December 3, 1956
NATIONAL LABOR RELATIONS BOARD, PETITIONER,
LOCAL 369 INTERNATIONAL HOD CARRIERS' BUILDING AND COMMON LABORERS' UNION OF AMERICA, AFL, RESPONDENT.
Before McLAUGHLIN, KALODNER and STALEY, Circuit Judges.
KALODNER, C.J.: This is a petition of the National Labor Relations Board pursuant to Section 10(e) of the National Labor Relations Act, as amended, to enforce its order issued against the respondent in proceedings under Section 10(g) of the Act.*fn1
The Board adopted the findings, conclusions and recommendations of the Trial Examiner and found that job applicant James Carr was denied employment with Frommeyer and Company*fn2 ("Company") by its superintendent as a result of an arrangement between the Company and respondent Local 369 International Hod Carriers' Building and Common Laborers' Union of America, AFL ("Union") which required the Union's approval as a condition of employment with the Company. The Board further found that the Union attempted to cause and did cause the Company to violate the Act and thus engaged in unfair labor practices within the meaning of Section 8(b)(2) and 8(b)(1)(A).*fn3
The factual findings of the Board may be summarized as follows:
In mid-July, 1954, James Carr, a laborer, Visited the Union's headquarters in Trenton, New Jersey, and asked for a "work slip" to permit him to work in the Trenton area. Frank Gonzales, the Union's secretary-treasurer, told Carr, who was not a union member, that he had no work available. Carr then asked Gonzales if he would accept his initiation fee if he found a job. Gonzales replied that the initiation fee was $25.00, gave Carr his business card, and told Carr to call him if he found work.
After leaving the Union's office Carr, through one Alex Powers, a laborer leadman of the Company, heard there was a job opening at the Company's project at McGuire Air Base near Fort Dix, New Jersey. Subsequently he returned to the Union's headquarters and spoke to Michael Neylan, the Union's business agent, about joining the Union. Neylan advised him that he had "eighteen or nineteen men on the bench" waiting for work and that they "would have to be placed" before he would accept Carr's application for Union membership.*fn4
Several days later Carr boarded a station wagon which was transporting workmen to the construction site. Enroute the driver picked up Charles Conway, the job superintendent, to whom Carr was introduced as a man Powers had sent. Carr asked Conway for a job and Conway asked Carr if he had a Union card. Carr said he did not have a card but showed Conway the business card that Gonzales had given him. Conway said it would be "all right with him if it is all right with [James] Peters" (the Union's job steward).When the station wagon reached the construction site, Conway told Carr to talk to Peters.
Carr asked Peters for a job. Peters asked Carr if he had a Union book. When Carr said that he did not have a book and showed Peters the card which Gonzales had given him, Peters pointed out that the card did not say "Okay for work".
Peters reported to Conway that "Carr didn't have a book" to which Conway replied "Okay".
After his interview with Peters, Carr told Conway what peters had said to him. Conway thereupon told Carr that there was nothing he could do for him. However, when Carr asked Conway whether a job would be open for him if he "would go to the Local and get it straightened out at the Local", Conway replied that "he would take care of" him.
Carr then went to the Union's headquarters and told Neylan that he had found a job*fn5 and that he would like to join the Union. Neylan again told him that there were "eighteen or nineteen men on the bench" who "would have to be placed" before Carr could be admitted to the Union. Carr was again refused admission to the Union the following day and never returned to the construction site.
On the basis of the foregoing facts and other testimony of witnesses, the Board, in agreement with the Trial Examiner, found that the Union had violated the Act.*fn6 The Board concluded that the Union had violated both Section 8(b)(2) and Section 8(b)(1)(A).*fn7 In National Labor Relations Board v. Jarka Corp. of Philadelphia, 198 F.2d 618 (1952) we discussed these two sections and the significance of each. See also National Labor Relations Board v. Philadelphia Iron Works, 211 F.2d 937 (3rd Cir. 1954). In the Board's opinion and in the presentation to this Court this case has been postured as involving an 8(b)(2) violation. While we agree that the Union has violated Section 8(b)(2) of the Act, we do not consider the applicability of Section 8(b)(1)(A) to this situation.
The Union urges that the Board's order should be reversed and contends that the following findings of the Board are not supported by substantial evidence: (1) the finding that there was an agreement or understanding between the Company and the Union that the Company would only hire the Union's members; (2) the finding that the Union caused the Company to discriminate against Carr; (3) the finding that Carr was denied employment by reason of his non-union status.
