International Union of Operating Engineers

INTERNATIONAL UNION OF OPERATING ENGINEERS 6555 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICE UPON COMMERCE Certain of the activities of the Respondents set forth in section III, above, oc- curring in connection with the operations of the Respondent Company described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondents have engaged in certain unfair labor prac- tices, the Trial Examiner will recommend that they cease and desist therefrom and take certain affirmative action necessary to effectuate the policies of the Act. It has been "found that the Respondents have entered into and maintained agree- ments containing seniority provisions violative of Section 8 (a) (1) and (3) and 8 (b) (1) (A) and (2) of the Act. Accordingly it will be recommended that the Respondents cease giving effect to the unlawful seniority provisions of their agree- ments and refrain in the future from executing agreements containing such unlawful seniority provisions. It will not be recommended that the Respondents cease giving effect to both current agreements, nor that the Respondent Company withdraw and withhold recognition from the Respondent Union. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, the Trial Examiner makes the following: CONCLUSIONS OF LAW 1. The Respondent Union is a labor organization within the meaning of Section Z (5) of the Act. 2. By entering into and maintaining agreements containing clauses delegating to the Respondent Union authority to settle controversies relating to- seniority the Respondent Company has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) and (3) of the Act, and the Respondent Union has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (b) (1) (A) and (2) of the Act. 3. The unfair labor practices found herein are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. 4. The Respondents have not engaged in unfair labor practices within the mean- ing of the Act with respect to Ivan Hazel. [Recommendations omitted from publication.] International Union of Operating Engineers, Local No. 12, AFL and Robert A. Holderby International Union of Operating Engineers, Local No. 12, AFL and Frederick R. Hummel International Union of Operating Engineers, Local No. 12, AFL and Hoyt Covert. Cases Nos. %9,1-CB-564, 21-CB-536, and 21-CR- 586. August 15,1955 DECISION AND ORDER STATEMENT OF THE CASE Upon charges filed by Frederick R. Hummel, Robert A. Holderby, and Hoyt Covert, on November 16, 1953, February 15, 1954, and April 8, 1954, respectively, the General Counsel of the National Labor Relations Board, herein called the General Counsel, by the Regional 113 NLRB No. 67. 656 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Director for the Twenty-first Region (Los Angeles, California), is- sued a complaint dated June 1, 1954, and an amendment thereto, dated August 11, 1954, against International Union of Operating Engineers, Local No. 12, AFL, herein called the Respondent, the Union, or Local 12, alleging that the Respondent had engaged in and was en- gaging in unfair labor practices affecting commerce within the mean- ing of Section 8 (b) (1) (A) and (2) and Section 2 (6) and (7) of the National Labor Relations Act, as amended, herein called the Act. Copies of the charges, the consolidated complaint, and amendment thereto, together with notice of hearing, were duly served upon the Respondent and the Charging Parties. The amended complaint alleged in substance that the Respondent had violated Section 8 (b) (1) (A) and (2) of the Act by, the follow- ing conduct: (1) Refusing to refer Robert A..EIolderby to a job with any employer-member of Associated General Contractors, Southern California Chapter; (2) operating its job dispatch system in a dis- criminatory manner by (a) giving preference in referrals to its mem- bers, (b) requiring nonmembers dispatched to jobs to pay work-permit fees of $2.50 per week, and (c) requiring nonmembers to pay a sub- stantial -part of the union initiation fee and advance dues at the time of their first dispatch to a job; and (3) attempting to cause an em- ployer, United Concrete Pipe Corporation, to discriminate against Hoyt Covert, one of its employees, in violation of Section 8 (a) (3) of the Act. On June 18 and September 7, 1954, the Respondent filed answers to the consolidated complaint and to the amended complaint, respectively, denying all the principal allegations. Pursuant to notice, a consolidated hearing was held in Los Angeles, California, on' October 18 and 19, 1954, before Thomas S. Nilson, the Trial Examiner duly designated by the Chief Trial Examiner. The General Counsel and the Respondent were represented and partici- pated in the hearing. All parties were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues. At the close of the hearing, the parties argued orally before the Trial Examiner and subsequently filed briefs with him. During the course of the hearing, the Trial Examiner made rulings on motions and on the admissibility of evidence. The Board has reviewed the rulings of the Trial Examiner and finds that no prejudicial error was committed. The rulings are hereby affirmed. On December 14, 1954, the Trial Examiner issued his Intermediate Report, copies of which were duly served upon the parties. In