7, 1961

131 N.L.R.B. 44 (N.L.R.B. 1961)

44 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of his discharge on July 20 to the date of the offer of reinstatement on July 22, 1960,
less his net earnings elsewhere , if any.
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. Printing Specialties and Paper Products Union Local 447, International Print-
ing Pressmen and Assistants ' Union of North America, AFL-CIO, is a labor organ-
ization within the meaning of Section 2(5) of the Act.
2. By discharging employee Lucius Garner , Respondents have engaged in unfair
labor practices within the meaning of Section 8 (a) (1) of the Act.
3. The aforesaid unfair labor practices affect commerce within the meaning of
Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication.]
Southern Electrical and Pipefitting Corporation and Ray E.
Booker and United Association of Journeymen and Appren-
tices of the Plumbing and Pipefitting Industry of the United
States and Canada , AFL-CIO ; Local Union No . 568, United
Association of Journeymen and Apprentices of the Plumbing
and Pipefitting Industry of the United States and Canada,
AFL-CIO , Parties to the Contract
Local Union No. 568, United Association of Journeymen and
Apprentices of the Plumbing and Pipefitting Industry of the
United States and Canada , AFL-CIO and Ray E. Booker and
Southern Electrical and Pipefitting Corporation ; United Asso-
ciation of Journeymen and Apprentices of the Plumbing and
Pipefitting Industry of the United States and Canada, AFL-
CIO, Parties to the Contract . Cases Nos. 15-CA-1445 and
15-CB-331. April 7, 1961
DECISION AND ORDER
On December 9, 1959 , Trial Examiner C. W. Whittemore issued his
Intermediate Report in the above -consolidated proceeding , finding
that the Respondents had engaged in and were engaging in certain
unfair labor practices and recommending that they cease and desist
therefrom and take certain affirmative action , as set forth in the copy
of the Intermediate Report attached hereto . Thereafter the Respond-
ents and the General Counsel filed exceptions to the 'Intermediate
Report, and the Respondents and the Charging Party filed briefs.
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-
131 NLRB No. 12.
SOUTHERN' ELECTRICAL AND PIPEFITTING CORPORATION 45
mediate Report, the exceptions 1 and briefs, and the entire record in
these cases, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner?
ORDER
Upon the entire record in these cases, and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that:
A. The Respondent, Southern Electrical and Pipefitting Corpora-
tion, Creole, Mississippi, its officers, agents, successors, and assigns,
shall :
1. Cease and desist from:
(a) Refusing employment to Ray E. Booker, or any other pro-
spective employee, in violation of Section 8(a) (3) of the Act.
(b) Entering into, performing, maintaining, or otherwise giving
effect to any arrangement whereby membership in the Respondent
Local Union No. 568, United Association of Journeymen and Appren-
.'tices of the Plumbing and Pipefitting Industry of the United States
and Canada, AFL-CIO, is required as a condition of employment, or
which requires that preference in employment be given to members of
the said Respondent Union; provided, however, that nothing herein
nor in the notices referred to hereinafter shall be construed to pro-
hibit any agreement or practice permitted by Section 8(f) of the
National Labor Relations Act, as amended, where applicable.
(c) In any manner interfering with, restraining, or coercing em-
ployees or applicants for employment in the exercise of the rights
guaranteed in Section 7 of the Act.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
(a) Jointly or severally with Local Union No. 568, United Associ-
ation of Journeymen and Apprentices of the Plumbing and Pipe-
fitting Industry of the United States and Canada, AFL-CIO, make
Ray E. Booker whole for any loss of pay-he may have suffered because
of the discrimination against him, by payment to him of the sum of
$2,198.40.
1 The General Counsel excepts to the failure of the Trial Examiner to rule upon his
motion to correct the transcript. As there is no opposition to the motion , it is hereby
granted.
2 In finding the violation herein , Member Rodgers relies on Dickmann-Pickens-Bond
Construction Company, 130 NLRB 380 , and Alco Products , Inc., 130 NLRB 663. In
Member Leedom 's opinion , contrary to the statement of his dissenting colleague , the Re-
spondent Union's participation in an exclusive hiring arrangement is established by the
admission of its business agent , that there was an oral understanding that the Respond-
ent Company would call the Respondent Union for workers , and that the Respondent
Union would supply them if available . In view of this admission , Member Leedom finds
this case distinguishable from Alco Products, Inc., supra, in which he also dissented.
