Mason Contractors Exchange of Southern California, Inc.

MASON CONTRACTORS EXCHANGE OF SO. CALIF., INC. 839 Mason Contractors Exchange of Southern California , Inc. and its Employer Members; and Masonry Contractors of Los Angeles County, Inc. and its Employer Members and Arnold Graski and Hod Carriers & Common Laborers Union Los Angeles Local 300, Pasadena Local 439, Long Beach Local 507, Santa Ana Local 652, Wilmington Local 802, Pomona Local 806, and E1 Monte Local 1082, Parties to the Contract Hod Carriers & Common Laborers Union Los Angeles Local 300, Pasadena Local 439, Long Beach Local 507, Santa Ana Local 652, Wilmington Local 802, Pomona Local 806, and El Monte Local 1082 and Arnold Graski and Mason Contractors Exchange of Southern California, Inc. and its Employer Members; and Masonry Contractors of Los Angeles County, Inc. and its Employer Members, Parties to the Contract Hod Carriers & Common Laborers Union Los Angeles Local 300 and Johnie L. Mosley and Henderson Construction Co., Party to the Contract Hod Carriers & Common Laborers Union Los Angeles Local 300 and Roosevelt Nash and Henderson Construction Co., Party to the Contract Local 300, International Hod Carriers, Building and Common Laborers' Union, AFL-CIO and Donald Fortier and Hender- son Construction Co., Party to the Contract. Cases Nos. 21- CA-3171, 21-CB-1156, 31-CB-1111, 21-CB-1112, and 21-CB- 1222. August 10, 1961 DECISION AND ORDER On July 11, 1960, Trial Examiner William E. Spencer issued his Intermediate Report in the above-entitled proceedings, find that the Respondents had engaged in and were engaging in certain unfair labor practices and recommending that they cease and desist therefrom and take certain affirmative action as set forth in the Intermediate Report attached hereto. Thereafter the Respondents and the General Counsel filed exceptions to the Intermediate Report, and supporting briefs. 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 briefs, and the entire record in this case, and hereby adopts the Trial Examiner's findings of fact, but for the reasons noted hereafter, does not adopt his conclusions and recommendations. The Trial Examiner found that the Respondents violated Section 132 NLRB No. 66. 840 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 8(b) (1) (A) and (2) and Section 8(a) (1) and (3) by maintaining and enforcing unlawful hiring hall and referral procedures in their contract. In reaching this conclusion he relied on the fact that the contract did not contain the hiring "safeguard" provisions required by the Board's decision in the Mountain Pacific case.' He further found that Respondent Local 300 violated Section 8(b) (1) (A) and (2) by causing Henderson Construction Co. to discharge three employees because they had not been hired in the manner required by the "unlaw- ful" hiring and referral provisions of the contract. There is no evi- dence in the record that the hiring and referral provisions were enforced in a discriminatory manner against the three discharged employees or against any other employees. Further, there is no basis, apart from the failure to meet the Mountain Pacific standards, for finding that the contractual provisions here in issue are unlawful. Subsequent to the issuance of the Intermediate Report, the Supreme Court handed down its decision in Local 357, International Brother- hood of Teamsters, Chauffeurs, TVarehousemen and Helpers of Amer- ica (Los Angeles-Seattle Motor Express) v. N.L.R.B.2 in which it held, in effect, that a hiring hall contract cannot be found unlawful solely because it fails to include the Mountain Pacific safeguards. In accord with the Court's decision and in the absence of any evidence of dis- crimination, we find, contrary to the Trial Examiner, that the various hiring provisions of the contract are not unlawful, and that, in conse- quence, Respondents by maintaining and enforcing such provisions did not violate the Act as alleged. Similarly, we find that Local 300 did not violate Section 8 (b) (1) (A) and (2) for that alleged violation turned upon the Trial Examiner's finding, reversed above, that the hiring provisions of the contract were unlawful. In view of the foregoing we shall dismiss the complaint. [The Board dismissed the complaint.] MEMBER RoDGERs took no part in the consideration of the above Decision and Order. 'Mountain Pacific Chapter of the Associated General Contractors , Inc, et at, 119 NLRB 883, 897 ,z 365 Q.S. 667. INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE This case was heard before the duly designated Trial Examiner of the National Labor Relations Board, herein called the Board , in Los Angeles, California, on March 28 and 29, 1960. The issues litigated were whether ( 1) the Respondent Unions and Respondents Mason Exchange and Masonry Contractors , in violation, respectively, of Section 8(b)(i)(A) and (2 ) and Section 8 (a)(1) and (3) of the National Labor Relations Act, as amended , herein the Act, maintained and gave effect to an exclusive hiring hall agreement which did not meet the criteria established by the Board in its Mountain Pacific decision (119 NLRB 883, 897 ); and (2 ) Respondent Local 300, MASON CONTRACTORS EXCHANGE OF SO. CAI:IF., INC. 841 in violation of Section 8(b)(1) (A) and (2) of the Act, caused Henderson Con- struction Co., herein called Henderson, to discharge three named employees pur- suant to the aforementioned exclusive hiring hall agreement. The General Counsel and the Respondents made oral statements of their respec- tive positions on the issues at the hearing, and subsequently the Respondents filed a memorandum. Upon the entire record in the case, including various affidavits received in evi- dence