the Intermediate Report the Trial Examiner found that the Respondent had not engaged in any unfair labor practices within the meaning of Section 8 (b) (1) (A) and (2) of the Act, and recommended that the complaint be dismissed in its entirety. I INTERNATIONAL UNION OF OPERATING ENGINEERS 657 • Thereafter, the General Counsel filed exceptions to the Intermedi- ate Report 1 and a supporting brief. The Respondent filed a brief in support of the Intermediate Report. The Board has considered all the exceptions and, to the extent indi- cated hereinafter, finds them to have merit. Upon the entire record in the case, the Board makes the following : • FINDINGS OF FACT 1. THE BUSINESS OF THE ASSOCIATED GENERAL CONTRACTORS The General Counsel and the Respondent stipulated at the hearing that the testimony in Case No. 21-CB-548, Local 1400, United Broth- erhood of Carpenters and Joiners of America, AFL, with respect to the business of Associated General Contractors, referred to herein as AGC, be considered a part of'the record in the instant case. The testi- mony indicates that in 1953 and 1954, AGC members did several mil- lion dollars worth of construction work at a Marine training base at Twentynine Palms, California, and at an Air Force base near Las Vegas, Nevada. We find that AGC is engaged in commerce within the meaning of the Act and that it will effectuate the policies of the Act to assert juris- diction herein.2 II. THE LABOR ORGANIZATION INVOLVED International Union of Operating Engineers, Local No. 12, AFL, is- a labor organization admitting to membership employees of mem- bers of Associated General Contractors. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The bargaining agreement For many years, the Respondent together with other construction trade unions have been parties to collective-bargaining agreements with AGC. At all times material herein, the bargaining contract be- tween these par Lies contained the following hiring provisions : II. A. That the Contractors hereby recognize the Unions who are signatory hereto as the sole and exclusive collective bargaining representative of all employees of the Contractors signatory hereto over whom the Unions have jurisdiction, as such jurisdic- tion is defined by the Building and Construction Trades Depart- 1 The General Counsel did not except to the Trial Examiner 's recommendation that the complaint be dismissed insofar as it applied to Hummel and Covert . The Board therefore adopts these recommendations without passing on the merits. 2 Maytag Aircraft Corp , 110 NLRB 594. 658 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ment of the American Federation of Labor as of the date of this Agreement. . . . That subject to this'understanding the Contractors shall have entire freedom of selectivity in hiring and may discharge any employee for any cause which he may deem sufficient, provided there shall be no discrimination on the part of the Contractors against an employee, nor shall any such employee be discharged by reason of any Union activity not interfering with the proper performance of this work. It is the intention of the parties that all workmen covered hereby shall be or become forthwith upon employment and re- main continuously, members in good standing of the International .Unions signatory hereto through their affiliated Local Unions having work and area jurisdiction and on whose behalf this Agreement is executed, as a condition of employment, and that this provision shall become operative without further notice or amendment whenever amendments to or judicial interpretations of the Labor-Management Relations Act of 1947 remove the in- hibitions against the application of this paragraph now existing under the present wording and judicial interpretations of that Act. It is agreed that all workmen covered hereby shall be or be- come, not more than thirty (30) days after employment and re- main continuously, members in good standing of the Interna- tional Unions signatory hereto through their affiliated Local Unions having work and area jurisdiction and on whose behalf this Agreement is executed, and shall remain available for work as a condition of employment. B. That in the employment of workmen for all work covered by this Agreement in the territory above described, the following provisions, subject to the conditions of Article II-A, above, shall govern : 1. That the Local Unions shall establish and maintain open and nondiscriminatory employment lists for employment of work- men in the work and area jurisdiction of each respective Local Union of each particular trade. That the Contractors shall first call upon the respective Local Unions having work and area jurisdiction, or their Agents, for such men as they may from time to time need, and the respective Local Unions, or their Agents, shall immediately furnish to the Contractors the required number of qualified and competent workmen and skilled mechanics of the classifications needed by the Contractors. That the respective Local Unions, or their Agents, will furnish each such required competent workmen or skilled mechanic en- INTERNATIONAL UNION OF OPERATING ENGINEERS 659 tered on their lists, to the Contractors by use of a written re- ferral and will furnish such workmen or skilled mechanics from the