Del E. Webb Construction Co.

DEL E. WEBB CONSTRUCTION COMPANY 75 takes dictation for correspondence between the station superintendent and his superiors dealing with the disposition of grievances, and has access to all files involving the station superintendent's relations with the Union. As it appears from these facts that this employee acts in a confidential capacity to the station superintendent in the exer- cise of his managerial functions in connection with labor relations, we shall exclude her from the unit .9 The timekeeper.-The Employer employs one timekeeper at its Chester station. She works in the office, and under the supervision of the station superintendent, keeping records of the time worked by other employees, the wages paid them, and similar information. The Employer wishes to exclude her from the unit on the ground that she has no community of interests with the production and main- tenance employees. She has in the past been included in the unit, and the Union wishes to continue to include her. Upon the entire record, we find that the timekeeper may appropriately be included in the unit.10 Accordingly, we find that all the production and maintenance em- ployees at the Employer's Chester, Pennsylvania, station, including the chief boiler operator, the chief assistant running engineer, the chief electrical mechanic, the chief hoisting engineer,"' the store- keeper B, the head janitor, and the timekeeper, but excluding the gatemen, the stenographer to the station superintendent, professional employees'12 and supervisors as defined in the Act, constitute a unit appropriate for the purpose of collective bargaining within the mean ing of Section 9 (b) of the Act. [Text of Direction of Election omitted from publication in this volume.] $ Minneapolis-Moline Company, 85 NLRB 597. 10 Aluminum Company of America (Harvard Plant, Cleveland ), 80 NLRB 1342. 11 For the reasons set forth above , the inclusion of the individuals in the last four categories is not to be taken as a final determination of their status as supervisors, but is solely for the purpose of permitting them to vote subject to challenge. 12 The parties do not contest, and the record establishes that the investigators of plant tests and the plant chemist are professional employees within the meaning of the Act. DEL E. WEBB CONSTRUCTION COMPANY and JOHN WORDS INTERNATIONAL HOD CARRIERS ', BUILDING AND COMMON LABORERS' UNION OF AMERICA , CONSTRUCTION AND GENERAL LABORERS UNION No. 264, A. F. OF L. and JOHN WORDS . Cases Nos. 17-CA-249 and 17 CB-19. July 11, 1951 Decision and Order On December 26, 1950, Trial Examiner George A. Downing issued his Intermediate Report in the above-entitled proceeding, finding that 95 NLRB No. 17. 76 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Respondents had engaged in and were engaging in certain unfair labor practices, and recommending that they cease and desist there- from, and take certain affirmative action, as set forth in the copy of he Intermediate Report attached hereto. The Trial Examiner also found that the Respondent Company had not engaged in certain other alleged unfair labor practices and recommended that the complaint 'be dismissed in this respect. Thereafter, the. Respondents each filed exceptions to the Intermediate Report and supporting briefs. The Respondent Union also filed a request for oral argument. The request for oral argument is denied as the record and exceptions and briefs, in our opinion, adequately present the issues and the positions of the parties. The Board 1 has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner, with the following additions : 2 1. We find, as did the Trial Examiner, that on November 15, 1949, the Respondents entered into an oral agreement or arrangement -whereby Respondent Webb agreed'to hire as laborers only members.of the Union referred to it by the Respondent Union, and that by enter.- ing into, being parties to, and enforcing said agreement or arrange- ment, Webb violated Section 8 (a) (1) and (3) of the Act, and the Union (by attempting to cause a violation of Section 8 (a) (3) ) violated Section 8 (b) (2) of the Act. The. Respondents concede that at the November 15 conference the Union agreed, at Webb's request, to supply or refer common laborers to Webb. They deny, however, that this agreement or arrangement obligated Webb to hire only union laborers referred to it by the Union. The agreement, if any, the Respondnts argue, was in the nature of a legitimate hiring-hall arrangement, which did not restrict or limit the Employer's power to hire.3 As detailed in the Intermediate Report, the November 15, 1949, 1 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 Herzog and Members Murdock and Styles]. 2 The assertion of jurisdiction over the Respondents is clearly in accord with existing Board Policies . Although the inference might reasonably be drawn that the inflow of materials from out of State for the project here involved would alone be sufficient on a 12-month basis to warrant the assertion of jurisdiction under existing policies, the Respondent Webb, clearly meets another test for the assertion of jurisdiction which alone requires such assertion. Thus it is an enterprise operating on a multistate basis, and performing services valued at more than $25,000 per year outside of its home State of Arizona. Arthur G. McKee and Company, 94 NLRB 399; The Borden Company, Southern Division, 91 NLRB 628; Stanislaus Implement and Hardware Company, Limited, 91 NLRB 618. 3 Webb was a member of the National Association of General Contractors. As a member of this Association, Webb was obligated on coming to Kansas City to accept the job working conditions established by the Builders' Association and the District Council DEL E. WEBB CONSTRUCTION COMPANY 77 agreement was entered into against a background of closed-shop con- ditions which had existed for years in the building and construction industry in Kansas City. Until March 31, 1949, the Builders' Asso- 'ciatiom was party to a master closed-shop agreement with the Dis- trict Trades -Council and to separate contracts with each craft union that was a -member of the District Trades Council, including the Re- spondent Union, which contracts incorporate the terms of the master agreement and covered the conditions peculiar to each craft. These agreements were not renewed following their expiration, nor does the record show that the parties thereto entered into any further formal written agreement. New wage scales, however, were there- after negotiated and understandings reached as to certain job conduct and job conditions between the Builders' Association and the Re- spondent Union. The hiring-hall arrangement or the referral practice, which had prevailed at least since 1940, was continued in effect after the last closed-shop contracts expired on March 31, 1949. In fact, in July of that year the. referral practice was strengthened by the Respondent Union by the initiation of daily records of work referrals; in order to assure the equitable distribution of available jobs. At the times material to this case, the building industry in Kansas City was 98 percent -unionized. Under these circumstances, any hiring-hall ar- rangement, as a concomitant of the preexisting closed-shop conditions, must be carefully scrutinized for any indication that it was intended to perpetuate those conditions after the expiration of the formal closed-shop contracts. That such was. the purpose of the hiring-hall arrangement of No- vember 15 is strongly indicated by Construction Superintendent Neil's acceptance of La. copy of the union rules under the" circumstances amounting to an implied assent to abide by the rules. Neil arranged for the meeting with the representatives of various trade unions in order to establish good relations and to assure Webb of a continuous supply of-laborers. At-the-meeting at which the agreement was made, Union Representative Jarrett advised Webb's representatives that un- der the Union's rules all laborers sent to Webb would get a clearance or a referral card from the Union, and that when a certain number. of union laborers had been hired, a member of the Union would have to be designated by Webb as laborer foreman. Other union rules were also discussed at the meeting and Neil was given a copy of the union-rules 4 Neil testified that because of his prior familiarity with Webb, in fact, checked with the Association to determine what local conditions had been prescribed. Webb was also familiar with these conditions because it had done business in that area before.. * Neil testified that it was his practice and policy to follow unions' working rules "to the best of his ability," because, "if you have no other source of obtaining the trades . . [except] that one source then naturally you are going to abide by their working rules." 78, DECISIONS OF NATIONAL LABOR RELATIONS BOARD the rules he did not have to read them. Among other things, the rules provided: (a) That a member of the organization, designated by the business representative "shall act as Steward on every job"; (b) that "all employees must, after being hired, report to the Steward before starting to work"; and (c) that, "where six or more members` are em- ployed, a member of organization shall be designated as labor fore- man." If, as the Respondents contend, the agreement was merely to supply Webb, on request, with common laborers, there would have been no need to impose upon Webb the conditions that "all employees" be required to report to the union steward before starting work. The, very nature of the condition indicates that it was predicated upon recognition of the closed-shop practice. . Further evidence that the agreement reached at the November 15 meeting provided for hiring union members who. were referred by the Union is found by the manner in which it was carried out. Thus, all of the 80 to100 common laborers hired by Webb during the period in question were union members. Indeed, Webb hired all its laborers through the Union. Jarrett, assistant business agent of the Union, testified that all applicants for assignments to the project were re- quired either to become members of or at least to take out a "permit" (application for membership) in the Union. Moreover, only those union members who possessed referral slips from the Union were hired by Webb.5 Policing of the November 15, 1949, agreement was assured by the presence of the Union's stewards on the project. According to Jarrett, it was the steward's function to check the referral slips and the union cards of new employees; and in no instance did the stewards report the presenceof nonunion employees on the project. Frequent visits to the project by union representatives further assured ' the . Union of strict adherence to the agreement by Webb. The Union in its brief argues that, even assuming that the record contains evidence of a discriminatory hiring practice by Webb, such evidence does not constitute proof of the existence of an agreement between Webb and the Union requiring such practice. This argument might have some persuasiveness were it not for the fact affirmatively established by the record that on November 15, 1949, the Respondents entered into an agreement obligating Webb to hire only union mem- bers referred to it by the Union and that Webb's policy was the in- tended consequence of that agreement. 