Int'l Assn. of Bridge; Structural, Etc., Local 600

INT'L ASSN. OF BRIDGE; STRUCTURAL, ETC.,, LOCAL 600 301 CONCLUSIONS OF LAW 1. Lodge 1591 , International Association of Machinists, AFL-CIO, is a labor -organization within the meaning of Section 2(5) of the Act. 2. By discriminating in regard to the hire and tenure of employment of Imogene Tribble, thereby discouraging membership in the above -named labor organization, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a) (3) of the Act. 3. By interfering with, restraining, and coercing employees in the exercise of rights guaranteed in Section 7 of the Act, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)( I) of the Act. 4. 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.] International Association of Bridge, Structural and Ornamental Ironworkers, Local 600 and DeWitt Prentiss, Narvel Brewer, Archie ' O. Dixon , Don Prentiss, Rufus Richardson, and J. C. Brewer and Bay City Erection Company, Inc. Cases Nos. 15-CB-448-1, 15-CB-448-p2, 15-CB-448-3, 15-CB-14.8-4, 15-CB- 448-5,15-CB-448-6, 15-CB-448-7, and 15-CB-453. November 16, 1961 DECISION AND ORDER On September 1, 1960, Trial Examiner Thomas S. Wilson 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 and the Charging Parties filed ex- - ceptions to the Intermediate Report together with supporting briefs, and the Respondent filed a brief in support of the Intermediate Report. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [Members Rodgers, Leedoln, 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 In- termediate Report,' the exceptions and briefs, and the entire record in these cases, and, as it finds merit in some of the exceptions of the General Counsel and the Charging Parties, hereby adopts the find- ings, conclusions, and recommendations of the Trial Examiner only to the extent consistent herewith., 'We find that Bay' City Erection Company was formed in 1959 and not, as the Inter- mediate Report inadvertently states, in 1960 . We do not adopt the Trial Examiner's repeated references to the Charging Parties' attorney as a "mouthpiece" and to one of the individual Charging Parties as a "ringleader" 134 NLRB No. 20. 302 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The complaint alleges that the Respondent (1) operated its hiring hall and referral practices in a discriminatory manner, in violation of Section 8 (b) (1) (A) and ( 2) ; and (2) refused to meet with Bay City representatives until pending court and Board actions were dismissed, and attempted to dictate Bay City's choice of a bargaining representative, in violation of Section 8 (b) (1) (B ) and (3 ) of the Act. 1. Unlawful operation of the hiring hall (a) Preference to union members: The Respondent, through its agent, Mobile Building and Construction Trades Council, is a party to a contract with Bay City, the Charging Company, which provides for exclusive referral by the Respondent of all prospective employees? The contract provides for applicants to be registered in one of the following four categories, with priority in referral given in alpha- betical order : In group "A" those who had worked in the trade for 4 years, passed a journeyman's examination, worked for 1 of the past 4 years for an employer who was sib latory to a local union contract, and resided for the past year in the local geographical area; in group, "B" those' who had worked in the trade for 4 years and passed a journeyman's examination; in group "C" those who had worked in the, trade for 2 years and in the geographical area for 1 year; and in group "D" those who had worked in the trade for 1 year. In actual practice, however, the Respondent maintained only "A" and "B" lists. Moreover, contrary to the finding of the Trial Ex- aminer, the evidence shows that union membership was a subjective, qualification for placement on the "A" list. Thus, Bailey, the Re- spondent's business agent, and Norris, its president and assistant busi- ness agent, admitted that the procedure was to place all members, of the Respondent in good standing in group "A," and all out-of-town unionmen and nonunion applicants in group "B." This was confirmed by Chester Barnett, a rank-and-file member,, who testified on behalf of the Respondent. Moreover, Norris testified that when a member became delinquent in his dues, "We take him off the `A' list," and require him to reapply for referral. Further, Bailey stated that journeymen were placed on the "A" list when they attained journeyman status without regard to their length of service in the craft or geographical area. It is clear, therefore, that the Respondent placed and retained on the "A" list only the names of its members in good standing. As there is no evidence that those on the "A" list did not meet the, contract requirements, the fact that they were all members of the Respondent, without more, does not establish a violation of the Act. The Respondent's practice, however, of placing only its members in 2 The General Counsel conceded at the hearing that the contract was valid. IN ) L ASSN. OF BRIDGE , STRUCTURAL , ETC., LOCAL 600 303 ^. a standing on the first-priority "A" list constitutes an unlawful encouragement of membership in the Respondent. It has been estab- lished that such a "denial of equal access to the available jobs was in itself and without more a restrictive imposition in violation of the Act." 3 In addition, the Respondent, by relegating all applicants except its members in good standing to the "B" list, discriminated against those who qualified for placement in this group but had to compete for referral with others entitled only to "C" or "D" priority. Therefore, assuming, in view of the General Counsel 's concession to that effect, that the hiring hall provisions of the contract were lawful, we find that the Respondent 's operation of the hiring hall was dis- criminatory. Accordingly, on the basis of the foregoing and the entire record, we find that the Respondent violated Section 8 (b) (1) (A) and (2) of the Act by conditioning job referral priority on membership in good standing.4 (b) Work card requirements : The General Counsel also contends that the Respondent operated the hiring hall discriminatorily by re- quiring that members pay dues, fees , and assessments as a condition of retaining their employment. Article VII, section 2, of the contract provides that: All union men employed on job [sic] must have the current quarterly work card of the Building Trades Council , not to be retained on the job any quarter he does not carry said card. Williams, the business agent for the Building Trades . Council of which the Respondent was a member, periodically visited the various jobsites to check the currency of the member -employees' cards, and ordered those who did not possess current work cards to obtain them if they wished to remain on the job. Failure of an employee to have an up-to - date card was reported to the employer's representative at the site. As found by the Trial Examiner, Williams told a Bay City superin- tendent on January 25 , 1960, that some of his ironworkers did not have current Building Trades cards and that it was necessary for these employees to obtain them if they were to continue working. Moreover, in April 1960, Lovelace, an employee of Technical Con- tractors,' was ordered by his superintendent to obtain a Building Trades card after Williams had checked the employees on that job and informed the superintendent that Lovelace had to secure a new card to remain on the job. Bailey and Norris, who handled sales of a N.L.R .B. v. Local 803, International Brotherhood of Boilermakers, at at. (Harbor Ship Maintenance Co.). 218 F. 2d 299, 302 (C.A. 3). See Galveston Maritime Association , Inc., at at., 122 NLRB 692, 693-695. Technical Contractors and the Respondent, through the agency, respectively, of the Associated General Contractors and the Building Trades Council, are parties to a contract which is identical to the one Bay City has with the Respondent. Technical Contractors was the prime contractor on the Admiral Semmes Motel project, and had subcontracted part of the work to Bay City. Bay City could not adequately man this job because of the Respondent 's refusal to refer men, as discussed hereinafter. 304 DECISIONS OF NATIONAL LABOR RELATIONS BOAR), these cards for the Respondent, refused to issue current Builctnig Trades cards to Lovelace and to these Bay City employees when re- quested by them until their delinquent dues, fees, and assessments were paid in full. Quinnelly, president of Bay City, attended the next union meeting and, after it adjourned, asked Bailey to sell Building Trade cards to the Bay City employees who had been pulled off the job. Bailey reiterated that all the men had to be paid up and in good standing to obtain the cards. As his employees then indicated that they did not have sufficient funds to pay all their outstanding dues and assessments, Quinnelly paid up their obligations in order that they might continue working; he later gave them the receipts when they reimbursed him. At the hearing, Quinnelly identified West, Elliott, Lovely, and Perry as employees he had aided in this manner. Lovelace testified that, after conferring with his superintendent, he went to the union hall and informed Bailey and Norris that he could not liquidate his delinquencies in one payment and wished to make ar- rangements to pay in installments. Bailey said Lovelace could not do this and would have to find some way to obtain the full amount. In order to avert the loss of his "union book," and thus his job, Lovelace obtained the money and paid the full amount he owed. As found by the Trial Examiner, the record indicates other instances where the Respondent sold these work permit cards to its members only after arrangements had been made to pay outstanding dues and assessments, but he concluded that this was permissible internal union activity under the proviso to Section 8 (b) (1) (A). As nothing in the contract, however, imposed paid-up membership requirements upon these employees,' we find, contrary to the Trial Examiner, that re- quiring them to settle dues, fees, and assessment delinquencies prior to the issuance of work permits, on which their