International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America

824 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL NOT discriminate in regard to hire or tenure of employ- ment or any term or condition of employment against any em- ployee because of the exercise of any right guaranteed by the National Labor Relations Act. TODD SHIPYARDS CORPORATION, Los ANGELES DIVISION 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. INTERNATIONAL BROTHERHOOD OF TEAMSTERS , CHAUFFEURS, • WARE- HOUSEMEN & HELPERS OF AMERICA, LOCAL No. 621 and THOMAS K. VowELL. Case No. 10-CB-98. March 26, 1952 Decision and Order On September 24, 1951, Trial Examiner J. J. Fitzpatrick issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaged 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. Pursuant to. the provisions of Section 3 (b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman Herzog and Members Houston and Styles]. The Board has reviewed the rulings of 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 the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, with the following additions : 1. M. G. Hughett, general manager of Sesco Contractors, testified that, in late December 1950 or in the early part of January 1951, E. R. Clifton, the Respondent's business agent, objected to the con- tinued employment of Thomas K. Vowell by Sesco Contractors, stating to Hughett that Vowell "was not a member in good standing or did not belong." Clifton denied that he ever asked Sesco Contractors to refuse employment to Vowell. The Trial Examiner did not credit Clifton's denial. Under the circumstances, we credit Hughett's testi- 98 NLRB No. 136. INTERNATIONAL BROTHERHOOD OF TEAMSTERS, ETC. 825 mony. Accordingly, we adopt the findings of fact made by the Trial Examiner in his Intermediate Report, and, in addition, we further find that, on or about January 3, 1951, Clifton told Hughett that the Respondent objected to the employment of Vowell by Sesco Con- tractors because of Vowell's union status. On the basis thereof and the record as a whole, we conclude, as did the Trial Examiner, that, as a result of the Respondents objection to Vowell, Sesco Contractors discontinued Vowell's employment on January 3, 1951, and thereafter refused to employ him because he did not have a work referral. from the Respondent. We find, in agreement with the Trial Examiner, that by such conduct the Respondent violated Section 8 (b) (2) and 8 (b) (1) (A) of the Act. 2. The Respondent contends (1) that the Trial Examiner did not permit the Respondent to cross-examine witnesses with respect to the commerce aspects of the Employer's business; and (2) that the Respondent and the Employer, Sesco Contractors, "were both ad- vised and instructed by the Corps of Engineers of the U. S. Army to operate under the exact custom and procedure which the Examiner now condemns as illegal." As the record affords no factual founda- tion for these contentions, we reject them. 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 the Respondent, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, Local No. 621, and its agents, shall : 1. Cease and desist from : (a) Causing, or attempting to cause, Sesco Contractors, its agents, successors, and assigns, to discharge, refuse to employ, or otherwise discriminate against any employee because he failed to obtain a work referral from the Respondent, except to the extent permitted by an agreement authorized under Section 8 (a) (3) of the Act. (b) Requiring work referrals, or in any other or like manner caus- ing, or attempting to cause, Sesco Contractors, its agents, successors, and assigns, to discriminate against any employee, in violation of Section 8 (a) (3) of the Act. (c) In any other manner restraining or coercing Thomas K. Vowell, or any other employee, or prospective employee of Sesco Contractors, its successors or assigns, in the exercise of his rights within the mean- ing of Section 7 of the Act, except to the extent that such right may be affected by an agreement authorized under Section 8 (a) (3) of the Act. 826 DECISIONS OF NATIONAL LABOR RELATIONS BOARD -2. Take the following affirmative action, which,the Board finds will `effectuate the policies of the Act: (a) Make Thomas K. Vowell whole, in the manner set forth in the -section of the Intermediate Report entitled "The Remedy," for any :loss of pay that he may have suffered by reason of the discrimination .against him. (b) Post immediately, in conspicuous places at its business office in Knoxville, Tennessee, and at any other place where notices to its members are customarily posted, copies of the notice attached hereto and marked "Appendix." 