Local 792, Int'l Assn. of Bridge, Structural, Etc.

LOCAL 792 , INT'L ASSN . OF BRIDGE , STRUCTURAL, ETC. 1259 It is therefore concluded and found on the basis of the evidence and the law that the Union's misconduct afforded Respondent grounds for refusing to bargain only during the periods previously found , i.e., between June 29 and August 4 and between August 13 and September 1, 1954 (see section of Intermediate Report entitled "Developments since September 1954"). Ultimate Conclusions and Recommendations The ultimate conclusion to be drawn from the supplemental hearing is that it added little to what was previously litigated . Five hundred more pages have added nothing appreciably to what the former record of 20,000 pages contained . At best the new matter simply supports and confirms the former findings , both in the respects where unfair labor practices were found and where they were not found . Indeed, the results would indicate that the parties may have been interested primarily in publicizing further some of the more colorful aspects of the Senate hearing (cf. IR footnote 14). Five years of strike history still shows no abatement of this struggle between labor's irresistible force" and "management's immovable object." See section of Intermediate Report entitled "Introduction and background ; summary of main events and issue." Though a settlement of the conflict would plainly be in the public interest , it has long been apparent that the strike cannot be settled beween the parties, either with or without the benefit of further mediation. In any case, the Board's functions do not include such matters. The disposition of the present proceeding is, however, a step which will lead ultimately to a resolution of the strike . There is nothing else now foreseeable which will do so. It is therefore plain that, in the public interest , this litigation should be brought to an end as soon as possible. The Trial Examiner therefore renews the recommendations in his Intermediate Report. Local 792, International Association of Bridge , Structural and Ornamental Iron Workers, AFL-CIO and Kermit G. Kimrey and Gridwall Company and Glide Windows , Inc. Case No. 21-CB-1378. August 26, 1960 DECISION AND ORDER On April 6, 1960, Trial Examiner Wallace E. Royster 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 Rodgers and Fanning]. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recom- 128 NLRB No. 126. 1260 DECISIONS OF NATIONAL LABOR RELATIONS BOARD mendations contained in the Intermediate Report with the following additions. 1. We agree with the Trial Examiner that the Respondent had an -exclusive hiring agreement with the Employer involved herein and that such agreement was unlawful because it lacked Mountain Pacific safeguards.1 We also find that such agreement was unlawful because the absence of such safeguards in the agreement, when considered to- gether with subsequent unlawful discrimination as to employee Kim- rey, more fully set forth in the Intermediate Report, evidences an intent by the contracting parties to leave the Union free to give pref- erence in employment based on union considerations.2 Accordingly, we find that the Respondent violated Section 8(b) (1) (A) and (2) of the Act by entering into the exclusive hiring agreement with the Employer and by refusing to refer Kimrey to the Employer for em- ployment because he solicited the Employer for a job, as described in the Intermediate Report. 2. By the illegal hiring provision of the agreement with the Em- ployer, the Respondent has unlawfully encouraged employees to join or remain in the Union in order to obtain employment. As a result, those employees have inevitably been coerced to pay union initiation fees and/or dues. It would not effectuate the policies of the Act to permit the retention of such union initiation fees or dues which have thus been unlawfully exacted from the employees. As part of the remedy, therefore, in addition to the remedial provisions recom- mended by the Trial Examiner, which we hereby adopt, we shall order -the Respondent to refund to the employees employed under the agree- ment found unlawful herein the initiation fees and dues paid by them as a price for their employment, beginning with all such initiation fees and dues collected 6 months prior to the filing and service of the charge herein. This remedy of reimbursement is, we believe, appro- priate and necessary to expunge the coercive effect of the Respondent's unfair labor practices.' 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, Local 792, Inter- national Association of Bridge, Structural and Ornamental Workers, 1Mountain Pacific Chapter of the Associated General Contractors, Inc., et al., 119 NLRB 883. 2 N.L.R.B. v. Mountain Pacific Chapter of the Associated General Contractors, at at., 270 F. 2d 425; Mountain Pacific Chapter of the Associated General Contractors, Ino., 127 NLRB 1393. 