The Lummus Company petitions for court review of a decision and order of the National Labor Relations Board, which held the Company to have violated Section 8(a) (3) and (1) of the National Labor Relations Act.
The controversy revolves around a hiring hall agreement, two brothers named Kivlin, and a business agent of our respondent Union, Local 80. This Union has a collective bargaining agreement with the Delaware Mechanical Contractors Association, which provides for an exclusive hiring hall for a designated territory. The Lummus Company is not a member of this Association, nor is it a signatory to the contract; but during the relevant period it considered itself bound by the hiring provisions by virtue of an agreement with the International with which Local 80 is affiliated.
James and John Kivlin are welders and members of Local 420, a sister Local to respondent Local 80. Three dates material to the controversy are February 22, March 14 or 15, and May 22, 1961. Versions of all the material incidents differ, and the examiner was compelled to resolve acute questions of credibility. He did so with long and careful discussions of the evidence. His findings are amply supported, and we follow them in our recitation of the facts. On or about February 22, 1961, James Kivlin was referred by Local 80 to a jobsite of the Bechtel Corporation at Newcastle, Delaware. This company was in no way related to Lummus. Kivlin was there given a welding test by one Baffone, an employee of Bechtel, who happened to be a member of Local 80. Kivlin did not pass the test. Embittered over this failure, and feeling that Baffone had not been fair to him, Kivlin went to the Bechtel office to lodge a complaint but was unsuccessful. He then returned to the Local 80 hall, where he engaged in a “heated” discussion with Charles Kennedy, the business agent for Local 80. Some weeks later, on March 15th,
John Kivlin subsequently obtained work through another local. He did not thereafter have any contact with Local 80. So far as the record shows, he at no time had contact with Lummus. It will be noted that the Kivlins had no dealing or contact whatever with Lum-mus on February 22nd or March 14th-15th.
Some two months later, on or about May 22nd, James Kivlin returned to the hiring hall for the express purpose of making amends with Kennedy. The latter met him outside the hall and remarked, “There is no use you hanging around here, you are going to get hurt.” With that Kivlin left and did not thereafter return to the hall.
Kivlin then went, that same day, to the Lummus Company’s jobsite at Clay-mont, Delaware, and was there approached by Local 80’s job steward, who asked for his referral slip. Kivlin said he did not have one because Kennedy would not refer him. The job steward told him to leave the site. He also told Lummus’s timekeeper not to give Kivlin an application. Kivlin was however allowed to fill out an application, but it was then set aside. Kivlin was sent to the manager of the Company’s employment office, one Gibson. Gibson explained that he was required to obtain all his men from Local 80, and Kivlin asked, “What if you can’t get a ticket out of Local 80 ?”. Gibson started to explain when the steward burst in and shouted that Kivlin was not going to work. Gibson then told Kivlin that the required number of welders had already been hired and that if Kivlin would obtain a referral from Local 80 he would be considered for future employment.
In respect to the Company (Lummus) the trial examiner concluded that the complaint should be dismissed, noting that John Kivlin had never applied for work with Lummus and that at the time-Local 80 refused to refer James Kivlin, i. e., on March 14th-15th, Lummus was not using the hiring hall. He further found that on May 22nd Lummus had in fact hired the required number of welders and consequently had not violated the Act by turning James Kivlin away. The Board, one member dissenting, reversed the examiner in respect to the Company, holding that the Local was acting as agent for Lummus by virtue of the agreement.
In respect to the liability of Local 80» the Board said:
“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 jurisdictional area because of the claimed abusive conduct of James Kivlin towards an unnamed member of the executive board, caused Respondent Lummus to deny them employment in violation of Section 8(a) (3), thereby violating Section 8(b) (2) and (1) (A) of the Act.”
Three issues are presented for our determination.
