Lummus Co.

LUMMUS COMPANY 517 fice clerical employees, store managers , assistant store managers, de- partment managers,° and all other supervisors as defined in the Act. [Text of Direction of Election 9 omitted from publication.]' 8 Petitioner contends that the department managers are not supervisors and should be included in the appropriate unit, while the Employer and the CIU take the contrary posi- tion. The record establishes that department managers direct the work in their respective departments, have authority effectively to recommend discharge and discipline, and repre- sent the Employer at the first step in the contractual grievance procedures. We find that they are supervisors and should be excluded from the appropriate unit. However, the record suggests, though unclear on this point , that there may be departments, not identified in the record , in which the department manager is the only employee employed or who exercises supervisory authority only irregularly and sporadically . In accordance with established policy the Board will not exclude persons as supervisors who do not at present exercise supervisory authority or do so only on an irregular or sporadic basis. Huntley Industrial Minerals, Inc., 131 NLRB 1227, 1228. Accordingly, department managers work- ing under the aforesaid conditions are not supervisors as defined in the Act and are in- cluded in the unit. 8 As the unit found appropriate is larger than that initially requested by Petitioner, Petitioner's interest in the chainwide unit is unclear. Accordingly, the Regional Director is instructed not to proceed with the election hereinafter directed until he shall have first determined that the Petitioner has an adequate showing of interest in the unit herein found appropriate. The CIII does not wish to participate in an election if Petitioner's showing is found inadequate. Lummus Company and James J. Kivlin Local 80, United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, AFL-CIO and James J. Kivlin. Cases Nos.4-CA- 2361 and 4-CB-717. May 10, 1963 DECISION AND ORDER On May 11, 1962, Trial Examiner James A. Shaw issued his Inter- mediate Report in the above-entitled proceeding, finding that Local 80, United Association of Journeymen and Apprentices of the Plumb- ing and Pipe Fitting Industry of the United States and Canada, AFL-CIO, herein called Respondent Local 80, 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 attached Intermediate Report. He also found that Lummus Company, herein called Respondent Lummus, did not en- gage in the unfair labor practices alleged,and recommended that the complaint be dismissed in its entirety as to this Respondent. There- after, the General Counsel, the Charging Party, and Respondent Local 80 filed exceptions to the Intermediate Report and supporting briefs. Respondent Lummus filed a brief i in reply to the exceptions and briefs of the General Counsel and the Charging Party. Respondent Lummus' request for oral argument is hereby denied, as the record, excep- tions, and briefs adequately present the issues and the positions of the parties. 142 NLRB No. 59. 518 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report and the entire- record in the case, including the ex- ceptions and briefs, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner to the extent consistent herewith. Respondent Local 80 has a collective-bargaining agreement with the Delaware Mechanical Contractors Association. This agreement provides for an exclusive hiring hall arrangement.' Although Re- spondent Lummus is not a member of this association and is not a signatory to the association agreement, it considered itself bound by the hiring provisions of the agreement during the relevant period. The General Counsel does not contend that the hiring hall is un- lawful, but he does contend that, on or about March 15, 1961, Re- spondent Local 80, through its business agent, Charles Kennedy, dis- criminatorily refused the use of the hiring hall to James Kivlin and his brother, John Kivlin, and that Respondent Lummus is liable with Respondent Local 80 for such discrimination. James Kivlin and John Kivlin are members of Local 420, a sister Local of Respondent Local 80. On March 15, 1961, they went to the Respondent Local 80 hiring hall and sought referral. James Kivlin told Kennedy that they had been sent by their business agent. 2 The agreement contains a provision which provides that when an applicant or a regis- ,trant believes that he has not received fair treatment at the hiring hall, he may file a written appeal to a joint hiring committee that is composed of equal members of Employer and Union representatives . The appellant appears before the committee which then de- cides his appeal In the event of a deadlock , the appellant may take his appeal to an impartial umpire whose decisions are final. Respondents contend that the Board should not have entertained this case in the first instance because the Kivlins did not use the appeal procedure Unlike our dissenting colleague, Member Brown, we find this contention to be without merit. The evidence, in our opinion, refutes the assumption that the Kivlins had actual "knowledge" of the appeal procedure while the Kivlins were long-standing union members , it seems quite clear from the record in this case that they did not know what course to pursue after being denied an opportunity to register at Local 80 's hiring hall. They were, rather, denied the benefit of Gibson's attempted explanation through the threats of Local '80's steward In these circumstances , we cannot agree with our dissent- ing colleague that the "record does not disclose any justification for the failure to invoke the available contractual grievance machinery." Moreover, Members Rodgers and Leedom find Respondents ' contention to be without merit for an additional reason. It is true that the Board has exercised its discretion in the past in recognizing an arbitration award which appears to have been conducted pursuant to fair and regular proceedings with all parties agreeing to be bound and the decision is not clearly repugnant to the purposes and policies of the Act . Spielberg Manufacturing Company, 112 NLRB 1080 , 1082. However , we are not faced with such a situation here There has been no request for arbitration by the aggrieved parties . We are dealing only with primary jurisdiction and the interposition of the agreement in itself cannot oust the Board from its primary jurisdiction over unfair labor practices In effect, the Respondents here would seek to have the aggrieved parties submit , exclusive of all other procedures, to the jurisdiction of a private tribunal composed, at least in part , of the perpetrators of the unfair labor practices involved herein . In situations like that presented in the instant case, the common interest of the employer and the union representatives could be expected to militate against the likelihood of a deadlock and thus preclude access to an impartial tribunal Under such circumstances, we do not feel that the Kivlins should be penalized for failing to employ such a remedy. LUMMUS COMPANY 519 Kennedy remarked, "I remember you from before. You had a fight with one of my executive board members." Kennedy added, "You gave him a hard time." Although Kivlin denied that he had any such fight, Kennedy insisted, "You ain't working here." Kennedy then asked the identity of the individual accompanying James, and was told that he was James' brother, John. Whereupon, Kennedy stated to John, "You ain't working here either." James Kivlin asked, "What about the list? How about the hiring list?" Kennedy re- plied, "I told you, you weren't working here." At this point, James Kivlin and Kennedy engaged in a bitter argument. At the suggestion of his business agent, James Kivlin returned to the Respondent Local 80 hiring hall about May 22, for the specific purpose of trying to make amends with Kennedy. The latter, how- ever, on meeting Kivlin outside the hiring hall, remarked, "There is no use you hanging around here, you are going to get hurt." On May 22, 1961, James Kivlin went to the Respondent Lummus' jobsite at Claymont, Delaware. While there he met some of his Local 420 comembers, one of whom told him that Respondent Local 80 was referring welders to this jobsite. Kivlin then went into the time- keeper's office and sat down. Shortly thereafter, Respondent Local 80's steward approached Kivlin and asked him if he had a referral. When Kivlin answered in the negative, the steward told him that he had better leave the jobsite. Kivlin replied that he was not getting off the jobsite, and further, that Kennedy would not give him a referral slip. The steward then told the timekeeper not to give Kivlin an ap- plication. The timekeeper stated, "I have got to give him an applica- tion because it is the law." Kivlin was given an application, which he filled out. The timekeeper then put a badge on the application, but set it aside. When Kivlin protested, the timekeeper sent him to the manager of Respondent Lummus' employment office, C. J. Gibson. The latter explained to Kivlin about the agreement to hire all nien out of Respondent Local 80. Kivlin then said, "What if you can't get a ticket out of Local 80 ?" Gibson started to make an explanation to Kivlin, but Respondent Local 80's steward burst into the office and shouted at Gibson that Kivlin was not going to work. The steward asked Gibson if the latter wanted labor trouble. Gibson then told Kivlin that he had no need for welders at that time because he had hired the required number. Gibson also told Kivlin that if he ob- tained a referral slip from Respondent Local 80 he would later con- sider him for employment. We find, in agreement with the Trial Examiner, that Respondent Local 80, by refusing the Kivlins the use of its exclusive hiring hall, thus effectively barring them from employment within its jurisdic- tional area because of the claimed abusive conduct of James Kivlin toward an unnamed member of the executive board, caused Respond- 520 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ent Lummus to deny them employment in violation of Section 8 (a) (3), thereby violating Section 8(b) (2) and (1) (A) of the Act. We disagree, however, with the Trial Examiner's finding that Re- spondent Lummus should not also be held liable with Respondent Lo- cal 80 for the discriminatory refusal to refer the Kivlins. Respond- ent Lummus admittedly is one of the employers who, during the relevant period, used Respondent Local 80 as an exclusive source of employees in accord with the terms of Local 80's hiring hall agreement. By reason of Lummus' adoption of the terms of this agreement, Lo- cal 80 became, and acted as, the agent for Lummus in selecting men to be hired. Respondent Local 80's discriminatory acts, the refusals to refer the Kivlins, which unlawfully encouraged membership in good standing in Local 80, are properly chargeable to Lummus, the principal. Thus, it is not material that Lummus may not have had specific knowledge of these acts.' Accordingly, Respondent Lummus, as a party to the exclusive hiring hall arrangement, was likewise liable with Respondent Local 80 for the discriminatory denial to the Kivlins of the use of the hiring hall from on or about March 15, 1961, which resulted in the loss of employment opportunities by the Kivlins. On the basis of the foregoing, we find that Respondent Lummus has violated Section 8(a) (3) and (1) of the Act. Further, we find that the facts herein clearly show that Respond- ent Lummus was placed on notice on May 22, 1961, that there was something amiss with the operation of the exclusive hiring hall insofar as it concerned James Kivlin.' On that day, James Kivlin advised C. s Morrison-Knudsen Co., Inc., et al, d/b/a Robinson Bay Lock Constructors v. N L R B , 275 F 2d 914 (CA. 2 ), enfg. as modified 123 NLRB 12, cert. denied 366 U.S. 909; N L.R B v George D. Auchter Company, et al, 209 F. 2d 273 ( CA. 5), enfg. 120 NLRB 881 ; N L R.B. v. F. H. McGraw and Company, 206 F 2d 635 ( CA. 6), enfg. as modified 99 NLRB 695; and N.L.R B . v. Cement Masons Local 555, etc. (Anderson Westphal Co ), 225 F. 2d 168 (C.A. 9), enfg. 102 NLRB 1408. 