5In several instances union members who resided in outlying towns and communities and as to whom the Union had recognized an exception , were hired on the Webb project without a referral slip, but these men later reported to the union hall for clearance. It was Webb's hiring of such applicants without prior union clearance that occasioned Jarrett's visit to the job and his conversation with Neil early in December , in which Jarrett invoked a strict adherence. to. the referral card arrangement. DEL E. WEBB CONSTRUCTION COMPANY , 1 79 We conclude, therefore, that on November 15, 194:99 the Respondents became parties to an oral agreement or arrangement whereby the Union undertook to supply Webb with all the common laborers it needed, and Webb agreed to employ only union members who had first received work orders from the Union. We further conclude that, as the agreement provided for a discriminatory hiring practice and -created conditions which would and did result in future discrimina- tions, the Respondents violated the Act by entering into it. The fact that the agreement. was oral rather than written makes it no less viola- tive of the Act, for in either case such an agreement creates conditions which may be expected to result in future discrimination. Accord- ingly, we find, as did the Trial Examiner, that by becoming parties to, and performing, the discriminatory referral and hiring agreement or arrangement, Respondent Webb violated Section 8 (a) (1) and (3) of the Act, and the Respondent Union (by attempting to cause a violation of Section 8 (a) (3)) violated Section 8 (b)' (2) of the Act.,, 2. The Trial Examiner also found that by refusing to employ John Words, Booker Armstrong, and James Ellis on December 12, 1949, the Respondent Webb discriminated against them in violation of Section 8 (a) (3) and (1), and that by causing Webb so to discriminate against said employees, the Respondent Union violated Section 8 (b) (2) and 8'(b) (1), (A) -of-the Act. With the modifications set forth below, we agree with these findings. The Respondent Company contends that no proper application for employment was made by the complainants on December 12, 1949, when jobs were available, because neither Richardson, then a rank- and-file employee, nor Carpenter Foreman Brown, the persons to whom the application was. made, had authority to hire common labor- ers, andthat therefore the action of Richardson and Brown in sending the men to the Union for a work order cannot be construed as a refusal to employ by Webb. We find this contention without merit. ' Brown was carpenter foreman in charge of the construction of two buildings where he supervised the work of the carpenters and the common laborers assigned to him. Brown had authority effective- ly to recommend the discharge of the employees under his supervision: Brown also had authority to recommend the hire of additional men, or "any one man that he knew," if he needed them, and his recom- mendations in this respect were usually followed by Construction 6 Daniel Hamm Drayage Company, Inc., 84 NLRB 458, enfd. 185 F. 2d 1020 (C. A. 5) ; National Union of Marine Cooks & Stewards, 90 NLRB 1099; Acme Mattress Company, Inc., 91 NLRB 1010 , Childs Company, 93 NLRB 281. 80 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Superintendent Neil or General Labor Foreman Maslen.?' We find that Brown had the authority to make an effective recommendation as to the hiring of additional help and/or the hiring of any particular man to work under his supervision. It follows, therefore, that it was also within the scope of his authority to accept the applications of persons seeking employment as common laborers under his super- vision--and to advise-them of the steps they must take to.complete their, application. We find, therefore, that, on-, December. 12, the complainants made a proper application for employment. We find also that Webb was responsible for Brown's conduct in referring the complainants to the Union for clearance. Any doubts as to Brown's authority to entertain the application for employment from the complainants were dispelled by the events of December 13. That evening Brown advised Construction Superin- tendent Neil of the complainants' application for employment. Neil looked at the names and said "Oh, Oh, we'd better hold up on that. It looks like we may be in a j am on these men." Neil also mentioned the possibility of a lawsuit. Neil did not, question Brown's authority to accept the application or to request the employment of these men, nor did he base his denial of employment upon the ground that there were no jobs available. The sole reason for the refusal of employment. was Neil's apprehension that their employment might result in some difficulty for Webb. As the Trial Examiner found„and;we agree, Neil was referring to Jarrett's earlier demand for strict compliance with the discriminatory hiring and referral arrangement.. Accordingly; we find that Neil's reason for refusing to hire the complainants on December 13 was based upon unlawful hiring agreement between Webb and the Union. While the Respondent Company admits -that the application for employment was completed on the evening of December 13, it argues that the denial of employment by Neil was not discriminatory because at that time there were no jobs available, the Union having suppliect Webb with the requested number of common laborers that morning. Brown,.on whose project the complainants would have worked and vgho was in the position to know whether he had need' of their services, continued on the' evening of December 13 to press their application. Neil did not base his refusal to employ these men on the fact that no, jobs were available but on the ground that to, employ them might ' On this point Neil testified as follows : Q. Can you state whether Mr . Brown had authority to hire employees hinrself? A. Mr. Brown , the understanding was when he wanted additional men he would come up to the office and ask for additional men or any one particular man that he knew. Now, naturally, as superintendent of the job I have a following of key men. and any good foreman has a following of good men and these men follew these men around and in order to get a good organization together naturally you take the men you know'and the men that your foremen know. Q. Did Mr. Brown have authority to request additional help if he felt he needed it? A. Absolutely. DEL E. WEBB CONSTRUCTION COMPANY 81 involve the Company in trouble with the Union. The evidence indi- cates that at this time Webb was increasing its labor force and that a few days later it placed with the Union another request for eight additional common laborers. Thus, while it appears that at the precise moment when the application for employment was refused, jobs might not have been available, it is also clear that Webb was then in the .process of. adding to its labor force and that but for thek complainants' failure to obtain a referral slip from the Union, they would have been hired the evening of December 13. Assuming, however, that at the time of the refusal of employment' no jobs were immediately available for the complainants, that cir cumstance is no defense to the allegation of discriminatory refusal, to hire because, throughout the period in question, Respondent Webb continued unchanged its discriminatory referral and hiring arrange- ment. ' The applicants were advised that they would not be hired 'without prior clearance from the Union. Their efforts to obtain such clearance proved fruitless. Under these circumstances they were not: obliged to continue making the useless gesture of reapplication in order to establish Webb's responsibility for discriminatory practices against them.8 Upon the entire record we find that the Respondent Webb, by referring on December 12, 1949, the complainants to the Union for the purpose of obtaining work permits, and by denying on the eve- ning of December 13 their application for employment because of the existence of the discriminatory hiring arrangement and/or prac- tice, discriminated against the complainants in violation of Section 8 (a) (3) of theAct9 The Respondent Union contends that it did not cause or attempt to cause Webb to discriminate against the complainants. There is no evidence, the Union argues, that the charging parties would have been hired but for the hiring-hall arrangement, or that they failed to obtain employment due to their inability to obtain a referral slip from the Union. We find to the contrary.. Construction Superin- tendent Neil testified that he usually accepted the recommendations of his subordinate supervisors as to what men should be hired and that he could not recall having declined the request of a subordinate for additional help. As found above Neil denied Brown's request for employment of the charging parties because he thought that the failure to comply strictly with the referral arrangement would have 8 Daniel Hamm Drayage Company, Inc., 84 NLRB 458, 460, enfd 185 F. 2d 1020 (C. A. 5) ; Swinerton and Walberg Company, 94 NLRB 1079 ; Arthur G. McKee and Company, 94 NLRB 399; Cf. The Kellogg Company, 94 NLRB 526. B For reasons stated in the recent American Pipe and Steel Corporation case ( 93 NLRB 54) we find no nrerit in the Respondents' argument that because the complainants were already members of the Respondent Union. the refusal to hire them could not, as found by the Trial Examiner , have encouraged membership in a labor organization in violation of. Section 8 (a) (3). of the Act. 82 DECISI0149 OF NATIONAL 'LABOR RELATIONS BOARD involved Webb in trouble with the Union. Thus, it is apparent that the existence of the unlawful hiring-hall arrangement and its imple- mentation in practice, for which both Respondents were equally re- sponsible, was the reason Neil rejected the application. Although the Respondent Union did not request or demand that Respondent Webb refuse to hire the complainants, nevertheless the refusal to hire was the proximate result of the discriminatory referral and hiring arrangement which, on the part of the Union, constituted a violation of Section 8 (b) (2) of the Act as an attempt to vase Webb to discriminate against employees. As the Respondents are equally responsible for the unlawful hiring arrangement, they 'are also each responsible for its reasonably to be anticipated results. Accordingly, we find that the Respondent Union caused the Respond- ent Webb to discriminate against John Words, James Ellis, and Booker Armstrong in violation of Section 8 (b) (2) of the Act .10 We also find that by the aforesaid conduct, the Respondent Union' .violated Section 8 (b) (1) (A) of the Act." Order Upon the entire record in the case and pursuant to Section 10 (c) :of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that 1. The Respondent Company, Del E. Webb Construction Company, Phoenix, Arizona, its officers, agents, successors, and assigns, shall : a. Cease and desist from : (1) Encouraging membership in International Hod Carriers', Building and Common Laborers' Union of America; Construction and General Laborers' Union No. 264, A. F. of L., or in any other labor organization of its employees, by entering into, being a party to, performing, or in any manner giving effect to the referral slip agreement to the extent that such agreement expressly, impliedly, or in performance requires membership in the Union and the obtaining of a referral slip from the Union as a condition of employment, ex- cept to the extent that such agreement may subsequently be authorized as provided in Section 8 (a) (3) of the Act. 1 (2) In any like or related manner discriminating against or inter- fering with, restraining, or coercing employees or applicants for employment in the. exercise of the rights guaranteed by Section 7 of the Act, except to the extent that membership in a labor organi- zation may be required as a condition of employment as authorized in Section 8 (a) (3) of the Act. b. Take the, following affirmative action, which the ' Board finds will effectuate the policies of the Act.: 10 Childs Company, 93 NLRB 281. 