1 Copies of said notice, to be furnished ,by the Regional Director for the Tenth Region, shall, after being duly signed by an official representative of the Respondent, be posted by it immediately upon receipt thereof and be maintained for a period of at least sixty (60) consecutive days thereafter. Reasonable steps shall be taken by the Respondent to insure that such notices are not -altered, defaced, or covered by any other material. (c) Notify Sesco Contractors, in writing, that the Respondent has no objection to Thomas K. Vowell's employment by Sesco Contractors, -and furnish Vowell a copy thereof. - (d) Mail to the Regional Director for the Tenth Region signed copies of the Appendix for posting, Sesco Contractors willing, at its place of business at the Cambria Range Station Project at or near Lake City, Tennessee, in places where notices to employees are cus- tomarily posted. Such notice is to be posted for a period of sixty (60) consecutive days thereafter. Copies of said notice, to be furnished by the Regional Director for the Tenth Region, shall, after being signed as provided in paragraph 2 (b), be forthwith returned to the Regional Director for said posting. (e) Notify the Regional Director for the Tenth Region, in writing, within ten (10) days from the date of this Order, what steps the Re- spondent has taken to comply herewith. ' Appendix NOTICE TO ALL MEMBERS OF INTERNATIONAL BROTHERHOOD OF TEAM- STERS, CHAUFFERS, WAREHOUSEMEN & HELPERS OF AMERICA, LOCAL No. 621, AND TO ALL EMPLOYEES OF SESCO CONTRACTORS Pursuant to a Decision and Order of the National Labor Relations ,Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify you that : WE WILL NOT cause or attempt to cause SEsco CONTRACTORS, its agents, successors, or assigns, to discharge or otherwise discrimi- 1 In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order." INTERNATIONAL BROTHERHOOD OF TEAMSTERS, ETC. 827 nate against its employees because they have failed to obtain a work referral from this union, except to the extent permitted by an agreement executed in accordance with Section 8 (a) (3) of the Act. ' WE WILL NOT in any other like or related manner cause or at- tempt to cause SESCO CONTRACTORS, its agents, successors, or as- signs, to discriminate against its employees in violation of Section 8 (a) (3) of the Act. WE WILL NOT restrain or coerce employees of SESCO CONTRAC- TORS, its agents, successors, or assigns, in the exercise of rights guaranteed them by Section 7 of the Act. WE WILL make Thomas K. Vowell whole for any loss of pay he may have suffered because of the discrimination against him. INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN & HELPERS OF AMERICA, LOCAL No. 621, By ----------------------------------------------- (Representative) (Title )l 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 The complaint herein, based upon charges duly filed by Thomas K. Vowell, an individual, alleges that: (1) On or about December 1950, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, Local No. 621 (herein called the Respondent) and B. F. Schoenman and B. F. Schoenman, Jr., a partnership doing business as Sesco Contractors, entered into an illegal union-security agreement whereby Sesco employed as truck drivers at the Cambria Range Station Project (located near Lake City, Tennessee) only members in good standing of Local 621 referred to it by the Respondent; (2) pursuant to the above agreement and the practices thereunder the Respondent on or about January 3, 1951, caused Sesco to discharge Thomas K. Vowell and thereafter refused to reinstate or reemploy him because Vowell had not been referred to Sesco for employment by the Respondent; and (3) by such acts the Respondent has violated Section 8 (b) (1) and (2) and Section 2 (6) and (7) of the National Labor Relations Act, as amended (61 Stat. 136), herein called the Act. The Respondent's answer admits that it is a labor organization within the meaning of Section 2 (5) of the Act and that since December 1950, Respondent has referred to Sesco for employment as truck drivers only members in good standing of the Respondent, but denies all other allegations in the complaint. Pursuant to notice, a hearing was held before J. J. Fitzpatrick, the undersigned Trial Examiner, on June 12, 1951, at Knoxville, Tennessee. The General Coun- sel and the Union were represented at the hearing by counsel 'and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to 828 DECISIONS OF NATIONAL LABOR RELATIONS BOARD introduce evidence pertinent to the issues. At the conclusion of the hearing the General Counsel and the Respondent argued orally on the record. Parties were at that time afforded an opportunity to file briefs and/or proposed findings of fact and conclusions of law. No briefs or proposals have been received." Upon the entire record in the case, and from my observation of the witnesses, I make the following : FINDINGS OF FACT' 1. THE BUSINESS OF THE EMPLOYER The partnership known as Sesco Contractors is engaged throughout the United States in the general contracting business with its principal office and place of business at Dallas, Texas. During all times material herein it has been engaged in construction work near Lake City, Tennessee, on the Cambria Range Station Project under a contract with the Corps of Engineers of the United States Army. Cambria is classified as and for national defense and Sesco is under a directive, for security reasons, not to divulge the details of construction. At the time of the hearing the total contract cost was approximately $1,350,000. Since December 1950, when the construction started, between $600,000 and $700,000 worth of material and supplies have been purchased for use on the project. Although a portion of these supplies came through Sesco's subcontractors, the Employer -directly purchased at least $100,000 worth of material and supplies from outside the State of Tennessee and caused