4 Thus, we cannot agree with our dissenting colleague , Chairman McCulloch , that Re- spondent Lummus was unaware of the unlawful actions taken by Respondent Local 80 Although Respondent Lummus might not have been fully informed as to the reason for James Kivlin being denied the use of the hiring hall, it is apparent that the May 22d conversation served to give Respondent Lummus reasonable grounds to believe that such denial was based on an unlawful reason . Moreover, the Chairman 's basic position is at variance with existing precedent. For example, in the Morrison-Knudsen case , 275 F. 2d 914 (C.A. 2), the court stated ". . . regardless of the extent of their knowledge we agree with the Board that an employer may not avoid liability for violations of the Act by the hiring hall when he has turned over to it the task of supplying the men to be employed The Local acted as agent for the petitioners in selecting the men to be hired Its dis- criminatory acts . . . are properly chargeable to the agent's principal as discriminatory acts by it" As legal precedent for this proposition , the court cited the Auchter (209 F. 2d 273 ( CA. 5) ), and McGraw cases ( 206 F. 2d 635 (C.A. 6 ) ), referred to supra, foot- note 3 While it is true that in the cited cases, unlike the instant case, the employer and the union were parties to agreements containing unlawful provisions , the court in the Morrison-Knudsen case apparently did not consider this to be a significant factor In fact, the court limited its findings to two instances of discrimination in the operation of the hiring hall and deemed it unnecessary to pass upon the Board's contention that the agree- ment itself was unlawful. In effect , the court was stating that any employer , such as Respondent Lummus, which obligates itself to operate through an exclusive hiring hall is liable for the union's violations of the Act in operating the hall, irrespective of the em- ployer's knowledge of the discriminatory operation. LUMMUS COMPANY 521 J. Gibson, manager of Respondent Lummus' employment office, that he was unable to obtain a referral from Respondent Local 80. How- ever, no further action was taken by Respondent Lummus to ascertain the reason why Kivlin was unable to procure a referral. Respondent Lummus, having delegated hiring authority to Respondent Local 80 under the exclusive hiring arrangement, had an affirmative obligation under these circumstances to ascertain the reason.5 Accordingly, we find that Respondent Lummus' failure to do so was an act of ac- quiescence and, in effect, a ratification of Respondent Local 80's discriminatory denial of the use of the exclusive hiring hall to the Kivlins. THE REMEDY In order to remedy the unfair labor practices found, we shall order the Respondents to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. Having found that Respondent Local 80 discriminatorily denied the use of the hiring hall to James Kivlin and John Kivlin from on or about March 15, 1961, which resulted in the loss of employment opportunities to the Kivlins, we shall order that Respondent Local 80 be required to place the names of James Kivlin and John Kivlin on its out-of-work lists from which it makes referrals of applicants to employment with Respondent Lummus and other contracting firms for which it is the sole and exclusive source of referrals to employment within the territorial jurisdiction of Respondent Local 80. We shall further order that Respondent Local 80 be required to notify Respond- ent Lummus and the aforesaid contracting firms that it has no objec- tion to the employment of James Kivlin and John Kivlin with the same rights and privileges enjoyed by other employees. Having further found that Respondent Lummus, as a party to the exclusive hiring hall arrangement, was liable with Respondent Local 80 for the latter's discriminatory denial to the Kivlins of the use of the hiring hall from on or about March 15, 1961, which re- sulted in the loss of employment opportunities by the Kivlins, we shall order Respondent Lummus to afford James Kivlin and John Kivlin full opportunity to employment at jobsites within the terri- torial jurisdiction of Respondent Local 80 with the same rights and privileges Respondent Lummus grants to all its employees. Additionally, we shall order Respondent Local 80 and Respondent Lummus jointly and severally to make the Kivlins whole for any loss of pay they may have suffered as a result of the discrimination against them relating to loss of employment opportunities with Respondent Lummus. Respondent Local 80 will also be ordered to make the 5 N.L R.B. v. International Union of Operating Engineers , Local 12, AFL (Associated General Contractors ), 237 F. 2d 670 (C.A. 9), enfg. as modified 113 NLRB 655. 522 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Kivlins whole for any additional loss of pay they may have suffered by reason of any loss of job opportunities with any of the aforesaid contractors caused by Local 80's discrimination against the Kivlins. The loss of backpay will be computed on a quarterly basis in the manner established by the Board in F. W. Woolworth Company, 90 NLRB 289. The backpay obligations shall include the payment of interest at the rate of 6 percent per annum to be computed in the manner set forth in Isis Plumbing d Heating Co., 138 NLRB 716 6 We shall also order that Respondent Local 80 and Respondent Lum- mus shall furnish the Regional Director for the Fourth Region with signed copies of their attached notices, marked "Appendix A" and "Appendix B," respectively, for posting, and each Respondent shall post its own notice and the notice of the other. Respondent Local 80 shall also furnish the Regional Director for the Fourth Region with signed copies of its notice for posting by the aforesaid con- tracting firms, the latter being willing. ORDER A. Respondent Local 80, United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, AFL-CIO, its officers, agents, representatives, successors, and assigns, shall : 1. Cease and desist from : (a) Causing or attempting to cause the Respondent Lummus, or any other contracting firm in the Respondent Local 80's territorial jurisdiction for which it is the sole and exclusive source of referrals to employment, to refuse employment to James Kivlin and John Kivlin in violation of Section 8(a) (3) of the Act. (b) In any other manner restraining or coercing James Kivlin and John Kivlin in the exercise of their rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Place the names of James Kivlin and John Kivlin on its out-of- work lists for referral to employment with any of the aforesaid con- tracting firms and the Respondent Lummus and refer them therefrom to employment as it becomes available on a nondiscriminatory basis. (b) Jointly and severally with Respondent Lummus make whole James Kivlin and John Kivlin for any loss of pay they may have suffered by reason of the discrimination against them, as provided in the section herein entitled, "The Remedy." 9 For the reasons stated in the dissenting opinion in the Isis case, Board Members Rodgers and Leedom are convinced that the award of interest in this case exceeds the Board's remedial authority. However, for the purposes of this decision, Members Rodgers and Leedom are acceding to the majority Board policy in the Isis case LUMMUS COMPANY 523 (c) Make whole James Kivlin and John Kivlin for any additional loss' of pay they may have suffered by reason of the discrimination against them, as provided in the section herein entitled, "The Remedy." (d) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social secu- rity payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (e) Notify in writing the Respondent Lummus, the aforesaid con- tracting firms, James Kivlin, and John Kivlin that the Respondent Local 80 has no objection to the hiring of James Kivlin and John Kivlin by Respondent Lummus or any of the other contracting firms. (f) Post at its business offices and meeting halls, in Wilmington, Delaware, copies of the attached notice marked "Appendix A." Copies of said notice, to be furnished by the Regional Director for the Fourth Region, shall, after being duly signed by a responsible official of the Respondent Local 80, be posted immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to its members are customarily posted. Reasonable steps shall be taken by Respond- ent Local 80 to insure that said notices are not altered, defaced, or covered by any other material. (g) Post at the same places and under the same conditions as set forth in paragraph (f) above, and as soon as they are forwarded by the Regional Director for the Fourth Region, copies of the Respond- ent Lummus' notice herein marked "Appendix B." (h) Mail to the Regional Director for the Fourth Region signed copies of "Appendix A" for posting by the aforesaid contracting firms, the latter being willing. Copies of said notice, to be furnished by the Regional Director, shall, after being duly signed by the Re- spondent Local 80's representative, be forthwith returned to the Regional Director for such posting. (i) Notify the Regional Director for the Fourth Region, in writing, within 10 days from the date of this Order, what steps have been taken to comply herewith. B. Respondent Lummus Company, its officers, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Encouraging membership in Local 80, United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting In- dustry of the United States and Canada, AFL-CIO, by refusing to 7 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." 524 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employ James Kivlin and John Kivlin in violation of Section 8(a) (3) of the Act. (b) Discriminating against James Kivlin and John Kivlin by discriminatorily refusing to hire them because of Respondent Local 80's discriminatory refusal to place their names on its out-of-work lists from which it makes referral of applicants to employment with Re- spondent Lummus and other contracting firms in its territorial juris- diction for which it is the sole and exclusive source of referrals to employment. (c) In any other manner interfering with, restraining, or coercing James Kivlin and John Kivlin in the exercise of their rights guaran- teed in Section 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Jointly and severally with Respondent Local 80, make whole James Kivlin and John Kivlin for any loss of pay they may have suffered by reason of the discrimination against them, as Drovided in the section herein entitled, "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social se- curity payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (c) Post at its jobsite in Claymont, Delaware, copies of the at- tached notice marked "Appendix B." 8 Copies of said notice, to be furnished by the Regional Director for the Fourth Region, shall, after being duly signed by Respondent Lummus' representative, be posted by Respondent Lummus immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in con- spicuous places, including all places where notices to its employees are customarily posted. Reasonable steps shall be taken by Respond- ent Lummus to insure that said notices are not altered, defaced, or covered by any other material. (d) Post at the same places and under the same conditions as set forth in paragraph (c) above, and as soon as they are forwarded by the Regional Director for the Fourth Region, copies of Respondent Local 80's notice herein marked "Appendix A." (e) Notify the Regional Director for the Fourth Region, in writ- ing, within 10 days from the date of this Order, what steps have been taken to comply herewith. CHAIRMAN MCCULLOCI3, concurring in part and dissenting in part: I concur in the result reached by the majority insofar as the ma- jority finds that Respondent Local 80, with respect to the Kivlins, 8 See footnote 7, supra. LUMMUS COMPANY 525 violated Section 8(b) (2) and (1) (A) of the Act. I dissent, however, from the finding that Respondent Lummus likewise violated the Act in that respect. Respondent Union has a collective-bargaining agreement with Delaware Mechanical Contractors Association which contains a pro- vision for hiring exclusively through the Union's hiring hall. The hiring-hall clause has all the safeguards to insure its nondiscrimina- tory operation prescribed by the Board in its Mountain Pacific deci- sion,9 that is, it provides that referral shall be on a nondiscriminatory basis unaffected by such factors as union membership, bylaws, rules, etc., that the employer retains the right to reject any individual re- ferred, and that the Union and the Employer will publicize the hiring- hall provision by posting notice thereof. In addition to these Board- prescribed safeguards, the parties added further safeguards of their own to insure that the hiring hall would be operated in a lawful manner. Thus, the contract provides for a joint hiring committee composed of employer and union representatives to oversee the functioning of the hiring hall, and to serve as a court of appeal for any applicant who has a grievance arising from its operation, with the right of further appeal to an impartial umpire whenever the committee should reach a deadlock over "a dispute concerning a refusal to register an applicant, the proper registration or dispatch- ing of any applicant." So far as the record shows, except in the case of the Kivlins, the hiring hall was administered in the nondiscriminatory manner pre- scribed by the collective-bargaining contract. Although not a signatory to the aforesaid agreement, Respondent Lummus considered itself bound to observe its hiring provisions. The fact situation upon which Respondent Lummus is being held responsible by the majority for the discriminatory refusal of Respond- ent Union to refer the Kivlins to jobs is thus as follows: Respondent Lummus is bound by a lawful arrangement, as