jobs were dependent, vio- lated Section 8(b) (1) (A) and (2) of the Act.' We shall, accordingly, require that the Respondent cease and desist from such conduct. Furthermore, as Lovelace, West, Elliott, Lovely, and Perry were spe- cifically identified in the record as having been pulled off their jobs and required to pay to the Respondent all delinquent dues, fees, and assessments in order to obtain work permit cards, possession of which was a condition of employment, we shall order the Respondent to refund to these individuals all such amounts which were unlawfully collected. " Alabama is a right-to-work State. See Alabama Code, title 26, sec. 391. P Motion Picture Operators Union o f Essex County Local 244, etc. ( Stanley Warner Corporation ), 126 NLRB 376; Argo Steel Construction Company , 122 NLRB 1077, 1083, enfd. as modified 289 F. 2d 491 ( C.A. 6). See International Longshoremen's and Ware- housemen's Union Local No. 10, Independent, et al. ( Pacific Maritime Association), 121 NLRB 938, 940 , in which the Board stated: [Al hiring-hall agreement which gave the Union the right to refuse job referrals to a union member delinquent in the payment of dues would be unlawful , and a union operating an unlawful hiring hall would violate Section 8(b) (2) if it refuses to dispatch union members because of dues delinquency. INT'L ASSN. OF BRIDGE, STRUCTURAL, ETC., LOCAL 600 305 (c) Discrimination against the six individual Charging Parties: The General Counsel alleges that the Respondent, by its unlawful operation of the hiring hall, discriminatorily refused job referrals to the six individual Charging Parties, and caused Bay City, the Charg- ing Company, to discriminate against them, in violation of Section 8(b) (1) (A) and (2) of the Act. During November and early December 1959, the six individual Charging Parties separately ap- plied for jobs to Quinnelly or Box, the president and superintendent- estimator, respectively, of Bay City. On December 8, Quinnelly in- formed all six that he would hire them if they obtained referrals from the Respondent. They went to the union hall and signed their names on the "B" page of the referral journal, which the Respondent's office- secretary, Garrison, told them, without any discussion as to whether they were local or out-of-town men, was the appropriate place for out-of-town members to register. Garrison also did not question them regarding their union membership or craft qualifications. De- Witt Prentiss, one of the six applicants, signed his name first and then commented, according to his uncontradicted testimony, that he had been working in Mississippi and "would like to get a referral out or get in the union...." As Garrison expressed surprise at this remark, DeWitt Prentiss asked her if she wanted him to remove his name from the list, but Garrison said, "No, we will leave it stay there." A no- tation appears in the register after the six signatures that "non-union members wish to see Mr. Bailey about getting books." The six men returned to the union hall the next morning, Decem- ber 9, and were individually interviewed by Bailey in his office.' Gar- rison, the only other person present during the interviews, took notes of the conversations. DeWitt Prentiss stated, during his interview, that he would accept a referral to any job, but most of the other men asked to be referred to Bay City. Bailey told those who requested re- ferral to Bay City that he could not refer anyone there as Bay City was on the Respondent's "unfair list." 9 Bailey did not ask about their qualifications as ironworkers, nor inform them that they were required to fill out written application forms and to meet certain qualifications in order to be referred. Bailey admitted in his testimony that, after proper review, some of these men might have qualified for the "A" list.10 He claimed, however, that they left the hall in such haste after the interviews that he was not able to obtain their addresses or inform e Five arrived at the union hall between 8 and 9 a in ; DeWitt Prentiss arrived at approximately 11 am. and was interviewed at that time 9 The Respondent, on November 19, 1959, caused Bay City to be placed on an "unfair list" because it hired individuals without referral from the Respondent The General Counsel asserted at the hearing that he did not contend that the Respondent violated the Act by placing Bay City on this "unfair list " io DeWitt Prentiss , who the Trial Examiner found to have merely a "color of claim" to inclusion in the "B" group, testified that he had been working as an ironworker for the past 7 or 8 years , had performed ironwork in the Mobile geographical area for about a 630849-62-vol. 134-21 306 DECISIONS OF NATIONAL LABOR RELATIONS BOARD them of the application procedures. This is refuted, however, by the testimony of all but one-Richardson-of the individual Charging Parties, who testified that they remained in the hall until 12 noon, and also by Norris, the Respondent's president and assistant business agent, who testified that he talked to some of the men after they left Bailey's office. Moreover, Dixon, Narvel, J. C. Brewer, and Don Pren- tiss testified that Bailey did request and obtain their addresses. We also note that, although Garrison handled the original registration of the six men on the "B" list, and was present and took notes during the interviews by Bailey, the Respondent failed to call her as a witness, to offer in evidence her notes on the interviews, or to explain its failure to do so." Quinnelly, Bay City's president, came to the hiring hall at 11 a.m. that day and made a request for men. Norris testified that he "called" the Bay City job that morning, that is, announced that jobs were available there, but no one responded. All the individual Charging Parties maintained, however, that the Bay City job was not "called" while they were present. Moreover, "calling" the job would have been inconsistent with the Respondent's position that it was not referring men to Bay City, which was on an unfair list. Therefore, and upon the entire record, we find that the Respondent did not call the Bay City job that morning. The contract with Bay City provides that it may hire applicants di- rectly on the jobsites whenever a request for employees is not filled within 48 hours. The Trial Examiner, in dismissing the complaint, comments upon Quinnelly's failure to utilize this provision of the con- tract to hire the six men without referrals, or even to inform them that he could do so. Quinnelly, however, had been warned on several occasions by the Respondent's steward on a Bay City project that the ironworkers on that job would walk off if Quinn6lly hired any man not referred through the hiring hall, and, as mentioned above, one of the reasons for the dispute which resulted in Bay City being placed on the "unfair list" was its hiring of applicants without referral by the Respondent. Under the contract, the Respondent had to approve the steward on each job, and he could not be removed except by agreement between the Respondent and Bay City. The steward performs certain func- tions at the jobsite for the Respondent, such as checking referrals and Building Trades cards. Accordingly, we find that the steward on the Bay City job was an agent of the Respondent, and that the Respond- year , and had previously done ironwork for another contractor in the Mobile area. Accordingly, it appears that at least one of these six individuals met the contractual qualifications for group "A" sufficiently to warrant having his qualifications reviewed by the Respondent's examining board as provided in the contract. u The Board has long recognized that an adverse inference may be raised by the failure of a party to produce available evidence . See Liberty Coach Company, Inc., 128 NLRB 160, 169-170 ; Vogue-Wright Studios, Inc , 76 NLRB 773, 778. INT'L ASSN. OF BRIDGE, STRUCTURAL, ETC., LOCAL 600 307 ent is, therefore, responsible for his threat to call the men off the job if Bay City hired any more men without referrals from the Respondent.12 By placing Bay City on the "unfair list" and refusing to refer applicants to it, the Respondent attempted to compel Bay City to comply with the Respondent's hiring practices. These actions, coupled with the steward's strike threats, prevented Bay City from exercising its contractual right to hire ironworkers without referrals, and forced it to hire only through the Respondent's hiring hall pro- cedures which we have found to be discriminatory. Accordingly, we find that the Respondent, by threatening to strike if Bay City hired men without referrals, caused Bay City to discriminate in regard to the hire of these six individuals in violation of Section 8(a) (3) of the Act, and thereby engaged in unfair labor practices within the meaning of Section 8 (b) (2) of the Act.13 (d) The Respondent's defense of entrapment; The. Respondent contended, and the Trial Examiner found, that the Charging Parties should be disqualified from any relief because they attempted to en- trap the Respondent, and thus abused the Board's processes. We do not agree, however, with the Trial Examiner's findings that the six individual Charging Parties were "fronting" for Bay City in an at- tempt to entrap the Respondent. While Quinnelly did inform them that he would employ them if they could get referrals, all had pre- viously approached Bay City requesting employment and, at the time of their requests, were unemployed or working at a less desirable job than that of a construction ironworker. DeWitt Prentiss, who, the Trial Examiner stated, was working for Bay City and was therefore not eligible for referral, was employed in the shop, which paid less than jobs at the construction site, and was working only on a part- time basis. All the individual Charging Parties testified that they would have accepted jobs had they been tendered. As the Board has stated : Even if the job applicants, who were unemployed at the time they requested employment, had reason to know or suspect that the Respondent had a discriminatory hiring policy, such knowl- edge would not render their request for work mala fide where all evidence indicated that they would have accepted work if it had been tendered." 