46 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) Post at the construction gate of the Moss Point plant of Inter
national Paper Company, in a conspicuous place where notices to
construction employees or prospective employees are customarily
posted, copies of the notice attached hereto marked "Appendix A." 8
Copies of said notice, to be furnished by the Regional Director for the
Fifteenth Region, shall, after being duly signed by the Respondent's
representative, be posted immediately upon receipt thereof and main-
tained for 60 consecutive days. Reasonable steps shall be taken to
insure that said notices shall. not-be altered, defaced, or covered by
any other material.
(c) Post at the same places and under the same conditions as set
forth in (b), above, and as soon as they are forwarded by the Regional
Director, copies of the Respondent Union's notice herein, marked "Ap-
pendix B."
(d) Mail to the Regional Director signed copies of Appendix A'
for posting by the Respondent Union as provided herein. Copies of
said notice, to be furnished by the Regional Director, shall, after being
signed as provided above, be forthwith returned to the Regional Di-
rector for disposition.
(e) Notify the Regional Director for the Fifteenth Region, in writ-'
ing, within 10 days from the date of this Order, what steps have been
taken to comply herewith.
B. The Respondent Local Union No. 568, United Association of
Journeymen and Apprentices of the Plumbing and Pipefitting In-
dustry of the United States and Canada, AFL-CIO, its representa-
tives, agents, officers, successors, and assigns, shall :
1. Cease and desist from :
(a) Entering into, performing, maintaining, -or otherwise giving
effect to any arrangement with the Respondent, Southern Electrical
and Pipefitting Corporation, whereby membership in the Respondent
Union is required as a condition of employment, or which requires
that preference in employment be given to members of the Respond-
ent Union; provided, however,'that nothing herein nor in the notices
referred to hereinafter, shall construed to prohibit any agreement
or practice permitted'by Section 8 (f) of the National Labor Relations
Act, as amended, where applicable.
(b) Causing or attempting to cause Southern-Electrical and Pipe-
fitting Corporation, its officers,' agents, successors, and assigns, to dis-
criminate against any employee or applicant for employment, in viola-
tion of Section 8 (a) (3) of the Act.
8In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order."
SOUTHERN ELECTRICAL AND PIPEFITTING CORPORATION 47
(c) In any other manner restraining or coercing employees of, or
applicants for employment with, the above-named Employer, in the
exercise of the rights guaranteed by Section 7 of the Act.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
(a) Notify the Respondent, Southern Electrical and Pipefitting
Corporation, that it has no objection to the hire and employment of
Ray E. Booker, or any other person, without prior or subsequent
clearance or job referral from it.
(b) Jointly or severally with Southern Electrical and Pipefitting
Corporation, make Ray E. Booker whole for any loss of pay he may
have suffered because of the discrimination against him, by payment
to him of the sum of $2,198.40.
(c) Post at its offices, in conspicuous places, including all places
where notices to members are customarily posted, copies of the notice
attached hereto marked "Appendix B." 4 Copies of said notice, to be
furnished by, the Regional Director for the Fifteenth Region, shall,
after being duly signed by the Respondent Union's representative, be
posted immediately upon receipt thereof and be maintained by it for
60 consecutive days thereafter. Reasonable steps shall be taken to
insure that said notices are not altered, defaced, or covered by any
other material.
(d) Post at the same places and under the same conditions as set
forth in (c), above, and as soon as they are forwarded by the Regional
Director, copies of the Respondent Southern Electrical and Pipe-
fitting Corporation's notice herein, marked "Appendix A."
(e) Mail to the Regional Director for the Fifteenth Region signed
copies of Appendix B for posting by Respondent Southern Electrical
and Pipefitting Corporation as provided herein. Copies of said no-
tice, to be furnished by the said Regional Director, shall, after being
signed by the Respondent Union's representative, be forthwith re-
turned to the Regional Director for disposition.
(f) Notify the Regional Director for the Fifteenth Region, in writ-
ing, within 10 days from the date of this Order, what steps have been
taken to comply herewith.
MEMBER FANNING, concurring in part and dissenting in part:
I agree that Respondent Company violated Section 8(a) (3) and
(1) of the Act by conditioning Booker's employment upon his first
obtaining a referral from Respondent Union, and by refusing there-
. 4 See footnote 3, supra.
