Bricklayers Union No. 4

National Labor Relations Board - Board Decisions

Oct 12, 1966

160 N.L.R.B. 1837 (N.L.R.B. 1966)

BRICKLAYERS UNION NO. 4 1837
Teamsters , Chauffeurs, Warehousemen and Helpers of America or in any other
labor organization , by discharging any employees or by discriminating against
them in any other manner in regard to their hire or tenure of employment or
any terms or conditions of employment.
WE WILL NOT threaten employees with or engage in any reprisals against
them if they engage in union activity.
WE WILL NOT unilaterally promulgate , maintain, enforce or apply any rules
or regulations altering existing terms and conditions of employment of our
employees by notifying , consulting , or bargaining with said Union prior to so
doing.
We WILL NOT in any other manner interfere with, restrain , or coerce our
employees in the exercise of their right to self-organization , to form labor
organizations , to join or assist the above-named Union or any other labor
organization , to bargain collectively through repiesentatives of their own choos-
ing, to engage in concerted activities for the purpose of collective bargaining
or other mutual aid or protection , or to refrain from any and all such activities.
WE hereby rescind the notice of rules and regulations posted on or about
October 20, 1965.
WE WILL meet with and bargain collectively with the Union in the event
that we desire to promulgate and make effective new rules and regulations
governing the terms and conditions of employment of our employees.
At the request of the Union WE WILL meet with it at reasonable times and
confer in good faith with it with respect to any rules and regulations govern-
ing terms and conditions of employment or any question arising with respect
thereto.
WE hereby offer to Kenneth Amos , Harvey Stephenson , and Louis Mayo,
Jr., immediate and full reinstatement to their former or substantially equivalent
positions without prejudice to their seniority or other rights and privileges,
and shall make them whole for any loss of earnings they may have suffered by
reason of our discriminations against them.
EvANS PRODUCTS COMPANY,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
The 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.
If employees have any question concerning this notice or compliance with its
provisions , they may communicate directly with the Board 's Regional Office, 746
Federal Office Building, 167 North Main Street, Memphis, Tennessee 38103, Tele-
phone 534-3161.
Bricklayers Union No. 4 of Missouri (Masonry Builders, Inc.;
Keystone Masonry Co ., Inc.; Apartment Erectors , Inc.; Pasta
Construction Co.) and Otis Ivory. Case 17-CB-4593. Octo-
ber 12, 1966
DECISION AND ORDER
On May 17, 1966, Trial Examiner Arthur E. Reyman issued his
Decision in the above-entitled proceeding, finding that the Respond-
ent had engaged in and was engaging in certain unfair labor prac-
tices and recommending that it cease and desist therefrom and take
certain affirmative action, as set forth in the attached Trial Examin-
er's Decision. Thereafter, the Respondent filed exceptions to the Trial
Examiner's Decision and a supporting brief ; and the General Coun-
sel filed an answering brief and cross-exceptions.
160 NLRB No. 139
1838 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Members Fanning, Brown, and Zagoria].
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 Trial
Examiner's Decision, the exceptions, cross-exceptions, briefs, and the
entire record in this case,' and hereby adopts the findings, conclu-
sions, and recommendations of the Trial Examiner, with the modi-
fications noted below.
1. We agree with the Trial Examiner that the Respondent caused
each of the four employers involved herein to discharge Otis Ivory
in violation of Section 8(b) (1) (A) and (2) of the Act.2 We believe
that Ivory's alleged incompetence was not the real reason why the
Respondent sought his discharge, but find that Ivory's discharge was
sought and secured by the Respondent for the reason that he was not
a union member, such membership being denied him for a reason not
involving his failure to tender initiation fees and dues uniformly
required of union members. Nor does the record disclose any other
circumstance which would justify the Respondent's action against
Ivory.