the General Counsel concedes, to do all its hiring through the Union's hiring hall ; the Union has the right under the terms of its contract to require Lummus to do no hiring except through the hiring hall; 10 Lummus was unaware of the Respondent Union's discriminatory re- fusal to consider the Kivlins for referral; in fact at the time of the original refusal Lummus was not even making use of the hiring hall; 9 Mountain Pacific Chapter of the Associated General Contractors, Inc., 119 NLRB 883. This decision was overruled by the Supreme-Court in Local 357, International Brotherhood of Teamsters, etc (Los Angeles Seattle Motor Empress ) v. N L.R.B , 365 U S. 667, on the ground that the Board could not make these standards conditions precedent to the validity of a hiring-hall clause 10 Local 357, International Brotherhood of Teamsters , etc. v N.L R B , supra; Mill- acrlghts and Machinery Erectors Local Union No. 2471 ( Otis Elevator Company), 135 NLRB 79; Laborers and Hod Carriers Union, Local 652 (Jimmie I Dams ), 135 NLRB 43 526 DECISIONS OF NATIONAL LABOR RELATIONS BOARD James Kivlin never told Lummus why he had been denied referral by the Union and John Kivlin never even applied to Lummus for a job; neither of the Kivlins sought to make use of the hiring hall's appeals procedure. It is difficult to perceive under these circumstances what Lummus did that was wrong so as to hold it responsible for the Union's unlawful conduct. The majority finds, as a basis for holding Lummus responsible for the Union's conduct, that by adopting the terms of the hiring agree- ment, Lummus constituted the Union its agent in selecting men to be hired and therefore Lummus is responsible for the unlawful conduct of the Union. In support of this proposition, the majority cites four cases." However, in three of these-Morrison-Knudsen, George D. Auchter, and F. H. McGraw-the employer and union were parties to illegal hiring hall or closed shop arrangements. In the Cement Masons case only the union was a party respondent. In the present case, by contrast, the hiring arrangement with the representative of the employees was lawful, and Lummus' conduct throughout was strictly in accordance with the arrangement. I think that this case presents a situation which calls for other than a mechanical application of the doctrine of respondent superior. With- out laboring the point, I hesitate to attribute to an employer statutory culpability, which is predicated on a finding of discrimination, in a situation where the employer's action is dictated by a lawful hiring agreement and the employer is not apprised of and, so far as the record shows, is unaware of unlawful action taken by the other party to the agreement. Absent a showing of authorization or ratification express or implied of the ultra wires action of the Union, I think the prerequisites for a finding of unlawful discrimination have not been established. Nor can I join in the view, ably expressed in the dissenting opinion, that this case should be dismissed in its entirety because the Kivlins failed to exhaust the internal appeals procedures set forth in the collective-bargaining agreement between Local 80 and the Association to which Respondent Lummus, though not a party, considered itself bound.12 Preliminarily, it appears that the Kivlins were not members of Local 80, the contracting party, but rather were members of a sister local, and, as already noted, Lummus likewise was not directly a party to the agreement. Moreover, in addition to these considerations, the appeals procedure, at least in its application to the instant case, lacked the standard of impartiality upon which, in my view, the Board should insist, as a precondition to refraining from exercising its own undoubted jurisdiction. Thus, it appears that the preliminary step in the appeals procedure provides for resort to a joint hiring coi`n- n See cases cited in footnote 3 of majority decision. 12,Cf International Harvester Company (Indiana Works ), 138 NLRB 923 LUMMUS COMPANY 527 mittee composed of an equal number of employer representatives and of Local 80 representatives. Only in the event of a deadlock in the joint hiring committee can resort be had to an impartial umpire. In situations like that presented in the instant case, the common interest of the employer and union representatives would appear to militate against the likelihood of a deadlock and to preclude access to an im- partial tribunal. Under these circumstances I think it would not effectuate the policy of the Act for the Board to withhold its processes in favor of the otherwise desirable alternative of letting parties resolve their disputes within their own arbitral framework. MEMBER BROWN, dissenting : I would dismiss this complaint. The referral plan pursuant to which the complainants sought and were refused referral was established by contractual provisions adopted by the Respondents. These provisions also provide for a joint hearing committee composed of an equal number of employer and union representatives to supervise and control the operation of the job referral arrangement. In addition, machinery is provided for the resolution of any dispute or grievance arising out of and relating to the administration of the referral plan. Thus, employees like the complainants with a grievance arising from a refusal to dis- patch are given the right under the contract to appeal to the joint hiring committee for relief and, in the event of a deadlock among the committee members, they may take their case before an impartial umpire; decisions of either the joint hiring committee or umpire are made final and binding on all parties. This grievance procedure and the related rights of appeal are publicized on the bulletin board in the hiring hall where the complainants sought referral. As is manifest from the foregoing, a contractual grievance ma- chinery exists for handling the precise grievance which the com- plainants had when they were refused referral. Despite the fact that the complainants were long-standing union members with knowl- edge of the grievance procedures, they made no attempt to avail themselves of this procedure, but instead filed the charges upon which the present complaint is based. The record does not disclose any justification for the failure to invoke the available contract remedy and I am unwilling to assume that complainants' resort to the contractual grievance machinery would have been a futile act. In view of the national policy in this field, which the Board itself has recognized,13 I would not entertain this proceeding. I believe that the statutory policy of promoting industrial peace and stability through the collective-bargaining process can best be effectuated by the utilization of grievance machinery such as is contained in the 11 See International Harvester Company (Indiana Works ), supra. 528 DECISIONS OF NATIONAL LABOR RELATIONS BOARD contractual arrangement applicable here." To require applicants to pursue these equitable and efficient procedures is neither unwar- ranted nor burdensome. Consequently, while I might agree with my colleagues that this record shows the complainants to have a meri- torious grievance, I would take no action herein which would sanc- tion bypassing the very machinery devised for adjusting the grievance in the day-to-day operations of the referral system.15 If, following resort to such a grievance procedure, it appeared that the proceeding was tainted by fraud, collusion, or other irregularities, I would then, of course, proceed to remedy any violations of the Act.1e 14 See General Drivers, Warehousemen & Helpers Local Union No. 89, et al. v. Riss & Company, Inc , 372 U S. 517, where the Supreme Court again has stated that the policy of the Act "can be effectuated only if the means chosen by the parties for the settlement of their differences under a collective -bargaining agreement is given full play " 15 "There seems to be no difference in principle between Spielberg, where the offices of the NLRB were invoked after an arbitral award had been rendered , and the situation in which arbitration is available but is bypassed in favor of proceedings before the NLRB The consideration of `voluntary settlement' is as much defeated by ignoring the con- tractual forum as by attempting to relitigate its award " Dunau, "Contractual Prohibition of Unfair Labor Practices: Jurisdictional Problems," 57 Col. L Rev. 52, 59-60 (1957). 16 See Pi ecision Fittings, Inc , 141 NLRB 1034 APPENDIX A NOTICE TO ALL MEMBERS OF LOCAL 80, UNITED ASSOCIATION OF JOUR- NEYMEN AND APPRENTICES OF THE PLUMBING AND PIPE FITTING INDUSTRY OF THE UNITED STATES AND CANADA, AFL-CIO Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby give notice that: WE WILL NOT cause or attempt to cause the Lummus Company, or any other contracting firm in our territorial jurisdiction for whom we are the sole and exclusive source of referrals to employ- ment, to refuse employment to James Kivlin or John Kivlin in violation of Section 8(a) (3) of the Act, except to the extent that such rights may be affected by an agreement requiring member- ship in a labor organization as a condition of employment as authorized by Section 8(a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. WE WILL NOT in any other manner restrain or coerce employees in the exercise of rights guaranteed them in Section 7 of the Act, except to the extent that such rights may be affected by an agree- ment requiring membership in a labor organization as a condi- tion of employment as authorized by Section 8(a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. WE WILL, jointly and severally, with the Lummus Company make James Kivlin and John Kivlin whole for any loss of pay LUMMUS COMPANY 529 they may have suffered as a result of the discrimination against them relating to loss of employment opportunities with the Lummus Company. WE WILL make James Kivlin and John Kivlin whole for any additional loss of pay they may have suffered as a result of the discrimination against them relating to employment opportunities with any of the aforesaid contracting firms. WE WILL notify, in writing, the Lummus Company and the aforesaid contracting firms that we have no objection to the hir- ing or employment of James Kivlin and John Kivlin. WE WILL notify, in writing, James Kivlin and John Kivlin, that we have no objection to their hiring by the Lummus Company or any of the aforesaid contracting firms. LOCAL 80, UNITED ASSOCIATION OF JOURNEY- MEN AND APPRENTICES OF THE PLUMBING AND PIPE FITTING INDUSTRY OF THE UNITED STATES AND CANADA, AFL-CIO, Labor Organization. Dated---------------- By------------------------------------- (Representative) (Title) This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. Employees may communicate directly with the Board's Regional Office, 1700 Bankers Securities Building, Walnut and Juniper Streets, Philadelphia, Pennsylvania, 19107, Telephone No. Pennypacker 5-2612, if they have any question concerning this notice or compliance with its provisions. APPENDIX B NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effect the policies of the National Labor Rela- tions Act, as amended, we hereby notify our employees that: WE WILL NOT encourage membership in Local 80, United As- sociation of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, AFL- CIO, by refusing to employ James Kivlin and John Kivlin in violation of Section 8 (a) (3) of the Act, except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized by Section 8(a) (3) of the Act, as modified by the Labor- Management Reporting and Disclosure Act of 1959. 530 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL NOT discriminate against James Kivlin and John Kivlin for employment by refusing to hire them because of the discriminatory refusal of Local 80, United Association of Journey- men and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, AFL-CIO, to place their names on its out-of-work lists from which it makes referral of applicants to employment with the Lummus Company and other contracting firms in its territorial jurisdiction for which it is the sole and exclusive source of referrals to employment. WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the exercise of rights guaranteed in Section 7 of the Act. except to the extent such rights may be affected by an agreement requiring membership in a labor organization as a con- dition of employment as authorized by Section 8 (a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. WE WILL, jointly and severally, with the above-named Union, make whole James Kivlin and John Kivlin for any loss of pay they may have suffered as a result of the discrimination against them. LuMMUS COMPANY, Employer. Dated---------------- By------------------------------------- (Representative ) (Title) This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. Employees may communicate directly with the Board's Regional Office, 1700 Bankers Securities Building, Walnut and Juniper Streets, Philadelphia, Pennsylvania, 19107, Telephone No. Pennypacker 5- 2612, if they have any question concerning this notice or compliance with its provisions. INTERMEDIATE REPORT STATEMENT OF THE CASE Upon charges filed by James J. Kivlin, on June 1, 1961 , against Lummus Company, herein called Lummus, and Local 80, United Association of Journeymen and Appren- tices of the Plumbers and Pipe Fitting Industry of the United States and Canada, AFL-CIO, herein called Local 80 or the Union, the General Counsel of the National Labor Relations Board acting through its Regional Director of the Fourth Region, on October 27, 1961 , issued a consolidated complaint against Lummus and Local 80. The complaint alleged that Lummus and Local 80, had engaged in and were engaging in unfair labor practices , violative of Section 8(a)(3) and (1) of the National Labor Relations Act, by Lummus, and Section 8(b)(1)(A) and 8 (b)(2) of the Act (61 Stat. 136, herein called the Act) by Local 80. In essence the complaint alleged that Lummus and Local 80 at all times material herein were parties to an agreement which required Lummus to hire such plumbers and pipefitters as ".. . they needed exclusively through Respondent Union and only upon referral, clear- ance and approval by Respondent Union"; i that since on or about March 14, 1961. 