48 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
after to employ him because he failed to obtain such clearance. How-
ever, I do not agree that the Union violated Section 8(b) (2) and
(1) (A) because I am unable to conclude that the record supports a
finding that a bilateral exclusive hiring contract or arrangement, ex-
press or tacit, existed between Respondent Company and Respondent
Union. More explicitly, there is simply no supporting evidence that
the Company was in any way obligated to go to the Union for its help,
to hire the applicants referred to it by the Union, and only those so
referred. Such a showing, in my opinion, is indispensable to a finding
of the Section 8(b) (2) violation alleged, and cannot be inferred solely
from an indication that the Company chose rather consistently to
obtain skilled plumbers and pipefitters from the Union's source of
supply. Essentially for the same reasons and on the same authorities
stated in my dissenting opinion in Alco Products,' I would find the
evidence lacking to support the alleged violation on the part of the
Union.'
CHAIRMAN MCCtLLOCH took no part in the consideration of the
above Decision and Order.
5 Alco Products, Inc , 130 NLRB 663.
9 The union agent's testimony that he had an "oral understanding" with the Company
that "they will call and if I have men available I send them what they need," clearly
does not e'tabhsh a bilateral exclusive hiring arrangement, but shows merely a willingness
of the Union to supply help on request. Member Leedom's reliance upon this testimony
as an "admission" of the existence of an unlawful agreement, I believe, is misplaced.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to it Decision and Order of the National Labor Relations
Board , and in order to effectuate the policies of the National Labor
Relations Act, as amended , we hereby notify you that:
WE WILL NOT refuse employment to Ray E . Booker, or any other
prospective employee, in violation of Section 8(a) (3) of the Act.
WE WILL NOT maintain and enforce any agreement , understand-
ing, or practice , whereby membership in Local Union No. 568,
United Association of Journeymen and Apprentices of the
Plumbing and Pipefitting Industry of the United States and
Canada, AFL-CIO, is required as a condition of employment, or
which requires that preference in employment be given to mem-
bers of that labor organization.
WE WILL NOT in any other manner interfere with, restrain, or
coerce employees or applicants for employment, in the exercise of
the rights guaranteed in Section 7 of the Act.
SOUTHERN ELECTRICAL AND PIPEFITTING CORPORATION 49
WE WILL make whole Ray E . Booker for any loss of pay he may
have suffered by reason of the discrimination against him found
by the Board.
SOU TERN ELECTRICAL • AND PIPEFITTING CORPORATION,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered , defaced, or covered by any other material.
APPENDIX B
NOTICE TO ALL MEMBERS OF LOCAL UNION No. 568, UNITED ASSOCIATION
OF JOURNEYMEN AND APPRENTICES OF THE PLUMBING AND PIPE-
FITTING INDUSTRY OF THE UNITED STATES AND CANADA, AFL-CIO
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 cause or attempt to cause Southern Electrical and
Pipefitting Corporation to discriminate against employees, or
applicants for employment, in violation of Section 8(a) (3) of
the Act.
WE WILL NOT maintain and enforce any agreement, under-
standing, or practice with the above-named Employer, whereby
membership in our Union is required as a condition of employ-
ment, or which requires that preference in employment be given
to members of our Union.
WE WILL NOT in any other manner restrain or coerce employees
or applicants for employment in the exercise of the rights guaran-
teed in Section 7 of the Act.
WE WILL make Ray E. Booker whole for any loss of pay he may
have suffered by reason of the discrimination against him found
by the Board.
LOCAL UNION No. 568 , UNITED ASSOCIATION
OF JOURNEYMEN AND APPRENTICES OF THE
PLUMBING AND PIPEFITTING INDUSTRY OF
THE UNITED STATES AND CANADA, AFL-
CIO,
Labor Organization.
Dated---------------- By-------------------------------------
(Representative) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
599198-62-vol. 131-5
50 4. -DECISIONS OF' NATIONAL LABOR RELATIONS BOARD
INTERMEDIATE REPORT
STATEMENT OF THE CASE
Charges having been filed and served in each of the above-entitled cases; separate
complaints , an order consolidating said cases, and a notice of hearing having been
issued and served by the General Counsel of the National Labor Relations Board;
and an answer having been filed by each of the above-named Respondents, a hearing
involving allegations of unfair labor practices in violation of Section 8(a) (1) and (3 )
and 8 (b) (1) (A) and (2) of the National Labor Relations Act, as amended, was held
in Biloxi, Mississippi, on November 3, 1959, before the duly designated Trial
Examiner.
At the hearing all parties were represented and were afforded full opportunity to be
heard, to examine and cross-examine witnesses, to introduce evidence pertinent to the
issues, to argue orally, and to file briefs. Briefs have been received from all parties.
Accompanying the brief received from the Respondent was a motion to correct the
transcript in certain minor respects, with showing that the said motion had been
served upon other parties. No objection having been received, said motion is hereby
granted and made a part of the record.
