Building Material & Dump Truck Drivers Local 420

1044 DECISIONS OF NATIONAL LABOR RELATIONS BOARD supra, is the credited testimony of Perdue that he was similarly hired on March 21. Armstrong's undisputed and credited testimony, in addition, was that he hired C. Heck on March 30, and L. Sturgeon on April 11 , "from the street." Thus the contention that all applicants for employment after March 21 were "required " to have a "reference" from the Union is not supported by credible evidence . I find accordingly. I have set forth the basis upon which Klee was hired on March 22 . The next car- penter hired thereafter was Adcock who was hired on March 29, 1960. Accordingly, for the reasons stated supra, I find that Mann and Shover were not hired by Re- spondent on March 22 because no carpenters were needed at that time , and that the refusal to hire was not because "they were not members of, cleared by, or sponsored by, the Union ," as alleged. Conclusions In view of the above findings, it is my conclusion that this record does not contain the preponderant evidence needed to establish that Respondent failed and refused to employ Leonard T. Shover and John O . Mann for the reasons alleged in the con- solidated complaint, in derogation of the provisions of Section 8(a)(1) and (3) of the Act . Accordingly, I shall recommend that the consolidated complaint be dismissed in its entirety. On the basis of the foregoing findings of fact , and upon the entire record herein, I have reached the following: CONCLUSIONS OF LAW 1. Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Central Indiana District Council of Carpenters , AFL-CIO, is a labor organi- zation within the meaning of Section 2(5) of the Act. 3. Respondent has not engaged in unfair labor practices , as alleged in the com- plaint, within the meaning of Section 8(a) (1) and ( 3) of the Act. [Recommendations omitted from publication.] Building Material and Dump Truck Drivers Local Union No. 420, affiliated with I.B. of T.C.W. and H. of A. and Robert E. Sumner and Southern California Chapter of the Associated General Contractors of America and Matt J. Zaich Co., Parties to the Contract Building Material and Dump Truck Drivers Local Union No. 420, affiliated with I.B. of T.C.W. and H. of A. and Walter Bosma, Jr. and Southern California Chapter of the Associated General Contractors of America and Asbury Construction Co., Parties to the Contract. Cases Nos. 21-OR-1331 and 21-CB- 1359. August 17, 1961 DECISION AND ORDER On April 11, 1960, Trial Examiner Wallace E. Royster issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had not engaged in the unfair labor practices alleged in the complaint and recommending that the complaint be dismissed in its entirety, as set forth in the Intermediate Report attached hereto. Thereafter, the General Counsel filed exceptions to the Intermediate Report and a supporting brief. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The 132 NLRB No. 93. BUILDING MATERIAL & DUMP TRUCK DRIVERS LOCAL 420 1045 rulings are hereby affirmed . The Board has considered the Intermedi- ate Report, the General Counsel's exceptions and brief, and the entire record in this case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner.' MEMBERS RODGERS and FANNING took no part in the consideration of the above Decision and Order. 1 In Member Leedom's opinion the General Counsel's express disavowal of any theory other than that Sumner 's discharge was caused by his nonmembership in Respondent Is a sufficient reason for not considering whether there was a violation on the contrary facts as found by the Trial Examiner. Accordingly he does not adopt the Trial Examiner's apparent conclusion that even absent such a disavowal consideration of that question would be precluded by the General Counsel 's authority with respect to the issuance of complaints INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE Upon the complaint of the General Counsel alleging that Building Material and Dump Truck Drivers Local Union No . 420, affiliated with I .B. of T.C.W. and H. of A., herein called the Respondent, had caused an employer to discriminate un- lawfully in regard to the tenure of employment of Robert E. Sumner, an individual, and that one of its dispatching rules in connection with the operation of an other- wise lawful hiring hall contained an impermissible provision , this matter was tried before me in Los Angeles , California, on January 18, 1960 . On February 10, 1960, counsel for the General Counsel moved to correct the transcript . The motion is granted. Upon the entire record in the case , including the briefs, and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE EMPLOYERS Southern California Chapter of the Associated General Contractors of America, herein called AGC, is a trade association of business enterprises engaged in build- ing and construction and exists in part for the purpose of representing its employer members in multiemployer collective bargaining with labor organizations. Em- ployer members of AGC, all of whom conduct business in the State of California, ship goods to and perform services at points outside California valued in excess of $50,000 annually. They also receive goods and services in excess of that amount from points outside that State. Matt J. Zaich Co., herein