Harbur Terminal Co.

HARBUR TERMINAL COMPANY 659 clearly exists a community of interest between employees in the two departments Nor does the fact that a little more machine work is required in mattress manufacturing than in upholstery making, persuade us' that the overall function has been sufficiently changed to classify the bedroom operation as a new undertaking It therefore follows that the Employer's mattress department is a normal accre- tion to an existing unit, and that the contract of December 1958 bars the present petition 4 Accordingly, we shall dismiss the petition [The Board dismissed the petition ] 4 Ingersoll Humphreys Division, Borg-Warner Corporation, 117 NLRB 1715, J W Rem Company, 115 NLRB 775 777, Richfield Oil Corporation, 119 NLRB 1425, of W P Fuller & Company, 122 NLRB 814 Harbur Terminal Company and Jesse J. Jamerson and Hod Carriers & Laborers Local Union 116, AFL-CIO, Party to the Contract. Case No 23-CA-869 (formerly 39-CA-869) Febru- ary 16, 1960 DECISION AND ORDER On October 21,1959, Trial Examiner James T Rasbury issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto Thereafter, the Respondent filed exceptions to the Intermediate Report and a supporting brief Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman Leedom and Members Bean and Fanning] The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed The rulings are hereby affirmed The Board has considered the Inter- mediate Report, the exceptions and brief, and the entire record in the case and hereby adopts the findings,1 conclusions, and recommenda- tions 2 of the Trial Examiner 1 The Trial Examiner found, inter ales, that the Respondent violated Section 8(a) (1) and (3 ) of the Act by maintaining an exclusive hiringhan arrangement with the Union, without having posted notices relating to the functioning of the hiring arrangement, as required by Mountain Pacific Chapter of the Associated Generar Contractors, Inc, at at, 119 NLRB 883 Although it is not clear from the present record whether the Respond- ent's requirement, that applicants for employment be referred by the Union, resulted from the application of an exclusive hiring hall agreement with the Union , as found by the Trial Examiner, or whether such requirement resulted only from a practice uni- lateraIly adopted by the Respondent, we find that in either event the Respondent violated Section 8 (a) (3) and (1) of the Act a As it is not clear from the instant record that there was an agreement between the Respondent and the Union for the establishment of an exclusive hiring hall, and as it 126 NLRB No 85 660 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ORDER Upon the entire record in this 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 Company, Har- bur Terminal Company, its officers, agents, successors and assigns, shall : 1. Cease and desist from : (a) Discriminating against applicants for employment by main- taining or otherwise giving effect to any hiring arrangement or prac- tice, which requires referral by Hod Carriers & Laborers Local Union 116, AFL-CIO, or any other labor organization, unless and until said arrangement comports to the nondiscriminatory requirements of the National Labor Relations Act and the terms of such arrangement are posted in a manner and place that will inform all prospective employ- ees and applicants of the hiring procedure. (b) In any like or related manner interfering with, restraining, or coercing employees or applicants for employment in the exercise of their right to engage in or refrain from engaging in any or all of the activities specified in Section 7 of the Act, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized by Section 8(a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act, as amended : (a) Make whole Jesse Jamerson for any loss of pay he may have suffered by reason of discrimination against him in the manner pro- vided 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 and copying, all payroll records, social- security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amounts of back pay due under the terms of this Order. (c) Notify Jesse Jamerson in writing that it has no objection to his employment. (d) Post at its offices in Texas City, Texas, copies of the notice attached hereto marked "Appendix." I Copies of said notice to be furnished by the Regional Director for the Twenty-third Region shall, after being duly signed by an authorized representative of Respond- appears from the record that the Union operated a nondiscriminatory hiring hall in compliance with the Act, including the posting of notices , we shall adopt the Trial Examiner 's recommendation that the Brown-Olds remedy not be applied in this rase. 3 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." HARBUR TERMINAL COMPANY 661 ent, be posted by Respondent immediately upon receipt thereof and be maintained by it for 60 consecutive days thereafter in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for the Twenty-third Region, in writing, within 10 days from the date of this Order what steps it has taken to comply herewith. APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that: WE WILL make whole Jesse Jamerson for any loss of earnings he may have suffered because of the discrimination against him. WE WILL notify Jesse Jamerson that