Disposition of the motions to dismiss, upon which ruling was reserved at the con-
clusion of the hearing, is made by the following findings, conclusions, and recom-
mendations.
Upon the entire record in the case, and from his observation of the witnesses, the
Trial Examiner makes the following:
FINDINGS of FACT
1. THE BUSINESS OF THE RESPONDENT COMPANY
Southern Electrical and Pipefitting Corporation is an Alabama corporation, en-
gaged in contracting for and installing of electrical and pipefitting facilities on con-
struction work in Mississippi and other States. It has an office in Mobile, Alabama,
and shops located at mills of the International Paper Company at Natchez, Missis-
sippi, and Bastrop, Louisiana.
The Respondent is a wholly owned subsidiary of the International Paper Company,
a New York corporation, with its principal office in New York, New York. The
Respondent's services are performed almost exclusively for the Southern Kraft Divi-
sion of the International Paper Company, which division operates 10 mills in 6
Southern States, including the Moss Point mill located at Creole, Mississippi, the one
location with which this proceeding is concerned.
During the year preceding issuance of the complaint, the Respondent performed
services for the International Paper Company for which it received more than
$50,000.
The Respondents concede, and it is found, that Respondent Southern is engaged in
commerce within the meaning of the Act.
U. THE LABOR ORGANIZATION INVOLVED
Local Union No. 568, United Association of Journeymen and Apprentices of the
Plumbing and Pipefitting Industry of the United States and Canada, AFL-CIO, is a
labor organization within the meaning of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Setting and major issues
Out of two undisputed facts arise at least two major issues in marked dispute. The
two facts are: (1) early in October 1958, Respondent Southern entered into a written
contract with United Association (named in the title above as a "party to the contract"
but not as Respondent), but not with the Respondent Local No. 568; and (2) in
November 1958, Charging Party Ray Booker, was not hired by the Respondent
Southern. The two major issues in dispute are: (1) whether or not Booker was
illegally refused hire by Respondent Southern after Respondent Local failed, upon
SOUTHERN ELECTRICAL AND PIPEFITTING CORPORATION 51
Booker's request , to issue the referral required by Respondent Southern ; i and (2)
whether or not there existed at the time any contract , practice , or oral understanding
between the two Respondents which unlawfully accorded to Respondent Local No.
568 exclusive control over the selection of Southern 's employees in the pertinent
crafts.
B. The refusal to hire Booker
1. Application for employment
As noted above, there is no dispute that Booker was not hired at any time by
Southern. Counsel for the same Respondent conceded at the hearing that Booker
and O . F. Hendrix , then local manager at the Moss Point project , had a "conversa-
tion" on the morning of November 19, 1958 , but he contends that no application for
work was made. The testimony of Hendrix and J . C. King , then job steward for
Local No . 568, who claimed that he was present on the occasion , creates a question as
to whether Booker made an effective application for employment and whether or not
Hendrix told him that he must first clear through Local No. 568.
Despite an attitude displayed by Booker during the hearing (plainly revealed by
the record ) which indicated that he was probably more skilled in the use of a
heavy pipe-wrench than in the art of making courtroom friends,2 and although his
testimony is without corroboration by any other witness on his behalf, the Trial
Examiner is persuaded that his account of the interview on November 19 is deserv-
ing of credence . It is found that he effectively applied for a job. It is further found
that Hendrix made it clear to Booker that work was, or shortly would be, available,
but that he must first obtain clearance , or referral , from Local No. 568 . Such find-
' ings rest upon the following factors:
(a) Competent cross-examination failed to shake Booker's testimony on direct
that: (1) after being informed at the project office of Hendrix's authority to hire he
awaited the manager 's arrival at the mill gate; ( 2) when Hendrix arrived he intro-
duced himself and said he was "a fitter looking for a job "; ( 3) Hendrix said he
"would need some more in a few days," but added, "you will have to clear through"
Local No. 568; and (4) when he indicated that he did not know where that local's
office was, Hendrix referred him to someone nearby for directions.