2. In addition to the Trial Examiner's recommendations, we shall
order the Respondent to send a written notice to each of the employ-
ers involved herein, with a copy furnished to Ivory, stating that it
has withdrawn its objection to his employment. We adopt the Trial
Examiner's backpay recommendation against the Respondent, with
the backpay period running from the dates of the respective dis-
charges to the date 5 days after the Respondent serves the appropri-
ate written notices.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the National Labor Relations Board hereby orders that the
Respondent, Bricklayers Union No. 4 of Missouri, Kansas City,
Missouri, its officers, agents, and representatives, shall:
1. Cease and desist from :
(a) Causing or attempting to cause Masonry Builders, Inc., Key-
stone Masonry Co., Inc., Apartment Erectors, Inc., Dasta Construc-
1 The Respondent 's request for oral argument is hereby denied as the record, the excep-
tions, cross -exceptions , and briefs adequately present the issues and positions of the parties.
2 Roadway Express, Inc, 150 NLRB 43, 47; Local Union No. 38, Plumbers (D. I. Chad-
bourne ), 159 NLRB 370
BRICKLAYERS UNION NO. 4 1839
tion Co., or any other employer, to discriminate against Otis Ivory,
or any other employee, for nonmembership in Bricklayers Union No.
4 of Missouri for reasons other than his failure to tender the periodic
dues and initiation fees uniformly required as a condition of acquir-
ing and retaining membership in the Union.
(b) In any like or related manner restraining or coercing employ-
ees in the exercise of rights guaranteed by Section 7 of the Act.
2. Take the following affirmative action designed to effectuate the
policies of the Act :
(a) Make Otis Ivory whole for any loss of pay he may have suf-
fered by reason of the discrimination practiced against him, in the
manner set forth in the section of the Trial Examiner's Decision
entitled "The Remedy" and this Decision.
(b) Notify Masonry Builders, Inc., Keystone Masonry Co., Inc.,
Apartment Erectors, Inc., Dasta Construction Co., and Otis Ivory, in
writing, that it withdraw its objection to Ivory's employment.
(c) In the event that Otis Ivory is presently serving in the Armed
Forces of the United States, notify him, in writing, that it has no
objection to his employment in accordance with the Selective Service
Act and the Universal Military Training and Service Act, as
amended, after his discharge from the Armed Forces.
(d) Post at its business offices and meeting halls in Kansas City,
Missouri, copies of the attached notice marked "Appendix." 3 Copies
of said notice, to be furnished by the Regional Director for Region
17, after being duly signed by a representative of Bricklayers Union
No. 4 of Missouri, shall be posted 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 members are
customarily posted. Reasonable steps shall be taken by the said
Union to insure that said notices are not altered, defaced, or covered
by any other material.
(e) Mail to the Regional Director for Region 17 signed copies of
the said notice,'for posting by Masonry Builders, Inc., Keystone Ma-
sonry, Co., Inc., Apartment Erectors, Inc., and Dasta Construction
Co., the employers willing, in all places where notices to employees
are customarily posted.
(f) Notify the Regional Director for Region 17, in writing, within
10 days from the date of this Order, what steps have been taken to
comply herewith.
3 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 "a Decision apd Order" the words "a
Decree of the United States Court of Appeals Enforcing an Order "
1840 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO ALL MEMBERS OF BRICKLAYERS UNION No. 4
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 notify you that :
WE WILL NOT cause or attempt to cause Masonry Builders, Inc.,
Keystone Masonry Co., Inc., Apartment Erectors, Inc., Dasta
Construction Co., or any other employer, to discriminate against
Otis Ivory, or any other employee, for nonmembership in our
Union for reasons other than his failure to tender periodic dues
and initiation fees uniformly required as a condition of acquiring
and retaining membership in our Union.
WE' WILL NOT in any like or related manner restrain or coerce
employees in the exercise of their rights guaranteed by Section 1
of the National Labor Relations Act, as amended.
WE WILL notify the aforesaid employers and Otis Ivory that
we withdraw our objections to Ivory's employment.
WE WILL make whole Otis Ivory for any loss of pay he may
have suffered as a result of our unlawful request that he be dis-
charged from prior employment.
BRICKLAYERS UNION No. 4 OF MISSOURI,
Labor Organization.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
NoTE.-We will notify Otis Ivory, in writing, if presently serving
in the Armed Forces of the United States that we have no objection
to his employment after his discharge from the Armed Forces in
accordance with the Selective Service Act and the Universal Military
Training and Service Act, as amended.
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.