11 Childs Company, supra; New York State Employers Association, Inc., 93 NLRB 127. DEL E. WEBB CONSTRUCTION COMPANY 83, (1) Offer to John Words immediate employment as a laborer, or, a substantially equivalent job, without .prejudice to his seniority or other rights and privileges; upon application by James, Ellis, em- ploy him as a laborer, or if there are no vacancies, place his name on a preferential hiring list and thereafter offer him employment as a laborer when such work becomes available and before new per- sons are hired for such work; and, jointly and severally with Re- spondent Union, make whole John Words, James Ellis,12 and Booker Armstrong for any loss of pay which each may have suffered by reason of the discrimination against him in the manner provided in the section of the Intermediate Report entitled "The Remedy." (2) Henceforth employ laborers without regard to their union membership, affiliation, or activity, and without regard to whether they have procured from the Respondent Union a referral slip or work order ; and take all reasonable steps and precautions to carry out and make effective said requirement. (3) Upon request, make available to the Board or its agents all pertinent records necessary to insure expeditious compliance with said recommended order. (4) Post at its main office in Phoenix, Arizona, and in its job office at Kansas City, Missouri, copies of the notice hereto attached marked "Appendix A." 13 Copies of said notice, to be furnished by the Re- gional Director for the Seventeenth Region, shall, after being duly signed by the Respondent Company's representatives, be posted by it immediately upon receipt thereof and be maintained by it for a period of at least sixty (60) consecutive days thereafter in conspicu- ous places, including all places where notices to employees are cus- tomarily posted. Reasonable steps shall be taken by the Respondent Company to insure that said notices are not altered, defaced, or covered by any other material. , (5) Notify the Regional Director for the Seventeenth Region in writing within ten (10) days from the date of this Order what steps it has taken to comply herewith. 2. The Respondent Union, International Hod Carriers', Building and Common Laborers' Union of America, Construction and General Laborers' Union No. 264, A. F. of L., its officers, representatives, agents, successors and assigns, shall: a. Cease and desist from : (1) Entering into, being a party to, performing, or in any manner giving effect to the referral slip agreement with the Company to the 12 The back pay to James Ellis is to be computed from December 12, 1949, to March 28, 1950, when he was referred to the Respondent Company for employment, rather than to April 11, 1950, as the Trial Examiner found in his Intermediate Report. "In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be inserted before the words , "A Decision and Order," the words, "A Decree of the United States Court of Appeals Enforcing." 961974-52-vol. 95-7 84 DECISIONS OF NATIONAL LABOR RELATIONS BOARD extent that such agreement expressly, impliedly, or in performance requires membership in the Union and the obtaining of a referral slip from the Union as a condition of employment, except to the extent that such agreement may subsequently be authorized as pro- vided in Section 8 (a) (3) of the Act. (2) In any other manner causing or attempting to cause Del E. Webb Construction Company to discriminate among employees or prospective employees in violation of Section 8 (a) (3) of-the Act, or in any other manner restraining or coercing employees or prospec- tive employees in the exercise of rights guaranteed by Section 7 of the Act, except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condi- tion of employment as authorized by Section 8 (a) (3) of the Act. b. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (1) Notify Del E. Webb Construction Company in writing, and furnish copies to John Words and James Ellis, that it has no objection to their employment by the Company. (2) Jointly and severally with Del E. Webb Construction Com- pany, make whole John Words, James Ellis, and Booker Armstrong for any loss of pay which each may hate suffered by reason of the discrimination against him in the manner provided in the Intermedi- ate Report in the section entitled "The remedy." (3) Post at its office at Kansas City, Missouri, and wherever notices to its members are customarily posted, copies of the notice attached hereto marked "Appendix B." 14 Copies of said notice, to be fur- nished by the Regional Director for the Seventeenth Region, shall, after being duly signed by the Respondent Union's representatives, be posted by it immediately upon receipt thereof and maintained by it for a period of at least sixty (60) consecutive days thereafter in con- spicuous places, including all places where notices to members are., customarily posted. Reasonable steps shall be taken by the Respond- ent Union to insure that such notices are not altered, defaced, or covered by any other material. (4) Forthwith return to the Regional Director for the. Seventeenth Region copies of the aforesaid notice furnished by the Regional Director, after signing such notices as provided in paragraph b (3), above. The Company willing, these notices shall be posted on the Company's bulletin boards where notices to employees are customarily posted, and maintained thereon for a period of sixty (60) days there- after. (5) Notify the Regional Director for the Seventeenth Region in 14 In the event that.this Order is enforced by a decree of a United States Court of Appeals, there shall be inserted before the words, "A Decision and Order," the words, "A Decree of the United States Court of Appeals Enforcing." DEL E. WEBB CONSTRUCTION COMPANY 85 writing within ten (10) days from the date of this Order what steps it has taken to comply herewith. IT IS FURTHER ORDERED that the complaint be dismissed insofar as it alleges that the Company has violated Section 8 (a) (4) of the Act. Appendix A NOTICE TO ALL EMPLOYEES 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, we hereby notify our employees that : WE WILL NOT encourage membership in INTERNATIONAL Hon CARRIERS, BUILDING AND COMMON LABORERS' UNION OF AMERICA,. CONSTRUCTION AND GENERAL LABORERS UNION No. 264, A. F. OF L.,, or in any other labor organization of our employees, by entering into, being a party to, performing, or in any manner giving effect to the referral slip agreement to the extent that such agreement expressly, impliedly, or in performance requires membership in the Union and the obtaining of a referral slip from the Union as a condition of employment, except to the extent that such agree- nient may subsequently be authorized as provided in Section 8 (a) (3) of the Act. WE WILL NOT in any like or related manner discriminate against or otherwise interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed by Section 7 of the Act. WE WILL offer to John Words immediate employment as a laborer, or a substantially equivalent job, without prejudice to his seniority or other rights and privileges; and upon application by James Ellis we will employ him as a laborer, or if there are no vacancies,. place his name on a preferential. hiring list and thereafter offer him employment as a laborer when such work becomes available and before new persons are hired for such work. WE WILL make whole John Words, James Ellis, and Booker Armstrong for any loss of pay which each may have suffered by reason of the discrimination against him. All our employees are free to become or remain or free to refrain from becoming members of the above-named union, or any other labor organization, except to the extent that such right may be affected by an agreement as authorized in Section 8 (a) (3) of the Act.. DEL E. WEBB .CONSTRUCTION COMPANY, 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. 86 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Appendix B NOTICE TO ALL MEMBERS OF INTERNATIONAL HOD CARRIERS', BUILDING AND COMMON LABORERS' UNION OF AMERICA, CONSTRUCTION AND GENERAL LABORERS' UNION No. 264, A. F. of L. 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, we hereby notify you that : WE WILL NOT enter into, be a party to, perform, or in any manner give effect to the referral slip agreement with the DEL E. WEBB CONSTRUCTION COMPANY to the extent that such agreement expressly, impliedly, or in performance requires membership in the union and the obtaining of a referral slip from the union as a condition of employment, except to the extent that such agreement may subsequently be authorized as provided in Section. 8 (a) (3) of the Act. WE WILL NOT in any other manner cause or attempt to cause DEL E. WEBB CONSTRUCTION COMPANY to discriminate against employees or prospective employees in violation of Section 8 (a) (3) of the Act, and we will not in any other manner restrain or coerce employees or prospective employees in the exercise of rights guaranteed by Section 7 of the Act, except to the extent that such rights may be affected by an agreement requiring mem- bership in a labor organization as a condition of employment as authorized by Section 8 (a) (3) of the Act. WE WILL notify DEL E. WEBB CONSTRUCTION COMPANY in writ- ing, and furnish copies to John Words and James Ellis, that we have no objection to their employment by the company. WE WILL make whole John, Words, Booker Armstrong, and James Ellis for any loss of pay which each may have suffered by reason of the discrimination against him. - INTERNATIONAL HOD CARRIERS' BUILDING AND COMMON LOBORERS' UNION OF AMERICA, CONSTRUCTION AND GEN- ERAL LABORERS' UNION No. 2,64, A. F. of L., Labor Organization. By ------------------------------------------------------------ (Representative ) (Title) Dated -------------------- This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. Intermediate Report and- Recommended Order STATEMENT OF THE CASE Upon amended charges duly filed by John Words, the General Counsel of the National Labor Relations Board, by the Regional Director for the Seventeenth DEL E. WEBB CONSTRUCTION COMPANY 87 Region ( Kansas City, Missouri ), issued an order consolidating these cases and a consolidated complaint on August 30, 1950, against Del E. Webb Construction Company, herein called Webb and the Company , and International Hodcarriers', Building and Common Laborers' Union of America, Construction and General Laborers' Union No. 264 , A. F. of L., herein called the Union and Local 264. The complaint alleged that the Company had engaged in and was engaging in un- fair labor practices affecting commerce within the meaning of Section 8 (a) (1), (3), and ( 4) of the National Labor Relations Act as amended , 61 Stat. 136, herein called the Act, and that the Union had engaged in. and was engaging in unfair labor practices within the meaning of Section 8 (b) (1) and (2) of the Act. Copies of the complaiht , of the said charges, and of the order consolidating the cases and notice of hearing were duly served upon the Respondents. With respect to the unfair labor practices, the complaint alleged in substance that the Respondents , prior to December 7, 1949, entered into an agreement or understanding (for