(b) On the other hand cross -examination of Hendrix seriously impaired the re-
liability of his testimony concerning this incident-his account being to the effect
that Booker merely asked "how work was in that area," and "what local union's
jurisdiction was this job working out of ," and denying both that Booker asked for
a job or said he wanted work and that he told Booker he would have to clear through
the Union . On cross-examination Hendrix flatly denied that Booker told him either
that he was a pipefitter or that he was "interested in getting pipefitting work." Yet
there is in evidence a sworn statement , with which he was confronted and which
Hendrix admitted having given to a Board agent in December 1958. Among other
things that statement says: "He (Booker) said that he was a pipefitter and interested
in that kind of work." Also on cross-examination Hendrix flatly denied that one
Harrison, an employee he claimed he had hired directly, had "never had" an "intro-
ductory slip" from Local No. 568. This testimony is contradicted by Business Agent
E. J. Dedeaux, of Local No. 568, who testified that he signed such a "referral slip"
for Harrison. Of additional bearing upon Hendrix's credibility, is the conflict be-
1 The relevant language of the complaint is of the customary crippled conjunctive
variety. It claims that Southern refused "to hire or employ" Booker because he "did not
have membership in and / or approval and/or referral from Local 568 and/or United
Association."
2 Early in the hearing Booker accused General Counsel of failing to subpena "a long list
of witnesses" he had produced and said : "I have reason to believe that I am fixing to get
the run-around " He then asked for, but was denied, "a postponement of the case" so he
could consult with his "private attorney , Federal officials , Senators , and what have you "
Later he accused the Regional Director of declining , as he had requested , to include the
United Association as a Respondent in the charge he filed. When requested to take the
oath he replied : " I will take the oath but I will not answer any questions other than
that that pertains to the case unless I be allowed to ask questions that date back
years ago."
52 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tween his testimony that in hiring pipefitters it was his practice to "call Mr. Dedeaux"
and his previously executed affidavit which states: "As a matter of fact we do not hire
through the union."
(c) The claim made by Hendrix and King that Booker himself raised the question
of what union had jurisdiction over the job is doubtful on its face . As Booker said
on cross-examination , "I didn't ask the question , not having a clear card ." As noted
more fully below, Booker had been in disrepute in the United Association for many
years. It may be taken as common knowledge that no craftsman , certainly one of
Booker's long experience , would volunteer to obtain clearance on a union job without
a clear card.
(d) Finally, although admitting that he received it, Hendrix never replied to the
following letter addressed to him , bearing the date of November 21, 1958, from
Booker:
On Nov. 19, 1958 , I contacted you at the Guard gate, where new construc-
tion of the Paper Mill is in progress ; in regards to my going to work for you
as a pipefitter. You told me you had four or five at the present and could use
some more in a few days, but I would have to clear through Local Union 568,
Gulfport, Miss.
I saw the Business Agent, E. G. Dedeaux today. He gave me no considera-
tion , but under the State and U.S. Right to Work Laws, consideration from
him is not absolutely necessary.
Therefore, since I forgot to leave my address it is 1329 East Howard Ave.,
Biloxi , Miss . Can be reached at-ph Id-6-6309 (Biloxi).
As a witness, Hendrix made no claim that the foregoing letter was ambiguous, or
that he did not consider it a reapplication for employment . And had Hendrix, at
the time of receiving the letter, had any serious disagreement with the version con-
tained therein of his previous interview with the applicant, it is reasonable to believe
that a man of his business stature would have hastened to record such disagreement
by making a prompt reply.3
2. The application for clearance
As with Hendrix, there is no dispute that Booker saw and conversed with Business
Agent Dedeaux of Local No. 568. There is dispute as to what was said when he
was at the Local's office.
Dedeaux would have it believed that Booker merely asked for his official help in
getting his union book "straightened out," did not ask for referral to any job,
said nothing about wanting work and indeed said nothing that gave him the "impres-
sion that he was interested in working ." 4 Now Booker, at the hearing, evinced a
character which may be termed aggressive and even eccentric , but he appeared neither
naive nor unintelligent . Having observed both witnesses , present throughout the
hearing, and in view of other circumstances established by the record, the Trial
Examiner cannot believe that Booker simply called upon a strange business agent
of a strange local to ask for help in getting his book "straightened out" with the
International . Nor can the Trial Examiner credit Dedeaux 's testimony that he had
never heard of Booker before his visit . Local 568's counsel himself established that
shortly before this visit, while working at a shipyard in the same area, Booker had
"told everybody on every occasion that I intended to every time that I was able
and every time that I seen fit to picket local unions and the United Association across
the nation and I did ." The same counsel established that after Booker left the ship-
yard job, but before applying for work at Southern , he had been in Washington,
D.C., where he "picketed" both the "International and the AFL headquarters."