we have no objection to his employment. AVE WILL NOT discriminate against applicants for employment by maintaining or otherwise giving effect to any hiring arrange- ment or practice which requires referral by Hod Carriers & Laborers Local Union 116, AFL-CIO, or any other labor organi- zation, unless and until said arrangement comports to the non- discriminatory requirements of the National Labor Relations Act and the terms of such arrangement are posted in a manner and place that will inform all prospective employees and appli- cants of the hiring procedure. WE WILL NOT in any like or related manner interfere with, re- strain, or coerce our employees or applicants for employment in the exercise of their rights under Section 7 of the National Labor Relations Act, except as permitted by Section 8 (a) (3) of that Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. All our employees are free to become, remain, or to refrain from becoming or remaining, members of the above-named or any other labor organization, except to the extent that this right may be affected by an agreement in conformity with Section 8(a) (3) of the National Labor Relations Act, as modified by the Labor-Management Report- ing and Disclosure Act of 1959. HARBUR TERMINAL COMPANY, Employer. Dated---------------- By------------------------------------- (Representative ) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. 662 DECISIONS OF NATIONAL LABOR RELATIONS BOARD INTERMEDIATE REPORT STATEMENT OF THE CASE This proceeding with all parties represented, was heard in Texas City, Texas, on July 22, 1959, on complaint of General Counsel and answer of Harbur Terminal Company, herein called the Respondent. The complaint alleged violation of Section 8(a) (1), (2), and (3) of the National Labor Relations Act, as amended. More spe- cifically, the General Counsel contends that the Respondent established and main- tained an exclusive referral arrangement with Local 116 of the Hod Carriers in violation of Section 8(a)(1) and (3) in that Harbur Terminal Company had not posted notices as required by the Board to "legalize" an exclusive hiring hall; 1 and further that pursuant to said arrangement Jesse Jamerson was discriminatively refused employment. Briefs were submitted by the General Counsel and the Respondent. Upon the entire record in this case, and from my observation of the witnesses, I make the following: FINDING OF FACT 1. BUSINESS OF THE COMPANY Harbur Terminal Company, herein called Respondent, is a corporation duly organized and existing by virtue of the laws of the State of Texas, having its prin- cipal office in Dallas, Texas. Respondent operates a terminal at Texas City, Texas, where it is engaged in the business of filling drums with petroleum and related products for loading on board ships. Respondent in the course of its business at the terminal performs services pursuant to a contract with the Department of Defense from which it will receive payments in excess of $100,000 for the 12-month period beginning August 1, 1958. I find that Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION The Hod Carriers and Laborers Local Union 116, AFL-CIO, herein called the Union or Local 116, is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background The Respondent only has three permanent employees at Texas City: the superin- tendent, John Allen; a foreman, Fred Souleret; and a secretary. This record indi- cates, as the Board found in an earlier decision,2 that Respondent has no stable complement of employees. Under its contract with the Department of Defense, the Respondent, upon demand, fills drums with petroleum and related products for loading on board ships. As the need dictates, Respondent may hire from a few to as many as 80 people who may work for Respondent a few hours or a few days. At the conclusion of this immediate need the employees are severed from Respondent's payroll without reasonable expectation of working for Respondent in the future when need for employees again arises. It is a most irregular and spas- modic type of work for all except the two supervisors and the one clerical mentioned above. During the early phases of Respondent's operating history it attempted to obtain employees by contacting the usual employment or unemployment agencies and by "passing the word" that laborers were needed. Sometimes Respondent would try to contact a former employee by telephone. It was during the time these methods were utilized that Jesse Jamerson, the Charging Party herein, worked on several occasions. According to his testimony he first worked for Respondent on August 6, 1958. He also worked August 14, 21, and 26. He did not work for Respondent during September 1958, but did work again on October 9 and again on October 16, 1958. It was sometime between October 9 and 16, 1958, that Respondent apparently changed its method of recruiting or hiring. Jamerson testified that between October 9 and 16, 1958, he learned that Respondent was doing some hiring and he attempted 1 See, Mountain Pacific Chapter of the Associated General Contractors, Inc., et at., 119 NLRB 883; enforcement denied, 270 F. 2d 425 (CA 9). 