If members have any question concerning this notice or compliance
with its provisions, they may communicate directly with the Board's
Regional Office, 610 Federal Building, 601 East 12th Street, Kansas
City, Missouri 64106, Telephone FR 4-7000.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This is a proceeding under Section 10(b) of the National Labor Relations Act,
as amended , 29 U.S.C.A. Sec. 151, et seq., herein called the Act.
Otis Ivory on November 5, 1965, filed a charge and on December 30, 1965, an
amended charge, stating that Bricklayers Union No. 4 of Missouri , herein some-
times called the Respondent or the Union, has engaged in and is engaging in
certain unfair labor practices affecting commerce as set forth and defined in the
BRICKLAYERS UNION NO. 4 1841
Act. On December 30, 1965, the General Counsel of the National Labor Relations
Board, on behalf of the Board, by the Acting Regional Director for Region 17,
issued a complaint and notice of hearing, setting forth certain acts of the Union
alleged to be unfair labor practices within the meaning of Sections 8(b)(1)(A)
and (2) and 2(6) and (7) of the Act.
Pursuant to notice, this case came on to be heard before Trial Examiner Arthur
E. Reyman at Kansas City, Missouri, on March 17, 1966 and was closed on the
following day. At the hearing, the General Counsel and the Respondent Union each
was represented by counsel and the Union also by its business agent. The Charging
Party, Otis Ivory, was present in proper person. At the hearing, each party was
afforded full opportunity to call, examine and cross-examine witnesses and to pre-
sent evidence relevant to the issues, to argue orally upon the record, to file proposed
findings of fact and conclusions of law, or both, and to file briefs. Briefs have been
submitted on behalf of the General Counsel and the Respondent.
Upon the whole record, and from my observation of the witnesses, I make the
following:
FINDINGS OF FACT
1. THE BUSINESSES INVOLVED HEREIN
(a) Masonry Builders Inc., herein sometimes called Masonry, is engaged in
business as a building contractor with its principal office and place of business at
1410 North Seventh Street, Kansas City, Kansas. In the course and conduct of its
business operations, Masonry annually performs services valued in excess of
$50,000 in States other than the State of Kansas.
Masonry is now and at all times material herein has been an employer engaged
in commerce within the meaning of Section 2(6) and (7) of the Act.
(b) Keystone Masonry Co., Inc., herein sometimes called Keystone, is engaged
in business as a building contractor with its principal office and place of business
at 541 South Eleventh Street, Kansas City, Kansas In the course and conduct of
its business operations, Keystone annually performs services valued in excess of
$50,000 in States other than the State of Kansas.
Keystone is now and at all times material herein has been an employer engaged
in commerce within the meaning of Section 2(6) and (7) of the Act.
(c) Apartment Erectors, Inc., sometimes herein called Apartment Erectors, is
engaged in business as a building contractor with its principal office and place of
business at 925 Southwest Boulevard, Kansas City, Kansas. In the course and con-
-duct of its business operations, Apartment Erectors annually perform services
valued in excess of $50,000 in States other than the State of Kansas.
Apartment Erectors is now and at all times material herein has been an employer
engaged in commerce within the meaning of Section 2(6) and (7) of the Act.'
(d) Dasta Construction Co., sometimes herein called Dasta, is engaged in busi-
ness as a building contractor with its principal office and place of business located
at 555 Westport Road, Kansas City, Missouri. In the course and conduct of its
business operations, Dasta annually performs services valued in excess of $50,000
in States other than the State of Missouri.
Dasta is now and at all times material herein has been an employer engaged in
commerce within the meaning of Section 2(6) and (7) of the Act.
11. THE LABOR ORGANIZATION INVOLVED
Bricklayers Union No. 4 of Missouri is now and at all times material herein has
been a labor organization within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Background
The complaint alleges, and the Respondent's answer thereto admits, that during
the times material herein William D . Johnson was business representative of the
Respondent , and an agent acting in its behalf ; and that during such times Louis
On, Jr., William Moult , and Ernest Brown were union stewards of the Respondent,
and agents acting in its behalf.
'At the hearing herein, the complaint, paragraph IV(a) was amended by inserting the
name Apartment Erectors Inc., in the place of George Dye General Contracting Co.