The Trial Examiner initially found that the Company was pursuing a general hiring practice of clearing laborers with the Union's steward which was unlawfully discriminatory within the meaning of Section 8(a)(3).There is substantial evidence to support such a finding. The Union, placing principal reliance upon National Labor Relations Board v. Thomas Rigging Co., 211 F.2d 153 (9th Cir.), cert. denied, 348 U.S. 871 (1954), urges that the existence of a discriminatory hiring agreement could not be inferred from the unilateral action of the Company. With this premise we agree, but the facts here disclose more than a unilateral discrimination. Cf. National Labor Relations Board v. Local 743, United Brotherhood of Carpenters & Joiners of America, 202 F.2d 516 (9th Cir. 1953). That the Union actively participated in the discriminatory hiring practice of the Company is manifest. The Union, through its job steward, Peters, questioned Carr about his Union status, reported to Conway, the Company superintendent, that Carr "didn't have a [union] book", and instructed Carr to secure one in order that he might "go to work". Furthermore, the testimony discloses that Neylan, the Union's business agent, upon his first visit to the construction project, instructed Peters that Conway "was supposed" to refer job applicants to him, and that he should check their union status before they started work and report to Conway whether they were "okay or not". Neylan described the duties of the steward to Conway in the presence of Peters, including the duty of checking the union books of "new men". Conway himself admitted that it was "customary" for him to refer new men to the Union's steward before placing them on the job and to receive the steward's report as to whether their employment would or would not be "satisfactory" to the Union.
After summarizing the testimony, the Trial Examiner further stated that "Conway's conduct in referring Carr, whom he was otherwise willing to employ, to steward Peters for approval, coupled with his statement to Carr upon learning to Peters' disapproval that there was nothing he could do, is scarcely explainable except on the hypothesis that the Union and the Company had in some way agreed that in certain circumstances at least union approval was to be a condition of employment". The combination of circumstances here makes no other explanation reasonable. Conway's testimony to the contrary was found by the Trial Examiner to be self-contradictory, evasive and inherently improbable, and was discredited. The Board's judgment as to credibility will not be disturbed. National Labor Relations Board v. Jarka Corp. of Philadelphia, supra.
The Union further urges the fact that four non-union men had been employed by Conway in the course of the construction job. While proof of the hiring of non-union men is a significant factor for the Board to consider, alone it does not dispel the existence of a discriminatory hiring arrangement. National Labor Relations Board v. Philadelphia Iron Works, supra. The weight of the contrary evdidence is not sufficiently detracted from to reverse the Board's inference. See Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 488 (1951).
In final support of its first contention, the Union urges the applicability of Del E. Webb Const. Co. v. National Labor Relations Board, 196 F.2d 841 (8th Cir. 1952), to these facts. In the Webb case the General Counsel faced the difficult task of proving a discriminatory hiring practice without any evidence of a refusal to hire non-union men. The Eighth Circuit denied enforcement of the Board's order but reserved the question as to what the result would have been if such evidence had been adduced. The discriminatory refusal to hire Carr takes this case out of the Webb rationale.
Since there is substantial evidence to support the Board's finding of an illegal hiring arrangement between the Union and the Company, the Union's last two contentions pale into insignificance. The Union's contention that it did not cause the Company to discriminate in violation of Section 8(a)(3) is without merit. The existence of a discriminatory hiring arrangement actively participated in by the Union and without whose cooperation the arrangement would not have been feasible amounts to an "attempt to cause" the Company to violate Section 8(a)(3). Furthermore, the Union, through the activities of its steward, peters, in securing the discriminatory refusal to hire Carr, "caused" the Company to discriminate within the meaning of Section 8(b)(2). The absence of proof that the Union specifically requested the Company to discriminate is not critical where there is substantial evidence to support the finding of a discriminatory hiring arrangement actively participated in by the Union.
Finally, the Union contends that proof of discrimination against Carr was not shown in the absence of evidence to show the availability of a job. In order to establish a discrimination with regard to hire, the availability of a job at the time of application for which the applicant was qualified must be proved.See National Labor Relations Board v. San Angelo Standard, 228 F.2d 504, 508 (5th Cir. 1955). However, it is well settled that even though a job is not available, discrimination may be inferred where it is clear that the existence of a discriminatory hiring practice would make reapplication futile when a job opening does occur. National Labor Relations Board v. Anchor Rome Mills, 228 F.2d 775 (5th Cir. 1956); National Labor Relations Board v. Local 803 International Brotherhood of Boilermakers, AFL, 218 F.2d 299 (3rd Cir. 1955). Carr could not have been more effectively informed of the futility of reapplying for a job. The Conway-Peters episode and the Carr attempts to gain membership in the Union clearly foreclosed for Carr the opportunity to work with the Company.
For the reasons stated, the order of the Board will be enforced except insofar as it relates to Section 8(b)(1)(A) of the Amended Act.