2 Case No. 39-RC-1287, unpublished HARBUR TERMINAL COMPANY 663 to gain employment, but "I saw the fellows giving slips, and when I approached the fellow [Fred Souleret] for employment, he said that was all. And 1 said, `You mean I can't work?' " According to Jamerson, Fred Souleret the fore- man answered, "No, that it was going union and I would have to report and get a [referral] slip from [local] 116." On cross-examination Jamerson testified that Souleret had first said, "That is all." And he [Jamerson] understood that to mean that "No more [were] being hired for that day." Thereafter in response to a retort by Jamerson, Souleret had said, "Well, we are going union. You will have to get in 116. We are going to hire through 116." On direct examination Souleret testified that he had never told any prospective employee that they had to join the Union in order to work for Harbur Terminal Company. Souleret had no specific recollection of having a conversation with Jamerson in October 1958. However on cross-examination, Souleret testified that about the middle of October 1958 he had been told by the superintendent of Respondent that all the laborers were going to be hired through Local 116, and that the new men would be required to have a referral slip from Local 116 to turn in to the guard at the gate. Furthermore Souleret testified that he told some of the men that they would have to have a referral slip from the Union before they could come through the gate. When carefully considered, Souleret's testimony as to what he had been told by the Respondent's superintendent and what Souleret admits telling some of the employees, is not substantially different from Jamerson's version of what he was told by Souleret. Assuming arguendo that Jamerson's testimony that Souleret told him "to get in 116" was an interpretation and was not actually said, we are nevertheless con- fronted with the inescapable conclusion from the consistent and undisputed testi- mony of Jamerson and Souleret that the only way to get a job at Harbur Terminal Company was by a referral slip from Local 116. When such a condition of employ- ment is imposed on prospective employees it creates an exclusive hiring-hall arrange- ment which the Board has stated in Mountain Pacific, supra, inherently and unlaw- fully encourages union membership that can only be negated if "The parties to the agreement post in places where notices to employees and applicants for employment are customarily posted all provisions relating to the functioning of the hiring arrange- ment, including the safeguards that we deem essential to the legality of an exclusive hiring agreement." As this Trial Examiner reads and interprets what the Board has enunciated the law to be, the Respondent has by its arrangement with Local 116 and its subsequent failure to post the required notice, violated Section 8(a)(1) and (3) of the Act, even though in fact there was no actual discrimination. Nor is it necessary for the arrangement to be in the form of a written collective-bargaining agreement between the employer and the Union. See Nassau and Suffolk Contrac- tors Association, Inc., 123 NLRB 1393; Walter Rasmussen, 122 NLRB 674 3 The Respondent does not contend that it ever posted such notices as might be required by Mountain Pacific, supra, but argues in its brief that there can be no violation unless actual discrimination is shown. According to Jamerson's own testimony he never went to Local 116 to seek referral. Undisputed testimony indi- cates that Local 116 actually referred some nonunion employees to the Respondent. Local 116 never requested Respondent to discharge anyone for failure to belong to the Union or for failure to pay dues. The Union had complied with the require- ments of Mountain Pacific, supra, as it related to other employers with whom it had written agreements.4 In addition the parties stipulated that the Union had the following notice posted at the union hall in large lettering on a 24- by 24-inch poster: 3It was stipulated by the parties hereto that the only agreement between the parties consisted of a letter dated October 14, 1958, from Local 116 to Respondent which set forth work hours and premium pay conditions to be applied to members of Local 116, employed by Respondent. The letter was received in evidence as exhibit R-1 There is nothing contained in the letter itself which I find violative of the Act I conclude. be- cause of the further evidence admitted without objection by Respondent, that the word written was intended to appear just before the word agreement in the stipulation While the letter has value in showing a mutual arrangement between the Union and the Respondent, nevertheless it is the testimony of Jamerson and Souleret that establishes the existence of an exclusive hiring-hall arrangement 4 The record was kept open for the purpose of submitting to the Trial Examiner a copy of the notice posted by the Union No objections were raised by the General Counsel. Respondent's Exhibit No 3 Is herewith received in evidence. 