the purpose of encouraging membership in the Union) that the Company would employ as laborers only individuals who had been referred to it by the Union and who had work orders issued by the Union ; that on or about December 12, 1949, the Company refused to employ John Words, Booker Armstrong, and James Ellis , because of the foregoing agreement or understand- ing ; and that on and after December 15, 1949, the Company refused to employ said individuals for the further reason that they had filed charges with the National Labor Relations Board. The Respondents filed separate answers which raised the question of jurisdic- tion of the Board and which denied the commission of unfair labor practices. The Union also pleaded that its acts were within the protection of Section 8 (c) and of the proviso of Section 8 (b) (1) (A). Pursuant to notice , a hearing was held at Kansas City, Missouri , on October 17, 18, and 19, 1950, before George A. Downing , the undersigned Trial Examiner duly designated by the Chief Trial Examiner. The General Counsel and the Respondents were represented by counsel and participated in the hearing. Full opportunity to be heard , to examine and cross -examine witnesses , and to intro- duce evidence pertinent to the issues was afforded all parties. Respondents made separate motions to dismiss on which ruling was reserved . They are disposed of by the findings herein . All parties participated in oral argument at the conclusion of the hearing. All parties were offered an opportunity to file briefs and proposed findings of fact and conclusions of law. All parties filed briefs, which have been considered. The Company also filed requested find- ings of fact and conclusions of law, on which the following rulings are made: Findings of fact Nos. 9, 10, 11, 18, 19, 20, 27, 28, 29, 30, 31 , 32, and 33 are hereby granted ; all others are denied. All of the requested conclusions of law are denied. Upon the entire record in the case and from his observation of the witnesses, the undersigned makes the following : FINDINGS OF FACT I. THE BUSINESS OF THE COMPANY Del E. Webb Construction Company, an Arizona corporation incorporated in 1946 with its principal office in Phoenix , Arizona, is an interstate construction contractor which submits bids for, and constructs, large projects in various parts of the United States. Several of such projects currently pending or recently 88 DECISIONS OF NATIONAL LABOR RELATIONS BOARD completed at the time of the hearing were hospitals, under contract with. the United States, for the Veterans' Administration as follows : Approximate Location : Contract Price Phoenix, Arizona_______________________________________ $4,000,000 Denver, Colorado ----------- I-------------------------- 10,000,000 St. Louis, Missouri________________________________ Over 2,000,000 Livermore, California ___y----------------------------- 3,000,000 Portland, Oregon_______________________________________ 3,500,000 Kansas City, Missouri__________________________________ 8,000,000 Webb similarly has engaged in the construction of large commercial and industrial projects such as a water treatment plant, a newspaper building, a department store building, a grain elevator, silos, and warehouses. It also built at Metuchen, New Jersey, a plant for either a linoleum company or a paraffin company at a contract price in excess of $1,000,000, which took more than 2 years to build. The alleged unfair labor practices occurred on the Veterans' Hospital project at Kansas City, Missouri, which has an estimated construction period of 18 months and which is still incomplete. Though Respondent did not have available in its job office for production under subpoena, records which -would establish the extent of the extrastate incidences of the Kansas City project, evidence submitted by the General Counsel establishes the following:' All materials are ordered for the job through the home office at Phoenix, except that the job office is authorized to buy locally items whose cost does not exceed $100. Of the total contract price of $7,933,000' materials ac- count for approximately $3,173,200, of which approximately $300,000 were or will be supplied locally and approximately $2,873,200, were or will be procured from interstate sources. It is therefore concluded and found, contrary to the contentions of the Re- spondents, that the Company is engaged in interstate commerce within the meaning of the Act. IL THE LABOR ORGANIZATION INVOLVED International Hod Carriers', Building and Common Laborers' Union of America, Construction and General Laborers' Union No. 264,, A. F. of L., is a labor organization admitting to membership employees of the Company. I These findings are based mainly on the testimony of Edward G. Novak, the branch manager and superintendent of the consulting engineering firm which was under contract with the United States to design prepared detailed plans and specifications and to prepare detailed estimates of costs of construction and to furnish supervision and inspection services as architect-engineers during the construction period. Novak prepared during the hearing a summary from Webb's construction cost estimate (which had been reviewed earlier directly with Webb's representatives) indicating the proportion of the contract price attributable to labor and materials, respectively, and the proportion of extrastate materials. The summary was admitted, over the Company's objection that it did not represent the best evidence, with the statement that the Company was free if it desired to produce its records to rebut the summary and Novak's testimony. The Company made no attempt to take advantages of the opportunity afforded it. Estimates made by job superintendent McFee and job office manager Mooney of the proportion of interstate materials are not credited. However, Mooney's estimate' (50 percent Interstate, 50 percent intrastate) would itself afford more than ample basis for the assertion of jurisdiction. . 'The proportion performed by subcontractors Is immaterial , since a work dispute resulting in a strike would obviously tie up the entire project and affect the receipt of all extrastate materials. DEL E. WEBB CONSTRUCTION COMPANY III. THE UNFAIR LABOR PRACTICES 89 A. Background and setting 3 Kansas City has been a "closed-shop town" in commercial and industrial construction for more than 40 years. Although some of the small jobs, particu- larly in the residential construction field, may have operated with nonunion labor, the larger jobs have worked union labor "practically of necessity." The build- ing and construction industry is about 98 percent organized, i. e., about 98 per- cent of the men who look for work as construction workers are members of a union.' Until March 31, 1949, there was in effect a master agreement (entered into in 1946), embodying closed-shop provisions, between the District Trades Council (an association of AFL craft unions in the building and construction industry) and the Builders' Association, which was an "over-all" organization of various employer associations in the same industry, including the Association of General Contractors and its National Association.' The master agreement covered the subject of union-security clauses and included provisions which were common to all trades. Separate contracts had also been negotiated with each of the craft unions, including Respondent Union, which covered the conditions peculiar to the respective crafts. Such separate contracts incorporated the master agree- ment as a part. The closed-shop provisions, outlawed by the present Act, expired with the master agreement on March 31, 1949. Though no formal contract has since been entered into between the Builders' Association and Local 264, new wage scales have been negotiated and an understanding reached as to certain job con- duct and job conditions. The Kansas City project was begun by Webb on September 29, 1949, under the direct and immediate supervision of John T. Neil,' whose experience as a construction superintendent dated from 1926 and who was thoroughly familiar with the problems. of the industry, including that of obtaining a labor supply and of the functions of the District Trades Council in that regard. Neil's general labor foreman was Clyde K. (Whitey) Maslen, and his general carpenter foreman was Herbert A. Brown. They and Neil were the only super- visors on the job who were authorized to hire, and only Neil, Maslen, and Mooney were authorized to place calls to the Union requesting the referral of such laborers as were needed from time to time to man the project. Although Brown frequently needed varying numbers of laborers to work with the carpenters under his supervision, he himself had no authority to hire such laborers, whose hiring was solely under the jurisdiction of Maslen and Neil. In actual practice Maslen These findings are made on evidence which is undisputed. 4 This does not mean that all union menrber applicants are necessarily members of the various craft unions affiliated with AFL. Though the AFL unions have virtually monopolized the building and construction field for years (see Haber, Industrial Relations in the Building Industry, Harvard University Press, 1930, pp. 270- 308), some competition was offered in the past by CIO affiliates (How Collective Bargaining Works, Twentieth Century Fund, 1943, pp. 198-9), and is presently offered by United Construction Workers (UMW) and by IAM (see e. g., 25 LRR 107, 108-9). ' William V. Hutton, secretary-manager of the Builders' Association, testified credibly that Webb was a member of the National Association and that its membership therein allowed Webb to operate throughout the country but obligated it on coming to Kansas City to accept the job working conditions, wage rates, etc., established by the Builders' Associa- tion and the District Council. He testified further that Webb in fact checked with the Association to determine what local conditions had been prescribed. ' The main happenings relating to the alleged unfair labor practices occurred during Neil's regime, who was succeeded as construction superintendent by John N. McFee on or about January 4, 1950. 