United States Steel Corp.

CONSOLIDATED WESTERN STEEL DIVISION 859 V. THE REMEDY Having found that the Respondent has engaged in unfair labor practices, I shall recommend that it cease and desist therefrom and that it take certain affirmative action designed to effectuate the policies of the Act. Upon the basis of the above findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. The Respondent is a labor organization within the meaning of Section 2(5) of the Act. 2. By restraining and coercing employees in the exercise of the rights guaran- teed in Section 7 of the Act, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(b)(1)(A) of the Act. 3. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. 4. The allegations of the amendments to the complaint have not been sustained. [Recommendations omitted from publication.] Consolidated Western Steel Division-United States Steel Cor- poration and Ray S. Morgan. Case No. 21-CA-.2782. January 7, 1959 DECISION AND ORDER On April 14, 1958, Trial Examiner Martin S. Bennett issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had 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 Re- port attached hereto. Thereafter, the General Counsel and Re- spondent filed exceptions to the Intermediate Report. The Respond- ent filed a brief in support of its exceptions and a supplemental brief opposing the exceptions filed by the General Counsel. The General Counsel filed a reply brief. 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 briefs, and the entire record in the case, and adopts the findings, conclusions, and recommendations of the Trial Examiner, with the following additions and modifica- tions : The Respondent excepts to the finding of the Trial Examiner that, through its agent Evans, it refused to employ Morgan on the Edwards project because Local 460,2 refused to clear Morgan for work. The Respondent contends that Evans had no authority to 'Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Board has delegated its powers in connection with this case to a three- member panel [Chairman Leedom and Members Bean and Fanning]. s Local 460, International Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, AFL-CIO. 122 NLRB No. 107. 860 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employ Morgan, but to employ only persons referred by Local 460, and that Evans was therefore acting outside the scope of his au- thority in offering a job to Morgan (which offer was later with- drawn because of the objection of Local 460). We find no merit in this exception, because, whatever the extent of Evans' authority, the fact remains that Morgan was willing to accept the job offered by Evans and, so far as appears from the record, would have been hired but for the objection of Local 460. Since, with respect to Morgan, among others, the Respondent in effect delegated to the Local exclusive control over hiring, its re- fusal to hire Morgan was a violation of Section 8(a) (3) and (1) of the Act, unless the Respondent acted pursuant to an agreement conforming with the requirements prescribed in the Mountain Pacific case.' The Respondent contends that it did act pursuant to such an agreement, namely, its contract with Local 460's International requiring the Respondent to hire exclusively through such local affiliate of the International as has jurisdiction in the area of the job site, in this case Local 460. We have examined the contract and find that it does not conform to the requirements of the Mountain Pacific case because, inter alia, it does not provide that referrals shall be made on a nondiscriminatory basis. Accordingly, we find that this contract is not a defense.' 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, United States Steel Cor- poration, its officers, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Encouraging membership in, or activity in behalf of, Local 460, United Association of Journeymen and Apprentices of the Plumbing the Pipe Fitting Industry of the U.S. and Canada, AFL- CIO, or in any other labor organization of its employees, by dis- criminating against employees in any manner in regard to hire or tenure of employment, except to the extent permitted under Section 8(a) (3) of the Act. (b) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of the rights guaranteed 'MMountain Pacific Chapter of The Associated General Contractors , Inc., et at., 119 NLRB 890. 4 The Respondent contends In effect that the Board may not rule on the legality of the agreement with the International because the execution of such agreement was not alleged by the General Counsel to constitute a violation of the Act . However , we do not find that the execution of the agreement violates the Act but are merely rejecting the Respondent's contention that the contract is a valid defense. See Loa Angeles-Seattle Motor Express, Inc., 121 NLRB 1629, footnote 2. - CONSOLIDATED WESTERN STEEL DIVISION 861 by Section 7 of the Act, except to the extent permitted under Section 8(a) (3) of the Act. 2. Take the following affirmative action, which we find will effec- tuate the policies of the Act : (a) Make whole Roy S. Morgan for any loss of pay suffered by reason of the discrimination against him in the manner set forth in the section of the Intermediate Report entitled "The Remedy."' (b) Preserve, and make available to the Board or its agents, upon request, for examination or copying, all payroll records, social secu- rity payment records, timecards, personnel records, reports, and all other records necessary to analyze the amounts of back pay due un- der the terms of this recommended order. (c) Post at its offices in Maywood, California, and at each con- struction site within the geographical jurisdiction of Local 460, copies of the notice attached to the Intermediate Report marked "Appendix A." Copies of said notice, to be furnished by the Re- gional Director for the Twenty-first Region, shall, after being duly signed by Respondent's authorized representative, be posted imme- diately upon receipt thereof and maintained for sixty (60) consecu- tive days thereafter in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for the Twenty-first Region in writing within ten (10) days from the date of this Decision and Order what steps it has taken to comply herewith. IT IS FURTHER ORDERED that the complaint be dismissed in all other respects. e This notice shall be amended by substituting for the words "The Recommendation of a Trial Examiner" in the caption thereof, the words "A Decision and Order." 