it to be shipped to Cambria. I therefore find, contrary to the contention of the Respondent, that Sesco is a multistate enter- prise; that at times material herein it was engaged in the contruction of a project in the State of Tennessee substantially affecting the national defense; that it is engaged in commerce within the meaning of the Act ; and that it will effectuate the policies and purposes of the Act for the National Labor Relations Board to assert jurisdiction herein.' II. THE RESPONDENT International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Help- ers of America, Local No. 621, is a labor organization admitting to membership certain classifications of employees of Sesco engaged on the Cambria Range Station Project. M. THE UNFAIR LABOR PRACTICES A. The facts The Knoxville Building Trades Council is an association made up of various craft unions, including the Respondent, in the Knoxville, Tennessee, area. In early December 1950, immediately prior to engaging in the construction work on the Cambria Project above-referred to, Sesco received a letter from the Council asking for a conference before the construction work started. As a result, a few days later Sesco's Cambria Project manager, M. G. Hughett, met with repre- sentatives of the Council at the latter's office in Knoxville. The Council was X After the close of the hearing the General Counsel sent me a short note, indicating a copy thereof had been mailed to the Union, wherein he gave the citation of a case he had referred to in his oral argument. 2 Unless otherwise indicated herein, the findings of fact that follow are not materially disputed in the record. 8 The Borden Company, etc ., 91 NLRB 628; Westport Moving and Storage Co., 91 NLRB 902. INTERNATIONAL BROTHERHOOD OF TEAMSTERS, ETC. 829 represented by its president and secretary, and also representatives from various members of the Council including E. R. Clifton, business agent of the Respondent. During the course of the meeting, Hughett, at the Council's request, gave an estimate of the scope of Sesco's contemplated construction work and the approxi- mate number and kind of workers that would be needed. He then, on behalf of Sesco, orally agreed to hire only those local workers (including truck drivers) who were referred to it by the union members of the Council. Thereafter, when- ever Sesco needed truck drivers it was normal practice for it to phone or otherwise get in touch with the Respondent, stating its requirements, and the Respondent would then send the necessary number of drivers to Sesco, each supplied with a referral slip executed by an official of the Respondent, and they would be put to work. Before beginning the actual construction work, Sesco needed equipment and supplies transported to or near Lake City (roughly about 30 miles from Knox- ville). To do this hauling it hired Thomas K. Vowell and another man by the name of Alonzo Cox, both truck owners, to transport lumber and other supplies with their own trucks to the project without clearing with the Respondent, ap- parently under the mistaken impression that these truck owner drivers were independent contractors and not employees. Thereafter until early January 1951, Vowell continued to work for Sesco, mostly using his own truck. The afternoon of January 3 Vowell and his assist- ant, J. E. Cooper, after completing the transportation of some lumber, were assisting in the unloading of supplies that had been driven to the site by a driver for a plumbing supply concern. Respondent's business agent, Clifton, appeared on the scene"and asked the driver of the plumbing truck for his union card. When the latter stated that he was not a union member, Clifton replied that he would have to have a union card if he wanted to work on the project.` On hearing the above statement of Clifton to the other truck driver, Vowell, who had joined Local 621 the previous September while working for the Con- solidated Western Steel Corporation (a previous contractor on the Cambria Project), but who at the time was behind in his dues,' offered his arrearages to Clifton. The latter refused to accept the money stating that he was not per- mitted to accept dues where, as was then the situation, he had no official receipt book with him. The next morning E. J. Marcussen, Sesco's superintendent of personnel, told Vowell there was no further work for him. Vowell at that time offered to use his own truck, drive a company truck, work as a labor foreman, or take any kind of work that Sesco had to offer, but was not employed. About the same time, driver James (who had previously worked for Western as here- tofore noted) was hired by Sesco on a referral from the Respondent. Marcussen testified credibly that he would have hired Vowell, but he had instructions from his superior to hire only drivers who were sent to him by Local 621. ' The above finding is based on the testimony of Vowell and his assistant, Cooper. Clif- ton did not specifically deny their testimony but stated merely that on ascertaining that the plumbing truck driver was not a union member he told him "We have a local union" here. ' When Vowell joined Local 621 in September 1950, he paid dues up to November 3 of that year. In October 1950, a union driver named James quit his job with Western rather than continue operating a truck with defective brakes. Vowell, who apparently prior to that time had been operating his own truck for Western, then took over and operated the company truck although Clifton called his attention to the fact that James had refused to operate the truck because it was unsafe. A few days later Vowell was dis- charged, and on November 3, 1950, he filed a charge with the Board alleging that the Respondent had brought about his dismissal in violation of Section 8 (b) (1) and (2) of the Act. No complaint, however, has been issued based on this charge. 