1 Quotes from complaint. LUMMUS COMPANY 531 "Respondent Union, through its agent Kennedy, has failed and refused to allow Kivlin and his brother John Kivlin, to register for referral at Respondent Union's hiring hall in Wilmington, Delaware, for employment with various employers, including . . ." the Respondent Lummus; and that since ". . March 14, 1961, Respondent Employer has failed to hire Kivlin and his brother, John Kivlin, for the reasons set forth . . ." above, and ". . . because of the exclusive hiring arrange- ment . . ." between the parties. In due course Lummus and Local 80 filed their answers to the complaint, in which each denied that they had engaged in the alleged unfair labor practices? Pursuant to notice, a hearing at which all parties were represented, was held before the Trial Examiner James A. Shaw on January 8, 1962, in Wilmington, Delaware, all parties were afforded an opportunity to argue orally and to file briefs. Counsel for the General Counsel, Lummus, and Local 80, waived oral argument at the conclusion of the hearing herein, and filed briefs on or about February 12, 1962. Thereafter, on or about March 30, 1962, I received a letter from counsel for the Respondent Lummus regarding certain recent decisions of the Board, which I considered applicable to the issues herein. On or about April 4, 1962, I received a letter from the General Counsel regarding the case cited in the letter from counsel for Lummus. Thereafter, a "reply" to the General Counsel's letter of April 3, 1962, was received by me on or about April 6, 1962 All parties are advised that I have considered the contents of the letters referred to in the light of the record considered as a whole including the briefs of the parties, which as indicated above were received by me in due course, and within the time allotted counsel for the parties at the hearing herein. Upon the entire record in the case and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT LUMMUS The complaint alleges, and the parties stipulated at the hearing herein, that; Respondent Employer is, and has been at all times material herein, a corporation duly organized under, and existing by virtue of the laws of the State of Delaware and maintains its principal office and place of business in New York City, New York. At all times material herein Respondent Employer has been engaged in industrial engineering and construction in various States other than New York and including New Jersey. During the past year Respondent Employer performed construction and engineering services in States other than New York amounting in value to more than $100,000 annually and the "Respondent Employer is and at all times material herein has been engaged in commerce in the meeting of Section 2, subsection 6, and 7 of the Act." From all of the foregoing the Trial Examiner finds that Lummus Company, the Employer herein, is engaged in commerce within the meaning of the Act. H. THE RESPONDENT LABOR ORGANIZATION INVOLVED Local 80, United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, AFL-CIO, is a labor organiza- tion within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES Succinctly stated the principal issues herein are; (1) whether or not a lawful "hiring hall agreement" between Local 80 and Lummus was discriminatorily applied to the Charging Party, James J. Kivlin, and his brother John J. Kivlin; and (2) the issue as to the credibility of the witnesses who testified at the hearing herein. To me at least, the latter is by far the most worrisome, and quite frankly has perturbed me no end. That this is so will be obvious to all concerned as the resume of what transpired at times material herein unfolds below. Let us first look at the agreement between the parties. The record clearly shows that at all times material herein the parties, that is Local 80 and Lummus, " since on or about June 15, 1959, have been parties to and maintained in force and effect a collective bargaining agreement relating to hire, tenure, terms and conditions of employment of plumbers and pipefitters. 5. Said agreement referred to above in paragraph 7, contains inter alia, the following provisions": a See infra, in re specific averments of the Respondents In avoidance of certain specific allegations in the combined complaint. 712-548-64-vol. 142-35 532 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ARTICLE VI SEC. S. EXCLUSIVE HIRING. Contractors shall hire qualified journeyman plumbers and pipefitters by calling the union. Whenever an employer requires a journeyman plumber or pipefitter on any job, he shall notify the local union office, either in writing or by telephone, stating the location, starting time, approximate duration of the job, the type of work to be performed, and the number of workmen required. SEC. 7. (B) REFERRAL OF MEN. Upon the request of a contractor for Journeymen Plumbers or Pipe Fitters, the union shall immediately refer quali- fied and competent registrants to that contractor in sufficient number required by the contractor in the manner and under the conditions specified in this agreement from the appropriate "out of work" list in the following order of referral: (1) All journeymen shall be referred from Group 1 in successive order as their names appear on the "out of work" list and, when Group 1 has been exhausted. (2)Then, all journeymen from Group 2 in successive order as their names appear on the "out of work" list. When journeymen plumbers and pipe fitters who are listed in Group 2 have attained seniority, their names shall be automatically transferred and listed in Group 1. This referral procedure shall be followed except that (1) requests by contractors for key men to act as supervisors, general foremen or foremen shall be honored without regard to the requested man's place on the "out of work" list, (2) requests by contractors for particular plumbers or pipe fitters previously employed by the contractor and who have been laid off or terminated by the contractor within one hundred and fifty (150) days previous to the request shall be honored without regard to the requested man's place on the "out of work" list, and (3) bona fide requests by contractors for plumbers or pipe fitters with special skills and abilities will be honored. The dispatcher shall dispatch persons possessing such skills and abilities in the order in which their names appear on the "out of work" list. Such a decision of the dispatching agent in referring registrants is appealable to the Joint Hiring Committee as herein provided. At the hearing herein the parties entered into the following stipulation regarding the agreement between Local 80 and Lummus: Mr. REISMAN: Next, Mr. Trial Examiner, I would like to first offer as General Counsel's Exhibit No. 2 an agreement, 1959 Agreement between the Delaware Mechanical Contractors Association and the Plumbing and Heating Contractors Association of Delaware, Inc., and Local Union 80, the Respondent herein. And I would like to offer this in evidence as the agreement referred to and quoted from in paragraph 5 of the Complaint, with the further stipulation that the company will stipulate that it was bound by the hiring provisions in General Counsel's Exhibit 2, to wit, Articles IV, Sections 4 through 9, and the company was bound by virtue of a national agreement with the International with which Local 80 is affiliated. However, the company was not a member of the Delaware Mechanical Con- tractors Association at any time and didn't sign this particular contract, although they indicated they were bound by it by virtue of another agreement. TRIAL EXAMINER: As I understand it, that is a stipulation between Counsel for the Respondent Company in Case No. 4-CA-2361 and Counsel for the General Counsel. Mr. MERMIN: That is correct. I don't think I am saying anything contrary to what Mr. Reisman said when I say the company considered itself bound during this relevant period by virtue of the provisions of an agreement with the Inter- national Union. That is, with respect to the hiring provisions of this local contract. TRIAL EXAMINER: I would take it that this stipulation is strictly between the Respondent Company and the General Counsel? Mr. REISMAN: The Union has admitted this in effect already. TRIAL EXAMINER: All right. Do you join the stipulation? Mr. WALSH: I so join. TRIAL EXAMINER: Very well. So stipulated. The record will show all parties have stipulated. LUMMUS COMPANY 533 James J. Kivlin, the Charging Party, is a "steam fitter-welder," by trade and has been for 20 or more years. He is a member of Local 420, Philadelphia, Pennsylvania, of the Plumbers Union, and has been since 1946. On or about February 22, 1961, he was referred to Local 80 by one of the business agents of Local 420, who told him that Charles Kennedy, the business agent for Local 80 had asked for welders. Kivlin went down to Wilmington, Delaware, and went to Local 80's offices and saw Kennedy that same day From what I am able to glean from the record, he told Ken- nedy that he had been sent down to Local 80 by one of the business agents for Local 420. He then handed him a "paper" of some kind and showed him his membership card. Kennedy gave him a referral slip and told him to report to the Bechtel Corpo- ration job in Newcastle, Delaware, the next morning Kennedy's secretary, Marlene L. Tambourelli, was present at the time Kivlin went out to the Bechtel jobsite the next morning, February 23, 1961, and reported to the union steward on the job who took him over to ` a little shanty" where they give the welding tests. The record clearly shows that all applicants for employment as welders for the Bechtel Corporation are required to take a test. The importance of this procedure will be apparent below. Upon their arrival at the place where the tests are given the union steward turned Kivlin over to one Domminick Baffone, who was in charge of the testing. Baffone was a member of Local 80 The importance of this observation will likewise be apparent below. Though Kivlin's testimony of what transpired during the tests, consumes many pages of the record herein, I am convinced that in the final analysis its importance, insofar as the issues herein are concerned, is that he failed the test. Suffice it to say at this point, that Kivlm's demeanor while he was testifying indicated to me that he was very bitter over the whole affair and felt that Baffone had not given him a fair test. The real importance of the incident insofar as the issues herein are concerned will likewise be apparent below. After he was advised by Baffone that he had failed the test, Kivlm went to Bechtel's office to lodge a complaint about his treatment by Baffone. He testified that he ". . . couldn't get anybody to identify himself who had anything to do with the supervision of the man over in the shanty," meaning Baffone who gave him the welding test3 Insofar as I am concerned Kivlin made no further effort to avail himself of the grievance procedures set forth in the agreement of the parties. That the incident was not a "closed" issue, so to speak, is amply demonstrated below. Even though he failed the test, Bechtel paid Kivlin for 21/2 hours work. After he was paid off he went back to Local 80 and talked to Kennedy. His account of what transpired at this time is best told in the following excerpt from his testimony on cross-examination: A. Well, Kennedy was there, his secretary was there, there were a couple of fellows he was talking to in the office. And like a Union Hall they come and go There were a couple of fellows out in the day room, which I spoke to, which I mentioned before about getting the directions from Let me see. No, that is another time. There were two guys in his office. Kennedy was putting one to work. I think one was an