8 United Association of Journeymen & Apprentices of Plumbing & Pipefitting Industry of the United States and Canada, Local 231, AFL-CIO (J. S. Brown-E. F. Olds Plumbing & Heating Corporation), 115 NLRB 594, 601. LOCAL 792, INT'L ASSN. OF BRIDGE, STRUCTURAL, ETC. 1261 AFL-CIO, its officers, representatives, agents, successors, and assigns shall : 1. Cease and desist from : (a) Performing, maintaining, or otherwise giving effect to any agreement with Gridwall Company and Glide Windows, Inc., which unlawfully conditions the hire of applicants for employment upon clearance, referral, or approval by the Respondent, except as author- ized by the proviso to Section 8 (a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. (b) Causing or attempting to cause Gridwall Company and Glide Windows, Inc., to discriminate against employees or applicants for employment in violation of Section 8(a) (3) of the Act as modified by the Labor-Management Reporting and Disclosure of 1959. (c) In any other manner restraining or coercing employees in the exercise of rights guaranteed in Section 7 of the Act, except in a manner permitted 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 : (a) Make whole Kermit Kimrey for any loss of pay that he may have suffered by reason of his failure to obtain employment with Gridwall Company and Glide Windows, Inc., on June 30, 1959, as provided in the section of the Intermediate Report entitled "The Remedy." (b) Notify Kermit Kimrey and Gridwall Company and Glide Windows, Inc., in writing, that it has no objection to the employment of Kermit Kimrey or to the employment of any other employee whether referred to Gridwall Company and Glide Windows, Inc., by the Respondent or not. (c) Reimburse all employees for moneys illegally exacted from them in the manner and to the extent set forth in this Decision. (d) Post at its offices, in conspicuous places, including all places where notices to members or applicants for employment are custom- arily posted, copies of the notice attached hereto marked "Appendix." 4 Copies of said notice, to be furnished by the Regional Director for the Twenty-first Region, shall, after being duly signed by a repre- sentative of the Respondent, be posted by the Respondent immediately upon receipt thereof, and maintained for 60 consecutive days there- after. Copies of such notice shall also be returned forthwith to the said Regional Director for posting by Gridwall Company and Glide Windows, Inc., said Employer willing. Reasonable steps shall be 4 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." 1262 DECISIONS OF NATIONAL LABOR RELATIONS BOARD taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for the Twenty-first Region, in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith. APPENDIX NOTICE TO ALL MEMBERS AND APPLICANTS FOR EMPLOYMENT 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 perform, maintain, or give effect to Any agreement with Gridwall Company and Glide Windows, Inc., which unlaw- fully conditions the hire of applicants for employment upon clearance, referral, or approval by us, except as authorized by Section 8(a) (3) of the Act, as modified by the Labor- Management Reporting and Disclosure Act of 1959. WE WILL NOT cause or attempt to cause the above-named Em- ployer to discriminate against employees or applicants for employment in violation of Section 8(a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. WE WILL NOT in any other manner restrain or coerce employees in the exercise of rights guaranteed them in Section 7 of the Act, except in a manner permitted by Section 8(a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. WE WILL make Kermit Kimrey whole for any loss of pay suffered as a result of the discrimination against him. WE WILL reimburse all employees of Gridwall Company and Glide Windows, Inc., for all dues and initiation fees which we have collected pursuant to our unlawful agreement with the aforementioned company, beginning with all such dues and initia- tion fees collected 6 months prior to June 30, 1959. LOCAL 792, INTERNATIONAL ASSOCIATION OF BRIDGE , STRUCTURAL AND ORNA- MENTAL IRON WORKERS, AFL-CIO, 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. LOCAL 792, INT'L ASSN. OF BRIDGE, STRUCTURAL, ETC. 1263 INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE This matter was tried before Trial Examiner Royster in Los Angeles, California, on November 30, 1959, on the complaint of the General Counsel alleging that Local 792, International Association of Bridge, Structural and Ornamental Iron Workers, AFL-CIO, herein called the Respondent or Local 792, had engaged in unfair labor practices within the meaning of Section 8(b) (1) (A) and (2) of the National Labor Relations Act, 61 Stat. 136, herein called the Act. Upon the entire record in the case and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE EMPLOYER Gridwall Company and Glide Windows, Inc, are affiliated business entities commonly owned and managed. They are engaged in Los Angeles, California, in the manufacture and installation of aluminum curtain walls and related products. They ship goods to and perform services at points outside the State of California in an amount exceeding $50,000 annually. I find that the business of Gridwall Com- pany and Glide windows, Inc., affects commerce within the meaning of Section 2(6) and (7) of the Act. H. THE UNFAIR LABOR PRACTICES On May 22, 1959, Local 792, a labor organization within the meaining of Section 2(5) of the Act, was chartered. On June 9, 1959, William Wagno was hired by Gridwall Company as general foreman on a construction project in Los Angeles. Wagno was clothed with authority by his employer to hire and discharge employees. On an occasion which appears to have been about June 22, 1959, Wagno visited the office of the Respond- ent to arrange for a transfer of his membership from a sister local. Wagno testified that on this occasion Keith Dickerson, Respondent's business manager, said that hiring was to be done through Local 792's hall and that if men applied to Wagno for employment they should be sent to Local 792 for referral. Wagno said that he agreed to and approved of such an arrangement. Dickerson testified that when he spoke to Wagno on this occasion the talk centered about the ability of Local 792 to supply competent workmen and that there was no discussion "about the referral system, particularly." I On June 29, Kermit Kimrey asked Wagno for a job Wagno, knowing Kimrey from a time when both were working for another employer, gave him a slip of paper reading: Please clear this man and send out one more finisher must be exact with details. 