I. The collective bargaining agreement contained a clause establishing a. joint hiring committee composed of equal numbers of union and contractor representatives. The committee was empowered to “hear and determine any and all disputes or grievances arising out of the operation of the referral system”. In case of a deadlock an impartial umpire was to be designated by mutual agreement of the parties. The decision of the committee or the umpire was made “final, binding and conclusive on all parties, including applicants.” Lummus and Local
The Kivlins were not parties to the agreement, and the Board found they had no knowledge of the appeal procedure. Furthermore a majority of the Board were of the opinion that this procedure did not provide access to such an impartial tribunal as would justify deference to it. In such circumstances we cannot say that the Board abused its discretion.
II. Local 80 argues that the Board erred in finding it in violation of Section 8(b) (2) and (1) (A). It says that a union does not violate the section unless its disparate treatment of an employee is brought about by some union activity of the employee or his union membership, and that the evidence shows Kennedy’s acts toward the Kivlins to have been the result of a personal disagreement. Since it seems to us that the refusal to refer the Kivlins was based upon an incident keyed to union membership, we need not embroil ourselves in the controversy over the extent of the statutory proscription, i. e., whether a discrimination based entirely upon causes not related to union membership or activity is violative of the statute. See, e. g., N. L. R. B. v. Miranda Fuel Co., Inc.,
Section 8(b) (2) makes it an unfair labor practice for a union or its agents to cause or attempt to cause an employer, by discrimination in regard to hire, tenure, or any term or condition of employment, to encourage or discourage membership in any labor organization. “The policy of the Act is to insulate employees’ jobs from their organizational rights.”
Of course not every union attempt to influence employer action which in turn encourages or discourages union membership violates the Act. The Local 357 case
In the case at bar the trial examiner found that “In the course of [Kennedy’s] 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 towards an unnamed member of Local 80’s Executive Board.” So far as the record shows, Kennedy did not attempt to justify the action on any other ground. He chose to tell these men they could not obtain work from his hall because James Kivlin had had a fight with a Union board member and had given him a hard time. This was a clear equivalent of saying to them, “If you get into a fight with a member of the executive board of the Union, you don’t get work in this territory.” Anybody would so understand what Kennedy said. If he had put his refusal upon some other ground we would have another case. He did not do so. Moreover he did not assign this reason as an afterthought. He told it directly to the Kivlins at the time he refused to refer them.
On these facts we hold that the Board was justified in finding Local 80 in violation of 8(b) (2) and (1) (A). The Union had the power to cause any company in that area not to hire the Kivlins. It announced it was using that power because Kivlin was insubordinate to union officials. The natural foreseeable consequence of Kennedy’s statement was to impel the Kivlins and others to respect the position and accept the authority of Union officials, and Kennedy must be deemed to have intended that result.
The Second Circuit’s recent decisions in Local 294
Before leaving the discussion of the Union’s liability under the statute, we note, because it becomes important to a construction of sections applicable to employers, that a union may violate the statute by causing any and all employers, without individual identification, to discriminate, etc. Thus, as in the present case, if a union has an exclusive hiring hall for all employers having work in a given area, and it refuses to refer to any employer whatsoever, for the proscribed reasons, it violates the Act.
III. Lummus contends that the Board erred in holding it in violation of Section 8(a) (3) and (1). We agree.
These subsections make it an unfair labor practice for an “employer” to interfere in designated ways with employees’ organizational rights, and the Act defines “employer” as including “any person acting as an agent of an employer, directly or indirectly”.
Lummus was not a direct contractor with Local 80. It was a member of an unincorporated national association of construction companies, which association, on behalf of its members, negotiated contracts with international unions establishing general terms and conditions of employment. One such contract of the association was with the United Association of Journeymen and Apprentices of the Plumbing and Pipe Pitting Indus
None of the incidents of February 22nd or March 14th-15th concerned Lummus. So far as the record shows, Lummus was not actually using the hiring hall at that time. In so far as those incidents involved an employer, they involved the Bechtel Corporation, in no way related to Lummus. On May 22nd, however, Lummus was involved. On that day James Kivlin went to the Lummus employment office and was refused work after an exchange of words, principally with the shop steward representing Local 80. Gibson, the Lummus employment officer, told Kivlin he had already hired all the welders he needed that day. The examiner found he truly had done so. The examiner inquired into this incident with meticulous care, since there was a question of credibility here. He found that Lummus had on May 19th (three days prior to the incident) requisitioned six welders to report for work at eight o’clock on the morning of May 22nd. The employment officer phoned that requisition in to Local 80. Six welders, referred by the Local, reported on the 22nd and were hired.