respective Local Unions' listing in the following manner: (a) Workmen who have been recently laid off or terminated in that respective Local Union's work and area jurisdiction by the Contractors now desiring to re-employ the same workmen in that same area provided they are available for employment. (b) Workmen who have been employed by Contractors in the respective Local Union's work and area jurisdiction within the multiple-employer unit during the previous ten (10) years, and who are available for employment. (c) Workmen whose names are entered on the list of the re- spective Local Union having work and area jurisdiction and who are available for employment. That workmen employed by the Contractors for a period of thirty (30) days continuously or accumulatively within the mul- tiple-employer unit and procured in accordance with II, B-1, (c), above or procured from other sources by the Contractors themselves, shall become members of the appropriate craft Union signatory hereto immediately, upon terms and qualifications not more burdensome than those applicable at such times to other applicants to such Union. B. Operation of Local 12's dispatch system Based upon this agreement, Local 12 operated a job referral or dis- patch system for supplying the requirements of AGC members for op- erating engineers and allied classifications. Telephone calls from these employers were made to the union office for workmen qualified to operate specific types of equipment. The Respondent maintained two referral lists. The first was headed "Members" and included all members 'of Local 12 who had reported that they were seeking work. According to the testimony of McNeel, an official of Local 12, there was no distinction in this group between those Local 12 members who -had and those who had not previously worked for employers who were part' of the AGC unit. The second group was entitled "Ap- plicants and Others" and included members of other locals of Interna- tional Union of Operating Engineers who had transferred into the geographical area of Local 12 as well as any nonunion workman who applied at the dispatch office for work within the Local's jurisdiction. When` an,employer requested a workman with particular qualifica- tions, an employee in the office of Local 12 would first examine the "Members" list for a qualified individual. If that list did not con- tain an individual with the proper qualifications, the clerk would then 660 DECISIONS OF NATIONAL LABOR RELATIONS BOARD resort to the "Applicants and Others" list. An individual dispatched from the latter list was required to pay a work-permit fee of at least $2 per week.' Under the union-security provision of the bargaining agreement, individuals newly hired in the multiemployer unit had 30 days within which to join Local 12, although as we have noted in footnote 3, the constitution of the International Union prohibits any of its locals from issuing a work permit to anyone who has not already applied for mem- bership. Moreover, the practice of Local 12 conformed to the require- ments of the International's constitution. McNeel testified that it was the practice for applicants for employment to apply for membership at the time of their first referral, although on occasion an applicant might be dispatched to a job without paying any part of the initiation fee which was due when a membership application was submitted. C. Robert A. Holderby Holderby obtained referrals through Local 12 beginning in Septem- ber 1951. In January 1953, he was suspended from membership for dues delinquency, but was reinstated 2 months later upon payment of all the fees and dues for which he was liable. In June 1953, the execu- tive board of Local 12 expelled him from the Local by rejecting his- previous application for reinstatement, and returned to him all the initiation fees, dues, and permit fees which he had ever paid to Local 12. Between January 1953, when he was first suspended, and June- 1953, when he was finally expelled, Holderby continued to be regularly dispatched to jobs, but immediately upon his expulsion his name was removed from the "Members" out-of-work register and placed at the- top of the "Applicants and Others" list. Thereafter, for approxi- mately 12 months he was never sent out on a job although on 1 or 2' occasions the dispatcher attempted to notify him of a possible referral. On June 3, 1954, 2 days after the issuance of the complaint he was offered 2 jobs on the same day and continued to be dispatched fairly- regularly until shortly before the hearing, when again no jobs were- made available to him. For about 4 months during this period, Holderby was employed as- a truck salesman working on commission. He testified that during the entire period in which he was not being referred to jobs by Local 12, he was available for work as an operating engineer, and had at-- tempted to obtain construction jobs through personal applications to• B Article xV, section 3 (e) of the International Union's constitution requires each local ,which permits applicants for membership to work under a contract with, or under con- trol of, the local to charge minimum weekly permit dues of $2 of each hoisting or portable- engineer or apprentice Section 3 ( h) provides that no temporary permit for work shall be issued to