12 Local No 511, United Brotherhood , of Carpenters it Joiners of America, AFL-CIO, et at (New Mexico Building Branch, Associated General Contractors of America), 120 NLRB 1658 , 1660; Local 1016, United Brotherhood of Carpenters it Joiners of America. AFL-CIO, et at (Booher Lumber Co, Inc), 117 NLRB 1739, 1746, eufd in part 273 F 2d 686 (CA 2) 13 See B & B Brewing Company, Inc, 122 NLRB 354, 355, enforcement denied on other grounds 276 F 2d 594 (C A 6), cert. denied 366 U S 908 14 T. H Burns and It H Gillespie d/b/a Burns and Gillespie, 113 NLRB 434, 435, enforcement denied on other grounds 238 F 2d 508 (CA. 8) 308 DECISIONS OF NATIONAL LABOR RELATIONS BOARD After the rejection of their referral requests by Bailey, Quinnelly suggested that the six men see Darby, the Bay City attorney, about filing charges with the Board. Dixon, one of the six, testified that Darby had previously represented him in another matter, and Don Prentiss, another of the six, testified that he had considered retaining his own attorney but, as the other five were engaging Darby, he did also. At the time of the hearing, none of the six men had paid Darby, but all five who testified stated that they intended to do so, and Quin- nelly, on the other hand, testified that Bay City had no intention of paying for Darby's legal services to these six individuals. Accord- ingly, we find no merit in the Respondent's contention that the Charg- ing Parties attempted to entrap the Respondent or to abuse the -Board's processes.15 2. The refusal to bargain and alleged interference with choice of bargaining representative The complaint alleges , that the Respondent refused to meet with Bay City to settle grievances as long as Darby, the Bay City attorney, was its designated representative, and refused to bargain with Bay City unless it withdrew pending court and Board actions, in violation of Section 8(b) (1) (B) and (3) of the Act. Darby, as attorney for Bay City, applied on November 24, 1959, for a Federal district court injunction against the Respondent's re- taining Bay City's name on the "unfair list." While this matter was pending, Quinnelly attempted to arrange a meeting with the Re- spondent to resolve their differences. Bailey and Norris, however, informed Quinnelly on several occasions that they would not meet with Darby and, at certain other times, that they would not meet with any representative of Bay City unless the injunction suit, as well as the charges which Bay City and the six individual Charging Parties had filed with the Board, were withdrawn. The statements that the Respondent would not meet with Bay City representatives while the court and Board litigation was outstanding were made at different times, in the union hall and at the jobsites, when the parties were discussing settlement of their differences and resumption of the referral system. Accordingly, we find that the re- marks in question were not "taken completely out of context and in a void," as found by the Trial Examiner, and that, by insisting that Bay City withdraw its charges filed with the Board before the Respondent would negotiate, the Respondent refused to bargain with Bay City in violation of Section 8 (b) (3) of the Act 16 11 See General Motors Corporation, Cadillac Motor Car Division, 109 NLRB 1429, enfd. 222 F 2d 349 (C.A. 5) ; N.L.R.B. v. Swinerton, 202 F. 2d 511, 515 (C.A. '9) cert. denied 346 U.S. 814 "Homer Gregory Co., Inc., 123 NLRB 1842 , 1845-18'46; Clinton Foods, Inc., 112 NLRB 239, 240. INT'L ASSN. OF BRIDGE, STRUCTURAL, ETC., LOCAL 600 309 We agree with the Trial Examiner, however, that the Respondent by this conduct, was not attempting to dictate Bay City's choice of a bargaining representative in violation of Section 8(b) (1) (B). The evidence fails to establish that the Respondent was notified that Darby was the Bay City representative for collective-bargaining purposes,- and the Respondent apparently believed that Darby represented Bay City only in regard to the Federal court injunction proceeding. The statements attributed to Bailey and Norris to the effect that they would not meet with Darby appear, in context, to indicate that they would not meet with the Bay City attorney to settle the injunction dispute be- fore the date set for trial. Accordingly, we find that the Respondent did not attempt to dictate Bay City's choice of a bargaining repre- sentative in violation of Section 8(b) (1) (B) of the Act, and we shall, therefore, dismiss this allegation of the complaint. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth above, occurring in con- nection with the operations of Bay City Erection Company set forth in the Intermediate Report, 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. THE REMEDY Having found that the Respondent has engaged in unfair labor practices, we shall order that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. As we have found that the Respondent operated a hiring hall in a discriminatory manner and unlawfully required its members to pay their current dues, fees, and assessments as a condition of retaining their employment, we shall order it to cease and desist from such practice. We shall also order the Respondent to refund such payments to Lovelace, an employee of Technical Contractors, and to West, El- liott, Lovely, and Perry, employees of Bay City, the only individuals identifiable from the record as having been required to pay such dues, fees, and assessments in order to retain their employment. The lia- bility of the Respondent for such reimbursement shall include the period beginning 6 months prior to the filing and service of the charges herein and shall extend to all such moneys thereafter collected, ex- empting the period from the date of the Intermediate Report to the date of this Decision and Order, as the Trial Examiner had recom- mended dismissal of the complaint." As we have found that the Respondent caused Bay City to discrimi- nate against DeWitt Prentiss, Narvel Brewer, Archie O. Dixon, Don 17 McCormick Construction Company, 126 NLRB 1246, 1249. X10 DECISIONS OF NATIONAL LABOR RELATIONS BOARD -Prentiss, Rufus Richardson, and J. C: Brewer by refusing to hire them ,on December 9, 1959, we shall order the Respondent to cease and desist from such conduct and to make them whole for any loss of pay each of them may have suffered by reason of discrimination against them caused by the Respondent: Backpay shall be computed in accord- ance with the Board formula stated in F! W. Woolworth Company, 90 NLRB 289. As the Trial Examiner did not find that the Respond- ent discriminated against the six individual Charging Parties, the period from the date of the Intermediate Report to the date of the Decision and Orderherein shall be excluded in computing the amount of backpay due them."' Having also found that the Respondent unlawfully conditioned bargaining with Bay City on its withdrawal of unfair labor practice charges filed with the Board, we shall order the Respondent to cease and desist from such refusal and, upon request, to bargain with Bay City. 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, International Association of Bridge, Structural and Ornamental Ironworkers, Local 600, its officers, representatives, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Operating its hiring hall system by unlawfully granting pref- erence in employment and in basing referral upon membership in the Respondent, or by conditioning retention of employment on the pay- ment of dues, fees, and assessments to the Respondent. (b) Coercing or attempting to coerce Bay City Erection Company and Technical Contractors to discriminate against employees or appli- cants for employment in violation of Section 8(a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. 2 (c) Conditioning bargaining negotiations with Bay City on the withdrawal of unfair labor practice charges. (d) In any other manner restraining or coercing employees or pro- spective employees of Bay City Erection Company, Technical Con- tractors, or any other employer over whom the Board would assert jurisdiction, in the exercise of the rights guaranteed by Section 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Refund to Lovelace, an employee of Technical Contractors, and to West, Elliott, Lovely, and Perry, employees of Bay City Erection is Utah Construction Co., 95 NLRB 196, 205. INT'L ASSN. OF BRIDGE, STRUCTURAL, ETC., LOCAL 600 311 Company, all dues, fees, and assessments they were required to pay as a condition of employment, in the manner and to the extent set forth in the section above entitled "The Remedy." (b) Make whole DeWitt Prentiss, Narvel Brewer, Archie O. Dixon, Don Prentiss, Rufus Richardson, and J. C. Brewer for any loss of pay each of them may have suffered by reason of the discrimination against them, as set forth in the section above entitled "The Remedy." (c) Upon request, bargain collectively with Bay City. (d) Post at its office, meeting hall, and hiring hall, copies of the notice attached hereto marked "Appendix." 