apprentice boy Q. Was his secretary present? A. I don't know. His secretary was there too, yes. Q. What time of day was this9 A. I guess that was about 2 o'clock or-well, no-it was anywhere between 1 o'clock and 2:30. Between that time. Q. How long did this conversation take place between you and Mr. Kennedy in the presence of at least his secretary and some other persons? A. That was the longest conversation I had with him. Q. And was this part of the heated discussion that you had? A. Well, I was telling him what happened down there. He wanted to know what happened down at the Bechtel job. And I told him. And he said that he couldn't understand, because the foreman was a nice guy. And I told him just what happened. And he said that he would talk to Baffone or something similar to that And I told him that the man told me he didn't like the way I walked on the job. Q On this occasion was your brother with you' A No, John wasn't with me. Q So, the conversation then took place in the presence of Mr Kennedy, his secretary, and some other men that you don't know? 8 Quotes from the testimony of James S Kivln 534 DECISIONS OF NATIONAL LABOR RELATIONS BOARD A. The door was wide open. And the other men-one man was sitting in the office listening to part of it. In the middle he got up and walked out some place. And there were a couple of men out in the hall, I think, something like that. They came in later as we were talking. We had a conversation, a good half hour, or thirty-five minutes, something like that. Q. Now, after this conversation, this long conversation, you left the Hall at that point? Or did you remain in the Hall? A. No. Kennedy told me that he would see what was going on and stop down again and keep in touch or he would call the Business Agent, he needs welders. And I left and went home. Kennedy's account of the incident is at some variance with that of Kivlin, partic- ularly about a threat against him personally by Kivlin during their conversation. According to Kennedy his secretary, Marlene Tambourelli, was present at the time the conversation took place. Due to the importance that I place on the testimony of Kennedy and Mrs. Tambourelli regarding his ultimate disposition of the issue herein as to credibility I feel that the following excerpts from their testimony re- garding the February 23, 1961, incident should be inserted herein below at this stage of his report. Let us first consider Kennedy's testimony: Q. (By Mr. WALSH.) What conversation, if any, did you have with Mr. Kivlin' A. He came to my office and told me that he felt he hadn't been given a fair test and what could I do about it. I said "I can't do anything about it" because I don't have anything to do with the employer. "All I can do is refer a man to an employer." If he qualifies for what he is sent for, or if they reject him, I can't do anything about it. So then he threatened me and told me to come on out in the street, that he had licked better guys than me. And I asked him to get out of the office. Q. Did you threaten Mr. Kivlin at any time? A. No, sir. TRIAL EXAMINER: Now, this is in February? The WITNESS: That is right. TRIAL EXAMINER: After the incident at the Bechtel job? The WITNESS: Absolutely. TRIAL EXAMINER: All right. Mrs. Tambourelli's account of the incident was as follows: Q. Do you recall any unusual incident on February 22 or 23 of 1961? A. I don't know if it was the 22nd or the 23rd, but there was an argument in Mr. Kennedy's office. Q. All right. Between whom was this argument, if you know? A. I believe Mr. James Kivhn and Mr. Kennedy. Q. Is that the gentleman to the right of Counsel on the opposite side of the table? A. Yes, sir. Q. Did you have the ability to hear the nature of the argument? A. I was in the adjoining office. I usually don't make it my business to listen to arguments. But I did hear Mr. Kivlin threaten Mr. Kennedy at this time. Q. How did he threaten him? Do you know what he actually said? A. He called him an old man. And I believe he had said that he had some- thing to do with that test that he had down there. She reiterated her testimony about the above incident a short while later on direct examination, however in the course of the latter she added the following, which I consider likewise pertinent to his overall appraisal of the "pestiferous" credibility issue he is faced with herein: A. Mr. Kivlin was shouting, if I remember right, about Mr. Kennedy- something about this job it wasn't right, or he had failed the test. And I think Mr. Kennedy got a little excited, and he said "leave my office," something of that sort. And that was about all." [Emphasis supplied.] From the foregoing it is obvious that we have a serious credibility issue of what transpired in Kennedy's office on February 23, 1961, upon Kivlin's return from the Bechtel jobsite. For reasons which will be thoroughly discussed and disposed ,of below in that section of this report concerned with another incident on March 14, 1961, 1 am inclined to and do credit Kivlin's account of what transpired and was LUMMUS COMPANY 535 said in Kennedy's office on the afternoon of February 23, 1961. In passing however I feel compelled to make the observation that I am convinced that the discussion was a "heated" one, so to speak, and that the atmosphere was not as tranquil as Kivlin's testimony would suggest to a novitiate. As indicated above one of the most important issues herein concerns the testimony of the General Counsel's witnesses of an incident which the complaint alleges oc- curred on or about March 14, 1961 , in Kennedy's office at Local 80. I have reference to the allegation in the complaint, that: "8. Since on or about March 14, 1961, Respondent Union, through its agent Kennedy, has failed and refused to refer, and has failed and refused to allow Kivlin and his brother , John Kivlin , to register for referral at Respondent Union's hiring hall in Wilmington Delaware , for employment with various employers, including Respondent Employer." The Respondents in their answers denied that such an incident occurred . In my considered opinion here lies the crux of the case. The General Counsel in support of his contention called four witnesses, John Kivlin, James Kivlin, Joseph N. Henderson, and John J . Quinlan. After long and careful consideration of the entire record I am convinced that the testimony of John B. Kivlin, best portrays what transpired on the day in question , March 15, 1961, in Kennedy's office. My observation regarding this is predicated upon my observation of John Kivlin while he testified . He impressed me as an honest and intelligent witness whose demeanor belied any suggestion of anger towards either Kennedy or any other participants in the hearing. The record shows that the Kivlins arrived at Local 80's hall at around 7:30 a.m. on March 15, 1961. They went to the hall pursuant to instructions from Page, one of the business agents of Local 420 in Philadelphia , Pennsylvania , to which they both belonged . They had been members of this local for many years , James since 1946, and John for about 5 years, at times material herein . When they arrived at the hall, they found several other members of their local present including , Joseph N. Henderson and John Joseph Quinhn,4 who were also seeking employment through Local 80. As indicated above what transpired when they entered Kennedy 's office is best told in the language of John Kivlin. Q. Can you tell us as best you can recall what was said in this office and by whom? A. Yes. We went in the office. My brother walked up to Business Agent Kennedy and introduced himself. He said "We were sent down here for a job by our Agent Page." So, immediately Mr. Kennedy started to shake his head. He said, "I remember you from before . You had a fight with one of my executive board members." He said, "You gave him a hard time." My brother said , "I don't know anybody here but you . How could I have a fight with anybody?" So he said, "Well, you did." And he said, "You ain't working here." And at the time he turned to me and said "Who are you?" Before I could say anything , my brother said "He is my brother." He said, "You ain't working here either." At that time my brother said "Look, I have some rights." He said, "Down here you don't have any rights." At that point my brother said, "What about the list' How about the hiring list?" He said, "I told you you weren 't working here." And at that point the argument got to be like an argument , a little heated. So, they cursed one another back and forth . Mr. Kennedy jumped from behind his desk and got red in the face. He motioned with his hands get out, get out. And he walked right into us pushing us out of the office, not touching us, though. My brother said "Look, Kennedy, you are an old man. Don't you touch me." And at that I opened the door. We went out of the office. Then we figured we will get to the telephone and call our office to see what the story was, because we figured when we went down there, we had a job, because we were told he needed welders. John Kivlin further testified that Kennedy made certain obscene remarks about Page, the business agent of Local 420 , who had sent the Kivlins down to Local 80. As I see it they were to the effect that Kennedy was running Local 80, and it was none of Page's business who he referred to jobs that were in his jurisdiction. He also testified that he personally did not talk to Kennedy while he was there because, See infra for the testimony of Henderson and Quinlan 536 DECISIONS OF NATIONAL LABOR RELATIONS BOARD he ". . . didn't have a chance to open my mouth ," as they left Kennedy's office, he stopped and talked to one of the members of Local 420 , John J . Quinlan who was also waiting to see Kennedy about a job. As indicated above James Kivlin, the Charging Party herein , was present through- out the above-described incident in Kennedy 's office. His testimony fully corrob- orates that of his brother, John, regarding what transpired during their interview with Kennedy on or about March 15, 1961. As indicated above one of the principal issues herein is whether or not the Kivlins met with Kennedy on March 15, 1961 . I have set forth above a resume of the testimony of the Kivlins in this regard. We now turn to the testimony of James N. Henderson and John Joseph Quinlan who testified that they, too, were present on or about March 15, 1961 , at Local 80's offices when the Kivlins arrived and went in to see Kennedy. They, too, testified that the incident occurred sometime between 7:30 a.m . and 8 a.m . They further testified that they were present and overheard "loud noises" as the Kivlins left Kennedy's office Quinlan's account of what they observed as the Kivlins left Kennedy 's office on the date in question is best told in the following excerpt from his testimony. Q. What did they do, to your observation9 A. Well, as far as I know they went right into the office after they knocked on the door. Q. You saw them go into Kennedy's office9 A. That is right. I at that time was making out an application. Q. Now, did you hear anything that went on in the office? A. No. Q. Did a time come when the office door opened9 A. Oh, yes. Q. And did you observe or hear anything at that time? A. Yes. I heard Jimmy say, "Don't come near me old man or I will thump you.,, TRIAL EXAMINER : Did what9 The WITNESS : I heard Jimmy Kivlin say "Don't come near me, old man, or I will thump you." TRIAL EXAMINER: Thump you? The WITNESS: That is right. TRIAL EXAMINER ' I haven't heard that word for a long time. Q. (By Mr. REISMAN.) What did the Kivlins do after that? A. Well, Jimmy went outside. Johnny stayed in there a few more minutes. Q. What, if anything, did John say right after he got out of the office? A. Well, he did come over and he kneeled on the floor and he started talking to me. He said , "Gee, I didn't get a chance to open my mouth." And his brother Jimmy opened the door and said, "John , what are you talking to that -there is a lady present, I can't put the rest of it in there-"that guy," meaning me. Q. It is a swear word9 A. Yes Mr. REISMAN: No further questions. Though Kennedy specifically denied that he met with the Kivlins in his office on or about March 15, 1961, nevertheless there is considerable testimony in- the record that belies his contention in this regard . For example Kennedy himself testified as follows regarding James Kivlin when interrogated by counsel for the Respondent Lummus. Q. (By Mr. MERMIN) A question was asked of you with respect to the Lummus job and Mr. Kivlin's relationship to a Lummus job. I am not sure that I understood either the question or your answer TRIAL EXAMINER: Neither did I. I am glad you brought that up. Q. (By Mr MERMIN.) Do you recall that Mr. James Kivlin ever discussed with you a job at the Lummus Company? A. No, he never discussed a job with me. Q. At Lummus7 A. That is right. Q. As I recall it, your reply to your Counsel's question was you told him- "I told him" meaning Kivlin "to register." A. That is right. Q. Do you recall what date