257-551-67-vol. 160-117
1842 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The complaint alleges, and the answer denies, that the Respondent Union, acting
by and through its agents above-named, has caused and attempted to cause,- and
is causing and attempting to cause certain named employers to discriminate against
Otis Ivory, the Charging Party herein, with respect to whom membership in the
Respondent Labor organization was and is being denied on some ground other
than his failure to tender periodic dues and the initiation fees uniformly required
as a condition of acquiring or retaining membership. The alleged discrimination
against Ivory is said to have occurred on or about the following dates and places
and affected his employment with the named employers:
Date Employer Place Individuals
9/1/65_-__-__ Dasta----------------- Zimmer warehouse construction site
in North Kansas City, Missouri
Johnson and Orr, Junior.
10/15/65_____ Masonry______________ Construction site at 54th and Troost,
Kansas City, Missouri
Johnson.
11/3/65______ Keystone------------- Construction site at 14th and Murray
St , North Kansas City, Missouri
Johnson and Moult
11/20/65_____ Apartment Erectors__ Construction site at Sterling Road Johnson and Brown.
and 40 Highway, Kansas City, Mis-
souri.
As affirmative defenses, the Respondent in its answer to the complaint asserts:
Further answering Respondent [says] that the constitution by-laws of
Bricklayers and Mason Local Union No. 4 of Missouri Article XXII, Section
7 provide as follows: "If a stranger comes on the job and wishes to become
a member of the Union, he shall have two members as vouchers, and give the
steward an order for one-third of his earnings until the initiation fee is paid
in full." Respondent states that said Otis Ivory has failed and refused to pay
the initiation fee as provided in said constitution and by-laws as quoted above.
Further answering Respondent states that the sole cause of the failure of
said Otis Ivory to hold the employment described in paragraph VIII of said
complaint was his inability to perform the duties of a bricklayer in a workman
like manner and his inability to obtain union membership in Respondent
Union was due solely to such incompetence and the adverse effect such incom-
petence would have on union rates of pay and brick construction competition
with other types of construction and the failure to pay the initiation fee
described in paragraph IX above .2
B. Requirements for union membership
The Respondent is charged herein with violation of the following provisions of
Section 8 (b) of the Act:
(b) It shall be an unfair labor practice for a labor organization or its
agents-
(1) to restrain or coerce (A) employees in the exercise of the rights guar-
anteed in section 7: Provided, That this paragraph shall not impair the right
of a labor organization to prescribe its own rules with respect to the acquisition
or retention of membership therein; .. .
(2) to cause or attempt to' cause an employer to discriminate against an
employee in violation of subsection ( a) (3) or to discriminate against an
employee with respect to whom membership in such organization has been
denied or terminated on some ground other than his failure to tender the
periodic dues and the initiation fees uniformly required as a condition of
acquiring or retaining membership; .. .
9 Because the Respondent denied that the businesses mentioned above were employers
engaged in commerce within the meaning of Section 2(6) and ( 7) of the Act , General
Counsel was required to call, and did call, officers of these corporations or businesses to
prove the application of the jurisdictional standard of the Board as to their engagement
in interstate commerce. Such jurisdiction was proved through the testimony of Charles W.
Byrd, an officer of Masonry ; Michael P. Hackinski, secretary treasurer of Keystone ;
George R. Dye, vice -president of Apartment Erectors ; and Warren Campbell, secretary-
treasurer of Dasta.
BRICKLAYERS UNION NO. 4 1843
The Respondent, Bricklayers Union No. 4 of Missouri, is a local union of the
Bricklayers, Masons and Plasterers' International Union of America. The constitu-
tion of the International provides in part, article XX, Powers Reserved to Subor-
dinate Unions, section I: "Each Subordinate Union shall be the judge of the
qualifications for admission on the part of his candidates for membership, except
that no suspended or expelled member of this International Union shall be admitted
or restored to membership without the consent of this International Union or its
Executive Board."
In regard to membership, the constitution, bylaws, and working rules of Local
Union No. 4 provide in article IX, section 1, in part [General Counsel's Exhibit 4,
p. 15]:
He [the applicant] must be a practical bricklayer or blocklayer, and compe-
tent to command the existing scale of prices for his work. He shall have two
vouchers that he is a practical mechanic and shall (if complaint is made as to
his ability) be compelled to pass a satisfactory examination by a committee
of the Union in whose jurisdiction he is working, and any member vouching
for a person who is not a practical craftsman shall be fined not less than $50
nor more than a $100.