19 Copies of said notice, to be furnished by the Regional Director for the Fifteenth Region, shall, after being duly signed by the Respondent's representatives, be posted by the Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, including all places where notices to members or applicants for employment are custom- arily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Mail to the Regional Director for the Fifteenth Region copies of the notice attached hereto marked "Appendix" for posting by Bay City Erection Company and Technical Contractors, if willing, for 60 days, at their offices and jobsites within the jurisdictional area of the Respondent. (f) Notify the Regional Director for the Fifteenth Region, in writ- ing, within 10 days from the date of this Order, what steps it has taken to comply herewith. IT IS HEREBY ORDERED that the allegations of the complaint that the Respondent violated Section 8(b) (1) (B) of the Act be, and they hereby are, dismissed. '- 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." APPENDIX NOTICE TO ALL MEMBERS OF INTERNATIONAL ASSOCIATION OF BRIDGE, STRUCTURAL AND ORNAMENTAL IRONWORKERS, LOCAL 600, AND ALL 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, you are notified that : WE WILL NOT operate our hiring hall by unlawfully granting preference in employment and by basing referral upon mem- bership in our organization, or by conditioning retention of 11 312 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employment on the payment of- dues, fees, and assessments to our organization. WE WILL NOT cause or attempt to cause Bay City Erection Com- pany, Technical Contractors, or any other employer over whom the Board would assert jurisdiction, to discriminate against em- ployees or applicants for employment in violation of Section 8(a) (3) of the Act. VVE WILL NOT in any other manner restrain or coerce employees or prospective employees of the above-named employers, or any other employer over whom the Board would assert jurisdiction, in the exercise of the rights guaranteed by Section 7 of the National Labor Relations Act. WE WILL refund to Lovelace, West, Elliott, Lovely, and Perry all dues, fees, and assessments which we have required them to pay as -a condition of employment. WE WILL make DeWitt Prentiss, Narvel Brewer, Archie O. Dixon, Don Prentiss, Rufus Richardson, and J. C. Brewer whole for any loss of pay each of them may have suffered by reason of the discrimination against them. WE WILL, upon request, bargain with Bay City Erection Company. INTERNATIONAL ASSOCIATION OF BRIDGE, STRUCTURAL AND ORNAMENTAL IRON- WORKERS, LOCAL 600, 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. INTERMEDIATE REPORT STATEMENT OF THE CASE Upon identical charges duly filed on December 14, 1959, by J. C. Brewer, Rufus Richardson , Don Prentiss, Archie O. Dixon, Narvel Brewer, and DeWitt Prentiss, alleging violations of Section 8(b)(1)(A) and (2 ) "since on or about June 14, 1959," upon a charge duly filed by Bay City Erection Company, Inc., hereinafter referred to as Charging Company or Bay City, by its attorney, Willis C. Darby, Jr., on December 17, 1959, alleging violations of Section 8(b)(1)(A ) and (B); upon charges duly filed by said Charging Party over the signature of R. E . Box, "Superin- tendent," alleging violation of Section 8(b)(3); and upon a charge duly filed by the Charging Company over the signature of Willis C. Darby, Jr., its attorney, on March 15, 1960, alleging violation of Section 8(b)(1)(B ) and (3 ) of the Labor Manage- ment Relations Act, 1947, as amended, herein called the Act, the General Counsel of the National Labor Relations Board, hereinafter called the General Counsel 1 and the Board, respectively , by the Regional Director for the Fifteenth Region (New Orleans, Louisiana ), issued his complaint dated March 25, 1960, against Interna- 1 This term specifically includes the attorney appearing for the General Counsel at the hearing. INT'L ASSN. OF BRIDGE, STRUCTURAL, ETC., LOCAL 600 313 tional Association of Bridge, Structural and Ornamental Ironworkers, Local 600, hereinafter-referred to as the Respondent or Local 600. The complaint as amended at the hearing is complicated. It alleges that the Re- spondent through its affiliation with the Mobile Building and Construction Trades Council became a party to two agreements entered into by said Council on or about July 2, 1959, with the Associated General Contractors of America, Mobile Section, Alabama Branch (AGC), and with the Charging Company, that these contracts con- tained exclusive referral provisions, that Respondent has under these agreements given preference in such referrals to its members and has refused to refer nonunion applicants for employment, that the Respondent has required both applicants for em- ployment and employees of AGC and of the Charging Party to pay initiation fees, dues, and assessments as a condition of referral to, employment by, or, retention of employment with AGC members and with Charging Party, and has thereby dis- criminated against the individual Charging Parties here. The complaint as amended also alleges that since on or about November 19, 1959, Respondent has refused to meet with representatives of Charging Company for purposes of collective bargain- ing and the adjustment of grievances and further that the Respondent has refused to meet with Charging Company for those purposes "until the Company agreed to select as its representative a person or agency other than its attorney, Willis C. Darby, Jr., who had been designated by the Company for such purposes" and further refused to meet with said Company for the above purposes unless and until the Company agreed to withdraw all charges against Respondent pending before the Board as well as a suit for injunction filed by the Charging Company in the United States District Court for the Southern District of Alabama, Southern Division, all in violation of Section 8(b)(1)(A) and (2), of Section 8(b)(1)(B) and (3), and Section 2(6) and (7) of the Act. The Respondent duly filed its answer admitting certain allegations of the'complaint but denying the commission of any unfair labor practices. Pursuant to notice, a hearing was held May 9 to 13, 1960, at Mobile, Alabama, before the duly designated Trial Examiner. All parties were represented at the hear- ing and were afforded full opportunity to be heard, to examine and cross-examine witnesses, to introduce evidence, and to present oral argument at the close of the hearing and thereafter to file briefs as well as proposed findings of fact and conclu- sions of law. Oral argument at the conclusion of the hearing was waived by all parties. A brief was received from the General Counsel on June 15, 1960. Upon the entire record in the case, and from the Trial Examiner's observation of the witnesses, the Trial Examiner makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE CHARGING COMPANY Bay City Erection Company, Inc., is an Alabama corporation formed about Feb- ruary 1960 with its principal office in Mobile, Alabama, where it is engaged in gen- eral construction and related work in the State of Alabama and in several other States of the United States. In the course and conduct of its business operations, during the period preceding December 1, 1959, the Charging Company received in excess of $50,000 for services performed outside the State of Alabama and also performed services for enterprises located within the State of Alabama, which enter- prises ship goods and/or perform services valued in excess of $50,000 annually outside the State of Alabama. The Trial Examiner finds that the Charging Company is, and all times material herein has been, engaged in commerce within the meaning of the Act. II. THE RESPONDENT International Association of Bridge, Structural and Ornamental Ironworkers, Local 600, is a labor organization admitting to membership employees of members of AGC and of the Charging Company. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The facts On July 2, 1959, S. A. (Scotty) Alsup 2 was business manager of the Mobile Build- ing and Construction Trades Council and he was also the business agent of the Re- spondent here. On that day Alsup executed in his official capacity with the Mobile Building and Construction Council a 1-year contract with the members of the Asso- ' This name as spelled throughout the transcript as Alsop. 314 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ciated General Contractors of America, Mobile Section, Alabama Branch, and a separate but identical contract with Bay City Erection Company, Inc .3 In pertinent part these contracts provided as follows: Article II Union Recognition SECTION 1. The Contractors hereby recognize the Unions 4 as the sole and exclusive bargaining representatives of the employees of the Contractors over whom the Unions have jurisdiction as defined by the Building and Construction Trades Department, AFL-CIO, subject to the determination of any dispute with respect to the jurisdiction as provided in Article XI hereof. SEC. 2. The Business Agents shall approve Stewards on each job. These Stewards are not to be removed from the job except by agreement between the Business Agent and the Contractor. In the event no agreement is reached, the matter shall be settled in accordance with Article X. Article VII Referral Clause SECTION 1. In order to maintain an efficient system of production in the indus- try, to provide for an orderly procedure of referral of applicants for employment and to preserve the legitimate interests of the employees in their employment, the Contractors and Unions agree to the following plan of referral of applicants to employment. a. The Contractor shall have the right to employ directly a minimum number of key employees. b. All other employees required by the Contractors shall be furnished and referred to the Contractors by the Unions. c. The Contractors shall have the right to reject any applicant referred by the Unions. d. The Unions shall select and refer applicants for employment without dis- crimination against such applicants by reason of membership or nonmembership in the Unions and such selection and -referral shall not be affected in any way by rules, regulations, bylaws, constitutional provisions or any other aspect or obligation of union membership policies or requirements. The selection and referral of applicants shall be operated in accordance with the following plan. e. The Unions shall register all applicants for employment on the basis of the Groups listed below. Each applicant shall be registered in the highest priority Group for which he qualifies. Group "A" All applicants for employment who have worked at the trade as a mechanic or apprentice for the past four (4) years; have previously passed a journeymen's examination conducted by duly constituted Local Unions affiliated with the Mobile Building and Construction Trades Council qualifying them to work as a mechanic at the trade; have been employed for a period of at least one (1) year during the last four (4) years by employers (parties to collective bargaining agreements with the Unions) and who have actually resided for the past year within the geographical area constituting the normal construction labor market. Group "B" All applicants for employment who have worked at the trade as a mechanic or apprentice for the past four (4) years; and have previously passed a journey- men's examination conducted by duly constituted Local Unions affiliated with the Mobile Building and Construction Trades Council qualifying them to work as a mechanic at the trade. Group "C" I All applicants for employment who have worked at the trade as a mechanic or apprentice for the past two (2) years or more and who have for the past It was stipulated that Bay City Erection Company, Inc., was not a member of the AGC. It was stipulated that the Respondent was one of the constituent members of the Mobile Building and Construction Trades Council. INT'L ASSN. OF BRIDGE, STRUCTURAL, ETC., LOCAL 600 315 year actually resided within the geographical area constituting the normal con- struction labor market. Group "D" All applicants for employment who have worked at the trade for more than one (1) year. f. The Unions shall maintain each of the separated group lists set forth above which shall list the applicants within each group in order of the date they registered as available for employment. g. Contractors shall advise the Unions of the number of applicants needed. The Unions shall refer applicants to the Contractors by first referring applicants in Group "A" in the order of their places on said list and then referring appli- cants in the same manner successively from the list in Group "B," then Group "C," and then Group "D." Any applicant who is rejected by the Contractors shall be returned to his appropriate place within his group and shall be referred to another employer in accordance with the position of his Group and his place within the Group. Upon a registrant being referred for employment and actually employed on a job more than three (3) days, such registrant's name shall be removed from the list until such time as his employment has been terminated at which time he shall be registered at the bottom of the appro- priate list under which he is entitled to be registered. h. The order of referrals set forth above shall be followed except in cases where Contractors require and call for employees possessing special skills and abilities in which case the Union shall refer the first applicant on the register possessing such special skills and abilities. i. Apprentices shall be hired and transferred in accordance with the appren- ticeship provisions of the agreement between the Contractors and the Unions. j. In the event that the referral facilities maintained by the Unions are unable to fill the requisition of a Contractor for employees within a forty-eight (48) hour period after such requisition is made by the Contractors (Saturdays, Sun- days and holidays excepted), the Contractors may employ applicants directly at the jobsite. In such event, the Contractors will notify the Unions of the names and dates of such hirings k. The Local Unions, through their Examining Boards shall examine all job applicants who have not previously passed an examination conducted by duly constituted Local Unions affiliated with the Mobile Building and Con- struction Trades Council in order to determine whether they are qualified to perform the work of the craft as a mechanic and be eligible for referral. Such examinations shall be held at least every month. 1. In the event that any job applicant is dissatisfied with his Group classi- fication of his order or referral in that such applicant claims that he was not placed in the proper group set forth above or was not referred in the regular order as provided above or if a job applicant has failed in his exam- ination to qualify as an eligible referrant, such aggrieved job applicant may appeal in writing within ten (10) days from the day on which his complaint arose, or failure to pass his examination, to Appellate Tribunal consisting of an Employer Representative, a Union Representative and an impartial umpire appointed jointly by the Employer and the Unions and the decision of the Appellate Tribunal shall be final and binding. in. The Employer and the Unions shall post in appropriate places all pro- visions relating to the -hiring arrangements set forth in this agreement. SEC. 2. All union men employed on job must have the quarterly work card of the Building Trades Council, not to be retained on the job any quarter he does not carry such said card. Article X Grievance Procedure SECTION 1. It is the purpose and intent of the parties hereto that all grievances or disputes arising between them concerning the interpretation or application of the terms of this agreement and all disputes or questions concerning the jurisdiction of crafts shall be settled by the procedures set forth in this article and Article XI. . . . * * * * * SECTION 3. Any question arising concerning the interpretation of the provisions of this agreement shall be submitted to a joint committee consisting of two (2) members appointed by the Mobile Building and Construction Trades Council 316 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and two (2) members representing the Contractors . In the event the joint committee is unable to reach an agreement with respect to any such question within five (5 ) days after the question is submitted to the joint committee, the joint committee shall select a mutually satisfactory fifth person within 48 hours. If the joint committee is unable to agree upon the fifth person , he shall be appointed by the United States Mediation and Conciliation Service. The decision of the joint committee shall be final and binding on the parties. The procedure established by this section shall not be applicable to the jurisdictional disputes which shall be settled as provided in Article XI hereof. Article XII Union Representatives The Contractors agree that all duly authorized Business Representatives of the Building and Construction Trades Council and its affiliated crafts shall be permitted to visit any job or jobs under the supervision of the Contractor during working hours to interview .the employees or Steward or Superintendent of the job, but shall in no way interfere or retard the progess of the job. As a result of an election among the members of Local 600, D. E. Bailey became business agent of the Respondent on July 13, 1959, replacing "Scotty" Alsup. Leo Norris was elected president and assistant business agent of Local 600 as a result of this same election.5 Prior to November 19, 1959, President and Superintendent H. G. (Cowboy) Quinnelly of Bay City admittedly hired an employee "off the street" and without regard to the referral provisions of the July 2, 1959, contract.6 This hiring "off the street" created friction between Local 600 and Bay City, especially as earlier Bay City had discharged a steward without agreement with Local 600. On November 19, 1959, by unanimous vote of the constituent locals, Mobile Building and Con- struction Trades Council voted to place Bay City on the unfair l1st.7 By letter dated November 23, 1959, Mobile Building and Construction Trades Council notified the contractors as follows: To all contractors having agreements with the Mobile Building and Construction Trades Council: GENTLEMEN: This is to advise that the Ironworkers Local Union No. 600 and the Operating Engineers Local Union No. 653 have placed the Bay City Erec- tion Company of Mobile, Alabama, on the Unfair labor list of this Council. Please be guided accordingly. Yours very truly, MOBILE BUILDING AND CONSTRUCTION TRADES COUNCIL. S. A. ALSUP, Business Manager. Bay City received its copy of this letter on November 25, 1959. On November 24, 1959, Bay City filed suit for an injunction against Local 600 in the United States District Court for the Southern District of Alabama, Southern Division. Bay City's attorney, Willis C. Darby, Jr., was able to attach copies of the above letter of the Mobile Building and Construction Trades Council, through the assistance of S. A. Alsup in giving R. E. Box, the self-styled "official," "superintendent- estimator" of Bay City, sufficient advanced copies of said letter on the night of November 23 for inclusion in the complaint and copies thereof filed with the district court. During the pendency of this suit in the Federal court, Quinnelly and/or Box for Bay City had a couple of conversations with Bailey and/or Norris about their 5 It should be noted that all the charges of the individual Chaiging Parties prepared in the office of Willis C Darby, Jr , on December 11, 1959 , charge discrimination beginning "since on or about June 14, 1959 . As the contract upon which the Charging .11 Parties rely did not cone into existence until July 2, 1959 , it appears that the date of "June 14" may have been a typographical error for "July 14 " ° Under General Counsel's questions Quinnelly acknowledged having hired one employee "off the street" for Bay City However, before Quinnelly left the stand, he admitted to having hired four or five more men "off the street." And by January 25, 1960, one of the Charging Parties here , Don Prentiss , was also working for Bay City without referral by Local 600 7 General Counsel concedes that the placing of Bay City on the unfair list is not an unfair labor practice. INT'L ASSN. OF BRIDGE, STRUCTURAL, ETC., LOCAL 600 317 differences 8 The only parts of these conversations that Quinnelly or Box could remember was that the representatives of Local 600 had refused to meet with Bay City's attorney, Willis C. Darby, Jr., and said that, if the Bay City Company would dismiss the suit, they would furnish Bay City with all the men Bay City needed. The following testimony of R. E. Box is rather typical: Q. Now, can you give us a date when he visited the job and talked about this? A. Well, Leo Norris visited the job three or four times. You mean he-well, you see he was down there once a day and every other day and I kept trying to get some men referred to the job because we were getting a little behind with the Technical job. The only thing I could get out of Leo was that as long as we had this suit he wouldn't meet with us on account of our attorney would be present, you see. But, he told me that if we dismissed the suit he would furnish us with all the men we needed. Q. Did Mr. Norris tell you whether or not he would meet with you if you dismissed your`suit? A. Oh, yes, he would be glad to meet with us if we dismissed our suit. TRIAL EXAMINER: Did he say anything about the attorney being present at that time? The WITNESS: Yes. Every time that they talked they always included my attorney in the conversation because- TRIAL EXAMINER: Are you through, Mr. Box, you stopped with "because." The WITNESS: Because that was the main object that they wouldn't meet with us was on account of my attorney see. Q. (By Mr. HOLROYD.) Mr. Box, you testified that Mr. Norris said that at the Technical job he would meet with you if you dropped your suit and your attorney was not present. Did he say where he would meet with you? A. He would meet with me any time, anywhere, it didn't make no difference. In a deposition taken for use in the Federal court suit, Bailey stated in answer to a question propounded by Attorney Darby: "I told him (Box) if he would withdraw his suit and sit down and go through the procedure and get it settled then we would furnish him men and meet with him anywhere, just like Mr Lowe told him, any- where that would be convenient." Further in answer to the question again pro- pounded by Attorney Darby, "What did you tell Mr. Box about meeting with Mr. Box's attorney and Mr. Box?" Norris answered: "I will not meet with an attorney." 