anyone who is not either a member of the International or an applicant for membership therein The Trial Examiner found that the Respondent charged $2 50 per week for a work permit The Respondent did not except to this finding INTERNATIONAL UNION OF OPERATING ENGINEERS 661 contractors. At no time was he successful in obtaining work within Local 12's jurisdiction directly from contractors. D. Conclusions 1. The complaint does not allege that the hiring arrangement agreed to by AGC and Local 12 is invalid, and the General Counsel limited his case to attacking as discriminatory only certain practices followed in the operation of that system.4 The General Counsel's failure to allege that the agreement was itself illegal, precludes the Board from making any finding on that point. But apart from the question of the agreement's validity under Sec- tion 8 (a) (3), we nevertheless find that, in the following particulars, the dispatch system was not being administered by AGC 8 and Local 12 in accordance with its terms. (a) Under the contract dispatch procedure, a qualified individual who had worked in the AGC unit within the previous 10 years was entitled to referral preference over others, including members of Local 12 and applicants for membership. In practice, however, union mem- bers were given job preference regardless of whether they had ever worked in the AGC unit. Moreover, Holderby's name was removed from the preferred "Members" list after he was expelled from Local 12 despite his right to preference as a former worker within the AGC unit. (b) Under the agreement, a nonunion workman dispatched by Local 12 was not required to join the Union until after 30 days of con- tinuous or accumulated employment within the AGC unit. It was the practice, however, for nonunion prospective employees to apply for union membership immediately upon their first dispatch. The Re- spondent contends that this was voluntary on the part of each pro- spective employee, and that discrimination against nonunion em- ployees or prospective employees cannot be presumed as long as there was no compulsion by the Union to require them to apply for mem- bership immediately. We believe that in fact nonunion employees could not exercise a free choice between applying for union mem- bership immediately or after the first 30 days of employment. Job A The Trial Examiner expressed bewilderment as to the General Counsel's theory of the case, although the complaint , the presentation of the case , and the brief to the Trial Ex- aminer make it clear that the General Counsel considered as violative only the practices discussed below, and not the agreement itself. Despite his stated inability to understand the basis for the action , the Trial Examiner discussed the practices used by Local 12 in its dispatch procedure . His failure to find any violation on the Respondent 's part is not, therefore, due to any deficiency in the General Counsel's case 6 Although AGC is not a respondent, we believe that its delegation to Local 12 to operate the dispatch system did not relieve it of a responsibility to insist that the Union fulfill its contractual obligation of maintaining nondiscriminatory hiring lists . AGC is not, of course, a necessary party respondent to a complaint alleging a violation of Section 8 (b) (2) Radio Officers' Union of the Commercial Telegraphers' Union, AFL, 347 U. S 17, enfg 93 NLRB 1523 1527 National Union of Marine Cooks and Stewards. 92 NLRB 877, 662 DECISIONS OF NATIONAL LABOR RELATIONS BOARD applicants were aware that their only chance of obtaining employment with AGC employers was through Local 12's dispatching office. To say, as the Respondent does, that all job applicants voluntarily applied for membership immediately, is to ignore the practical situation in which such applicants were placed. Realistically, they were in no posi- tion to stand on their statutory right of refusing to submit an applica- tion for membership in the Union for at least 30 days. The fact that prospective employees were, on occasion, dispatched before they had paid any part of their initiation fee is corroboration that immediate application in the Union was obligatory, since only applicants were required to pay initiation fees. Nor does any relaxation by Local 12 of its usual practice of requiring some part of the initiation fee im- mediately excuse the violation of denying to job applicants the 30- day grace period given them by the statute. Moreover, we have no reason to believe that Local 12 did not abide by section 3 (h) of ar- ticle XV of the International's constitution which prohibits a local union from issuing a temporary work permit to anyone who is not either a member of the International or an applicant for membership. (c) The contract makes no provision for the payment of work- permit fees by nonunion applicants for employment. In practice, nonunion applicants using the Respondent's dispatch system were re- quired to pay at least $2 per week for the right to work for AGC members, whereas union members were not required to pay such a fee. The Respondent neither contended nor proved that this special charge levied upon nonunion applicants was in any way related to the cost of operating the dispatch system for the benefit of such employees. By the aforesaid practices, the Respondent caused the Employers to discriminate against nonunion applicants for employment to the advantage of union members. 