The constitution of Local Union No. 4 also contains, among others, provisions
governing the status of foremen [id., article XXI, page 39] requiring that foremen
shall be practical mechanics in the branch of trade over which they exercise super-
vision; that foremen having the authority to hire, discharge, and exercise similar
supervisory functions are recognized as representatives of management; and that
"the foremen shall have full and complete charge to hire and discharge all crafts-
men and laborers on his work..... 3
William Johnson, business agent for Bricklayers Union No. 4, testified at length
regarding the practical application of the employment of bricklayers by various
contracting employers in the Kansas City area. It is the duty of Johnson, as busi-
ness agent, to carry out the provisions of the working rules and bylaws of the
Respondent to the best of his ability. He testified that the Union does not operate
a hiring hall, as such, that a man has the right to go out and find his own job.
However, he said, if a contractor needs bricklayers and is unable to get them and
he calls the hall, and if men have come into the hall looking for a job
we send them out first because they are looking for a job and we send
them, but if we can't supply and if we don't have the men, then I call around
sometimes to find out if any men are out of employment. Usually, all of them,
when they are out of employment, they come down to the hall. The men in
the hall are the men who go out to the job, because they are looking for a
job and they are entitled to the job because they are looking for the job .. .
there is no priority, no seniority rights in our organization at all or on our
jobs. Some bricklayers could be working for a Contractor five years and
another bricklayer could come to work and only work two weeks and he is
liable to layoff this five year man and keep the man who has been with him
two weeks, that's up to the Contractor. We don't discriminate at all in regard
to that. It says "all employers are at liberty to employ and discharge whom-
soever they see fit through the foreman or direct if there is no foreman in
charge," that's in our contract with our Contractors .4
Otis Ivory, the Charging Party here, testified that in the early part of August
1965, he called at the union hall and talked to Business Agent Johnson, informing
him that be wanted to join the local Union. During the course of this conversation
3 There is in existence a written agreement between the Builders' Association of Kansas
City and the Bricklayers, Masons and Plasterers' International Union, Locals Nos. 4, 18,
and 21 which contains a provision (article VII-working rules, section II thereof) which
says that "each Contractor shall pay his men every Friday on or before 4: 30 p.m. on the
scaffold. Shall he fail to do so he should be charged with waiting time until paid, which
time shall begin at 4: 30 p m. Friday. When employees are laid off for any cause, they
shall be paid immediately on the job."
d The agreement between the Builders' Association and the Unions, above mentioned,
contains in article IV thereof a union-security clause which, with certain qualifications,
requires sitter alia, "all persons who are hereafter employed by the Employer in the unit
which is a subject to this Agreement shall become members of the Union not later than
the eighth day following the beginning of their employment or the execution date of this
Agreement ... .
1844 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
he informed Johnson , in answer to a question , that he had never joined the Union
before , had only worked on a permit in Washington , D.C., and that Johnson
informed him that he could join the local Union for $200 initiation fee, which he
agreed to pay out of part of his weekly earnings within a period of 60 days. He
said that at that time Johnson referred him to a job with a construction company,
Paul T. Crawford, at a construction site in Kansas City, Kansas. The job consisted
of laying block , as distinguished from laying brick. Johnson 's version of this con-
versation follows:
Yes, he came into the hall and asked for a job and I said, "have you ever be-
longed to the Union?" And he said, "No, and I said, "You realize if you go out
there and go to work on this job, you have seven days to make up your mind
whether you want to join the Union and then you have to pay one third of your
earnings each week for sixty days and our initiation fee is $200," and he said,
"That's all right with me, I would be glad to I want to go to work." So he
went to work for Paul Crawford on block work, one of them big block ware-
houses. That's where he first went to work . . . . A blocklayer does not have
to serve any apprenticeship at all to become a blocklayer. He could go out
here and I guess get him a trowel and some mortar and a mortar board and
get out in his back yard until he got good enough to learn to lay a block.