90 DECISIONS OF NATIONAL LABOR RELATIONS BOARD hired them all. No foreman or subforeman tinder either Maslen or Brown was authorized to hire, though . the evidence indicates that as a class the foremen or subforemen otherwise exercised such authority as to qualify as.supervisors under the Act. B. The referral arrangement is agreed upon: how it operated On or about November 15, 1949, Neil and Mooney met with representatives of the District Trades Council , including Don Jarrett, an assistant business repre- sentative of Local 264. Neil, Mooney, and Jarrett testified to the happenings at the meeting, Neil by deposition . Neil's testimony , which contains the fullest account of the discussions , can be summarized as follows : Cordial reference was made to the fact that Webb was returning to the Kansas City area, in which it had performed an earlier contract, and there was discussion of sources of employment and of the manner by which common laborers were to be hired by Webb. In fact, each trade union who had a representative present discussed its work rules. Jarrett, for the Laborers' Local, mentioned the fact that under the Union's bylaws all laborers referred by the Union would get a clearance card or a referral slip from the Union, and Neil was agreeable be- cause, he testified , he had no other source of getting common labor. Neil denied, however, that there was any discussion of obtaining common laborers only from the union hall . There were other discussions of the Union 's working rules, in- cluding at least the requirement for a foreman over a specified number of men. Neil was given a copy of the working rules during the conference but testified that he found it unnecessary to read them because from his long experience in the Construction field he had found working rules pretty much the same through- out the country. ` . Neil also testified that it was his practice and policy to follow the Union's working rules to the same extent as the job specifications, explaining, "If you have no other source of obtaining the trades you need and you get those trades from that one source , then naturally you are going to abide by their working rules." He explained that to get his job done he must have harmony, and that he got harmony on the job because he followed the union rules. -Neil also ad- mitted knowing that in making assignments to the Webb project, the Union made selections from its membership. Mooney, though professing not to remember too well the happenings at the; conference, admitted that there was a discussion concerning the manner in which the referral slip practice was to be maintained and that Neil brought up the subject "to find out how he was going to be able to man the job out there." Ac- cording to Mooney, Neil inquired whether, if he called the union hall , it would be able to supply him with men , that the union representatives agreed, and that the referral slip system was agreed on as a means of identification and introduc- tion. Mooney recalled no discussion of union working rules during the confer- ence nor whether Neil was furnished a copy . of them. Jarrett testified that the question of union working rules did not come up in the meeting and that he did not recall any reference to the referral slip system. Indeed, according to Jarrett , the purpose of the meeting-was simply for Neil and Mooney to "get acquainted" with the various representatives of the trades unions. Jarrett admitted , however, that he was asked if his Union would supply men on call and that it was agreed that it would. He denied that there was any dis- cussion of the referral slip requirement during the conference , and testified that the referral slip was only a rule of the Union for the regulation of its membership. As is seen, Neil was corroborated by Mooney that the referral slip system was discussed and agreed upon, though Mooney did not recall any discussion of the working rules. Neil's testimony is credited. He was not connected with either DEL E. WEBB, CONSTRUCTION COMPANY 91 party at the time of the hearing, as were Jarrett and Mooney, his testimony reflected less interest than theirs, and was correspondingly more candid? The true nature of the arrangement which was agreed to at the conference is fully revealed by the evidence as to the manner in which it was carried out. Those circumstances appear from the testimony of Maslen and Brown , which was corroborated in its most significant aspects by Neil's. Maslen testified that when applicants for employment appeared on the project, he hired them "by sending them back to the Local Union [Local 264] and then they returned back to the job," and that he required a referral from Local 264 before putting a man to work. He testified further that the Union had at times honored his request for particular men if they were in the hall at the time he called in. Malsen testified further that he himself hired all laborers, that Neil personally hired none of them, and that he had never hired a laborer without going through Local 264. Brown, who admitted that he was without authority to hire common laborers, testified that, "We were all aware of how the [common] labor was hired on the job; it was hired through the general labor foreman," who "got the laborers from the Labor Union [Local 264]." Questioned further as to the Company's practice in handling common laborers who applied on the .job, he testified, "Those men had to come out to the job with a referral from the Labor Union," and that a common laborer who applied at the job could not be hired direct, but that "you had to call the hall and make a request for him." [Italics supplied.] Brown also testified that although Webb and the Union had not set down and entered into any agreement for the hiring of only union men, it was "just under- stood that they would be." 8 Neil's testimony, though not as frank as Maslen's and Brown's, is in substantial accord with theirs with reference to the operation of the referral card arrange- ment. Thus, he testified that there was never any question as to whether Webb employed union or nonunion employees : ". . It was a foregone conclusion that we hired union men because there was no other source of getting the trades that we wanted." His testimony continued : Q. (By Mr. SACKS.) Do you know whether your organization required a work order or a union referral slip of each common laborer who went to work on your job? A. Yes, the common laborers in Kansas City did require a clearance from the Union and there was no other source or no thought given of any other source because no one ever applied, so naturally that was our source of employment. Q. So that it was your policy then to employ only common laborers who came from the Union with a union work order or a referral slip? A. That is right. There was no other source. Where else would I get them? Indeed, Neil testified that in his long experience as a building superintendent there was never a time that there was not an abundance of union tradesmen and that he has known of no other source of labor. Neil therefore disclaimed any I Even in Neil's case, however, his testimony showed a disposition not to damage Webb's cause unduly, as illustrated by his statement after an innocuous answer relating to general commerce facts, "I don't think Del Webb would ever mind me saying that." 8 Respondents attempted to discredit Brown because of difficulties and controversies between the Carpenters ' and the Laborers ' Unions on the Webb and other jobs . Brown's attitude and denreanor were free of apparent bias and prejudice against any party. Furthermore his testimony is in close accord with Maslen 's as to the hiring practices on the job; and is therefore credited. 92 DECISIONS OF NATIONAL LABOR RELATIONS BOARD experience with a situation which involved the effect of calling nonunion laborers to work on a job where all other crafts were union Jarrett testified that there was never any agreement that Webb would hire only union laborers nor only those who had a referral slip from the Union, and that the referral slip was a rule imposed by the Union to govern its members and to identify them to the employer. He admitted, however, that the job steward's function was to check the referral slips and the union cards of new employees and that in no case had the steward reported the presence of a nonunion man on the job.1° Jarrett testified further that his only discussion of the referral-slip system with Neil occurred around the first of December as a result of "calls from the job where some of the boys had come on the job without a work referral," and that he "went out to ask Mr. Neil that whenever he calls us for a man or men that he would ask them to come in and get a work referral from us at the office." Jarrett testified that Neil refused to comply with that request. That testi- mony is not credited. It is directly in conflict with the testimony of Neil and Mooney, as well as with the testimony of Maslen and Brown as to the manner in which the hiring was done and the referral card system operated. Further- more Brown, who had heard the conversation, testified that Jarrett and Neil were discussing the manner in which common laborers were to be hired on the yob, that Jarrett said they had to come through the hall and that the men were to come from the Union with a referral slip before they could go to work. Brown testified that Neil reluctantly agreed, as he did not like the idea of not being able to hire men direct on the job. Jarrett admitted that not all of'the men who came into the union hall seek- ing work were necessarily members of his Union, and that he did not give nonmember applicants assignments because he had no authority to assign anyone who was not a member of the Union. He testified, however, that if the union labor supply was exhausted and if nonunion applicants would apply for membership in the Union, the Union was glad to take them in, sign them up as members or issue them permits, and assign them to job openings as they arose. Jarrett testified that he never assigned anyone to employment 'until he had either become a member or had at least taken out a permit or application for membership in the Union. The testimony of Jerry Irving (another assistant business representative) closely paralleled that of Jarrett as to the nature and purpose of the referral card system. Irving also denied the existence of any agreement with Webb that it would hire only union members, and stated that the only agreement was that the Union would furnish laborers on Webb's request. He testified that the Union acted in the nature of an employment agency in referring its mem- bers to work. The operation of the hall was described as follows by Irving and Jarrett : The hall was opened by 7: 30 a. in. or earlier, and the first order of busi- ness was to fill from the assembled applicants requests for men received from employers at or after the close of the previous workday. The priority of such assignments was to enable the employees to report for work by 8 a. m., and receive a full day's pay. In making the assignments attention was given to It is impossible to credit that testimony literally . It might be accepted as an admission that Neil never supervised any but closed -shop jobs. However , because of his admitted experience in the field , Neil was bound to know of the traditional rule in the trades unions which prohibits union members from working on a job where any nonunion men are employed . See footnote 18, infra. 10 The job steward's function in this respect was obviously the traditional one of keeping nonunion men or union men not in good standing off the job. See infra, p. 95. DEL E. WEBB CONSTRUCTION COMPANY 93 the employer's specification, if any, of particular skills and to the union repre- sentative's knowledge, if any, of the particular skills of assembled applicants. Attention was also given the relative amounts of work applicants had received and their relative length of idleness, with an eye to spreading the employ- ment as evenly as possible, and for that purpose the Union had set up a register of work referrals. However, the Union did not hesitate at times to honor.. an employer's request for a particular man or particular men. After the open- ing assignments, others were made from time to time during the day as requests or requisitions were called in. In making the assignments referral slips were issued in triplicate, one copy being retained by the Union and two handed the employee. The employee thereupon reported to the project and delivered one copy to the general fore- man or to the job office where he was "signed up" and the other to the job steward. Irving testified that there were a number of instances within his knowledge where employees had been hired on the Webb project without a referral slip but where the employees had later called in and reported to the union hall. Upon refreshing his recollection from the Union's records, he named about 21 such employees who had been hired on or about the following dates : October 6, November 10, 11, 22, December 7, 1949, and March 7 and 14, 1950. Only 6 of the instances had occurred in March 1950, and more than half of the remainder occurred prior to the November 15 conference and the agreement to the referral arrangement. Furthermore, according to Irving's testimony, such instances involved union - members who resided in outlying towns and communities,. as to whom the Union had recognized an exception (at least until December 7) because of the difficulty involved in trying to make assignments to members who lived in outlying communities. The inference is clearly justified from the entire evidence and from the abrupt cessation of such instances on December 7, that it was Webb's hiring of such applicants without prior union clearance that occasioned Jarrett's visit to the job dnd his conversation with Neil early in December (the Union's brief so concedes) in which Jarrett invoked strict adherence to the referral card arrangement" Similarly, the inference is justified that it was the fresh- ness of that agreement which led to the handling by both parties of the Words application in strict conformity to the arrangement. That incident began on Friday, December 9, and ran through,_ Tuesday, December 13, and the evidence concerning it is now summarized. 