9 Accordingly, the Trial Examiner finds that the above statements were made during the pendency of the suit in the Federal district court. It is undisputed that Bay City never at any time attempted to invoke the grievance or arbitration provisions of article X of the contract. During the period of the pendency of the suit in the Federal court and while Bay City was on the unfair list, Local 600 refused to refer men from the hiring hall to Bay City because of its being on the unfair list. On December 7, the individual Charging Parties, DeWitt Prentiss, Don Prentiss, Archie O. Dixon, J. C. and Narvel Brewer, and Rufus Richardson, having each been promised by Quinnelly a job with Bay City if they could secure a referral from the Union, appeared at the offices of Local 600 and upon finding that neither Bailey nor Norris was present asked the office secretary, Miss Pat Garrison, if they could register for work. She had each of them sign the "B" list in the hiring hall register upon learnmg that none of them was either a union member or a qualified iron- worker. The self-styled "ringleader" of this group, DeWitt Prentiss, testified as follows regarding this event: A. After I signed my name there [on the "B" list] and everything, these other boys walked up there and signed their names behind me. Anyhow, I got to talk to her asking you know, how was work and everything and I told her I had been working in Mississippi with an outfit up there and that I would like to get a referral out or get in the Union where I could go to work and she told me "Oh," just like that, you know. I got the impression you know- TRIAL EXAMINER: Tell us what she said. Mr. PowERS: Object to the impression of the witness. 8 Robert H. Lowe, business agent of the Operating Engineers Local 653 and also a defendant in the injunction suit, was present on one of these occasions 9It is on the basis of these answers that General Counsel contends that Respondent refused to meet and negotiate with Bay City in violation of Section 8(b) (3) 318 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The WITNESS : She said that and I answered did I do something wrong and she said, "Well, no, I don't reckon so." I said , "I don't know whether you want me to draw my name off that list or not." Q. (By Mr. HoLxoYD.) What did she say to that? A. She said, "No, we will leave it stay there." 10' All the Charging Parties thereupon left the 'hail. The following day, December 8, 1959, the same six individuals returned to the hiring hall in a group after meeting at the Bay City job on the Admiral Semmes Motel (otherwise known as the Technical Contractors ' job) where they had been informed by Quinnelly that about 11 a.m. he was going to make another call for men for the Technical job and that if no one from the "A" list bid the jobs, then the men on the "B" list would be eligible to bid the jobs in , i.e., be referred to the job." Upon their arrival at the hall Bailey interviewed the six men individually and was told by each of the six except DeWitt Prentiss that he wanted referral to the Bay City job. Bailey told at least some of the men that he could not refer them to the Bay City job because Bay City was on the unfair list but each of the six testified that Bailey also stated that, when "anything came up," he would notify them.'2 Bailey did not ask any of the men if he was a union member but told each of them .that they were alreday registered for referral. After these interviews the six sat about in and around the hall waiting for the .arrival of Quinnelly to requisition employees as Quinnelly had informed them he would do about 11 a.m . The "ringleader" testified regarding this episode as follows: The WITNESS : I got through talking to Bailey and 1 walked outside and stood around for quite awhile. There was a man working on his car out there and I helped the man get his car started . Mr. Quinnelly came by and I seen him but I didn't say a word to him. He went on in the hall there and he came back and he said, "I asked them for some men in there and they wouldn't give them to me." He said "you on that waiting list?" I told him yes that if I am re- ferred to on the job I will accept. 'I said "I will go in to see what I can do." That is all that he said., I went into the hall and asked for Bailey and the secretary for Bailey told me that he was not in, that he had gone to Pensacola and she said that she would let me talk to Mr. Norris. I went into the back- room and talked to Mr. Norris. [Emphasis supplied.] Q. (By Mr. POWERS.) What did you tell Mr. Norris? A. I told Mr. Norris that I would like to get a referral out on the Bay City Erection job 13 and he said that he could not give it to me. I asked him why and he said, "Well, I can't referral you out on Bay City Erection Company be- cause they on the unfair list." I told shim I don 't know nothing about that they on the unfair list or not-that the people offered me a job and I am hunt- ing a job and I said, "I want to go to work." I told him that Mr . Bailey told me if I got a job he would sell me a book and referral me on the job. One way or the other with all the regulations he refused it now and I wanted to be referred out on the job . He said, "I will take-I will tell you this when all of this cools down and everything I get you a book and if I can't -get you one I promise you this that I will do all that I can." I told him I guess since you are not referring me out the best I can do is leave and I left. He done said that they done all refused the job. Q. Now, Mr. Prentiss, you said they all refused the job. How do you know this, sir? A. I say they all refused . Mr. Quinnelly came out and said they wouldn't- Q. Mr. Quinnelly told you this? A. Yes. 10 At the time of this episode DeWitt Prentiss was, and had been since October 1959, an employee of Bay City working in the shop. 11 It is interesting to note that Quinnelly did not also inform these men that, under the referral provisions of the contract, Bay City would be free to employ each of them if Local 600 failed to supply the requisitioned number of men within 48 hours of the call. 12 Each of the men complained at the hearing that Bailey has never since gotten in touch with them although there is not one shred of evidence in this record that anything has "come up" since December 8, the last time any of the six was ever in the union hall, and despite the fact that it was not the practice of the hiring hall, except in cases of emergencies , as these six knew, to notify any registrant for employment by telephone. 18 Prentiss admitted that be had denied earlier to Bailey that he was seeking referral to Bay City. INT'L ASSN. OF BRIDGE, STRUCTURAL, ETC., LOCAL 600 319 The record is clear that December 8 was the last time that any of the six complainants were ever at the hiring hall of Local 600 as well as the fact that no representative of Local 600 ever telephoned any of the six complainants about job opportunities-although by January 25 Charging Party Don Prentiss had been employed by Bay City without referral from Respondent on a job which Bay City had in the Mobile area. But the record is also clear that at the suggestion and with the assistance of Quinnelly and Box the six individual Charging Parties reported at the office of Bay City attorney, Willis C. Darby, Jr., on December 11, 1959, where each signed identical charges of violations of Section 8(b)(1)(A) and (2) against Local 600 which, according to these typed charges, commenced "since on or about June 14, 1959," and used the date of November 8, 1959, as the date Respondent allegedly attempted to cause Bay City to discriminate against each of them "in regard to higher [sic] and tenure of employment." Although the complainants testified that Darby was his own personal attorney in this matter, no fee for Darby's services has been arranged or paid by any of them. The attempt of several of the complainants to deny the involvement of Charging Party Bay City in arranging for their register- ing at the hall, their signing and filing of identical charges on December 11, 1959, was disproved by the testimony of Quinnelly himself as well as by subsequent ad- missions by some of the complainants. This cast some doubt on the veracity of said individual complainants. The next episode upon which the General Counsel relies occurred on or about January 25, 1960. At or about this time Technical Contractors, the general con- tractor on the Admiral Semmes Motel job, had given Bay City a 24-hour notice to adequately man the subcontracted job Bay City was doing at the motel. Technical Superintendent Alford set up a meeting between himself, Bay City, and Local 600 in order to try to straighten out the situation at the motel. On January 25, Sam Williams, an official of the Mobile Building and Construction Trade Council, appeared with a number of business agents of the affiliated locals, including Leo Norris, at a job on which Bay