you were referring to when you made that reply? A. That was back in March, March 14th. TRIAL EXAMINER- That is what the record shows LUMMUS COMPANY 537 Q. (By Mr. MERMIN.) Did you see Mr. Kivlm at any time from March all the way then through the end of May? A. I did not. Q. That is James Kivlin? A. That is right. Q. You never saw him from March through the middle of May to your knowledge at all? A. No, sir I did not. Mr. MERMIN: That is all I have. TRIAL EXAMINER: All right. You may cross-examine [Emphasis supplied.] Kennedy further testified at the hearing herein on direct examination that " . . never knew John Kivlin in my life," and to the further effect that the first time he ever even saw him was when he testified at the hearing herein. Kennedy also testified that he saw James Kivlin only once after their conversation in his office on February 23, 1961.5 Since his testimony is, in my considered opinion of considerable importance in his ultimate disposition of the obvious issue as to Kennedy's credibility as a witness, the following excerpt therefrom is inserted below: Q. And how long did he remain away from the date to which you referred when he came back from the Bechtel job? A. I guess it was somewhere around in March when he came back. Q. Who was present on that occasion? A. Mrs. Tambourelli, and the janitor, Mr. King were present at that time. Q. What conversation, if any, took place on that date? A. He said he was in the Hall. But I don't remember the man on the 14th. TRIAL EXAMINER: I didn't get that at all. The WITNESS: I say I can't remember the man being in the hall on March 14th. Q. (By Mr. WALSH.) Now, where did you see him, then, if he was not in the Hall? A. I saw him standing out on the sidewalk. My office is like this, and there is a big window right here. And the sidewalk is right here. [Indicating.] He was standing out here talking to another fellow. I don't know who it was. Significantly neither Mrs. Tambourelli nor King were queried by counsel regarding the "window incident." Consequently the record is barren of further testimony regarding this. However, James Kivlin testified that he did return to Local 80's hall after the March 15, incident. He testified that one of the business agents for Local 420, his home local, had told him that he had tried to "make amends" with Kennedy but had been unsuccessful, and suggested that he go down to Local 80 and talk things over with him. Here again the story is best told in the following excerpt from James Kivlin's credible testimony: The WITNESS: I was told to go down there and try to make amends with Kennedy. Our Business Agent told me that he had called on the phone and tried to make amends with the Business Agent Kennedy and for me to go down there. I didn't want to go near there. But I went down. And I was standing there talking to a couple of fellows. And Kennedy told me that there was no sense in me hanging around here, that I was going to get hurt. That is the second time he told me that . But he said there was no sense in me hanging around, I was going to get hurt. Q. (By Mr. REISMAN.) What occasioned him talking to you? A. I don't know what the occasion was. I was standing outside the Hall. He said "hello" to one of the fellows outside the Hall. I was talking to two welders that I knew. Q. What did he do when he was talking to these other fellows? A. He didn't talk to them. He said "hello" to them and walked by. He said "hello." I looked at him. He said "There is no use you hanging around here, you are going to get hurt." Q. That was the end of the conversation? A. Yes. Insofar as the record is concerned this was the last contact that either of the Kivlins had with Kennedy. In all the circumstances I credit James Kivlin's account of his meeting with Kennedy outside the hall, and discredit Kennedy's testimony that he only saw James Kivlin from the "large window" in his office on or about the time in question. 6 See supra. 538 DECISIONS OF NATIONAL LABOR RELATIONS BOARD After long and careful consideration I credit the testimony of James and John Kivlin, regarding the March 15, 1961, incident and discredit Kennedy's testimony to the effect that no such incident occurred . As I see it the importance of the March 15 , 1961 , incident is that Kennedy not only refused to let the Kivlins register for employment with Local 80, but ordered them out of his office . In the circum- stances it would have been futile for either James or John Kivlm to have filled out an application blank and filed it with Kennedy for future reference to employers with whom Local 80 had contractual relations such as Bechtel and the Respondent Lummus, and I so find. Consequently I reject this facet of the defenses offered by the Respondents herein to the allegations in the complaint regarding the unfair labor practices they are charged with. This brings us up to the case as to the Respondent Lummus. The record shows that at all times material herein that the Respondent Lummus was engaged in the construction of an "Ethyleneoxide" plant for the Sun-Olin Chemical Company at Claymont, Delaware. As indicated and discussed above Lummus and Local 80 were parties to an oral agreement to the effect that Lummus would hire all of its plumbers and pipefitters through Local 80. It was the practice for Lummus to notify Local 80 in advance regarding the number of employees it needed to carry on its operations on a certain date. For example a superintendent or foreman in charge of a certain phase of its operations would fill out an "Employment Requisi- tion" form for "manual employees" and send it to the personnel department, request- ing so many laborers , boilermakers, ironworkers, pipefitters etc., to report to work on a certain date. The personnel department would then get in touch with the various labor organizations with whom it had agreements and "order" the number of employees needed for the job in question . By this method the Employer saved considerable time and worry over the recruitment of workers , especially in situa- tions where skilled craftsmen , such as welders, pipefitters , carpenters , and the like are needed to complete the job at hand. There is nothing new or novel about this method of recruiting a labor force . It is and has been settled policy in the con- struction industry for decades, and a fact that is a matter of notorious and common knowledge to all of us. As indicated above the General Counsel makes no conten- tion that the foregoing arrangement between the parties was in and of itself violative of the Act. It was in the light of the foregoing and its application to the Kivlins that we are primarily concerned with herein. The events leading up to James Kivlin's trip to the Lummus jobsite on May 22, 1962, are, in my considered opinion of the utmost importance , particularly his testimony concerning his brother, John Kivhn , and his procurement of a job at times material herein through Local 26, of the Plumbers Union . For this reason I feel compelled to insert the following excerpt from his testimony herein below: The WITNESS ' All right. I had went to Local 26 down in Wilmington. the Plumbers' Local to get work, because my brother when he was unable to get work out of Local 80, he went to Local 25, the Plumbers' Workers, and they sent him to work on the Bechtel job. That is how he got there. Because they get 30 percent of the work in the territory , and Local 80 get 70 percent of the work in the territory. So, I went over there figuring that I could go to work. But the fellow told me if I had been there a week or so earlier, if I had known about it, why, he had a 30 percent callin. And he didn't have it in then. Q. (By Mr. REISMAN.) Well, in any event, the time came when you went out to the Lummus job site on May 22 ; is that right? A. Yes. [Emphasis supplied.] James Kivlin's reference to his brother securing a job through Local 26, was not explored by counsel for any of the parties at the hearing herein . Even so I am con- vinced that since James Kivlin referred to his brother 's inability to get a job through Local 80, that he had reference to his brother, John Kivlin, one of the discriminatees named in the complaint herein , and he so finds. The importance of this finding will be apparent below. Suffice it to say at this stage of the report that I make all of my findings, not only in this case but in all cases in which I participate, upon the record considered as a whole, and let the chips fall where they may. As indicated above James Kivlin went out to the Lummus jobsite at Claymont, Delaware, on Monday morning, May 22, 1961 . He arrived there early in the morn- ing at around the time employees were reporting for work . From what I am able to glean from the record he went to the timekeeper's office where he met "some fellows" he knew from his own local in Philadelphia , Pennsylvania, one of whom was Wilson McReynolds, who had a referral slip from Local 80. He asked him if Local 80 was sending out welders to the Lummus job. McReynolds told him that it was and LUMMUS COMPANY 539 that there had been "a call in for" them for a "couple of weeks." 6 Kivlin then went into the timekeeper's office and sat down . McReynolds went up to the "Time Office" and handed his referral slip to the timekeeper , who gave him a badge . Shortly there- after the Local 80 steward came to him and asked him if he had a referral. He told him he did not have one. At this point the steward ordered him off the jobsite. Kivlin protested and told him in substance that it would be futile for him to go to Local 80's office for a referral slip because Kennedy would not give him one. The steward then told the timekeeper not to give Kivlin an application . The timekeeper refused to follow the demand of Local 80's steward and told him "I have got to have him an application because it is the law." At this point he handed Kivlin an applica- tion form, which he filled out. The timekeeper then put a badge on it and laid it aside, Kivlin protested and the timekeeper told him to take the badge up to the office of C. J. Gibson, manager of the Respondent Lummus' employment office. Kivlin then went up to Gibson's office. He told Gibson his trouble and, that he could not get a referral from Local 80, Gibson started to explain to him the position of the Company regarding hiring employees through Local 80. At about this time the steward for Local 80 "burst into his office and did some kind of hollering and telling the man [meaning Gibson ] he is not going to work," and added "Do you want any labor trouble?" 7 Kivlin's account of what transpired thereafter , particularly about Gibson's reply to the steward 's demands and statements concerning Lummus' need for welders is, in my considered opinion , of importance for reasons that will be apparent below in his disposition of the case as to Lummus, as well as the credibility issue raised in this portion of Kivlin's testimony . For these reasons the following excerpt from James Kivlin's testimony follows: The man said, "I don't want any labor trouble," something of that order. And the man told me-he said "Fellow, I would hire you on right now- TRIAL EXAMINER : The Lummus man said that? The WITNESS : The Lummus man said that, yes. He said , "But, if I did, I would have a lot of labor trouble." And that was the end. So, he said, "I have got your application here If I need you, I will call you." And that was it . [Emphasis supplied.] Q. (By Mr. REISMAN. ) Did he say anything about having already gotten people referred from Local 80 to fill their job9 A. Had he already gotten? Q. Yes. That they had asked for men? A. He said he needed welders. He said he needed six welders right now. He said I could use you right now. He said, "I need six welders right now ." He said "I have got one." Q. Were there any other welders present when you were there? A. No. Only the only one I saw when I went in. Q. You don't know if any others came that morning, do you? A. There wasn't any came while I was there . There might have been some come later . I don't know that. Q. All right. A. But anyway, that is the story. Mr. REISMAN : No further questions. Insofar as the record herein is concerned this was the only time that James Kivlin visited the Lummus jobsite at Claymont, Delaware. As to John Kivlin, the record is barren of any testimony or evidence of any kind either documentary or by reference in the oral testimony of any of the witnesses who testified at the hearing herein , that he had ever at any time either called at the Lummus job or sought employment with Lummus by referral through a labor organi- zation or otherwise at times material herein . As a matter of fact the evidence is to the contrary . Insofar as this record is concerned he was employed sometime between March 15, and May 22, 1961 , by the Bechtel Corporation , at Newcastle , Delaware; and, was so engaged at the time James Kivlin called at the Respondent Lummus jobsite at Claymont, Delaware, on May 22, 1961.8 As indicated above Kivlin 's account of his interview with Gibson is at