0. The refusal to hire Words, et at. On Friday, December 9, John Words went to the Webb project looking for work. Words testified that an acquaintance there recommended him to Maslen, who inquired "How is your standing with the Union?"; that he replied "Fine" and started to show his card to Maslen ; but that Maslen said "I didn't mean that," and walked away. 'Later, and. while still on the project, Words saw Francis Richardson, whom he knew from previous employments ; Richard- son stated that he needed Words and requested Words to find Booker Arm- strong and James Ellis, that they should report to the union hall Monday 11 The Isolated March incidents 3 months later stand as an unexplained exception. Apparently they occurred at a time of a resumption of operations after a shutdown (possibly because of weather conditions ) and at a tinre when Webb needed to reman the project. A possible explanation is that McFee , who had succeeded Neil, may have been unaware that the Union was requiring strict compliance with the referral card arrange- ment. In any event, the evidence does not Indicate that there were any subsequent exceptions. 94 DECISIONS OF NATIONAL LABOR RELATIONS BOARD morning, and that Richardson would call in there for some men." The evi- dence clearly establishes, however, that Richardson was himself then only a laborer, having been hired on December 6, and that he was not made a labor foreman under Brown until December 15. Pursuant to Richardson's suggestion Words, Armstrong, and Ellis, who were all union members in good standing, reported at the union hall Monday morn- ing, but their names. were not called. The Union's register of job referrals showed that 13 men were referred to the Webb project on that date. However, according to Armstrong's testimony the 3 men were at the hall only from about 8 a. in. until some time after 11 a. in. Under normal procedure, the Monday referrals could have been made before the arrival of the trio or after their ar- rival from those who had reported earlier. In any event, the trio went out to the project on Monday afternoon, arriving during the lunch period. They saw Richardson, who said he had been looking for them and who recommended them to Brown for employment. Brown wrote their names down, said that he would see Maslen about having them put on the. job, and told them to wait around a while. The matter slipped Brown's mind until about 4 p. in., when Richardson spoke to him again. Richardson testified that Brown then stated that he would see Maslen that night, and that he directed Richardson to give the three men a slip to the union hall. Richardson gave the three men the following note : To: JERRY IRVING. Jerry These men have a job out hear. Please give them a work order For .12-13-49 it is O. K. Thanks a lot. FRANCIS RICHARDSON. The trio took the `note that afternoon to the union hall and handed it to Roy Livingston, the Local's secretary, who told them, "I won't do anything with this, come in in the morning.' Don [Jarrett] will be here and you give him this." The three men went separately to the union hall Tuesday morning, but as they wanted to see Jarrett in a group, they waited until all three had arrived and by that time it was about 7: 45 or 7: 50. Jarrett looked at the note from Richard- son and said, "We haven't got any orders here for any men and I can't send you out because we haven't got any calls here for any laborers" (testimony of Arm- strong). He also reprimanded them for having broken the Union's rules by hustling their own jobs (testimony of Words and Ellis).. Jarrett testified that he had filled an order from Webb for eight laborers be- fore Words and his companions came in, and that although he did not know Richardson's capacity, he knew Richardson had no authority to request men for Webb. He told the men that if they would wait around he would send them out either to Webb or to some other job, if orders came in. Jarrett admitted that he reminded the men that the rules of the district council required them to get a referral slip from the Union. The three men waited at the hall the rest of the day, but their names were not called. In the meantime, Brown had been unable to see Maslen or Neil on Monday evening. Brown testified that on Tuesday evening while checking over his notes with Neil, he came across his memorandum regarding the three men and he " Maslen and Richardson both deny having seen words on the Friday visit he testified .to. However, Maslen's inquiry as to union standing on the occasion is almost identical to that which Armstrong testified to on the subsequent occasion when Maslen hired him in March 1950. See infra, p. 95. As to Richardson, it is clear from the testimony of words and Ellis as to their subsequent conversations on Monday, the 12th, that Richardson was expecting them'. Words' testimony is therefore credited in both instances. DEL E. WEBB CONSTRUCTION COMPANY 95 inquired whether they could be hired. Neil looked at the names and said "Oh, Oh, we'd better hold up on that. It looks like we may be in a jam on these men," and he mentioned the possibility of a law suit either through the Labor Board or the Union." Subsequent to December 13," each of the three men spent a varying number of days at the hall. Words' efforts were without success. Ellis received a referral slip to the Webb job on April 11, 1950, but was unable to report, due to the death of his wife. Armstrong was hired on March 7, 1950, under cir- cumstances which throw considerable cumulative light on the realities of the employment arrangement which existed between the Respondents. Armstrong had again heard that Webb needed laborers and went out to the project and spoke to Maslen about a job. Maslen said "If you've got a good standing with the union you've got a job," and told Armstrong that he would have to have a. work order from the Union. Armstrong testified that he thereupon went to the hall, procured a work order from Livingston, took it back to the project, delivered it to Maslen, and was put to work. Maslen did not testify in denial of Arm- strong's foregoing testimony. D. Concluding findings 1. Was the referral slip arrangement illegal? The evidence regarding the referral arrangement between the Respondents can properly be evaluated only in the light of the realities in labor relations in the construction industry. Those realities include the existence of practices which are now so well known and widely accepted as virtually to be regarded as traditional. It is unnecessary for present purposes to trace the origin and historical development of the trades unions in the construction industry nor the conditions or reasons which accounted for their growth." It is likewise unneces- sary to explore the method or means by which those unions have achieved acceptance of the closed-shop principle nor the reasons or considerations which led to agreement or acquiescence therein by the building contractors 18 It is sufficient to note that the closed shop has been for years an accepted principle in wide segments of the construction industry17 and that this result was accomplished through the structural form of the District Trades Council, which achieved effectiveness through the device of the sympathetic strike and by the simple rule that no union member may work on a job where a nonunion man is employed.18 The mechanics of enforcing the latter rule, likewise simple, are also significant : The referral or working card system, which is policed on the job by the job steward, serves to keep off the job nonunion men or union men who are not in good standing. See Haber, supra, p. 263. It is also of significance 13 Brown's recollection of Neil's statement insofar as it related to the law suit and the Labor Board was quite vague. He was positive, however, that his conversation with Neil was on Tuesday. 14 The original. charge was filed on December. 15 and a copy was served on the Company on December 16. 15 A detailed and documented treatment of such matters can be found in Haber, Industrial Relations in the Building Industry, Harvard University Press, 1930. See particularly Chapters IX and X. 1e Haber, op. cit., pp. 251-6; and see How Collective Bargaining Works, supra, pp. 212-13. 17 See footnote 15, supra; and see Taft's Law Hits Building Trades, by Richard J. Gray, President, Building and Construction Trades Dept. (The American Federationist, Vol. 57, No. 9, p. 8, Sept. 1950). 18 Haber, op. cit., pp. 262 , 329-31; How Collective Bargaining Works, supra, p. 200. Indeed, it is chiefly due to these devices that common or unskilled laborers have been able to achieve any degree of success in organizing and In obtaining recognition. Haber, pp. 305-6, 308. 