pursuant to stipulation, I make the following: FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF THE RESPONDENT EMPLOYERS Mason Contractors Exchange of Southern California, Inc., herein called Mason Exchange, and Masonry Contractors of Los Angeles County, Inc., herein called Masonry Contractors, are trade associations which admit to membership firms en- gaged in building and construction activity and which exist in part for the purpose of representing their members in collective bargaining with labor organizations and which participate through designated representatives in the negotiation, execution, and administration of collective-bargaining agreements on behalf of their members with various building and construction trade unions, including the Respondent Unions herein. Members of Mason Exchange and Masonry Contractors which participate in multiemployer bargaining have principal offices and places of business in California and, in the aggregate, annually sell goods and perform services valued in excess of $50,000 to other California enterprises which annually ship goods and perform services outside California in excess of $50,000. Henderson Construction Co. is a masonry contractor with its place of business at Hawthorne, California. It annually sells goods and performs services valued in excess of $50,000 to other California enterprises which annually ship goods and perform services outside California valued in excess of $100,000. II. THE LABOR ORGANIZATIONS Hod Carriers & Common Laborers Union Los Angeles Local 300, herein called Local 300; Pasadena Local 439, Long Beach Local 507, Santa Ana Local 652, Wil- mington Local 802, Pomona Local 806, and El Monte Local 1082, are, each of them, labor organizations within the meaning of the Act. III. THE UNFAIR LABOR PRACTICES The Trial Examiner's functions in this case are largely ministerial, no witnesses having appeared before him, the facts being virtually stipulated, and the Board having made precedents applicable to those facts, precedents which the Trial Ex- aminer is directed to follow. A. The determinative facts On or about June 11, 1958, Respondent Local 300 caused Henderson to dis- charge its employees Johnie L. Mosley and Roosevelt Nash, and on or about October 28, 1958, caused Henderson to discharge its employee, Donald Fortier." These discharges were demanded and effectuated pursuant to the terms of a bargain- ing agreement executed by the Respondent Unions and Respondents Mason Ex- change and Masonry Contractors, providing, inter alia: (a) Employers party to the agreement shall hire such employees as they re- quire through the Respondent's hiring hall, except when the Respondent fails to, furnish employees within 48 hours after receiving the employer's request. (b) Employees first to be referred pursuant to the exclusive referral provisions shall be employees recently laid off or terminated by employers party to the agree- ment in a geographical area designated as the "Local Union's . . . area jurisdic- tion," followed by those employees who have been employed by the employer parties to the agreement within the past 10 years in the "Local Union's . . . area juris- 3 Fortier, named in the complaint in Case No. 21-0B-1222, was not named in the con- solidated complaint. His affidavit, however, was received in evidence under an all-party stipulation, and he was joined in the General Counsel's oral argument with respect to the alleged discriminatees The omission of his name from the consolidated complaint appears therefore to have been inadvertent and the issue with respect to the alleged dis- crimination against him was as fully litigated as any other issue In the case. :842 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 'diction,"-the agreement fails further to define, specify or describe said geographical areas. (c) The employer may transfer his key "mason tenders" from area to area up to 10 percent of the number of employees employed on the job; for the transfer of additional key mason tenders the contractor shall first contact the office of the appropriate, local union in the area where the work is to be performed; the addi- tional transfers to be made by mutual consent. Since May 1, 1958, and continuously through the period of the aforesaid dis- charges, this bargaining agreement has been in force between the Respondent Unions and Respondents Mason Exchange and Masonary Contractors. Moseley's and Nash's discharges were demanded and effectuated because they .did not obtain referral to the Henderson job through the Respondent's hiring hall, as required under the contract. Fortier's discharge was demanded and effectuated because he had been transferred by Henderson, his employer, from the jurisdiction of a local union to the jurisdiction of another local, without clearance through the Respondent Unions pursuant to restrictions on such transfers set forth in the bar- gaining agreement. All three employees were members of Respondent Local 300, in good standing, at the time of their respective discharges. B. The laws, according to the Board Under the Board's Mountain Pacific decision, the contract in question provides no defense to the discharges because it does not contain the following two provi- sions which the Board has said an exclusive hiring hall agreement must contain in order to raise a valid defense to discharges demanded and effectuated pursuant to its terms: (1) The employer retains the right to reject any job applicant referred .by the union; and (2) the parties shall post for the employees' inspection all pro- visions relating to the hiring agreement, including the foregoing provisions. The third Mountain Pacific requirement, that the selection