8.00 WILLIAM S. WAGNO Gridwall Co. 101 S. Main Kimrey testified that about 7:30 in the evening of June 29, he asked Dickerson to refer him to the Gridwall Company job and exhibited the slip of paper which Wagno had given him. According to Kimrey, Dickerson said that the note was unsatisfactory because it was not on Gridwall Company's stationery and remarked, "There's going to be no soliciting jobs in this Local." 2 Kimrey stayed around the hall for several hours, he testified, but was unable to persuade Dickerson to give him a referral. The next morning Kimrey reported to Wagno for work and told him that he was unable to obtain a referral from Dickerson. Wagno regretfully said that he could not put Kimrey to work without it. Dickerson testified that Kimrey exhibited nothing in writing to indicate that Grid- wall wanted to hire him and that in the absence of such a request in writing or by telephone no referral could be made. It is unnecessary to attempt a reconciliation between the testimony of Kimrey and Dickerson as to what passed between them. It is clear that Dickerson refused to issue a referral and the reason for his doing so is of no consequence. Wagno, i This constitutes, I find, an admission that a referral practice was at least mentioned a Dickerson did not deny making this remark and I find that he spoke as Kimrey testi- fied. The ban against solicitation is an obvious implementation of the referral practice. 1264 DECISIONS OF NATIONAL LABOR RELATIONS BOARD a member of Local 792 and one with no interest in the outcome of this proceeding, I find, testified truthfully that he entered into an oral agreement with Local 792 through Dickerson to hire no one without a referral from Local 792. This con- stituted the entire agreement. In the absence of a contract provision that workers be dispatched from Local 792 on a nondiscriminatory basis, it follows that such an arrangement violates the Act.3 I find that by proposing and entering into the exclusive hiring agreement with Gridwall Company, through Wagno, Local 792 attempted to cause Gridwall Com- pany to discriminate in regard to hire of employees in violation of Section 8(a)(3) of the Act and that Local 792 thereby engaged in an unfair labor practice within the meaning of Section 8(b)(2) of the Act. In the light of this agreement the refusal of Local 792 to refer Kimrey to the Gridwall Company job caused Wagno to refuse Kinney employment. Thus in the circumstances recited, the refusal to issue a referral to Kimrey caused Gridwall Company to discriminate in regard to the hire of Kimrey in violation of Section 8(a)(3) of the Act. The Respondent thereby engaged in an unfair labor practice within the meaning of Section 8(b) (2) of the Act. By the exclusive hiring agreement and by the refusal to issue a referral to Kimrey the Respondent has restrained and coerced employees in the exercise of rights guaran- teed in Section 7 of the Act and has thereby engaged in unfair labor practices within the meaning of Section 8(b) (1) (A) of the Act. III. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The unfair labor practices of the Respondent set forth in section II, above, occur- ring in connection with the operations of Gridwall Company and Glide Windows, Inc., 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. IV. THE REMEDY Having found that the Respondent has engaged in unfair labor practices it will be recommended that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Having found that the Respondent has caused discrimination against Kermit Kimrey it will be recommended that the Respondent make him whole for any loss of earnings sustained by reason of his failure to secure employment with Gridwall Company on June 30, 1959, for whatever period that employment would have continued. 'Backpay shall be computed in accordance with the Board's formula stated in F. W. Woolworth Company, 90 NLRB 289. Upon the basis of the foregoing findings of fact and on the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Gridwall Company and Glide Windows, Inc., is an employer within the mean- ing of Section 2(2) of the Act. 2. Local 792, International Association of Bridge, Structural and Ornamental Iron Workers, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. By agreeing with Gridwall Company that all ornamental iron workers be hired through Respondent's hall the Respondent has engaged in and is engaging in an unfair labor practice within the meaning of Section 8 (b) (2) of the Act. 4. By causing Gridwall Company to refuse employment to Kermit Kimrey the Respondent has engaged in and is engaging in an unfair labor practice within the meaning of Section 8 (b) (2) of the Act. 5. By the exclusive hiring agreement and by causing Gridwall Company to refuse employment to Kermit Kimrey the Respondent has restrained and coerced em- ployees in the exercise of rights guaranteed in Section 7 of the Act and has thereby engaged in unfair labor practices within the meaning of Section 8 (b) (1) (A) of the Act. 6. 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.] 3 Mountain Pacific Chapter of the Associated General Contractors, Inc., et at., 119 NLRB 883, 894.