City was working at 8 Mile. Williams checked all the men employed on that job to see that each had a currently paidup Building Trade Council card and upon finding a number of the employees without such current cards, he notified the local superintendent of the general contractor that under the Mobile Building and Construction Trade Council contract with AGC it was the contractors' obligation to see to it that their employees had such current cards before permitting them to continue work. The Bay City superintendent on this job was H. G. Quinnelly, brother of B. G. Quinnelly, Bay City's president. Quinnelly proved to be the only Bay City employee with a current Building Trades card on the job. He and some of the Bay City employees asked Norris for such cards and were told by Norris that he did not have any cards with him and that, if he had any, he would not give them to the men. He also informed them that they should buy such cards from Business Agent Bailey at the union hall. Quinnelly then sent his employees to the hall of Local 600 but, as Bailey ,was out of town, the men apparently returned to the 8 Mile job without such cards. Upon orders from Box, H. G. Quinnelly, and his employees then drove to the Technical Contrac- tors' office where it was known that Bailey was scheduled to meet with Technical Superintendent Alford to try to straighten out the manning difficulty on the Admiral Semmes job. Upon arrival, Box, the two Quinnellys, and the employees sat in their automobiles outside the Technical office until the Technical superintendent and Bailey appeared at the door of the office and invited them into the conference. When told by B. G. Quinnelly that the Bay City employees had come to get Building Trade cards, Baily suggested that they all retire to the union hall which they did. January 25 happened to be the regular union meeting night. During this union meeting Bailey reported upon the very bad financial straits in which Local 600 then was and urged the members who could to pay up their back dues in order to relieve the financial situation. B. G. Quinnelly took the floor during the meeting to state that he knew the financial straits of the Local and was going to make it his business to see that his men paid up their dues and working assessments as requested. After the union meeting was over, Quinnelly and the Bay City employees went into Bailey's office where Bailey explained that the Bay City employees could not get Building Trade cards because they were behind in their dues and assessments. Quin- nelly thereupon paid up most, if not all, of the back dues and assessments of his employees plus the dollar and a half for Building Trade cards which Bailey there- upon issued to them. The employees then returned to work. In the early part of April 1960, Sam Williams checked the employees working on the motel job for Building Trade cards. He discovered that the card of Jessie Love- lace, an employee of Technical, and a member of Local 600, had expired. Lovelace's 320 DECISIONS OF NATIONAL LABOR RELATIONS BOARD brother, Cecil, who was the Technical Steel superintendent on the job, ordered his brother to report at Local 600 and straighten the matter out. Lovelace was told by Leo Norris and by Office Secretary Pat Garrison that due to a new rule of Local 600, which required all dues and assessments to be paid before a Building Trade Council card could be sold, he would have to pay his back dues and work assessments amounting to $106 .75 before he could get a Building Trade Council card. When these back dues and assessments were paid, Jessie Lovelace was issued a Building Trade Council card and returned to work as usual. The record also shows further instances where Local 600 has sold Building Trade Council cards to members when arrangements have been made for paying such back dues and assessments in full. In addition to the above evidence, a-considerable amount of evidence was adduced regarding an episode at the motel when , with the permission of the general con- tractor, Bailey attempted to take photographs for publication in the union paper but was prevented by Box from doing so in a manner which caused Box to remove his coat as temper rose during his discussion with Bailey so that, in the words of Box, the matter nearly became "a personal." So far as this Trial Examiner can see, this camera episode had nothing to do with unfair labor practices and merely corroborated the bad blood which obviously existed between Box and Quinnelly on the one side and Bailey and Norris on the other. B. Conclusions 1. In general Upon this state of facts General Counsel purports to see the following unfair labor practices committed by the Respondent: (1) Of Section 8(b) (1) (A) by reason of the fact that the Respondent permitted the six individual claimants to register on group "B" instead of on group "D" as they should have if grouped in accordance with the strict terms of the Bay City-Mobile Building and Construction Trades Agreement and, secondly, by reason of the fact that Business Agent Bailey and his assistant, Norris, refused to sell Building Trade Council cards to union members who were employees of AGS contractors and of Bay City unless and until they had paid substantially or all, of their unpaid dues and assessments owing to Local 600; and (2) Of Section 8(b) (1) (B) by reason of the fact that, during the pendency of the Federal court injunction suit, Bailey and Norris stated at least twice that they would not meet with what the Charging Company had referred to as its "mouth- piece," i.e., Attorney Willis C. Darby, Jr.; and (3) Of Section 8(b)(3) by reason of the fact that, also during the pendency of the Federal court injunction suit, Bailey and Norris had stated that, if Bay City would dismiss the injunction suit and withdraw all charges before the National Labor Relations Board, it would supply Bay City with men. 2. Alleged violations of Section 8(b)(1)(A) and (2) General Counsel concedes in his brief that the provisions of the AGC-Bay City- Mobile Building and Construction Trades Council contract which set forth the hiring hall and referral system involved in the instant matter were in accord with the principles set forth by the Board in its Mountain Pacific decision 14 and was, therefore, legal. However, General Counsel claims in his brief that the practices of Local 600 under the referral system setup in the contract discriminatorily favored union members. Union membership was not one of the qualifications used to determine an appli- cant's place on the registration roster. In as well organized a section of in- dustry as the building and construction industry it would be almost impossible to set forth any qualifications for preference in employment which would not result in first priority being given to union members in the crafts involved because they are the individual employees with the greatest experience in the field and in the local geographical area. Consequently the fact that the list of those in the highest priority group, group "A," were all members of Local 600 in this instance, if that be the case and it was not here proven to be , is the result not of their union membership but of their craft and geographical qualifications as required by this admittedly legal hiring hall and referral system. The General Counsel failed to prove-and, indeed, made no attempt to prove-that any man listed by the Respondent on group "A" 14 The correct citation of the decision referred to'by the General Counsel in his brief on this point is 119 NLRB 883 at 893. INT'L ASSN. OF BRIDGE, STRUCTURAL, ETC., LOCAL 600 321 did not possess all the qualifications required under the terms of the contract for inclusion in that group. Hence, in the absence of such proof, the fact that all the men listed on group "A" happened to be members of Local 600, if that be the case, is not proof of any discriminatory treatment favoring an applicant because of his membership in the Union. But the General Counsel's objection seems to be that, whereas the contract pro- vided for four groups (A to and including D) Local 600 only maintained two such lists (A and B). While this reduction in the groupings from four to two is not strictly in accordance with the provisions of the contract, the General Counsel's con- ention that this amounted to discrimination against the six nonunion complainants here requires him to perform great feats of mental gymnastics. None of the claim- ants here would qualify under the contract terms for inclusion on group "A." At best only one claimant, DeWitt Prentiss, had even a color of claim to qualifications to justify his inclusion on group "B" as set up in the contract. The total lack of qualifications of the others automatically placed them in group "D." But both General Counsel and Bay City cry "discrimination." Yet if there was discrimination of any sort or variety in this listing it cannot have been based upon union member- ship or lack thereof for none of the six claimants ever claimed in his testimony that he was ever asked about union membership at any time. If Respondent's permitting these six claimants to register on the "B" list, instead of on the lower classified "D" list, then Local 600 is guilty of discrimination favoring these claimants. If any of the six suffered any discrimination in this registration, it was DeWitt Prentiss who had some color of qualifications for the higher registration but, in his case, it just so happens that Dewitt Prentiss was the first of the six to sign his name on the register and, therefore, would have been the first to be referred in the event of any referrals from the "B" list. Therefore even Dewitt Prentiss could claim no discrimination. 