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 "A Decision and Order" the words "A Decree of the United States Court of Appeals, Enforcing an Order." INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE This proceeding is brought pursuant to a complaint issued by the General Coun- sel of the National Labor Relations Board against Consolidated Western Steel Division-United States Steel Corporation.' The complaint, dated October 1, 1957, alleged that Respondent had engaged in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the National Labor Relations Act. Copies of the complaint, the charge upon which it was based, and notice of hearing thereon were duly served upon Respondent. The complaint alleged that: (1) Respondent had refused on or about June 18, 1957, to transfer its employee, Complainant Roy S. Morgan, to another project I This case was originally consolidated with two other cases, Cases 21-CA-2783 and 21-CB-926, against a trade association and a labor organization, respectively. At the outset of the hearing, a motion by the General Counsel that those cases be severed was granted. 862 DECISIONS OF NATIONAL LABOR RELATIONS BOARD because a labor organization , Local 460, United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, AFL-CIO, a respondent in Case No. 21-CB-926, had refused to approve such transfer; and (2), since July 1, 1955, Respondent had given effect to a col- lective-bargaining agreement between Local 460 and Bakersfield Associated Plumb- ing, Heating and Piping Contractors, Inc., the latter a respondent in Case No. 21-CA-2783, which provided that "All Employees covered by this Agreement shall be required as a condition of employment, to apply for and become members of and to maintain membership in Local Union 460 at the beginning of their employ- ment under this Agreement in compliance with sub-section A. This section shall be enforceable to the extent permitted by law." Respondent's answer denied that Morgan had been discriminatorily denied a transfer to the new project and that it had operated under the alleged contract. Pursuant to notice, a hearing was held at Los Angeles, California, before the duly designated Trial Examiner on November 18, 1957, at which time the parties were given full opportunity to be heard, to examine and cross-examine witnesses, and to introduce relevant evidence. The hearing was then recessed indefinitely, on motion by the General Counsel, pending the filing of a motion by the General Counsel to amend the complaint by adding another issue; thereafter, a motion to so amend the complaint was granted. However, on February 28, 1958, the Gen- eral Counsel moved to further amend the complaint, in effect returning it to its original format, save for one additional allegation relating to remedy. On March 14, 1958, the motion to further amend the complaint was granted and the hearing was closed. Oral argument having previously been waived, a date was then set for the filing of briefs; a brief has been duly received from Respondent. Ruling having been reserved on various motions by Respondent to dismiss the complaint and to strike portions thereof, they are disposed of consistent with the findings hereinafter made. 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 RESPONDENT Consolidated Western Steel Division-United States Steel Corporation, is a sub- sidiary of United States Steel Corporation and is engaged at Maywood, California, in the manufacture of large diameter pipe and in the fabrication of other steel products. It annually ships products valued in excess of $50,000 to points outside the State of California. During its fiscal or calendar year immediately preceding the issuance of the original complaint herein, it also provided goods and services in excess of $100,000 directly related to the national defense effort pursuant to Government contract. I find that the operations of Respondent affect commerce and that it would effectuate the purposes of the Act to assert jurisdiction herein. II. THE LABOR ORGANIZATION INVOLVED Local 460, United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, AFL-CIO, is a labor organization admitting to membership the employees of Respondent. III. THE UNFAIR LABOR PRACTICES A. The contract issue The essence of the complaint with respect to this issue is that Respondent allegedly enforces and gives effect to a collective-bargaining agreement with a labor organization which contains an illegal union-security clause. The agreement attacked is one dated July 1, 1955, between Plumbers Local 460 of Bakersfield, California, and Bakersfield Associated Plumbing, Heating and Piping Contractors, Inc. This agreement does contain a union-security clause, requiring all employees . . as a condition of employment to apply for and become members of and to maintain membership in Local Union 460 at the beginning of their employ- ment . . Obviously this imposes a degree of union security in excess of that permitted under the