variance with the latter's version thereof. This of course raises another issue as to the credibility of the witnesses regarding just what happened and was said in Gibson 's office during the course of their conversation . In the circumstances I feel compelled to insert below the following excerpt from Gibson 's testimony on direct examination: e Quotes from James Ilvlin's credible testimony. Quotes from Kivlin's credible testimony. s See supra, In re excerpt from James I{ivlin 's testimony regarding Local 26, and the Bechtel job 540 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Q. (By Mr. MERMIN.) Mr. Gibson, I take it you do not normally, or you did not normally in May 1961 interview every person who came for employment by Lummus? A. No. Q. It is clear then that Mr. Kivlin was a little out of the ordinary; is that correct? A. Yes. Q. Was the reason that he was sent to you the fact that he did not have a referral slip from Local 80? A. That is right. Q. Did you tell him that if he got a referral slip from Local 80 you would then later consider-or the company would later consider his employment? A. That is right. Q. Did you at any time state that he could be hired that day? A. No. Because I told him we had no further need for men. We had hired all we needed. Q. When you say "men," did you mean welders and pipe fitters? A. That is right? After careful consideration I credit Gibson's account of what transpired in his office on May 22, 1961, and discredit that portion of Kivlin's testimony to the effect that he would hire Kivlin immediately if it were not for Local 80 and the consequences that. would flow therefrom. Though there is little variance between their separate versions of what was said, I am convinced and find that Gibson's account it not only the more accurate, but is supported by documentary evidence that was admitted in evidence without objection from any of the parties. In support of Gibson's testimony that the Respondent Lummus had hired all of the welders and pipefitters it need on the day that James Kivlin applied for a job it offered in evidence two documents which the record shows were regularly used in the normal course of its day-to-day "personnel" procurement problems. The first of these documents, that we shall consider, is Respondent Lummus' Exhibit No. 1, which is styled "Employment Requisition, Manual Employees" only, which has been also- referred to herein above. Since this document and the incidents that flowed therefrom, is considered of importance by me its contents are set forth herein below: THE LUMMUS COMPANY 420 Lexington Avenue New York 17, N. Y. E M P L O Y M E N T R E Q U I S I T I O N Manual Employees Only Duplicate--2o Issuing Department Date .5 /919 Job No. __ 7 PERSONNEL DEPARTMENT: We Require the Following Men to Report for Work Date 2 .2 - 4a" Time Number Classification Rate Remarks Requested By Approved By. LUMMUS COMPANY 541 It is to be noted that the above requisition is dated May 19, 1961, and was prepared at 8 a.m. on that date. It also shows "ordered 5-19-61-9:15 a.m.," which according to Gibson's credible testimony was the time that he telephoned the requisition for "6 welders and 2 fitters" into the offices of Local 80, in Wilmington, Delaware. That Local 80 honored Lummus' requisition and furnished the men requested by Gibson on Friday, May 19, 1961, is evidenced by Respondent Lummus' Exhibit No. 2, which is styled "Daily Personnel Report," dated May 22, 1961. An examination thereof shows that six pipefitters welders, and two pipefitters were hired on May 22, 1961. Further examination shows that their badge numbers range from, H-407 to H-414, a total of eight, which is in accordance with the number requisi- tioned by Gibson on May 19, 1961, on the "Requisition Form" set forth herein above. It is to be also noted that among those listed on the "Daily Personnel Report" is "Wilson McReynolds," who was referred to by James Kivhn, in his testimony as being one of the men from his own local that he recognized at the Lummus jobsite on the morning of May 22, 1961.9 Conclusions As indicated by counsel for the Respondent Lummus in his brief, this "... case is of major significance," because "If Lummus can on the state of facts in this record be held guilty of an unfair labor practice, the results would portend the discard by employers of any referral system whatsoever . despite the fact that the Board (in Mountain Pacific Chapter, 119 NLRB 883 (1958), the Supreme Court of the United States (in Teamsters Local 357 v N.L.R.B, 365 U.S. 667 (1961), and the Congress of the United States (in § 86(f) of the Labor Management Relations Act, as amended) have each found that referral systems serve for both jobseekers and employers a useful purpose which the Congress intended to promote." That "referral systems" or "hiring halls" serve a useful purpose in the construction industry is evidenced in the plain language of Section 8(f) of the Act, as amended in 1959. As indicated above and as will be rediscussed and disposed of below, we are herein faced with a question that is, in my considered opinion , without precedent. He has particular reference to the case as to John Kivlin. The question is this: Can an employer be held liable for the unfair labor practices of a union and/or its agents against an individual under a "hiring hall" agreement to which both the employer and union are parties,11 in a situation where the alleged discriminatee had neither applied to the employer for a job, nor even been to the jobsite, and during the period of time it is alleged that the employer refused to hire him, he was working for another employer and had been for an unknown period of time? In my considered opinion the answer is "NO." I see no point in citing authorities, if any, ad infinitum for my reasoning in this regard, for the simple reason, that plain every- day commonsense is the answer to the disposal of the issue. In the circumstances I will recommend the dismissal of the case as to John Kivlin insofar as the Respondent Lummus Company is concerned.ii The case as to the Respondent Union poses a different problem I have found above that Charles Kennedy, business agent for Local 80, ordered James Kivlin and his brother, John Kivlin, out of his office on or about March 15, 1961, and told-them in effect that he would not refer them to any employer for work within his Local's jurisdiction In the course of his tirade against James Kivlin he told him that the reason for his refusal to refer him and his brother to a job was because of his abusive conduct toward an unnamed member of Local 80's executive board. In the circum- stances I am convinced and find that the Respondent Union, that is Local 80 operated its exclusive hiring hall in a discriminatory manner, by barring James Kivlin and his brother, John Kivlin, from employment in its jurisdictional area for the reasons set forth above, and that by such conduct violated Section 8(b) (1) (A) and (2) of the Act, in that it interfered with the rights guaranteed employees in Section 7 of the Act; and ".. . encourages the Kivlins to remain in good standing in Respondent Local, within the meaning of the Radio Officers case." 12 9 See supra 10 See supra, in re Lummus status. 11 See infra, for further comment on this particular issue See also Del E Webb Con- struction Company v N.L R.B ., 196 F. 2d 841, 848 (C A. 8) 12 Quoted portions from the General Counsel's brief. On The Radio Officers' Union of the Commercial Telegraphers Union, AFL (A. H Bull Steamship Company ) v. N.L R B., 120 NLRB 930, wherein a violation was found because of the refusal to refer a man because of his criticism of the union in a letter to the International In the instant case there is some evidence that James Kivlin likewise filed it complaint with the International Union 542 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I have considered the contention of the Respondents as regards the failure of the Kivlins to use the grievance and appeals provisions of the Union and that of the agreement between the Delaware Mechanical Contractors Association and Local 80. In my considered opinion their argument in this regard is of no avail in the circumstances discussed and described above in his resume and findings as to Kennedy's conduct toward the Kivlins on March 15, 1961. It must be remem- bered, as I have pointed out above, that Kennedy not only ordered the Kivlins out of his office but told them in effect that they could not even register for a job. Since Kennedy's conduct standing alone was violative of the Act the Board under no circumstances would be bound by the findings of the appeal proce- dures referred to above. The Seventh Circuit in N.L.R.B. v. International Union, United Automobile, Aircraft and Agricultural Implement Workers of America, CIO, Local 291 (Wisconsin Axle Division, Timken-Detroit Axle Co.), 194 F. 2d 698, 702, in rejecting a similar contention by the union involved in that case said: This argument cannot be sustained in view of Section 10(a) of the Act. . Thus the Act confers upon the Board the exclusive jurisdiction to prevent unfair labor practices within the meaning of the statute. The Board's exclusive func- tion in this field may not be displaced by action before State agencies or by arbitration.13 I am not unnundful of the fact that James Kivlin was, to say the least, a hot tempered individual, but it must be remembered that his tendency in this regard was encouraged by Kennedy's remarks to him in the latter's office on March 15, 1961; and as further evidenced in his uncontradicted and undenied testimony regarding the circumstances under which Baffone conducted his welding test at the Bechtel jobsite on or about February 23, 1961.14 Moreover the record also shows that several of the contractors or employers in the area serviced by Local 80 during the period of time involved herein were in need of workers with the qualifications of the Kivlins. In many respects Kennedy's conduct toward the Kivlins is similar to that of the union steward in the Brunswick Corporation case, 135 NLRB 574. In that case Anderson, the steward for the local union involved treated the discriminatee therein in much the same manner as Kennedy treated the Kivlins in the instant case. The following excerpt from this case is inserted below, primarily for the purpose of illustrating that there is nothing new or novel about the abuse of power by agents for labor organizations: The facts relating to Barden's discharge are as follows: Barden, a member of Camden Local 393 of the Carpenters, applied to Lesley Byrd, Business Agent of Respondent Union, in mid-July 1959, for a referral slip to Respondent Com- pany's jobsite at Carteret, New Jersey. Two weeks later Byrd gave Barden a referral slip to the attention of Steward Neal Anderson at Carteret Lanes. Barden reported to Anderson, who entered his name in his union record book, gave him a work permit upon Barden's payment of $6.25, and assigned him to work which comprised primarily the laying of bowling alleys. On Thursday, August 7, just before quitting time, Superintendent Paul Bang- ston ordered Barden to cease his carpentry work and to put away the electric cords, drills, and power equipment. The following morning, Steward Ander- son, acting pursuant to instructions from Business Agent Byrd called the car- penters together and told them: "This business about you people quitting early, you guys quitting early has got to stop. I am the shop steward in the shop And when I blow the whistle in the morning, you start work; and when I blow the whistle at night you quit And you don't quit before that." Barden, think- ing the remarks were aimed specifically at him, spoke up and told Anderson that Bangston had ordered him to knock off early the day before to put some equipment away. Anderson then said to Barden "You are a wise guy. Get out of here. You are fired. Here is your $6.25 back. Give me your working permit. 1 am firing you as a shop steward for Local 65." There followed a heated discussion between Anderson and Barden. Barden finally appealed to Foreman Fred, who said, "What can I do? I can't do anything. If you are fired, you're fired " After taking back Barden's work permit, and returning his $6.25, but before Barden left the premises Anderson called Business Agent Byrd, by special delivery mail, but had received no reply to it at the time of the hearing herein The record herein is none too clear in this regard and for that reason I have refrained from and considered the incident as pertinent to his ultimate disposal of the issues herein 18 See also N L.R.B v. International Brotherhood of Electrical Workers Local Union 340, AFL-CIO (Walsh Construction Company), and cases cited therein, 131 NLRB 260. 