664 DECISIONS OF NATIONAL LABOR RELATIONS BOARD NOTICE A NEW WORK LIST WILL BE MADE EACH MONDAY MORNING AT 9 A.M. ANYONE DESIRING TO REGISTER ON THE WORK LIST THEREAFTER WILL REGISTER BETWEEN 8 A.M. & 4:30 P.M. TUE. THROUGH FRI. W. L. HUGHES, B.A., Laborers Local Union 116. Based on the record in this case there is no evidence of actual discrimination by either the Union or the Respondent but only such unlawful encouragement of union membership as the Board has found to be inherent in any exclusive hiring-hall arrangement absent certain safeguards. As the Board stated in its Mountain Pacific decision, supra: Although Section 8(a)(3), in words, outlaws discrimination which encourages union "membership," more is intended than a literal membership require- ment.4 The contract or hiring arrangement need not explicitly limit employment to union members to be unlawful. The statutory phrase "encourage member- ship in a labor organization" is not to be minutely restricted to enrollment on the union books; rather, it necessarily embraces also encouragement toward compliance with obligations or supposed obligations of union membership, and participation in union activities generally. It follows that specific or direct proof of such unlawful encouragement is not an indispensable element in every case. If the employer's conduct-whether caused by a union or not-is of a kind that "inherently encourages or discourages union membership," 5 it is for this Board to draw the inference of illegality from such conduct alone. This follows the common law rule that a man is held to intend the foreseeable consequences of his action. Id. Cestone Company, 118 NLRB 669; Acme Mattress Company, Inc, 91 NLRB 1010, enfd 192 F. 2d 524 (CA 7). 'Radio Officers' Union v N L.R.B., 347 U S 17, 45. The Respondent also sought to defend on the grounds that it had rejected some referrals by the Union; that it frequently asked the Union for certain named indi- viduals; that it had on one or two isolated occasions hired people other than union referrals; and that it had a right to assume that the Union would be nondiscriminatory as required by ,the law. However, these considerations do not nullify the existence of an exclusive hiring-hall arrangement, or adequately correct that which illegally tends to encourage union membership. It is employee freedom of choice that is the objective of the Act; thus the Board is properly concerned with the understanding or interpretation by employees of the arrangement. A simple means of insuring the nondiscriminatory effects of the arrangement on the employees is to require unions and employers to publicize all the terms of the arrangement .5 In the instant case the Respondent has not publicized all the terms of the arrangement. Consequently I find that Respondent has discriminatively encouraged union membership in viola- tion of Section 8 (a) (1) and (3) of the Act by maintaining an illegal exclusive hiring-hall arrangement with Local 116. Having found that Respondent maintained an unlawful hiring hall arrangement with Local 116 and consistent with the testimony I have set out -above proving that Jamerson was told to obtain a referral slip from Local 116, it follows that Respondent's conduct toward Jamerson was violative of Section 8(a)(1) and (3) of the Act. Under similar illegal hiring arrangements the Board has stated that it is immaterial that there is no proof that there was a job opening at the time the alleged discriminatee applied to Respondent for work. See Mountain Pacific, supra. Furthermore I credit Jamerson's testimony to the effect that he was told by Souleret on the day he last worked that Respondent might hire 50 or 60 men the next day and they were hiring through the union hall. The Board made it quite clear in The Lummus Company case, 101 NLRB 1628, that it is violative of the Act to require an employee to obtain a referral from a union when the employer knows the work is available. I therefore find that Respondent's conduct toward 5 See the concurring opinion of Board Member Jenkins in Anchor Welding and Manu- facturing Company, et al., 123 NLRB 1877, for a clear and concise explanation of why the safeguards are required. HARBUR TERMINAL COMPANY 665 Jamerson in view of the above finding of an illegal exclusive hiring arrangement was likewise violative of Section 8(a)(1) and (3) of the Act. Questions respecting what work was in fact available and unlawfully denied Jamerson are matters for investigation in the compliance stage of this proceeding in determining the amount of backpay due him pursuant to the recommended remedy. The counsel for General Counsel included an 8(a) (2) allegation in the complaint, but all the evidence at .the hearing as well as the arguments in the brief were directed toward the usual 8(a)(1) and (3) violations occurring in the typical Mountain Pacific case. While Local 116 was not a Respondent herein, and this Trial Examiner recognizes that the evidence relating to its conduct was limited, nevertheless all the evidence available herein clearly indicates that Local 116 operated a nondiscriminatory hiring hall in compliance with the Act including the posting of notices. Under all the circumstances of this case, and particularly the Board's prior determination not to direct an election among Respondent's employees,e this Trial Examiner is of the opinion that an 8(a)(2) determination is unwarranted and would not effectuate the policies of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent Union set forth in section III, above, occurring in connection with the operations of the employer 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 Respondent engaged in certain unfair labor practices, I shall recommend