of applicants for referral to jobs shall be on a nondiscriminatory basis and in no way affected by union mem- bership, has been satisfied for there is no evidence of discriminatory practices in the administration of the hiring hall procedures but nonetheless it is one of the "foregoing provisions" listed in the posting requirement and there was no posting. It matters not, therefore, that referrals were actually made on a nondiscriminatory basis, and that the discharges herein were demanded and made without reference to union or nonunion affiliation. I agree with the General Counsel that the restriction on transfer under which Fortier's discharge occurred, is so enmeshed in the exclusive hiring hall and dispatch system, that it also is reached by the criteria established under the Mountain Pacific ,decision. Because of the restrictions on transfer, Fortier lost his job with Hender- son and for further employment had to take his turn pursuant to hiring hall and dispatch procedures. Had the agreement established objective criteria to control in cases of disputed transfers, we would have a different situation, but under the agreement the employer is limited as to the number of employees he may trans- fer without union approval, and beyond that limit, lacking union approval, must rely on hiring hall procedures for filling jobs which he would otherwise fill with transferees. The Respondents' defense, as I understand it, is, in the main, that the hiring hall procedures here under attack and pursuant to which the discharges were made, are nondiscriminatory and therefore valid; that the nondiscriminatory practices under the agreement were well known to employees seeking referral and therefore there is no justification for the requirement of a formal posting; and that the agreement now under attack was made pursuant to consultations with agents of the Board and the General Counsel and received their approval. It has been assumed that referral procedures under the agreement were adminis- tered in a nondiscriminatory manner because there is no evidence to the contrary , and assuming further that persons seeking referral were aware of this nondiscrimi- natory practice, such assumptions would not nullify or modify the application of the Mountain Pacific doctrine with its specific requirements. It matters not, insofar as this report is concerned, that for many years hiring hall procedures such as are encountered here were found by this Board to be valid, and that the courts are now divided on the present Board's Mountain Pacific doctrine. I am aware, as is the Board, that the Supreme Court has said that the Board has no authority for dictat- ing the substantive terms of a collective agreement, and "no general commission to police collective bargaining agreements.. " N L.R.B. v. American National Insurance Co., 343 U.S 395; Local 1976, United Brotherhood of Carpenters and Joiners of America, AFL, et al. v. N.L.R.B., 357 U.S. 93. The argument that the Mountain Pacific doctrine is not entirely consonant with these expressions of limita- MASON CONTRACTORS EXCHANGE OF SO. CALIF., INC. 843- tions on the Board's powers, is not an argument which I, as Trial Examiner, may entertain. Assuming further that the agreement in question conforms to advice- given the contracting parties by agents of the General Counsel and the Board, and- that it was in reliance on such advice that the agreement took its form with respect to hiring hall procedures, this would not necessarily provide an acceptable defense. because there is no rule that one Board must honor the precedents of its predecessor Boards, or may not change or modify its own, or that the applied expertise of one- Board may not prevail over that of its predecessors. Decisions sometimes are as variable as the climate in which they occur and I know of no legal protection- against a change in judicial climate. This is not of course to rule out considera- tions of equity and public policy, but such matters as are raised by this vigorously pressed article in Respondents' defense involve intraagency administration and policy and therefore are more appropriately addressed to the Board. With this in mind- I allowed the Respondents great leeway in making a record on which they could fully explicate their position, if they chose to do so, before the Board and the courts. A consideration of all these matters and other points raised by the defense, to the somewhat limited extent that such a consideration is permitted the Trial Examiner, fails to convince me that I, as Trial Examiner, am allowed any alternative to find- ing the violations as alleged. Accordingly, it is found that by maintaining and giving effect to an agreement containing hiring hall and referral procedures which do not meet the criteria estab- lished by the Board in Mountain Pacific, the Respondent Unions and the Respond- ents Mason Exchange and Masonry Contractors, have violated, respectively, Section 8(b)(1) (A) and (2) and Section '8(a)(1) and (3) of the Act; and that by causing Henderson to discharge Mosely and Nash pursuant to the referral provisions of the said agreement, and Fortier pursuant to the transfer provisions of the said agree- ment, Respondent Local 300 has violated Section 8(b) (1) (A) and (2) of the Act. N. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of all the Respondents set forth in section III, above, occurring in connection with the operations of the Employers described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and, such of them as have been found to be unfair labor practices, tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondents maintained within and subsequent to the 6-month period preceding the filing of charges contracts containing hiring hall' procedures which do not conform to the requirements of the Mountain Pacific doc- trine, I shall recommend that they cease and desist from maintaining and giving effect to the aforesaid procedures and post certain notices designed to effectuate the policies of the Act. Such remedial action is required under the decisions though the General Counsel at the hearing conceded that the contract provisions here found unlawful under the Mountain Pacific doctrine, have been revised to meet the re- quirements of that doctrine. Having found that pursuant to the aforesaid hiring hall procedures, Local 300 caused Henderson to discharge its employees, Mosely, Nash, and Fortier, I shall recommend that Local 300 notify Henderson, in writing, and serve a copy upon each individual discriminated against, that Local 300 has no objection to the em- ployment of Mosley, Nash, and Fortier, by Henderson or any other member of Re- spondents Mason Exchange and Masonry Contractors. It is further recommended that Local 300 make whole Mosley, Nash, and Fortier, for any loss of wages each may have suffered as the result of the discrimination against him. The amount of backpay in each case shall be computed and paid in accordance with the Board's Woolworth formula. F. W. Woolworth Company, 90 NLRB 289. Respondent Local 300's backpay liability will terminate 5 days after notification of Henderson that it has no objection to the employment of the three discriminatees. Inasmuch as the discharge allegations appear to run solely against Local 300, there seems to be no basis for a reinstatement order directed against Henderson, and no basis for a reimbursement order on the discharges except as to Local 300. The General Counsel seeks a sweeping application of the Brown-Olds remedy (115 NLRB 594) requiring the Respondents herein, jointly and severally, to reimburse employees of members of Respondent Mason Exchange and Masonry Contractors for dues, fees, assessments, permits, or other moneys obtained from them in their recourse to and enjoyment of the hiring hall privileges of the aforementioned agree- ment, now found invalid under the Mountain Pacific precedent. Such reimbursement, if ordered, would date from 6 months prior to August 12, 1958, when charges were 844 DECISIONS OF NATIONAL LABOR RELATIONS BOARD initially filed. I think the Board before ordering such a drastic remedy , may wish to consider - and weigh carefully the several defenses of the Respondents , including their alleged reliance on advice given them by agents of the Board and the General Counsel, its scope and duration ; the lack of any evidence that the hiring hall pro- ,cedures here in question have been discriminatorily administered , or that those seek- ing its privileges were not fully aware of their nondiscriminatory administration; the fact that admittedly the agreement has now been revised to conform to Mountain Pacific criteria; and, finally, the very considerable lapse of time between the filing of charges and a hearing on the issues. I do not suggest that attention to such matters ,is required by legal concepts of laches, entrapment , equitable estoppel, and the like, but by broader considerations of equity and public policy. "The validity of re- imbursement orders necessarily depends upon the peculiar circumstances of each case" (N.L.R.B. v. Adhesive Products Corp., 258 F. 2d 403, 409 (C.A. 2)) and there- fore precedents as to remedy do not have the force and rigidity of decisions on sub- stantive issues. In fact, a remedial order that does not take into account the "peculiar circumstances" of the case, is obviously not tappropriate. Accordingly, I shall make no recommendations with respect to the application of the Brown-Olds remedy in this ,case. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. The Respondents Mason Exchange and Masonry Contractors and their mem- bers are, each of them, employers within the meaning of Section 2(2) of the Act. 2. The Respondent Unions are, each of them , labor organizations within the mean- ing of Section 2 (5) of the Act. 3. By maintaining and giving effect to a collective -bargaining agreement which con- tains exclusive hiring hall provisions which do not meet the standards specified by the Board in Mountain Pacific, 119 NLRB 883 , The Respondent Unions, and each of them, have engaged in and are engaging in unfair labor practices within the meaning of Section 8(b) (1) (A) and (2) of the Act, and the Respondents Mason Exchange and Masonry Contractors and their members, each of them, have engaged in and are en- gaging in unfair labor practices wtihin the meaning of Section 8(a) (1) and (3) of the Act. 4. By causing Henderson Construction Co. to discharge its employees Mosley, Nash, and Fortier, pursuant to hiring hall provisions of the aforesaid bargaining agreement, Respondent Local 300 has engaged in and is engaging in unfair labor practices within the meaning of Section 8(b) (1) (A) and (2) 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.] Marble Polishers, Machine Operators and Helpers, Local No. 121, AFL-CIO, and its Agent John Foglia [Miami Marble & 'Tile Company] and Boyd Garner. Case No. 1P4-CB-377. _August 10, 1961 DECISION AND ORDER On February 6, 1961, Trial Examiner Albert P. Wheatley issued his Supplemental Intermediate Report in the above-entitled proceed- ing, 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 certain affirmative action, as set forth in the Intermediate Report and Supplemental Intermediate Report attached thereto. Thereafter, the Respondents filed exceptions to the Supplemental Intermediate Report and a brief in support of the exceptions. 132 NLRB No. 62.