2. The General Counsel contends that, after expelling Robert Hold- erby from membership, the Respondent denied him further job re- ferrals in violation of Section 8 (b) (2) and (1) (A) of the Act. The Respondent does not deny that it removed Holderby's name from the preferred "Members" list when it expelled him from the Union, but it argues that the General Counsel has not proved that there were jobs available to which Holderby would have been referred but for the removal of his name from the "Members" list. In answer to this contention, the General Counsel asserts that the mere removal of Holderby's name from the contractual preferred list because he had lost his union membership was a violation of the Act, and that the extent to which Holderby actually suffered loss of employment as a result of the removal is a matter for determination at the compliance stage of the proceeding. INTERNATIONAL UNION OF OPERATING ENGINEERS 663 We agree with the General Counsel. It is clear that, for the pur- poses of job referral, Local 12 refused to consider Holderby on an equal basis with individuals who were entitled to preference under the AGC agreement, simply because he was no longer a member of Local 12. "This denial of equal access to the available jobs was in it- self and without more a restrictive imposition in violation of the Act." 6 Because of the casual and occasional nature of the jobs to which Holderby had been referred before his expulsion and because of the practice of preferring union members, we are unable to deter- mine now to what extent Holderby was injured by the unlawful sys- tem of preferences. This is, however, a matter which can properly be settled in the compliance stage of the proceeding. We find, accordingly, that the Respondent violated Section 8 (b) (2) and 8 (b) (1) (A) of the Act by operating the dispatch system authorized under its agreement with AGC so as to discriminate against nonmembers of Local 12 in the following respects : By equat- ing the preference in job referrals to which workmen in the AGC unit within the past 10 years were entitled with membership in Local 12, thereby giving preference in job referrals to the latter; by requiring prospective nonunion employees to apply for membership in Local 12 immediately upon their first referral; and by imposing a permit fee on nonunion employees when working in its jurisdiction within the AGC unit? We also find that by removing Holderby's name from the "Members" list because of his expulsion from the Union, thereby de- nying him equal access to jobs, the Respondent further violated Sec- tion 8 (b) (2) and (1) (A) of the Act. 0 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, oc- curring in connection with the operations of Associated General Con- tractors, Southern California Chapter, 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 the free flow of commerce. V. THE REMEDY' Having found that the Respondent operated its dispatch system in a discriminatory manner by preferring its members in job referrals over nonunion workmen or job applicants, thereby engaging in cer- tain unfair labor practices within the meaning of Section 8 (b) (1) °N. L R. B v. Local 803, International Brotherhood of Boilermakers, Iron Ship Build- ers and Helpers of America, AFL, 218 F. 2d 299 (C. A. 3), enfg. 107 NLRB 1011. 'J. J. White, Inc, 111 NLRB 1126. 37 9288-56=v o1. 113-43 664 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (A) and (2) of the Act, we shall order the Respondent to cease and desist therefrom and to take certain affirmative action designed to ef- fectuate the policies of the Act. We shall order the Respondent to make RobertA. Holderby whale, for any loss of pay suffered by him as the result of its unlawful con- duct, by payment to him of a sum of money equal to the amount he would normally have earned as wages if his name had not been re- moved from the fist of those entitled to job preference by their em- ployment within the past 10 years in the AGC unit. In computing the amount of back pay due Holderby, the customary formula of the Board set forth in F. W. Woolworth Company, 90 NLRB 289, shall be applied. As the Trial Examiner did not find that Local 12 dis- criminated against Holderby, the period from the date of the Inter- mediate,Report to the date of the Order herein shall, in accordance with our usual practice, be excluded in computing the amount of back pay due him. Upon the basis of the foregoing findings of fact, and upon the en- tire record in the case, the Board makes the following : CONCLUSIONS OF LAW 1. Associated General Contractors, Southern California Chapter, is engaged in commerce within the meaning of Section 2 (6) and (7) of the Act. 2. International Union of Operating Engineers; Local No. 12, AFL,' is a labor organization within the meaning of Section 2 (5) of the Act. 3. By causing the aforementioned multiemployer Association to discriminate against employees and prospective employees in viola- tion of Section 8 (a) (3) of the Act, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of See tion 8 (b) (2) of the Act. 4. By restraining and coercing employees and prospective em-, ployees of the