In addition to the foregoing reasons the Trial Examiner can place little reliance
upon Dedeaux's testimony because it contains a number of self-contradictions. The
business agent denied , as noted above , that Booker either asked for referral to any
job or told him he wanted work . Yet he claimed that he told Booker he would put
8 Although in some respects the testimony of Steward King tends to corroborate certain
portions of Hendrix 's testimony , the Trial Examiner can place small reliance upon it in
view of the facts that he was clearly not a disinterested witness, and that Hendrix's own
account was discredited by his previously sworn statement , as noted above.
' The last quotation is from Dedeaux's letter of December 29, 1958, to a Board agent.
SOUTHERN ELECTRICAL AND PIPEFITTING CORPORATION 53
him on the hiring list and that he did so . And while he denied that Booker told
him he "wanted to go to work here ," his voluntary admission to the Board agent,
in evidence , contains the sentence : "He told me that he moved over here and wanted
to go to work here ." On the contrary, the Trial Examiner accepts as credible the
testimony of Booker , and finds as follows:
(a) On November 20, the day after his conversation with Hendrix , Booker went
to the office of Local No . 568. He told the office secretary that he had been to the
paper mill , found that they would be needing fitters in a few days , and had come
there to see about clearance . The secretary told him that Dedeaux was not there
but would be the next day . Booker gave her his delinquent book and she took down
his name and card number.
(b) The next day, November 21, Booker found Dedeaux in his office. He ap-
proached-the business agent at his desk and handed him his card . He told Dedeaux
that Hendrix had said he would need fitters in a few days and would like the business
agent's help in getting his book straightened out. He further said that he had a
"job apparently" and all he "needed was his okay ." To Booker's plain request for
his "okay," Dedeaux merely replied that he already "had men loafing," and in
response to the request for aid in clearing his book, told him to go to the local which
had issued the book . Booker walked out.
The Trial Examiner concludes and finds that Booker asked for, but was effec-
tively denied, a referral to the Southern job by Business Agent Dedeaux , a responsible
agent of Local No. 568.
3. The discriminatory refusal to hire
It has been found above that on November 19 Hendrix conditioned the hiring of
applicant Booker upon his first obtaining clearance from Local No. 568. It has
also been found that, immediately after failing to receive such clearance Booker so
informed Hendrix in the above-quoted letter . Hendrix did not reply . Under the
circumstances described, Hendrix 's failure to reply was tantamount to an outright
refusal to hire, since it was he who imposed the condition of hiring. There is
evidence , undisputed , that at least one fitter , Harrison, was referred to the Southern
job on November 21, the same day Booker was denied referral . And other evidence
establishes that many jobs were available shortly thereafter.
The Respondent Southern makes no claim that Booker was incapable of performing
any job at the project or that there was no job available , but rests its case solely on
the contention ,that Booker made no real application for any job.
On the basis of the foregoing findings, the Trial Examiner concludes and finds that
Respondent Southern , to encourage membership in Local 568 , and in violation of
Section 8 ( a) (3) of the Act , discriminatorily conditioned Booker's employment upon
his first obtaining referral from Local 568 , and thereafter refused him employment
because he failed to obtain such clearance. Such discrimination constituted inter-
ference, restraint , and coercion of employees in the exercise of rights guaranteed by
the Act.
C. Accountability of Local 568 for the illegal discrimination against Booker,
and the unlawful hiring hall arrangement
Attention is now turned to the question as to whether or not the Respondent Local
Union No . 568 caused the Respondent Southern unlawfully to discriminate against
applicant Booker and employees generally. Not only by double-barreled but
even derringer allegations General Counsel contends that Local 568 caused the Em-
ployer to violate Section 8 ( a) (3) of the Act. It is his claim that the two Respondents,
"by practice and/or ( the) understanding and/or agreement" have delegated to the
Local "exclusive and unilateral control over the selection of pipefitters and plumbers
to be hired and/or employed" at the Moss Point mill project. Both Respondents
deny the allegation.
Since by nature of the terms "practice" and "arrangement" are related and dis-
tinguishable from a formal agreement , which other portions of the complaint identify
as a written contract between Southern and United Association, parent of the Local,
the Trial Examiner appraises these two factors together.