called Zaich, and Asbury Construction Co. are each separately engaged in construction work in the Los Angeles, California, area and each is a member of AGC. I find that the business operations of AGC and its members are in and affect com- merce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED; THE CONTRACT IN QUESTION ; AND THE ALLEGED UNFAIR LABOR PRACTICES At all times of interest here the Respondent , a labor organization within the meaning of Section 2(5) of the Act, has been and is party to a contract with AGC constituting the Respondent as the exclusive source of truckdrivers for AGC mem- bers No contention is here advanced that this hiring hall arrangement is unlawful except as hereinafter noted. The contract also contains a union-shop provision, reading: Workmen employed by the Contractors for a period of 30 days continuously or accumulatively within the multiple -employer unit and procured in accordance with [hiring hall arrangement ], or procured from other sources by the Con- tractors themselves , shall become after the 30-day period or 30 days after the effective date of this Agreement , whichever is later, members of the Union 1046 DECISIONS OF NATIONAL LABOR RELATIONS BOARD upon terms and qualifications not more burdensome than those applicable at such times to other applicants to the Union and shall remain members as a con- dition of employment. On March 12, 1959, through the intercession of his brother, Robert E. Sumner was hired by Zaich as a truckdriver at a construction project. Sumner was not then a member of the Respondent and did not obtain his employment through the hiring hall. Sumner worked only 1 day that week; but for the pay period ending March -25-worked 3 days; for that ending April 1-5 days; for that ending April 8-21/z days; for that ending April 15-5 days. On April 16, James Hall, a business agent for the Respondent, came to the construction site to investigate, and testified to a report that a driver had been employed by Zaich outside the hiring hall. Hall testi- fied that upon his arrival at the construction site he checked the union identification cards and referral slips of several drivers and then said that he was looking for a driver who had been "hired off the bank." Sumner was pointed out to him. Ap- proaching Sumner, Hall asked him if his union dues were paid. Sumner produced a withdrawal card from another union local in Michigan. Hall then asked if Sum- ner had been referred through the hiring hall and Sumner answered that he had not. Hall told Sumner that he would have to leave the job. After some further conver- sation Hall agreed with Sumner's foreman that Sumner could finish out the day. At the end of the day's work, Sumner was discharged by his foreman and has not since been employed by Zaich. As to this incident, Sumner testified that Hall at first asked for his union book and, that Sumner produced a book from a Michigan local. Hall then said, according to Sumner, that the latter was not a member of the Respondent, had not been hired through the hiring hall and that he must be discharged. Sumner testified that after a rather heated discussion with Hall, he offered to pay Hall whatever dues might be required of him and that Hall said he could not accept such an offer; that Sumner would have to see the dispatcher at Respondent's hall. Sumner's foreman, Robert Blair, who had by then entered the argument, said that he could not keep Sumner at work in the circumstances. Hall denied that Sumner at any time made any offer to pay dues. On cross-examination Sumner's testimony varied somewhat. Aided by a statement given to a Board agent on April 20, 1959, counsel for the Respondent took Sumner through an account of the conversation with Hall. In this cross- examination, after his memory was refreshed by a reading of his statement, Sumner testified that Hall first asked him if he had been hired through the hiring hall and that Sumner answered he had not. Hall then said, according to Sumner's refreshed recollection, that he could not finish the day; that he would have to be dispatched through the hiring hall in order to work. After the conversation had developed to this point, Sumner testified, he told Hall that he would like to continue to work and to arrange a transfer from the Michigan local to the Respondent. It was at this point that Sumner offered to pay dues and a transfer fee. Hall answered that Sum- ner could not do that, that he would have to go through the hiring hall in order to get on the job. Hall gave Sumner the name of the dispatcher at the hiring hall and provided Sumner with its address. When Sumner pleaded that he was in a difficult financial position, Hall expressed sympathy but said that he could do nothing to alleviate it; that Sumner must be hired through the hiring hall and that Zaich had no right to hire him in any other fashion. I consider the testimony given by Sumner on cross-examination after opportunity to refresh his recollection by reading the sworn statement given 4 days after his discharge to constitute a more reliable account of his conversation with Hall than the version given during his direct examination. The complaint alleges that Sumner was discharged on April 16 upon the demand of the Respondent because Sumner was not on that date a member of the Respondent in