John Kivlin was not involved in the May 22nd affair. After March 15th he applied for and obtained a referral slip from Local 26 and went to work for Bechtel Corporation, where he remained indefinitely, so far as the record shows.
The Board held that Lummus must cease and desist from “[e]ncouraging membership in Local 80 * * * by refusing to employ James Kivlin and John Kivlin” and from discriminating against James Kivlin and John Kivlin; and must, jointly and severally with Local 80, “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.”
As we have said, in ruling on Lummus the Board reversed the trial examiner. It did so upon the ground that the discriminatory acts of Local 80 were chargeable to Lummus, the Local being the agent and Lummus the principal.
The question as it relates to February and March differs from the question as it relates to the May affair. The facts differ. Referring to the events of February 22nd and March 14th-15th, the question is: If an association of employers has a hiring hall agreement with a union, is every member of the association severally liable for any isolated discriminatory act of the union, even if that employer was not hiring at the time of the act and did not know or have reason to know of it? Stated otherwise, can an employee who is discriminated against by such a union put the burden of his damage upon any employer-member of the contracting association he may select ?
It seems to us that “plain everyday common Sense” (using the trial ex
It is true that, where an employer who is a party to an exclusive hiring-hall agreement either has actual notice, or may reasonably be charged with notice, that an applicant has been unlawfully denied referral by the union, the employer’s refusal to hire, if based upon the applicant’s failure to obtain referral, is a violation of Section 8(a) (3) and (1)
“I think that this case presents a situation which calls for other than a mechanical application of the doctrine of respondeat superior. Without 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 vires action of the Union, I think the prerequisites for a finding of unlawful discrimination have not been established.”
In so far as the February and March incidents are concerned, there was no involvement of Lummus except its undertaking to be bound by a non-discriminatory hiring-hall agreement. It did not participate in the incidents and had no actual knowledge of them. They were isolated incidents.
In respect to the May 22nd incident the questions are whether Lummus discriminated against James Kivlin when he applied to its employment officer and that officer failed to hire him, and whether Lummus on that day so ratified the action of the union in the blanket denial of referral as to make itself liable for that denial nunc pro tunc. The facts require that both questions be answered in the negative. James Kivlin was not hired on that day, because there was no job available. Of course an employer’s liability is not suspended merely because he had no jobs available at the time he turned the applicant away. If the employer has express or implied notice of an illegal denial by the union, he is or may become liable, even if jobs are not then available,
The Board relies upon the Second Circuit’s opinion in Morrison-Knudsen Co. v. N. L. R. B.
Those portions of the Board’s order which relate to Local 80 are affirmed and will be enforced. In so far as the order relates to the liability of The Lummus Company, it is reversed.
So ordered.
Notes
. 49 Stat. 452 (1935), as amended, 29 U.S.C. § 158(a) (3) and (1).
. Added by 61 Stat. 141 (1947), 29 U.S.C. § 158(b) (2) and (1) (A).
. The examiner said March 14th or 15th; the Board said March 15th.
. The trial examiner found that James Eavlin then said, “Look, I have some rights,” to which Kennedy replied, “Down here you don’t have any rights.”
. 49 Stat. 453 (1935), 29 U.S.O. § 160.
. Radio Officers Union of Commercial Telegraphers Union, A.F.L. v. N.L.R.B.,
. Local 357, International Bro. of Teamsters etc. v. N.L.R.B.,
. Supra note 6,
. Supra note 7.