Act. However, there is no substantial evidence that this contract applies to the em- ployees of Respondent. Firstly, Respondent is not a member of the employer association which is signatory to the contract. Secondly, the uncontroverted testi- mony of Robert Sigg, assistant to the director of industrial relations of Respond- ent, discloses that Respondent is, and has been at all times material herein, signa- CONSOLIDATED WESTERN STEEL DIVISION 863- tory to agreements between itself and United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, AFL-CIO, herein called UA, which is obviously the parent organization of Local 460. These latter agreements, received in evidence, are applicable to the operations of Respondent throughout the United States. They are clearly agreements other than the one attacked herein by the General Counsel and, it may be noted, no attack is made herein on their union-security provisions. The so-called Bakersfield agreement is clearly a local agreement applicable to the Bakersfield area between a Bakersfield local of the UA and a group of local plumbing, heating, and pipe fitting contractors. It is true, as the General Counsel contends, that Respondent does pay the wage scales provided for in the Bakersfield agreement when working in that area, but this is admittedly done in conformity with the national agreement. Article VI of the latter establishes specified minimum wage scales, but provides further that a higher wage shall be paid for work done in areas where "a Local Union of the united association has negotiated an established wage rate higher than the mini- mum." Respondent concedes that it has done precisely this in undertaking projects in the Bakersfield area. Respondent claims, however, that it has not adhered to or adopted the Bakers- field contract in any other respect and there is no substantial evidence that it has. In view of the foregoing, I find, on a preponderance of the evidence, that Respond- ent is not signatory to and has not, in the language of the complaint, "enforced and given effect to" the Bakersfield contract. Accordingly, I shall recommend that this allegation of the complaint be dismissed. B. The discrimination against Roy S. Morgan Roy S. Morgan entered the employ of Respondent in March 1957 as a welder on a construction project in Sacramento, California. He was and is a member of Local 250 of the UA in Los Angeles and has never belonged to Local 460 in Bakersfield. So far as the record indicates, his employment record at Sacramento was exemplary. James Evans, who is no longer in the employ of Respondent, was general pipe foreman for Respondent on the Sacramento project. Morgan had worked for him on various projects since 1954 and Evans was fully familiar with and satisfied with his work; it appears further that Evans preferred to use Morgan on jobs because Morgan was a partly disabled war veteran who had experienced difficulty in obtaining work. No contention is made by Respondent that this in any way affected Morgan's competency on the job. In mid-June 1957, Evans was instructed by his superiors to drop the Sacramento project prior to its completion and devote himself to a rush project at Edwards Air Force Base in California, some distance from Bakersfield. He was not in- structed to take any crew with him, but assumed that it would be agreeable with Respondent if he followed what he termed the customary practice in the industry of taking a key man with him. Evans received no specific instructions from his superiors, other than, as he testified, "to check with [Local] 460 and get my job set up." He did not discuss with his superiors the employment of Morgan at the Edwards project. On the other hand, there is no evidence that he was acting beyond the scope of his authority, actual or apparent, in taking the action set forth below. I find that he did not so act. Evans testified, and I find, that he notified Morgan that he, Evans, was to be transferred forthwith to the Edwards project and that "I would like to have him down there provided I could clear him" with Business Agent Conley of Local 460 in Bakersfield. According to Morgan, he accepted the job and Evans stated that he would "call the business agent and get an O.K. for you." This conversation took place on or about the morning of June 18, 1957. Evans further testified that he telephoned Conley 1 hour later and notified him that he would be in Bakersfield the following day to set up the Edwards project; they agreed to meet at the job site. Evans also told Conley on this occasion that he had a welder [Morgan] in his employ "and that I would like very much to take him." Conley replied, according to Evans, that he had 60 or 70 members "on the bench" and it would be absolutely impossible because "he didn't feel it would he right to let an outsider come in and take one of their jobs." 2 While Evans was referring to Morgan in this conversation, he did not name him but "probably" indicated that he was a member of a sister local. 2 Conley did not testify herein. 