830 DECISIONS OF- NATIONAL LABOR RELATIONS BOARD Saturday- following the above dismissal, Marcussen came to Vowell's grocery etore ° to pay him for his previous work, and Vowell inquired about reemploy- ment. Marcussen asked Vowell how he stood with the Union. Vowell showed the superintendent his union book indicating that dues had only been paid to early November 1950, and stated that he had tried to pay his delinquent dues to the union business agent, but the latter refused to take the money. Marcussen agreed to talk to the business 'agent. However, General Manager Hughett advised against calling the Union • relative to obtaining clearance for Vowell because of a previous experience concerning another truck driver. As a result, nothing further was done by Sesco relative to Vowell. The latter never asked for nor obtained a referral from the Respondent, made no further effort to pay his delinquent dues to Local 621, and has not since been offered emnlnvmont by Sesco. - B. Conclusions Tennessee law' makes unlawful any agreement to exclude any worker from employment because of his membership or nonmembership in a union. While it is true that under Section 8 (a) (3) and Section 9 (e) of the Act, a union-shop provision can normally be included in a contract between an employer and the- authorized representative of his employees following a union-shop election and certification, it has never been the policy of the Board to hold such elections in States where local laws prohibit union-shop agreements, particularly because of Section 14 (b) of the Act! It can therefore be inferred that even if a petition had been filed to authorize a union-shop' agreement with or on behalf of the Respondent (and no showing was made that such petition was filed), no election would have been held or certification issued pursuant thereto because of the Tennessee law above referred to., It is also to be noted that the oral agreement, entered into between Sesco on the one hand and the Council on behalf of the ,various Knoxville Unions including the Respondent on the other hand, con- tained broader provisions than permitted by the Federal statute, even if there had been an election and certification. Pursuant to the terms of this agree- ment, Sesco called upon the Respondent when it needed truck drivers and the Respondent referred only union drivers in good standing to Sesco for employ- ment. The practical effect, insofar as the Respondent was concerned (and probably also as to all other union members of the Council) was a closed shop, an arrangement not permitted by the Act, as amended, under any circumstances. The Respondent contends that: (1) It was not a party to the agreement between the Council and Sesco and should therefore not be held accountable therefor; and (2) the agreement with Sqsco, insofar as the Respondent was con- cerned, was merely a loose nonexclusive arrangement for the convenience of Sesco whereby the Respondent, when requested, furnished drivers from its membership for employment ; that the Respondent never insisted that only drivers referred by it be employed, and that in fact Sesco employed and kept in its employment nonunion drivers who had never secured a referral. Relative to the first point urged by the Respondent, the evidence shows without dispute that: (1) Respondent's business agent, Clifton, actively participated in ° Vowell owned a small grocery store but apparently devoted most of his time to truck driving or operating his own truck for hire. Sections 11412 8 through 11412.13 of the Tennessee Code. ° Section 14 (b). "Nothing in this Act shall be construed as authorizing the execution or application of agreements requiring membeship in a labor organization as a condition of employment in any State or Territory in which such execution or application is pro- hibited by State or Territorial law." INTERNATIONAL BROTHERHOOD OF TEAMSTERS, ETC. 831 the conference with Sesco at which oral agreement was arrived; (2) the agree- ment was between the Employer and the Council, as the representative of its various union members including the Respondent; (3) pursuant to the agreement the Employer notified the Respondent when it needed drivers and only union members thereafter referred to it by the Respondent were hired; and (4) the Respondent through its business agent checked Sesco employees on the job to be sure that only union drivers were working. I therefore must reject the first contention of the Respondent; and find that it actively participated in the nego- tiations that resulted in the illegal closed-shop agreement with the Council, acted pursuant to the terms thereof, and specifically benefited thereby. As to the second contention of the Respondent, that it acted merely