96 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that contractors who operate on an interstate or national basis have, in par- ticular, been disposed to accept the closed shop in all localities in order to protect themselves against strikes on jobs in unionized communities. Haber, supra, pp. 256, 263. Webb's operation as an interstate contractor and its membership in the Na- tional Association of General Contractors made it, of course, fully cognizant of conditions and of labor-management relations in the construction industry. Were there any doubt on that score, it would be dissipated by Neil's knowledge of such matters, acquired through many years of experience as a construction superintendent. Finally, that Webb was fully acquainted with local condi- tions is established by its performance of an earlier Kansas City project and by Hutton's testimony that Webb's membership in the National Association obligated it. to accept the job working conditions, wage rates, etc., established by the local Builders' Association and the District Trades Council, and that Webb did in fact check with the Builders' organization about such matters on coming into the city. In the foregoing setting, the true meaning and significance of the happenings at the November 15 conference stand out boldly. Stated simply, an understand- ing was reached for the supplying by the Union of all laborers on Webb's requi- sition under the referral slip system. As made and as operated, the arrange- ment required insistence by the Company that all applicants be directed to the Union for referral to the job, which was for all practical purposes the equiva- lent of an agreement that none but union members would be employed. Cer- tainly, Webb (through Neil) and-the Union both knew-that only union members would or could be hired; indeed, the policing of the closed shop was assured by Neil's agreement to abide by the Union's working rules, which provided in part that "All employees must, after being hired, report to the Steward before starting to work." [Italics supplied.] In fact, the arrangement precluded the acceptance not only of nonunion members, but also of union members who had not first received assignments and work orders from the Union." Both in intent and in actual practice, the effect of the arrangement was to delegate the hiring of laborers to Local 264,2' and to require all such employees to be members of that Union. Cf. Daniel Harem Drayage Company, Inc., 84 NLRB 458. Any doubt as to intent and of possible misunderstanding on Neil's part was immediately removed by Jarrett's December visit. As to practice, the testimony of Maslen and Brown, the entire evidence concerning the Words incident, and Armstrong's undisputed testimony regarding the circumstances of his hiring in March, established the effect of the arrangement n It is without significance, of course, that the provisions of the agreement were not reduced to writing. Von's Grocery Company, 91 NLRB 504; N. L. R. B. v. Scientific Nutrition Corporation, 180 F. 2d 447, 449 (C. A. 9). Indeed, the practice of oral understandings is particularly prevalent in the construction industry : In a number of areas of industrial employment, notably in building and construction trades, there are examples of labor-management relations based 19 Early exceptions as to union members residing in outlying communities were brought to an abrupt halt on December 7, when Jarrett required Neil's reaffirmation of the referral card arrangement. 20 Webb had no employment or personnel office, nor did It set up any procedure for interviewing and, hiring applicants on the job.- 21 Cumulative evidence that the Union was asserting jurisdiction for its members only and of the Company's awareness thereof was furnished by a jurisdictional strike in March 1950, by union members In opposition to the performance of certain work by members of the Carpenters' Union. DEL E. WEBB CONSTRUCTION COMPANY 97 on verbal understandings between the union and the employer , with verbal agreement backed by long-established practice and custom and the employer acceptance of union security. American Federation of Labor , The Closed Shop and Union Security; Eco- nomic Brief of the American Federation of Labor ( Judd & Detweiler, Inc., 1947 ), p. 39; and see Dickinson , Collective Wage Determination ( The Ronald Press Company, 1941 ), pp. 380-1. Respondents' argument that there was no empress agreement to hire only employees referred by the Union is rejected , since, as found, there was express assent to the arrangement which , with the full knowledge of both parties, pre- cluded the hiring of any but union members and only such of those who first obtained referral cards. Furthermore, it would be immaterial if express assent were lacking, for assent certainly was to be implied from the conduct of the parties in permitting, acquiescing in, and participating in the operation of the arrangement. See Restatement of the Law of Contracts, Sec. 21; 17 C. J. S. " Contracts," Sec. 3, pp. 315-6. The Union's counsel argued orally that hardships and even chaos might well result in the construction industry if a finding of unfair labor practices were made on the facts in this case, and referred to the fact that the Board had not, up to that time, been able to work out a procedure for holding union-shop elections in the industry 22 The Union's argument is answered first by the Board's holding both adjudicatively ( Daniel Hamm Drayage Company, Inc., supra; Guy F. Atkinson Co., 90 NLRB 143) and administratively (see 26 LRR 128) that it must enforce the law as written and that it is not at liberty to change the law by administrative amendment or exemption . Secondly, the evidence ' shows that the arrangement under which the Respondents have operated went far beyond "the limited type of union-security permitted by the amended Act" (Pen and Pencil Workers Union , 91 NLRB No. 155, and cases cited ), and that it would have been unlawful even if it had been authorized by an election. The latter fact clearly accounted for the prosecution of the case by the General Counsel . See 26 LRR 175 and 26 LRR 364. It is therefore concluded and found on all the evidence that on November 15, 1949, Respondents became parties to an agreement or arrangement under which Webb would hire only union member laborers referred to it by the Union and would hire no laborers not so referred , and that by entering into, being parties to, and performing such agreement or arrangement , Webb violated Section 8 (a) (1) and (3) of the Act , and the Union (by attempting to cause a violation of Section 8 (a) (3)) violated Section 8 ( b) (2) of the Act. Acme Mattress Company, Inc., 91 NLRB 1010 ; National Union of Marine Cooks d Stewards, 90 NLRB 1099. 2. Were the charging parties discriminated against to encourage membership in the Union To determine whether discrimination resulted against the charging parties individually, it is first necessary to decide whether they were in fact refused employment. If that question is answered affirmatively , a further question arises whether as a matter of law such refusal would have constituted dis- crimination against them in view of their membership in the Union. As to the first question, the evidence establishes that Words and his com- panions made repeated efforts to be hired . The question is whether they would 22 Various attempts by the Board and by the General Counsel to deal with this thorny problem are set forth at 25 LRR 54 ; 26 LRR 107; 26 LRR 128; 26 LRR 175; and 26 LRR 364. 98 DECISIONS, OF NATIONAL LABOR RELATIONS BOARD have been hired but for the operation. of the combination closed shop-hiring hall arrangement which has been found to be illegal. It is true that technically the trio did not apply personally to any representative of the Company who was authorized to hire. This is not important, however, for the following reasons., First, during the period they were attempting to get jobs the Company would not and could not have hired them at the job site ; but, pursuant to Neil's then fresh'afi'irmance of the referral card agreement, it could only have referred them. to the Union, which was acting as the Company's hiring hall or employment agency. Second, the applicants were, in fact, directed to report to the hall for employment, and they were informed and understood.that their assignments must come from there. Indeed, any further application on their part at the job site was precluded by Jarrett's reprimand. Respondents thus had made it wholly clear to the trio that they could only obtain jobs by procuring assign- ments-at and work slips from the.union hall. Certainly, the trio had made every reasonable effort to obtain 'employment under the circumstances, and certainly there were laborers' jobs available. The latter fact is obvious from the nature of Richardson's and Brown's state: ments to the men, from the note to the Union authorized by Brown, and from the referral by the Union of a total of 21 employees on Monday and Tuesday.. Brown, whose recommendations were generally accepted by Neil, had clearly indicated need for the services of the men.29. In fact,. as late as Tuesday evening, when Brown took the matter up with Neil, there was no indication that the services of the three men were not needed or that Neil was rejecting Brown's recommendation that they be hired. Instead, the only question Neil raised was that he was in some trouble about the men, and he mentioned the possibility of a law suit by the Labor Board or the Union. Brown was quite vague as to the content of Neil's latter remarks. Since, however, Brown was confident the conservation occurred on Tuesday, Neil's remarks were obviously not related to the filing of the original charges. Instead, the inference is clearly justified, and it is concluded and found, that Neil was referring to some complaint from the Union about the violation (apparent from the face of the Richardson note) of the recently affirmed understanding between Jarrett and Neil for strict com- pliance with the referral arrangement. The fact that the trio might eventually have received assignments to the Webb or to some other project if they had carefully observed the union hiring hall procedure, by reporting punctually and by waiting for calls to come in, is wholly irrelevant. Respondents could not require compliance by applicants with the provisions of their illegal hiring arrangement, nor assert noncompliance as a defense to a refusal to hire where applications had otherwise appro-' priately been made. It would be anomalous indeed to permit wrongdoers so to profit by their illegal acts and contracts. Furthermore, the trio' was not required to repeat the futile gesture of re- applying on the project without a referral slip. It is settled that it is un- necessary to request employment where the making of such request would be only an empty gesture. Daniel Hamm Drayage Company, supra; see Eagle- Picher Alining & Smelting Co. v. N. L. R. B., 119 F. 2d 903, 914 (C. A. 8) ; N. L., R. B. v. Sunshine Mining Co., 110 F. 2d 780, 792. (C. A.. 9), cert. den. 312 U. S. 678; N. L. P. B. v. Carlisle Lumber Co., 94 F. 2d 139, 143, 147 (C. A. 9), cert. den. 304, U. S. 575. In sum, the evidence establishes unmistakably, and it is hereby concluded. and found that Words and his companions made requests for employment, that x' It was also within Brown's authority to inform applicants of the steps they should take to comply with the hiring arrangement. DEL E. WEBB CONSTRUCTION COMPANY 99 vacancies existed for which they were qualified, and that they would, in fact, have been hired but for the operation of the illegal agreement. - Close reference to the language of the statute is necessary to resolution of the final question whether there was or could be discrimination against the charg- ing parties individually in view of their union membership. Section 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 em-. ployee in violation of subsection. (a) (3). Section 8 (a) (3) defines the corresponding employer unfair labor practice as: by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization. [Italics supplied.] It is true that the most frequent form of discrimination is that shown by employers among employees because of their membership or nonmembership in a union. Where discrimination is for such cause, the encouragement or discouragement of membership is obvious. But the Act does not require that discrimination to be proscribed must be because of membership or nonmember= ship; what it provides is that no discrimination may be practiced among em= ployees (or applicants for employment; see Phelps Dodge Corp. v. N. L. R. B., 313 U. S. 177) to encourage or discourage membership in the union. . There can be no doubt that the agreement between Respondents did en- courage membership in the Union. That was both its intent and its effect. And the discrimination against the charging parties is likewise apparent: Words and his companions were refused employment by Webb solely because of its illegal agreement which encouraged