54 . DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The, preponderance of credible evidence ; establishes, and, it is found, that since
the project in question opened in October 1958, both by practice and mutual under-
standing the Respondent Southern has hired. only pipefitters and plumbers obtained
through or cleared by Local 568. The testimony of Steward King is to the effect
that of the 60 employees in the crafts, at the highest peak of employment, he knew
of no exception to the rule that all had received "introductory slips" or oral clearance
from Dedeaux. Manager Hendrix testified, when asked as to his practice in such
hirings, said, ". . . ordinarily we would call Dedeaux . . . tell him that we needed
some welders, some pipefitters . . : whatever we were working on . . . he would
send a little slip of paper introducing Mr. So-and-So with his name on it as a pipe-.
fitter, pipefitter welder, or apprentice." Hendrix could name but a single indi-'
vidual-his own brother-whom he said without contradiction had not been cleared
through Dedeaux.5 And as found above, Hendrix told applicant Booker that to be
employed there he must first clear with Local 568. Finally, Dedeaux testified that
he had an "oral understanding" with Southern that "they will call and if I have men
available I send them what they need. If I don't I get them pretty quick from
other places."
The testimony quoted above fully establishes the bilateral nature of the practice,
arrangement, and understanding between the Respondents. It warrants the con-
clusions, here made, that such practice and understanding constituted an unlawful
hiring hall, in violation of Section 8(a)(3) and (1) and 8(b)(2) and (1) (A) of
the Act.6
The Trial Examiner further concludes and finds that pursuant to the illegal hiring
hall arrangement, Local 568 caused Southern to violate Section 8(a)(3) of the Act
by refusing to hire Booker, and thus violated Section 8 (b) (2) and (1) (A) of the
Act.7
Finally, it is concluded and found that by the above-described exclusive hiring
arrangement, Respondent Local Union No. 568 has caused Respondent Southern to
encourage, and Respondent Southern has encouraged, union membership to obtain
or retain employment, thereby coercing employees hired pursuant to such agreement
to pay union initiation fees and dues, and other moneys unlawfully exacted from
them.8
In view of the foregoing findings and conclusions, the Trial Examiner believes it
unnecessary to make findings relative to the existing contract between Southern and
United Association. General Counsel makes no claim in the complaint that the
contract, per se, is unlawful, but in effect contends only that it has not been properly
administered in that certain Mountain Pacific safeguard provisions have not been
effectuated. And whether or not Local 568 entered into its unlawful arrangement
with Southern because it is governed by the United's constitution is immaterial
to the issues in this case, in the opinion of the Trial Examiner. The arrangement
itself, its inherent coercive effect upon employee rights, and the unlawful acts per-
formed pursuant to it-not its ancestry-appear to be the real issues. And these
have been resolved above.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondents set forth in section III, above, occurring in
connection with the operations of Respondent Southern 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 Respondents have engaged in the unfair labor practices
described above, the Trial Examiner will recommend that they cease and desist
therefrom and take certain affirmative action designed to effectuate the policies of
the Act.
5 As noted above, his claim that employee Harrison was not cleared by Local 568 was
refuted by Dedeaux.
s Armco Drainage & Metal Products, Inc., 123 NLRB 1833; Fluor Company, Ltd., 122
NLRB 1374 ; Mountain Pacific Chapter of the Associated General Contractors, Inc., et al.,
119 NLRB 883.
7Mohawk Valley and Vicinity District Council, et al., 109 NLRB 522.
8 Armco Drainage & Metal Products, Inc, supra.
SOUTHERN ELECTRICAL AND PIPEFITTING' CORPORATION 55
It has been found that both Respondents are jointly responsible for the unlawful
discrimination against Ray E. Booker. Accordingly, it will be recommended that
the Respondent Local notify the Respondent Southern that it has no objection to
Booker's hire, and that the Respondent Southern offer him immediate employment
at the Moss Point project without loss of seniority or other rights and privileges.9
It will also be recommended, that the Respondent jointly and severally make him
whole for any loss of pay suffered as a result of this discrimination against him.
The backpay recommended herein shall be computed in accordance with the formula
stated in F. W. Woolworth Company, 90 NLRB 289. While the record does not
precisely fix the date when a job opportunity actually opened on and after Novem-
ber 19, 1958, this can be determined in compliance proceedings.
It has been found that the hiring arrangement between the Respondents is un-
lawful, in that it effectively provides for an exclusive hiring hall which does not meet
Mountain Pacific standards. It will therefore be recommended that the Respondents
cease and desist from entering into, performing, maintaining, or otherwise giving
effect to any agreement or arrangement which conditions employment on member-
ship in or clearance through the Respondent Local or which provides for an exclu-
sive hiring arrangement without containing the Mountain Pacific safeguards properly
administered.
As the unlawful hiring provisions necessarily had the effect of coercing the em-
ployees of the Respondent Southern into making dues and other payments to the
Respondent Local, and because the Board has found in many cases that it does not
effectuate the policies of the Act to permit the retention of such payments, it will
be recommended that reimbursement of such moneys be made to all past and
present employees hired by Southern at the Moss Point project, in,the crafts under
the jurisdiction of the Respondent Local.'° Reimbursement shall be made jointly
and severally by the Respondents."