15 The fact of the matter is that Respondent Local maintained only two registration lists, A and B, because so few nonqualified ironworkers attempted to register at its hall. Until December 7, 1959, when these six complainants registered, the "B" list, which Norris and Bailey had inherited from Alsup, consisted of nine names whereas the shortest "A" list of unemployed qualified ironworkers placed in evidence by General Counsel in this hearing shows 160 qualified ironworkers waiting for referral. With such a long list of qualified men waiting referral it is no wonder that so few individuals with lesser or no qualifications as ironworkers sought to register for referral. While technically this reduction from four to two groupings is perhaps a violation of the contract, there is no showing here that men with the required qualifications for listing on the "B," "C," or "D" groups have attempted to register. Thus the reduction appears to be a practical and rational matter and certainly indicates no discrimination based upon union membership. Accordingly, the Trial Examiner must find that the Respondent did not discrimi- nate against any of the six individual claimants here. And he will, therefore, recommend the dismissal of the complaint as to them. General Counsel's next contention is that it was a violation of Section 8(b) (1) (A) and (2) for Local 600 to require its employed members to pay their local dues and assessments substantially or in full before it would sell them Building Trade cards which under the contract with AGC-Bay City were required of every employee on the job as a condition of continued employment.16 Under the contract AGC and Bay City signed with the Mobile Building and Construction Trades Council each employee had to have a current paidup Building Trade card without which the employee could no longer work on the job. There is no contention made here that this requirement of the paidup Building Trade card constitutes an unfair labor practice. General Counsel only complains that Local 600 made it a rule that its members pay their dues and assessments to Local 600 before selling them a Building Trade card. Contrary to the General Counsel's contention, if Local 600 desired to require its employed members to pay their dues and assessments to Local 600 before they were permitted to secure a Building Trades card, that rule constitutes a matter of internal management of the Union over which its member employees had full and absolute control and is made legal under the 1s Actually DeWitt Prentiss had no right to register for referral at all because, at the time of his registration, he was already an employee of the Charging Party, and therefore, was not eligible under any conditions for referral 10 This contention does not assist the six individual complainants here because ad- mittedly they were neither union members employed nor asked for any fees and thus are not involved in any way in this contention 630849-62-vol. 134-22 322 DECISIONS OF NATIONAL LABOR RELATIONS BOARD proviso of Section 8(b)(1)(A). Indeed the evidence here proves that the two Quinnellys, president and vice president of Bay City, respectively , and also mem- bers of Local 600, approved and endorsed this rule of Local 600, both complied therewith, and, indeed, sought to see to it on January 25, 1960, that their employees also complied therewith . There is no evidence in this record showing or even tending to show that Local 600 required the payment of any fees from any nonmember, registrant for employment. Accordingly, the Trial Examiner must dismiss this allegation of the amended com- plaint and, therefore, must find that Respondent Local 600 did not violate Section 8(b)(1)(A) and (2). 3. Alleged violations of Section 8(b)(1)(B) and (3) For proof of the alleged violation of these above sections of the Act General Counsel and Bay City rely upon two separate remarks made by Bailey and Norris: (1) To the effect that they would not meet with the Respondents "mouthpiece," Willis C. Darby, Jr.; and (2) to the effect that Bay City would have to dismiss the injunction suit and withdraw the charges before the Board before Local 600 would supply Bay City with men.17 It is quite clear that for some months Bay City and Respondent had been in- volved in a number of disputes involving interpretation of the contract and other- wise. Soon after Bailey and Norris became officers of Local 600, Bay City dis- charged a union steward in a manner which , according to Bailey and Norris, violated the contract . This dispute was finally settled by the parties themselves but only after Local 600 had invoked article X of the contract, the grievance and arbitration provisions of the contract. ' Then Quinnelly admitted that Bay City began hiring employees "off the street" which Bailey and Norris contended violated the referral section of the contract. As a result of this claim and a similar one made by Business Agent Lowe of the Operating Engineers, Mobile Building and Construction Trades Council on Novem- ber 19, 1959, unanimously voted to place Bay City on the unfair list with the result that neither local would supply Bay City with men from the hiring halls . At this point Bay City went to its "mouthpiece," Darby, who brought suit for injunctive relief in the Federal court even before Bay City received official notification of the Council's action in placing it on the unfair list. Then for purposes best known to Bay City and Darby, the Charging Company connived with, instigated, and assisted the six individual complainants here in a joint effort to prove that the referral system was discriminatory. The evidence here justifies a finding that Bay City sought to entrap Local 600 into the commission of an unfair labor practice and that the six individual complainants were "fronting" for Bay City in this attempted entrapment. This is made especially clear from the fact that the "ringleader" of the six individuals purporting to seek re- ferral was at the time of the attempt already an employee of Bay City and had been so for months previously . This alone should disqualify these complainants from relief. Furthermore, if General Counsel's contention here is correct, Bay City could legally have hired the six complainants without the necessity of referral by the Union under the 48-hour clause contained in the contract but chose instead to try to use the Board's process to accomplish what it legally could have done under the contract. This, at least, verges on an abuse of the Board's processes. Thus at the time Bailey and Norris made the two remarks referred to above, there were many things not encompassed in collective bargaining or labor negotiations in dispute between the parties which had to be settled before amicable relationships could be reestablished. There is no evidence in this record as to what conversation preceded or followed these two remarks. Neither Qinnelly nor Box could recall any thing further than the two sentences above. Thus, on the record here, it is clear that the Trial Examiner is being asked to find Respondent guilty of unfair labor practices because of two remarks taken completely out of context and in a void. This the Trial Examiner refuses to do, especially as it was the General Counsel and Bay City who had the burden of proof to show that the remarks were illegal violations of the statute. This burden is not carried by proving nothing more than two remarks taken out of context. 17 Once during his testimony Box testified that this latter remark had been made some 6 weeks before November 24, 1959 , but the fact that the injunction suit and the Board charges were mentioned therein leaves no doubt that the remarks were made only some- time after December 14, 1959, the date the charges with the Board were filed. TUCKER STEEL CORP., AND STEEL SUPPLY CO. 323 The two statements may have been made while the parties were talking of matters completely unrelated to negotiations or collective bargaining . This record is com- pletely devoid of any showing that Local 600 was ever informed by Bay City that Willis C. Darby, Jr., was anything more than Bay City's "mouthpiece" in the in- junction suit. There is no affirmative evidence to show that Bay City ever informed Local 600 that Darby had been appointed its representative in matters of collective bargaining and negotiations or was anything more than its attorney in the injunc- tion suit. As for settling the injunction suit, that was a matter to be discussed be- tween the attorney for Local 600 and the attorney for Bay City. Nor is there any proof that Bay City made any request that Local 600 bargain with Darby as the Bay City representative in any matter of collective bargaining or negotiations. This finding is corroborated by the fact that at no time did Bay City ever attempt to invoke article X of its contract for the handling of grievances and arbitration of disputes. Instead, Bay City chose to attempt to create an unfair labor practice case. The Trial Examiner must find that this attempt did not succeed. Accordingly, the Trial Examiner must find that the General Counsel has failed to prove facts sufficient to prove the commission of any violation of Section 8 (b) (1) (B) and (3) of the Act, or, in fact, any violation of the Act by Respondent Local 600 and, accordingly, he will recommend that this complaint be dismissed in toto. Upon the basis of the foregoing findings of fact, and upon the entire record in this case, the Trial Examiner makes the following: CONCLUSIONS OF LAW 1. International Association of Bridge, Structural and Ornamental Ironworkers, Local 600, is a labor organization within the meaning of Section 2(5) of the Act. 2. Bay City Erection Company, Inc., is engaged in commerce within the mean- ing of Section 2(7) of the Act. 3. Respondent Local 600 has not engaged in any unfair labor practices within the meaning of the Act. Accordingly, the Trial Examiner recommends that the complaint in the instant matter be dismissed in its entirety. Tucker Steel Corporation, and Steel Supply Company and Shop- men's Local Union No. 715, of the International Association of Bridge, Structural and Ornamental Iron Workers, AFL- CIO. Case No. 10-CA-4666. November 16, 1961 DECISION AND ORDER On July 11, 1961, Trial Examiner Ramey Donovan issued his Inter- mediate 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 Intermediate Report attached hereto. Thereafter, the Respondent filed a brief in support of the Intermediate Report and the General Counsel 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 McCulloch and Members Rodgers 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 Board has considered the Intermediate Report, the exceptions and 134 NLRB No. 37.