membership in the Union. It is true that the Union could have discriminated among its members at will and that it could have laid down and enforced any conditions or rules it wished respecting membership or regulating its members (cf. Section 8 (b) (1) (A)) but it could not use such rules to limit its members' rights to secure and retain employment (cf. Senate Report No. 105, 80th Cong., 1st Sess. p. 21). Indeed, even under the limited type of union security permitted by the Act, a union cannot legally cause an employer to discriminate against an employee except for a denial or termination of membership grounded on his failure to tender periodic dues (ibid.; and see Sec. 8 (b) (2) ). In the present case, the discrimination against the charging parties can be spelled out more explicitly. Thus, as the arrangement was installed and as it operated, Webb could employ only union members and only such union members as were assigned by the Union and as reported on the job with a referral card. Such arrangement, therefore, required and resulted in discrimination not only against all nonunion members but also against all union members who were unable to procure referral cards at the union hall. It is therefore irrelevant that no specific intent may have been shown to discriminate against the charg- ing parties individually, since the necessary intent and effect of the arrangement was to discriminate among applicants, not only by requiring membership in the union, but by requiring the applicants to procure a referral card from the Union. The charging parties were members of a class which was the victim of the illegal arrangement and of the general discriminatory practices. Though the charging parties were already members of the Union, it cannot be said that membership in the Union was not being encouraged, for the normal effect of the discriminatory practices was to encourage nonmembers to become members and to encourage members to remain members, as well as to encourage 961974-52-vol. 95-8 100 DECISIONS OF NATIONAL LABOR RELATIONS BOARD obedience by members to such rules as the Union might prescribe. Thus the Company upheld and strengthened the Union's hand. in its regulation of and in its control over its members. Significantly, although the charging parties be- came victims of the discriminatory practices, the discrimination had its normal and predictable effect of encouraging them to retain their membership in good standing, either through their fear of the consequences if they dropped out or through hope of advantage by staying in (later realized by Armstrong and Ellis). It is therefore concluded and found on all the evidence that by refusing to employ John Words, Booker Armstrong, and James Ellis on December 12, .1949, Respondent Company discriminated against them to encourage membership ,in the Union and thereby engaged in unfair labor practices within ,the meaning ofCection 8 (a) (3) and (1). It is also concluded and found that by causing the-Company so to discriminate against said employees, the Respondent Union engaged in unfair labor practices within the meaning of Sections 8 (b) (2) and 8` (b) (1) (A). 3. Was Section 8 (a) (4) violated? The evidence wholly fails to sustain the General Counsel's contention that the Company also refused to employ the charging parties because they had filed charges with the Board. Brown's testimony as to Neil's remarks afforded the sole basis for, but do not support, the contention. See pp. 97 and 98. It will, therefore, be recommended that the complaint be dismissed insofar as it alleges that the Company engaged in unfair labor practices within the meaning of Section 8 (a) (4). IV. THE EFFECT-OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondents set forth in Section III, above, appearing in connection with the operations of the Respondent Company set forth 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 dis- putes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY It having been found that the Respondents engaged in unfair labor practices, it will be recommended that. they cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. It has been found that by entering into, being parties to, and performing the referral slip agreement or arrangement, the Company discriminated among applicants for employment and the Respondent Union caused and attempted to cause said dis- crimination. It will therefore be recommended that the Respondents shall cease and desist from their said employment practices, * and shall cease giving effect to'the- referral slip agreement ; that the Respondent Company henceforth employ laborers without regard to their union membership, affiliation, or activity and without regard to whether they have procured from the Respondent Union a referral slip or work order; and that Respondent Company take all reasonable steps and precautions to carry out and make effective this requirement. It has been found that the Company, on December 12, 1949, discriminated against John Words, Booker Armstrong, and James Ellis by denying them em- ployment, to encourage membership in the Union, and that the Union caused the Company so to discriminate. It appears, however, that Armstrong was employed by the Company on or about March 7, 1950, and has remained in its employ ; and that Ellis was offered employment on or about April 11, 1950, but did not DEL E. WEBB CONSTRUCTION COMPANY 101 then accept for reasons which are not attributable to the Respondents." It will therefore be recommended that the Company offer to John Words immediate employment as a laborer, or a substantially equivalent job, without prejudice to his seniority or other rights and privileges. See The Chase National Bank of the City of New York, San Juan, Puerto Rico, Branch, 65 NLRB 827. It will also be recommended that the Company shall, upon Ellis' application, employ 'him as a laborer, or in the event that there are no vacancies, shall place his name on a preferential hiring list and thereafter offer him employment as a laborer •as such work becomes available and before new persons are hired for such work. - It will be further recommended that Respondents, jointly and severally, make whole, according to the formula sot forth below, John Words, Booker Armstrong, and James Ellis, for any loss of pay they may have suffered by reason of the discrimination against them. Words' loss--of pay shall be computed from the date of the discrimination against him to the date of the Company's offer of employment. Armstrong's loss of pay shall be computed from the date of the discrimination against him to March 7, 1950. Ellis' loss of pay shall be com- puted from the date of the discrimination against him to April 11, 1950. In computing such loss of pay, the customary formula of the Board shall be fol- lowed (see F. W. Woolworth Company, 90 NLRB 289), with due allowances for periods when the job was shut down. It will be recommended further that the Union no the Company in writing, and furnish copies to John Words and James Ellis, that it has no objection to their employment by the Company. It is also recommended that the Union may terminate its liability for'furtker•accruals of back pay by giving the.said notices; and in' that event the Uni'on' ^hdll not be liable for any back pay which may accrue after 5 days from the giving of said notices. In order to insure expeditious compliance with the recommended back-pay order, it is recommended that the Company be ordered, upon reasonable request, to make all pertinent records available to the Board or its agents. In view of the findings that the Company violated the Act not only by entering into and performing the, illegal agreement, but by discriminatorily refusing employment to John' Words, James Ellis, and Booker Armstrong, it will be recommended that it -cease and, desist: not, only, from, the unfair labor practices found, but also from in any other manner discriminating against, or otherwise interfering with, restraining, or coercing its employees in the exercise of the rights guaranteed by Section 7 of the Act. Acme Mattress Co., supra. A corre- spondingly broad order will be recommended as to Respondent Union. See ibid. Upon the basis of the foregoing findings of fact and upon the entire record in the case, the undersigned makes the following: CONCLUSIONS OF LAW 1. International Hod Carriers', Building & Common Laborers' Union of America, Construction and General Laborers' Union No. 264, A. F. of L., is a labor organization within the meaning of Section 2 (5) of the Act. 2. By entering into, being a party to, and performing the referral slip agree- ment, the Company discriminated among applicants for employment to encourage membership in the Union and thereby engaged in unfair labor practices' within the meaning of Section 8 (a) (1) and 8 (a) (3) of the Act. 3. By entering into, being a party to, and performing said agreement, which 94 Ellis' testimony is contradictory on the point whether he made any subsequent applica- tion for employment, but were the version accepted that he did, his testimony indicates there were no vacancies at the time. 102 DECISIONS OF -NATIONAL LABOR RELATIONS BOARD required the Company so to discriminate , the Union has engaged in unfair labor practices within the meaning of Section 8 (b) (2) of the Act. 4. By discriminating in regard to the hire and tenure of employment of John Words, Booker Armstrong , and James Ellis, thereby encouraging membership in the Union, the Company has engaged in unfair labor practices within the meaning of Section 8 (a) (3) and (1) of the Act. - 5. By causing the Company so to discriminate against said persons in violation of Section.8 (a) .(3) of the Act, the Union has engaged in. unfair labor practices within the, mean ing'of.Section 8 (b) (2) and 8 (b) (1) (A) of the Act. 6. The aforesaid unfair labor practices are unfair labor practices, affecting commerce within the meaning of Section 2 (6) and (7) of the Act. [Recommended Order omitted from publication in this volume.] SHELL 'OIL COMPANY (SUCCESSOR TO SHELL OIL COMPANY, INCORPO- RATED) and OIL WORKERS INTERNATIONAL UNION, CIO. Case No. 7-CA-296. July 11, 1951 Decision and Order On March 30, 1951, Trial Examiner Eugene F. Frey issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in 'and was engaging in certain unfair labor practices, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto.: Thereafter, the Respondent filed exceptions to the Intermediate Report and a supporting brief. The Board 1 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 Intermediate Report, the exceptions and brief, and the entire record in this case, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner.2 Order . Upon the entire record in this case, and pursuant to Section 10 (c): of the National Labor Relations Act, the National Labor Relations Board hereby orders that the Respondent, Shell Oil Company, and its officers; agents, successors, and assigns, shall: 1. Cease and desist from (a) Discouraging membership in Oil Workers International Union, CIO, or in any other labor organization of its employees, by dis- 1 Pursuant to the provisions of Section 3 (b) of the National Labor . Relations Act, the Board has delegated its powers in connection with this proceeding to a three -member panel [ Chairman Herzog and Members Houston and Reynolds]. 2 Trial Examiner Lloyd Buchanan properly denied Respondent's motion to strike certain allegations of the complaint on the ground that they were not contained ..in the charge filed Ferro Stamping and Manufacturing Co., 93 NLRB 1459. 95 NLRB No. 24.