864 DECISIONS OF NATIONAL LABOR RELATIONS. BOARD That afternoon Evans notified Morgan, as the latter testified, that "the business agent wouldn't let me go." According to Evans, he repeated the conversation with Conley to Morgan precisely as it took place and said that he could do no more for Morgan. As a result, Evans proceeded to the new job site as scheduled and recruited a crew of 12 men through Local 460, including a welder for the job he had in mind for Morgan. Evans did make another attempt to obtain the services of Morgan for the job. About 3 days later he in effect again asked Conley if Conley would permit him to employ Morgan on the project because he was a good worker who had expe- rienced difficulty in obtaining jobs with other contractors because of his handicap. Conley again refused, claiming that he could not run the risk of 'repercussions from his members. . The job ended approximately 5 weeks later and it appears that the size of the crew was gradually reduced as the project drew to an end. It is clear from the foregoing that Respondent , through its agent Evans, refused to employ Morgan on the.Edwards project because a labor organization , Local 460, refused to clear Morgan for work. This was not done pursuant to any contract- with Local 460 and, in any event, it constituted the imposition of a higher degree of union security than is permitted under the Act. A labor organization may cause a discrimination by an employer against an employee ' only for nonpayment of dues or initiation fees and then only pursuant to a union -shop agreement as permitted under the Act. That Respondent may have proceeded in conformity with its interpretation of the national contract , as it contends, can not constitute a defense. Absent the defense of a "union shop" agreement, when an employer discharges or fails to hire an employee because of want of good standing or membership in a labor organization , he has engaged in conduct violative of the Act; no such defense is raised herein . I find, therefore, that by refusing to hire Morgan on the Edwards project because a labor organization would not clear him for such employ- ment, Respondent has discriminated with respect to his hire and tenure of employ ment, thereby violating Section 8 (a)(3) of the Act. I further find that by such conduct Respondent has interfered with, restrained , and coerced employees in the exercise of the rights guaranteed by Section 7 of the Act, thereby violating Section 8(a)(1) thereof. Radio Officers' Union v. N.L.R.B., 347 U.S. 17; N.L.R.B. v. Thomas Rigging Co., 211 F. 2d 153 (C.A. 9), cert. denied 348 U.S. 871; N.L.R.B. v. Thomas Drayage & Rigging Co ., Inc., 206 F. 2d 857 (C.A. 9); N.L.R.B. v. J. R. Cantrall Company, 201 F. 2d 853 (C.A. 9); cert. denied 345 U.S. 996; N.L.R.B. v. Philadelphia Iron Works, Inc., etc., 211 F. 2d 937 (C.A. 3); and N.L.R.B. v. Acme Mattress Co., Inc., 192 F. 2d 524 (C.A. 7). IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in con- nection with its operations 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 disputes burdening and obstructing commerce and the free flow thereof. V. THE REMEDY Having found that Respondent has engaged in unfair labor practices, I shall recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act.*- It has been found that Respondent has discriminated with respect to the hire and tenure of employment of Roy S. Morgan. It appearing that the project on which he was denied employment ended some 5 weeks thereafter, reinstatement will not be recommended. I shall recommend that Respondent make him whole for any loss of pay suf- fered by reason of the discrimination against him. Said loss of pay, based upon earnings which he normally would have earned from the date of the discrimina- tion against him to the date his employment would otherwise have terminated, less net earnings, shall be computed in the manner established by the Board in F. W. Woolworth Co., 90 NLRB 289. See N.L.R.B. v. Seven-Up Bottling Com- pany of Miami, Inc., 344 U.S. 344. On the basis of the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Respondent, Consolidated Western Steel Division-United States Steel Corpo- ration, is engaged in commerce within the meaning of Section 2 (6) and (7) of the Act. CLARK & LEWIS CO. 865. 2. By refusing to employ Roy S. Morgan, Respondent has engaged in unfair labor practices affecting commerce within the meaning of Section 8(a)(3) of the Act. 3. By the foregoing conduct, Respondent has engaged in unfair labor practices within the meaning of Section 8 (a)(1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices 'ffecting com- merce within the meaning of Section 2(6) and (7) of the Act. 5. Respondent has not otherwise engaged in unfair labor practices. [Recommendations omitted from publication.] APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to the recommendations of a Trial Examiner 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 or activity in behalf of Local 460, United Association of Journeymen and Apprentices of the Plumbing and Pipe' Fitting Industry of the United States and Canada, AFL-CIO, or any other labor organization of our employees, by discriminating in any manner in re- gard to hire or tenure of employment, except to the extent permitted under Section 8 (a)(3) of the Act. WE WILL make whole Roy S. Morgan for any loss of pay suffered as a result of our discrimination against him. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed by Section 7 of the Act, except to the extent permitted under Section 8(a)(3) of the Act. All our employees and prospective employees are free to become, remain, or refrain from becoming or remaining, members of any labor organization , except as above stated. CONSOLIDATED WESTERN STEEL DIVISION- UNITED STATES STEEL CORPORATION, Employer. listed------------------- 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. Clark & Lewis Co. and International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Freight Drivers, Warehousemen, Helpers, Bakery Salesmen and Dairy Employees, Local Union No. 390. Case No. 12-CA-346. Janu- ary 8, 1959 DECISION AND ORDER On September 30, 1958, Trial Examiner George Bokat issued this Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices in violation of Section 8(a) (1) and (5) of the Act, and recommending that it cease and desist therefrom and take cer- tain 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. 122 NLRB No. 103. 505395-59-vol. 122---56