14 See supra LUMMUS COMPANY 543 who told him not to let Barden leave, and to put him back to work. Anderson did so, giving Barden back his work permit and receiving again the $6.25 pay- ment therefor . Byrd came out to the jobsite in an effort to smooth things over, and told Barden he should not take exception to an old man who was only doing his job. In the Brunswick case the Board found inter alia the conduct of the steward for the union involved" . . . inherently encouraged Barden [the discrimmateel and other employees to accept the authority of the steward to enforce compliance with regulations imposed by the Respondent Union. . " and that such conduct was violative of Section 8(b) (1) (A ) of the Act. So is it here. Though the Board in the Brunswick case found that the employer by acquiescing to the union's demands engaged in conduct violative of Section 8(a)(3) and (1) of the Act it does not necessarily follow that the facts herein justify rigid adherence to the stari decisis doctrine by me in my disposal of the issues herein as to the Re- spondent Lummus. Further comments follow. As I see it the facts herein do not justify a finding that Lummus violated Section 8(a)(3) and ( 1) of the Act by acquiescing to the demands of the steward at the Claymont jobsite that James Kivlin be denied employment as a welder because he did not have a referral from Local 80. The facts have been found and set forth above. I cannot ignore them. In particular the fact that Gibson, Lummus' em- ployment manager ordered six pipefitters -welders, and two pipefitters from Local 80 on Friday, May 19, 1961 , at 8.30 a.m, and that Kennedy, the business agent for Local 80 sent these workers to the jobsite pursuant to Gibson 's request, and that each and everyone of them reported to the jobsite on the morning of May 22, 1961. This routine was in accordance with the terms of the hiring hall agreement between the parties . Since the hiring hall in and of itself is not at issue herein , then the question arises, should an employer be found guilty of violating Section 8(a)(3) and (1 ) of the Act because he acts pursuant to the provisions of such an agreement for conduct by the Union that stemmed from its relations with another employer and involved a stranger to its operations such as James Kivlin? In my considered opinion neither Lummus nor any other employer should be held responsible for the misconduct of the Union in the circumstances we are faced with herein. Let us presume that Lummus hired James Kivlin on the morning of May 22 , 1961, and by so doing it necessitated the rejection of one of the workers that Local 80 had sent to the jobsite. What happens to that individual ? What rights does he have? These are questions that are bound to arise in the minds of most of us. Should such an unfortunate individual who no doubt was mentally and spiritually elated at the prospect of a job, be suddenly cast aside to satisfy a technicality under the "stari decisis" doctrine or should there be an equitable approach to those enmeshed in a situation such as Lummus and the workers referred to it by the Union in the case at hand? That the Board itself has considered the equities involved is illus- trated in the Otis Elevator and J. F. Ptacek & Son, Inc., case, 132 NLRB 1444. In that case, though the shoe was on the other foot , so to speak, the Board found that the union and the employer did not violate the Act because the union's business agent was merely doing his job in a nondiscriminatory manner: Since in many respects the facts in the Otis case are somewhat similar to the factual situation herein I feel that it would benefit all concerned to insert the following excerpt therefrom herein below: Our reading of the Supreme Court decision in Local 357, Teamsters, supra, convinces us that Respondent did not violate Section 8(b)(2). Here, as in that case, the charging parties claiming discrimination were members in good standing in their union. There is, therefore, no question of discrimination between union and nonunion carpenters or between members in good standing and members not in good standing . The sole reason given by Rowley for refus- ing work permits to Hollingsworth and Brewster for the Knoxville job was the breach of Local 106's agreement with the Employer whereby the Employer had agreed to hire through the union hall. At the time the Charging Parties applied for work a call for men had been sent to the hall by Foreman Kiensat and men had already been selected by Rowley from the Union's work list, and these men were in fact put to work the next day by the Employer. While the hiring hall arrangement in the instant case is oral rather than written and does not, as did the contract in Local 357, Teamsters, contain a clause specifically providing against discrimination because of the "presence or absence of union membership" we do not, as we read the Court's decision, find those factors controlling. We find no evidence here that the arrangement between the Employer and Local 106 was intended to or did in fact discriminate between members and nonmembers of Local 106 As in Local 357, Teamsters, the only complaint herein was by 544 DECISIONS OF NATIONAL LABOR RELATIONS BOARD union members who sought, albeit unwittingly, to circumvent the agreement. With reference to such a situation the Supreme Court said, "When an employer and the union enforce the agreement against union members, we cannot say without more that either indulges in the kind of discrimination to which the Act is addressed." It is the "without more" that is precisely lacking in the General Counsel's case. There is no evidence that Rowley discriminated against Lutz, Hollingsworth, or Brewster because of their clearance status. Rowley was willing to admit them to Local 106 membership and put them on the work list. What he was not willing to do was to clear them for work at Knoxville, not for discriminatory reasons, but because he had selected the men to work at Knoxville from those registered, a right which had lawfully accrued to Local 106 pursuant to agreement. Again we find the language of the Supreme Court applicable to the situation before us when it stated; Nothing is inferrable from the present hiring-hall provision except that employer and union alike sought to route "casual employees" through the union hiring hall and required a union member who circumvented it to adhere to it. [Emphasis supplied.] The important difference between the situation in the above-cited case and the case at hand is that: (1) Kennedy, the business agent for the Respondent Local 80, acted in an arbitrary and capricous manner toward the Kivlins, and ordered them out of his office; (2) told them he would never refer them to any job in the area; and (3) refused to even let them register in at the Local. It was for these reasons that I have found above as to the Respondent Union. Again, it must be borne in mind that Gibson told James Kivlin to fill out an application blank, and if and when he needed welders at a later date he would consider his application. Though this may have been merely a gesture on the part of Gibson, nevertheless when considered in the light of the fact that Lummus did not need any more welders on this particular date, May 22, 1961, it would have been to James Kivlin's advantage, legal and otherwise, to have followed Gibson's sugges- tion, since the record shows that thereafter the Respondent Lummus hired at least 600 pipefitter-welders through Local 80. As I see it an employer faced with a situation such as we have herein, finds himself on the horns of a dilemma, or in the vernacular of some of us "between the devil and the deep blue sea " If he refuses to employ a person such as James Kivhn he may be charged with violating Section 8(a)(3) and (1) of the Act. On the other hand if he refuses to employ a worker sent to him at his request by a labor organization under a valid hiring-hall agreement to give a person like Kivlin a job, then he is faced with either a labor dispute, or perhaps, under certain circumstances, to charges filed by the displaced worker sent to his jobsite through the hiring hall. I am con- vinced that the Congress never had in mind such an "eeny, meeny, miney, mo" "remedial" policy to promote industrial peace and the other stated purposes of the Act as set forth in its preamble.15 In all of the circumstances discussed, described, and found above, I will recommend that the complaint herein as to Respondent Lummus be dismissed in its entirety.18 As to Respondent Union, it will be further discussed and disposed of below. Kennedy's refusal to consider James J. Kivlin and his brother, John Kivlin, for referral for the reasons I have found above, constituted conduct by the Respondent Union violative of Section 8(b)(2) and (1)(A) of the Act.17 I have carefully considered the contentions of the Respondent Union in its brief, and have viewed them in the light of the facts which I have found above upon the record considered as a whole I am not unmindful of the fact that there is no evidence in the record showing or even indicating that Local 80 had conducted its hiring hall in an illegal manner either prior to or after the Kivlins visited Kennedy on March 15, 1961, nevertheless the record shows otherwise as to them. In the circumstances, it is sufficient, as I have found above, that in the operation of the exclusive referral arrangement with members of the Delaware Mechanical Contractors Association, which the Respondent Lummus though not a signatory complied with, the Respondent Union for discriminatory reason refused to refer the Kivlins for employment with them and did so in circumstances that made it clear to both of the Kivlins that their future request for referral from Respondent Local 80 would be futile-18 15 The some refrain is applicable to rigid reliance on the "pari delicto" doctrine in the selection of a respondent-employer in situations similar to that found herein, and as illus- trated above in the case as to John Kivlin 10 See supra, in re the disposal of the cases to John Kivlin. 17 Bechtel Corporation, etc, 120 NLRB 930. is See Tellepsen Construction Company, etc, 122 NLRB 564 J. J. COLLINS SONS, INC. 545 IV. THE EFFECT OF. THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above , occurring in connection with the operations of the Lummus Company and as described in sec- tion I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof. V. THE REMEDY Having found that the Respondent Local 80 on and after about March 15, 1961, engaged in certain unfair labor practices violative of Section 8(b)(2) and 1(A) of the Act, it will be recommended that the Respondent Local 80 cease and desist therefrom and take certain affirmative action to effectuate the policies of the Act. Having found that the Respondent discriminatorily refused to place the names of James Kivlin and John Kivlin on its out-of-work lists from which it makes referral of applicants to employment with the above-mentioned Delaware Mechanical Con- tractors Association and the Respondent Lummus on and after about March 15, 1961, I shall further recommend that the Respondent be required to place James Kivlin's and John Kivlin's names on said lists and to refer them to employment from them without discrimination, and that Respondent shall make them whole for any loss of earnings suffered by them as a result of its unlawful conduct by payment to them of a sum of money equal to the amount they would normally have earned as wages absent the discrimination against them from on or about March 15, 1961, until such time as their names have been placed on the out-of-work lists and they are referred to available employment from them. Loss of earnings shall be com- puted on a quarterly basis in the manner established by the Board in F. W. Wool- worth Co., 90 NLRB 289. Because the General Counsel does not contend that the Respondent maintained any unlawful referral contract or arrangement or committed any misconduct except that involving the Kivlins , I see no necessity for remedial action broader than that :above recommended. CONCLUSIONS OF LAW 1. Local 80, United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 2. Lummus Company is an employer engaged in commerce within the meaning ,of Section 2(2) of the Act and is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 3. By refusing to place James Kivlin's and John Kivlin's names on or about March 15, 1961, and thereafter, on its out-of-work lists and by failing to refer them thereafter for employment with the aforementioned firms the Respondent Local 80 caused Lummus Company to discriminate against James Kivlin and John Kivlin in violation of Section 8(a)(3) of the Act and thereby coerced and restrained em- ployees in the exercise of rights guaranteed by Section 7 of the Act, thereby violating Section 8 (b) (2) and 1(A) 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. [Recommended Order omitted from publication.] J. J. Collins Sons, Inc. and Bookbinders and Paper Cutters' Union of Chicago, Local #8, International Brotherhood of Bookbinders, AFL-CIO. Case No. 13-CA-59d93. May 10, 1963 DECISION AND ORDER Upon charges duly filed by Bookbinders and Paper Cutters' Union of Chicago, Local #8, International Brotherhood of Bookbinders, AFL-CIO, herein called the Union, the General Counsel of the Na- 142 NLRB No. 58.