Upon the basis of the foregoing findings of fact and upon the entire record in the
case, the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. Local Union No. 568, United Association of Journeymen and Apprentices of
the Plumbing and Pipefitting Industry of the United States and Canada, AFL-CIO,
is a labor organization within the meaning of Section 2(5) of the Act.
2. By refusing employment to applicant Ray E . Booker on or about November
21, 1958 , thereby encouraging membership in the above-named labor organization,
the Respondent Southern has engaged in and is engaging in unfair labor practices
within the meaning of Section 8(a) (3) of the Act.
3. By maintaining and enforcing an unlawful hiring hall arrangement with the
above-named labor organization, the Respondent Southern has engaged in and is
engaging in unfair labor practices within the meaning of Section 8(a) (3) of the Act.
4. By interfering with , restraining , and coercing employees in the exercise of
rights guaranteed by the Act the Respondent Southern has engaged in and is engag-
ing in unfair labor practices within the meaning of Section 8(a) (1) of the Act.
5. By causing and attempting to cause the Respondent Southern to violate Section
8(a)(3) of the Act, in refusing hire to Ray E. Booker, the Respondent Local Union
No. 568 has engaged in and is engaging in unfair labor practices within the meaning
of Section 8(b) (2) of the Act.
6. By maintaining and enforcing an unlawful hiring hall arrangement with the
Respondent Southern, the Respondent Local Union No. 568 has engaged in and is
engaging in unfair labor practices within the meaning of Section 8 (b) (2) of the Act.
9 Although the record Is not entirely clear on the point , It appears that at the time of
the hearing construction was still in progress.
lU Nassau and Suffolk Contractors ' Association, Inc., et at., 123 NLRB 1393; Local
Union No. 450, International Union of Operating Engineers , AFL-CIO, etc. ( Tellepsen
Construction Company ), 122 NLRB 564; Funeral Directors of Greater St. Louis, Inc.,
et al ., 125 NLRB 241.
u The evidence indicates that hiring of the relevant crafts on this project began shortly
before November 19, 1958, well within the 6-month period before the charge was filed, on
December 3, 1958. In the event that at compliance proceedings It is discovered that such
construction actually began earlier than the beginning of the statutory date, reimburse-
ment will of course be limited in accordance with Board policy.
56 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
7. By restraining and coercing employees in the exercise of their rights guaranteed
by Section 7 of the Act, the Respondent Local Union No. 568 has engaged in and is
engaging in unfair labor practices within the meaning of Section 8(b) (1) (A) of
the Act.
8. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
Hemisphere Steel Products , Inc. and Local 810, International
Brotherhood of Teamsters , Petitioner. Case No. 3-RC-11192.
April 7, 1961
DECISION ON APPEAL
On January 18, 1961, the Petitioner filed a petition with the Re-
gional Director for the Second Region, seeking an election in a unit
of all production and maintenance men at the Employer's Brooklyn,
New York, factory. On February 1, 1961, the Regional Director dis-
missed the petition as untimely filed during the insulated period of the
collective-bargaining agreement. Pursuant to the Board's Rules and
Regulations, the Petitioner filed an appeal from the Regional Direc-
tor's dismissal of the petition, asserting in substance that the Regional
Director erred in interpreting the contract as expiring on March 18,
1961, rather than on March 19, 1961, and therefore erroneously ruled
that the present petition was untimely filed with the Board. For the
reasons set forth hereinafter, the Regional Director's dismissal is
sustained.
OPINION
The case presented by this appeal is whether the contract is to be
construed as expiring on March 18 or 19, 1961. The facts show that
the contract extends from March 19, 1959, "to March 19, 1961."
The Board has held in conformity with the general rule of construc-
tion, that in the absence of specific expression to the contrary, a con-
tract in effect until a day certain is to be construed as not including the
date named after the word "until." Williams Laundry Company, 97
NLRB 995. See also Bouvier 's Law Dictionary, 3d edition, page
3377, cited in footnote 3 of the above-named case. As noted in that
case, there is nothing in the present contract to indicate a contrary in-
tention. We conclude, accordingly, contrary to the contention of the
Petitioner, that the Regional Director properly construed the contract
as not including the date named after the word "to," which we regard
as synonymous with the word "until," and that in dismissing the peti-
tion herein, which was filed on the 60th day preceding the expiration
131 NLRB No. 13.