as a non- exclusive employment agency whereby Sesco could secure needed workers, there is no adequate or credible testimony to support this contention. The preponder- ance of the credible evidence discloses that only Vowell and Alonzo Cox were hired without union referrals, and that under the misapprehension that as owner-drivers they were not included in the agreement because they were not employees; that Vowell was'thereafter discharged by Sesco on January 3, 1951, and has not since been employed, at the insistence of t1ie Respondent because Vowell did not have a referral ; and that Cox was discharged in January for the same reasons The evidence clearly establishes that Vowell and Cox were employees within the meaning of the Act. Indeed, no contention to the contrary was asserted at the hearing. I find, therefore, that no valid union-security agreement was in existence between Sesco and the Respondent, or any representative of the Respondent ; and that by causing Sesco to discharge and refuse to rehire Vowell because he did not have a referral, in violation of Section 8 (a) (3), Respondent has violated Section 8 (b) (2) and (1) of the Act10 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in Section III, above, occurring in connection with the operations of Sesco described in Section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY It having been found that the Respondent has engaged in certain unfair labor practices, it will be recommended that it cease and desist therefrom and take certain affirmative action, including posting of appropriate notices, designed to effectuate the policies of the Act. It has been found that the Respondent caused Sesco, the Employer, to dis- criminate against Thomas K. Vowell in violation of Section 8 (a) (3) of the statute. It is recommended that the Respondent notify the Employer in writing that it has withdrawn objections to the employment of Vowell or any other 9 In view of General Manager Hughett's positive testimony that in January he had a specific commitment to Business Agent Clifton not to further enrploy Vowell or Cox and Superintendent Marcussen 's testimony that on and after January 1950 , under instructions from his superior , he could only hire referred drivers, I do not credit Clifton's testimony that he never asked Sesco to refuse employment to Vowell. io Construction and General Laborers Union, etc., 96 NLRB 118. No finding is made as to discrimination against Alonzo Cox as it was not alleged in the complaint nor was it litigated. 832 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employee, or prospective employee, who does not have a work referral from the Respondent.11 The Respondent having committed unfair labor practices which resulted in the termination of Vowell's employment, it will be recommended that the Re- spondent make him whole for losses suffered by reason of the Respondent's unlawful conduct,12 by payment to him of a sum of money equal to the amount he normally would have earned as wages from January 3, 1951, the date of his release from employment, to 5 days after the date when the Respondent notifies Sesco in writing that it has no objection to his being employed without a referral, less Vowell's net earnings, if any, during such period, computed on a quarterly basis in the manner established in the Woolworth case." Upon the above findings of fact, and upon the entire record in the case, I make the following : CONCLUSIONS OF LAW 1. Sesco Contractors is, and at all times material herein was, an employer within the meaning of Section 2 (2) of the Act, and engaged in commerce within the meaning of Section 2 (6) and (7) of the Act. 2. The Respondent, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, Local No. 621, is a labor organization within the meaning of Section 2 (5) of the Act. 3. By causing Sesco Contractors to discharge and refuse thereafter to reemploy Thomas K. Vowell because he did not have a work referral from the Respondent in violation of Section 8 (a) (3), the Respondent has engaged in unfair labor practices within the meaning of Section 8 (b) (2) and 8 (b) (1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. [Recommendations omitted from publication in this volume.] 11 There is no recommendation herein that the agreement between Sesco and the Knox- ville Building Trades Council be invalidated, as neither Sesco nor the Council are parties in this proceeding. Consolidated Edison Co., 305 U. S. 197. 12 The nonjoinder of the Employer as a respondent herein does not in any way lessen the liability of Local 621. National Union of Marine Cooks and Stewards, 0. 1. 0. and George C. Quinley, 92 NLRB 877. 13 F. W. Woolworth Company, 90 NLRB 289. CASHMAN AUTO COMPANY and LOCAL 841, INTERNATIONAL BROTHER- HOOD OF TEAMSTERS CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, AFL, AND LODGE 1898 OF DISTRICT 38 or INTERNATIONAL ASSOCIATION OF MACHINISTS, AFL RED CAB COMPANY and LOCAL 841, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMER- ICA, AFL, AND LODGE 1898 OF DISTRICT 38 OF INTERNATIONAL ASSO- CIATION of MACHINISTS, AFL. Cases Nos. 1-CA-875 and 1-CA- 876. March X6,1952 Decision and Order On September 10, 1951, Trial Examiner John H. Eadie issued his Intermediate Report in the above-entitled proceeding, finding that 98 NLRB No. 134.