. See N.L.R.B. v. Local 294, International Bro. of Teamsters,
. N.L.R.B. v. Local 490, International Hod Carriers,
. Brunswick Corp., 135 N.L.K.B. 574 (1902), enforced sub nom. N.L.R.B. v. Local 65, United Bro. of Carpenters and Joiners of America,
. Local 138, International U. of Operating Engineers, A.F.L.-C.I.O. v. N.L.R.B.,
. Local 357, International Bro. of Teamsters v. N.L.R.B., supra,
. Radio Officers Union of Commercial Telegraphers Union, A.F.L. v. N.L.R.B., supra,
. See Brunswick Corp., supra note 11; N.L.R.B. v. Oklahoma City Gen. Drivers, Warehousemen and Helpers, Local U. 886,
. N.L.R.B. v. Local 294, International Bro. of Teamsters,
. Sec. 2(2), National Labor Relations Act as amended, 61 Stat. 137 (1947), 29 U.S.C. § 152(2).
. 61 Stat. 139 (1947), 29 U.S.O. § 152 (13): “In determining whether any person is acting as an ‘agent’ of another person so as to make such other person responsible for his acts, the question of whether the specific acts performed were actually authorized or subsequently ratified shall not be controlling.”
. See H.R. Rep. No. 245, 80th Cong., 1st Sess. 11, 68 (1947), 1 Legislative History of the Labor Management Relations Act 302, 358 (1948); H.R. Conf.Rep. No. 510, 80th Cong., 1st Sess. 31, 36 (1947), 1 Legis.Hist. 535, 540; Veto Message of President Truman, 1 Legis.Hist. 918; 2 Legis.Hist. 1204-05 (remarks of Sen. Taft), 1552, 1556 (Sen. Morse in opposition), 1566 (Sen. Murray in opposition), 1588 (Sen. Pepper in opposition), 1622 (Sen. Taft). Courts llave looked to the law of agency. See N.L.R.B. v. International Longshoremen’s & Warehousemen’s Union, Local 10,
. Incidentally, the Board refers to Local 80 as “the sole and exclusive source of referrals to employment” within its territorial jurisdiction. The Board must have meant trade or work jurisdiction. The agreement which established the hiring hall expressly excluded “that portion of the work which is * * * recognized as coming within the jurisdiction of Local Union 26”. The trial examiner recited that James Kivlin testified that Local SO got 70 per cent of the work and Local 26 got 30 per cent. John Kivlin secured a job through Local 2G.
. See N.L.R.B. v. Lummus Co.,
. When it is clear that the employer will not proffer a job in any event, neither the unavailability of work, nor the failure to apply for a particular job, is a valid defense to a discriminatory hiring policy. See N.L.R.B. v. Valley Die Cast Corp.,
. In such a situation the measure of the employer’s liability for damages should not begin until an opening actually becomes available, for which the previously rejected applicant would have been eligible. To assess damages against the employer from the date the union refused to give the applicant a referral slip, before the employer had notice of any illegality, or before a job became available, would serve no useful purpose and would raise serious questions of fundamental fairness and due process. Damages automatically assessed against the employer from the time he spurned the applicant, before he had a job available, would be punitive; the Board does not have authority to impose punitive damages.
. There can be no general rule that even where an employer, under the circumstances of a particular case, could reasonably be held to have been put on notice when the worker applied, the employer violated the statute at the (earlier) time the union unlawfully refused to refer, where the hiring-hall agreement is non-discriminatory on its face. Such a blanket holding would frustrate the functions and jeopardize the operations of hiring-hall agreements, which have been found to be beneficial by courts, the Congress, and the Board. See Local 357, International Brotherhood of Teamsters etc. v. N.L.R.B.,
. Judge Washington would add that in his view, if Kivlin had informed Lummus’s employment officer of the circumstances relating to Kennedy’s refusal to refer him, Lummus might well be charged with acquiescence in, or ratification of, the unlawful discrimination.
.
. Judge Bazelon believes the events of May 22nd put Lummus on sufficient notice to hold it liable from that date or from the date when a job next became available.