multiemployer Association herein involved in the exer- cise of rights guaranteed in Section 7 of the At, the Respondent has; engaged in and is engaging in unfair labor practices within the mean- ing of Section 8 (b) (1) (A) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. ORDER Upon the entire record in this case, and pursuant to Section 10 (e) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent , International INTERNATIONAL UNION OF OPERATING ENGINEERS 665 Union of Operating Engineers, Local No. 12, AFL, its officers, agents,, successors, or assigns, shall : 1. Cease and desist from : (a) Causing or attempting to cause employer-members of Associ- ated ,General Contractors, Southern California Chapter, to discrimi- nate against nonunion employees, including Robert A. Holderby, and prospective employees by operating the dispatch system provided for, in their collective-bargaining agreement, so as : (1) To give preference in job referrals to its members. (2) To require nonunion applicants for employment to apply for membership in Local 12 immediately upon their first referral., (3) To impose work permit fees on nonunion employees who work within its craft jurisdiction in the AGC unit. (b) In, any like or related manner restraining or coercing em- ployees or prospective employees of employer-members of Associate! General Contractors, Southern California Chapter, in the exercise of the rightsguaranteed by Section 7 of the Act, except to the extent tha' such rights may be affected by an agreement requiring membership in Local 12 as a condition of employment as authorized by Section S (a) (3) of the Act. 2. Take the following affirmative action which the Board finds will' effectuate the policies of the Act : (a) Make whole Robert A. Holderby for any loss of -pay he may have suffered as a result of the discrimination-against him, in the man- ner set forth in section V, above, entitled "The Remedy." • (b) Post in conspicuous places at the job dispatching offices of the Respondent, and in all places where notices or communications to its members or applicants for employment are customarily posted, copies of the notice attached hereto and-marked "Appendix."" Copies of said notice, to be furnished by the Regional Director for the Twenty- first Region, shall, after being duly signed by the Respondent's rep- resentative, be posted by the Respondent immediately upon receipt, thereof and maintained by it for a period of sixty (60) consecutive days thereafter. Reasonable steps shall be taken by Respondent to, insure that said notices are not altered, defaced, or covered by any other material. (c) Mail to the Regional Director for the -Twenty-first Region: signed copies of the notice attached hereto marked "Appendix," for posting, the employers willing, at the job sites of employers who; through riiembership' in the Associated General Contractors, Southern California Chapter, obtain employees through Respondent's dispatch system. Such notices are to be posted and maintained for a period of sixty (60) consecutive days after receipt by the Employers. Copies 5 In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall he 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." 666 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of the notices, to be furnished by the Regional Director for the Twenty- first Region, shall, after being duly signed by an official representa- tive of the Respondent, be forthwith returned to the Regional Di- rector for posting. (d) Notify the Regional Director for the Twenty-first Region in writing, within ten (10) days from the date of this Order, what steps the Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the complaint be, and it hereby is, dis- missed insofar as it alleges a violation of Section 8 (b) (1) (A) or 8 (b)' (2) of the Act with respect to Frederick R. Hummel or Hoyt Covert. MEMBER MURDOCB:, dissenting: - It seems to me that the majority has misconceived the nature of the unfair labor practice to be determined in this case. No section of this Act forbids discrimination by labor organizations. Employers alone under Section 8 (a) (3) are forbidden to discriminate against their employees to encourage or discourage union membership. Unions, on the other hand, are forbidden under Section 8 (b) (2) to "cause or attempt to cause" such discrimination by an employer. It is therefore completely outside the applicable proscription of this section of the Act to find, as the majority does, that the Respondent Union dis- criminated "against nonmembers of Local 12." The fact that the Re- spondent Union may have referred one employee-rather than another to prospective employers is not sufficient, in my opinion, to prove that the Union caused a particular employer to engage in an act of dis- crimination. Indeed, the record in this case contains not the slightest evidence that any employer took any action or was induced or re- quested by the Union to take any action to the detriment of any em- ployee. In this respect, at least, the Boilermakers case upon which the majority relies is entirely inapposite. There the court found that the "record is clear that because the complainants were delinquent in union dues the employers refused to consider them on an equal basis with union men in good standing who were applying for such extra work as was available." 