that it cease and desist therefrom and take certain affirmative action which I find necessary to remedy the effects of the unfair labor practices and to effectuate the policies of the Act. The counsel for the General Counsel has urged application of the Brown-Olds remedy, i.e., reimbursement of union dues and fees collected from the employees of the Respondent.? Under all the circumstances of this case the Brown-Olds remedy would seem manifestly unfair and contrary to the Board's efforts to tailor a remedy in keeping with the violation. The violation herein stems solely from the Respond- ent's failure to comply with a requisite which the Board has established. In the Philadelphia Woodwork Company case, 121 NLRB 1642, the Board did not apply the Brown-Olds remedy because the agreement was only illegal because the "Re- spondent council failed to conform with the proviso's requirement of compliance with the Act's filing provisions at the time the agreement was executed or within the preceding 12 months." This failure to perform something which is quite clearly spelled out in the Act, the Board regarded as "a serious failure but technical in nature," which did not warrant the usual reimbursement remedy of Brown-Olds. Under all the circumstances of the instant case this Trial Examiner is of the opinion that the Board's reasoning in the Philadelphia Woodwork Company case, supra, is most apposite. The mere failure to post-absent any other showing of coercion, discrimination, or interference-is a technical violation that does not warrant the Brown-Olds remedy .8 The nature of Respondent's work force is such that an order of reinstatement is not feasible for Jesse Jamerson. The record does not reflect the number of in- stances or the amounts of actual loss suffered, accordingly this computation becomes a matter for compliance. The Respondent shall notify Jesse Jamerson that they have no objection to his employment with Respondent. Such backpay as may be determined to be due shall be computed in accordance with the formula stated in F. W. Woolworth Company, 90 NLRB 289. The hiring arrangement between Respondent and Local 116 must be discontinued unless and until all of the safeguards required by the Board in the Mountain Pacific case, supra, are complied with. Upon the basis of the above findings of fact, and upon the entire record in the case, the Trial Examiner makes the following: 9 See footnote 2, supra 7 J. S. Brown-E F Olds Plumbing and Heating Corporation, 115 NLRB 594. 'See also E & B Brewing Company, Inc, 122 NLRB 354, wherein the Board did not apply the Brown-Olds reimbursement remedy stating, "Here the General Counsel has not alleged that there was a substantively unlawful contract or hiring (practice." 666 DECISIONS OF NATIONAL LABOR RELATIONS BOARD CONCLUSIONS OF LAW 1. The Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Hod Carriers and Laborers Local Union 116, AFL-CIO, is a labor organiza- tion within the meaning of Section 2(5) of the Act. 3. By maintaining an exclusive hiring-hall arrangement with Local Union 116 and the attendant failure to advise employees or prospective employees of all the terms of such arrangement by an adequate posting of the terms of such arrangement, the Respondent has violated Section 8(a)(1) and (3) of the Act. 4. By maintaining an illegal exclusive hiring-hall arrangement the Respondent has acted discriminatively toward Jesse Jamerson in violation of Section 8(a) (1) and (3) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. [Recommendations omitted from publication.] Food Haven, Inc.' and Food Store Employees Union Local No. 347, Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO, Petitioner. Case No. 9-RC-3733. February 16, 1960 DECISION AND DIRECTION OF ELECTION Upon a petition duly filed under Section 9(c) of the National Labor Relations Act, a hearing was held before Theodore K. High, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed? Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman Leedom and Members Bean and Fanning]. Upon the entire record in this case, the Board finds : 1. The Employer is engaged in commerce within the meaning of the Act. 2. The labor organizations I involved claim to represent certain em- ployees of the Employer.' 3. A question affecting commerce exists concerning the representa- tion of employees of the Employer within the meaning of Section 9(c) (1) and Section 2(6) and (7) of the Act. i The name of the Employer appears as amended at the hearing. 9 At the hearing, the Employer moved to strike certain "voluntary" statements made by a witness for the Petitioner. The hearing officer referred this motion to the Board We shall deny this motion since we find that , even if the statements were improper, the Employer was not prejudiced thereby. 8 United Construction Workers , Division of District 50, United Mine Workers, herein referred to as Intervenor, was properly permitted to intervene at the hearing on the basis of an existing contractual interest 4 The Employer refused to stipulate that Petitioner is a labor organization . As Peti- tioner exists for the purpose of representing employees in dealing with employers regard- ing wages , hours, and conditions of employment, we find that it is a labor organization within the meaning of the Act 126 NLRB No. 82.