good standing. It is the theory of the complaint that the union-shop agreement did not permit discrimination against Sumner for that reason because he had not by April 16 been an employee of Zaich or of any other employer, party to the agree- ment running between the AGC and the Respondent, for 30 days Although Sum- ner's employment with Zaich began on March 12, more than 30 days before his discharge, it is argued that he worked only 17 days in that period and that his em- ployment was as a casual rather than a permanent employee. Even if it be true, the argument runs that Sumner on April 16 had worked or been in an employment re- lation to Zaich for a sufficient period so that his obligation to become a member of the Respondent had matured, his offer to pay dues and transfer fees to Hall im- munized him from discharge on any ground of delinquency. BUILDING MATERIAL & DUMP TRUCK -DRIVERS LOCAL 420 1047 The Respondent denies that any consideration of membership operated to bring about the demand for Sumner's discharge; rather it asserts Sumner's discharge was sought to vindicate Respondent's contract right to have all drivers on the Zaich job hired through the hiring hall and that Sumner was liable to discharge because of the circumstances of his hire no matter what his standing in respect to membership in Respondent might have been. Sumner's foreman, Robert Blair, at first testified that Hall came to him with a demand that Sumner be replaced because he was not a member of the Respondent. Under cross-examination, however, he recalled that Hall had also said something to the effect that Sumner had not cleared through the hiring hall. Stephen Pehar, a worker on the Zaich job but a member of a labor organization other than the Re- spondent, testified that Hall said that Sumner was not qualified to drive his truck because he was not a member of the Respondent and had not been referred from the hiring hall. What Pehar overheard appears to have been said some moments after the initial talk between Hall and Sumner. In cross-examination, Pehar recalled that Hall said that men were waiting for jobs at the hiring hall and that all should take their turns there. All of the testimony bearing upon what Hall said to Sumner and to Blair convinces me that at some point and in some fashion the fact that Sumner was not a member of the Respondent was the subject of comment but the testimony of Sumner is convincing on the point that Hall sought the discharge because Sumner had bypassed the hiring hall. Hall denied that he said anything to Foreman Blair concerning Sumner's union membership complaining only that Zaich had not hired through Respondent's hall. The sum of Blair's testimony is that Hall also mentioned lack of membership and it seems obvious that this aspect of Hall's demand is the one most firmly fixed in Blair's memory. Blair has no discernible interest in this controversy and his testimony on this point is deserving of credit. I have no doubt but that he testified truthfully. But the opportunity for misunderstanding presented by the circumstances is a great one. I gravely doubt that any witness in this pro- ceeding was able to recall with absolute precision all words of importance that were spoken. If Hall had said, and it is not unlikely that he did, "This man didn't come from 420!"; or "Sumner is not a 420 man," Hall's intention may have been to inform Blair that Sumner had not come to the Zaich job from Respondent's hiring hall and, although the suggested quotes do not clearly say that, neither are they inconsistent with such a purpose. Blair, on the other hand, could very well have thought that Hall's complaint concerned nonmembership. Sumner's testimony on cross- examination and his affidavit both clearly support the testimony of Hall. Blair's testimony to the extent that he recalled some mention of a hiring practice is not inconsistent with it. On balance, I credit Hall's testimony as to the demand for Sumner's discharge. I find that the allegation that Sumner's discharge was brought about because of nonmembership in the Respondent has not been sustained. Clearly enough, by the employment of Sumner, Zaich breached the agreement with the Respondent. Does it follow from this that Sumner then became vulnerable to discharge? The reasoning of the Supreme Court in the Radio Officers' decision 1 seems to suggest that he did not but this is a question not in issue here. The com- plaint does not allege a violation as to Sumner other than a causation of discrimination because of nonmembership and the representative of the General Counsel at the hearing expressly disclaimed reliance upon any other theory. Final authority in respect to the issuance of complaints is in the General Counsel. Even putting aside considerations of due process, I consider it inconsistent with that authority for me to find the commission of an unfair labor practice which the complaint does not allege. The complaint alleges to be unlawful, one of Respondent's dispatching practices which provides: Financial good standing in the Union can be required as a condition of dispatch- ment to a job ONLY as to men who have worked for a contractor or contractors within the area of and covered by the Southern California Master Labor Agree- ment for an accumulative period of thirty (30) days or more. In such cases (which we will call "30-day men"), financial good standing cannot be made a requirement of registration but only of dispatchment to a job. This is of course an implementation of the union-security provision in the contract running between the Respondent and the AGC and there is no contention that the union-security provision itself is unlawful. The General Counsel, however, cites in 1 Radio Officers' Union, eto. (A. H. Bull Steamship Company) v. N L R.B., 347 U.S. 17. 