9 [Emphasis supplied.] The General Counsel does not contest the legality of the agreement between the Union and the Contractors' Association whereby the Union agreed to refer applicants for employment to members of the Association. If, however, this contract is legal there is no act by any employer in this case which is even remotely related to discrimination against any employee. But the majority finds, nevertheless, that the Union caused the members of the Association to engage in acts of dis- crimination against employees and prospective employees. I am un- 9 N. L. R. B. v. Local 803, International Brotherhood of Boilermakers, Iron Ship Builders and Helpers of America, AFL, supra. INTERNATIONAL UNION OF OPERATING ENGINEERS 667 able to determine from a reading of the majority' s decision the basis of their conclusion that the referral practice of the Union, unauthor- ized under the terms of its contract with the Association, constitutes discrimination by members of the Association against employee ap- plicants generally and Holderby in particular. If the majority is holding implicitly that the Union was acting as an agent of the Asso- ciation, in discriminating among applicants in violation of Section 8 (a) (3), there is, in my opinion, no warrant for such a finding in this case. The only authorization extended to the Union by the Associa- tion was to refer applicants for employment in accordance with the terms of the contract which, as indicated above, is not alleged to be an unlawful agreement . Certainly, there is nothing in the common law rules of agency making members of the Association liable, as principals, for unauthorized acts of the Union, particularly where, as here, those acts are found to be in violation of a Federal statute. I believe the majority has misread the language of Section 8 (b) (2). The statute clearly establishes that discrimination by an em- ployer is a prerequisite to a finding of unlawful causation under Sec- tion 8 (b) (2). In the instant case the majority's decision, in effect, converts discrimination by a union into discrimination by an employer. In my opinion, this goes beyond the literal language of Section 8 (b) (2) and the intent of Congress in its enactment. For these reasons I dissent. MEMBER LEEDOM took no part in the consideration of the above De- cision and Order. APPENDIX NOTICE TO ALL MEMBERS OF INTERNATIONAL UNION OF OPERATING EN- GINEERS, LOCAL No. 12, AFL AND TO ALL EMPLOYEES AND PROSPECTIVE EMPLOYEES OF EMPLOYER-MEMBERS OF ASSOCIATED GENERAL CON- TRACTORS, SOUTHERN CALIFORNIA CHAPTER 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 employer -members of Associated General Contractors, Southern California Chapter, to discriminate against nonunion employees, including Robert A. Holderby, and prospective employees by operating the dispatch system provided for in our collective -bargaining agreement, so as: (1) To "give preference in job referrals to our members. (2) To require nonunion applicants for employment to apply for membership 'in Local 12 immediately upon their first referral. 668 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (3) To impose work permit fees on nonunion employees who work within our craft jurisdiction in the AGC unit. WE WILL NOT in any like or related manner restrain or coerce employees or prospective employees of employer-members of As- sociated General Contractors, Southern California Chapter, in the exercise of the rights guaranteed by Section 7 of the Act, except to the extent that such rights may be affected by an agreement re- quiring membership in Local 12 as a condition of employment as authorized by Section 8 (a) (3) of the Act. WE WILL make Robert A. Holderby whole for any loss of pay he may have suffered as a result of the discrimintion against him. INTERNATIONAL UNION OF OPERATING ENGINEERS, LOCAL No. 12, AFL, - Labor Organization.' Dated---------------- By---------------------------------- --- (Representative ) (Title) This notice must remain posted for 60 days from the date hereof, ;and must not be altered, defaced, or covered by any other material. Moore-McCormack Lines, Inc. and American Federation of Labor- International Longshoremen's Association International Longshoremen's Association, Independent, and -International Longshoremen 's Association, Independent, Local No. 895 and American Federation of Labor-International Long- shoremen's Association Moore-McCormack Lines, Inc. and International Brotherhood of Longshoremen, AFL International Longshoremen's Association, Independent, and Local 895, International Longshoremen's Association, Inde- pendent and International Brotherhood of Longshoremen, AFL. Cases Nos. 2=CA-3639, 2-CB-1128, 2-CA-3942, and 2-CB- 1302. August 15,1955 DECISION AND ORDER On February 18, 1955, Trial Examiner Thomas N. Kessel issued his -Intermediate Report in this proceeding, finding that the Respondents had engaged in and were engaging in certain unfair labor practices and recommending that they cease and desist therefrom and take cer- tain affirmative action, as set forth in the copy of the Intermediate Re- port attached hereto., The Trial Examiner also- found that the Re- spondents had not engaged' in certain other 'alleged unfair "labor 113 NLRB No. 75.