1048 DECISIONS OF NATIONAL LABOR RELATIONS BOARD support of the complaint, a decision of the Board 2 which reads, "a hiring hall agree- ment which [gives] the union the right to refuse job referral to a union member delinquent in the payment of dues would be unlawful, and a union operating a lawful hiring hall would violate Section 8(b) (2) if it refused to dispatch a union member be- cause of dues delinquency." The language quoted is certainly broad enough to cover the rule here complained of. However, in the cited case there was no union- security agreement, lawful or otherwise, in existence. Whether the Board would take a different view of the matter in the presence of a lawful requirement that em- ployees become and remain members of a union is uncertain. I think it to be a reasonable assumption, however, that in the case referred to, the Board was not attempting to decide an issue not presented to it. I am free, therefore, independently to appraise the situation presented under this complaint and answer unrestricted by the obligations of a precedential ruling. By its contract with AGC, the Respondent undertakes to furnish AGC members, qualified and competent workmen. Any person dispatched at the request of an em- ployer and for whom no work is provided is entitled to receive 2 hours pay. I think it accurate to say that the Respondent's hiring hall is in fact what its name implies-a place of hire. A person leaving there with a referral slip is sent to work rather than to an opportunity for employment. It is true that the employers have the right to reject anyone sent out from the hiring hall but if the Respondent sends workmen "qualified and competent" surely such rejections are rare. The dispatcher at the hall is of course an agent of the Respondent and, I think, at the same time an agent of the employers. Any discrimination in the dispatch procedure which might con- stitute an unfair labor practice under the Act is, I would find, attributable to the em- ployers party to the arrangement as well as to the Respondent. Thus I would find that if the dispatcher unlawfully deprived a workman of a job referral he has, by the same act, caused the employers to refuse unlawfully to hire. The contract, as has been seen, says that workmen employed by the contractors for a period of 30 days continuously or accumulatively, within the multiemployer unit, must become and remain members of the Respondent. What then of an individual whose obligation to become a member of the Respondent has matured in conformity with this contract provision and who has defaulted in the payment of dues? The Respondent is clearly, I think, entitled to enforce its contract right by demanding his discharge. The employer is obliged to comply with the demand. In such a situation, it may be urged that the proper and lawful course for the Respondent to follow is to dispatch the delinquent member and to demand and accomplish the discharge upon his arrival at the jobsite. Certainly this would be one way to handle the matter but it envisions a cumbersome, time-consuming, expensive, and, I am convinced, unneces- sary procedure. Considering that the act of hire in every practical sense takes place at the hiring hall, I see nothing in the Act to prohibit the Respondent from exercising its right there. The dispatcher, in such a situation as the agent of the Respondent, causes the dispatcher as agent for the employers to discriminate against the workman seeking dispatch. In both capacities the dispatcher is taking action which the union-security clause permits. It is argued that such an arrangement precludes the affected work- man from opportunity to make a tender of dues and thus to save his job.3 I think this argument is without substance. If the workman is advised that he will not be dis- patched because of delinquency, the Aluminum Workers doctrine would logically immunize him from discrimination were he then and there to make his tender. Upon the considerations above, I find that the dispatching practice complained of does not, in the presence of a valid union-security agreement, violate the Act or impinge upon rights guaranteed in Section 7 of the Act. CONCLUSIONS OF LAW 1. The Respondent is a labor organization within the meaning of Section 2(5) of the Act. 2. The AGC, Zaich, and other employer members of AGC, are employers within the meaning of Section 2(2) of the Act. 3. The Respondent has not engaged in unfair labor practices within the meaning of Section 8 (b) (1) (A) and (2 ) of the Act. It is hereby recommended that the complaint be dismissed in its entirety. 2lnternational Longshoremen's and Warehousemen's Union, Local No. 10, Independent, et at. (Pacific Maritime Association), 121 NLRB 938, 940 3 Aluminum Workers International Union Local No. 135, AFL ( The Metal Ware Corporation ), 112 NLRB 619.