And if he could get two vouchers, why, he could become a blocklayer, but a
bricklayer, we have an appenticeship program and most of them have to serve
their time as an apprentice to learn to be a bricklayer. One of them has an
apprentice and the other doesn't.
Ivory paid a total of $143 to the Union within approximately 5 weeks and there-
after went to the union hall to pay the remaining $57 which he said he offered
to Johnson. At that time Johnson informed him'that not one of the men with
whom Ivory had been working with would voluntarily vouch for him; in other
words Ivory was given to understand that no two men would vouch for him in
order to qualify him for membership in the Union. Johnson suggested that Ivory
attend the union meeting that night to which Ivory said he replied "It is no use
me coming to the meeting tonight if nobody's going to vouch for me." Whereupon
Johnson said that he could call at the office the next day and he would return the
$143 paid in, and that Johnson did refund the $143 on the following day.
In regard to his employment by Dasta, Ivory testified that after talking to the
foreman on that particular job, Louis Arrighi, he was sent to work laying brick;
that on the first day he started working about 10 a.m. and worked until 4:30 p.m.,
that he returned on the second day, worked until closing time and then at closing
time he was told by the foreman "I will have to let you go, you come back with
your card and I will give you a job," thereby being discharged from that job. In
regard to his working for Masonry, Ivory said that he worked for that construction
company for a period of about 3 weeks under Foreman Charles Byrd, Jr., on
which some bricklaying was involved. Later, at a time when Ivory was working
for Masonry, Johnson came to the job, informed the foreman that Ivory had no
right to be laying brick, expressed his opinion that Ivory was not a good brick-
layer, a journeyman bricklayer, and instructed the foreman to let Ivory go; that
Byrd said no, let him finish out the day on those blocks, refused to discharge him,
that Ivory did finish out the day on blocks and from that particular time was
not allowed to lay brick.
Later, Ivory worked for Keystone, the job foreman being one Chuck Bollinger.
He said he worked on brick the first day and until about noon on the second day,
on which day he also laid some block. On the third day, he said, he was working on
blocks; that at about three o'clock that afternoon he had a conversation with the
foreman:
He said, "we are letting you go and it is not in view of your poor work, it is
not in view of your work because you do good work, we have no fault against
you," he said, "but you don't have a union card," he said, "you'll have to get
a couple of these guys to vouch for you." I said, "well, who would vouch for
me, would that be the steward's concern9" And he said, "yes, it would be, you
can go talk to him," so I went to talk to Bill Moult and he seemed to be very
shy and hesitate of talking with me after three days of working with him, he
seemed to be very shy of even discussing about me getting a card, vouching
for me.
BRICKLAYERS UNION NO. 4 1 845
After this discharge from the Keystone job, Ivory said he called at the union hall to
see the business agent who told him that he was not going "to lay brick here and I
may as well give up and leave town and go back to Washington, D.C., they are pay-
ing $5 and some for blocklayers," this is what I got out of the Union hall, I don't
know which one exactly said this, either he said it or somebody there in the office
said it. He said, "you can go back to Washington, D.C., they are paying $5 an hour
for blocklayers there " He did not recall whether it was Business Agent Johnson or
Financial Secretary Lighthizer who suggested his leaving because "I am not going to
get no brick card here."
Subsequently, Ivory obtained employment at Apartment Erectors through his own
efforts. He worked on that job, he said, for about 2 hours doing brickwork when
Harold Wilson, the job foreman, examined his work, told him he saw no fault in it,
that it looked as good as any man's work there, and told Ivory "you go down to the
hall and tell Billy Johnson to give you a permit to come back here to work and I
will give you a job, you have got a job here", that he did go to the union hall but
could not find Johnson. On the following Friday, this -being a Monday, he called at
Wilson's house to get his check and while there was told by Wilson that it was going
to be hard for him to get a brick card in Kansas City, "that they were afraid of me,"
that the business agent or someone was afraid of him; that he inquired why they
were afraid of him and Wilson could not give him an explanation.
Over objection I permitted Ivory to testify concerning his opinion of his own abil-
ity as a bricklayer. He said that he would consider himself on an average with most
of the men who did brickwork; that he would not consider himself as being the best
bricklayer but would consider himself as one knowing the work.
Harold Wilson, a witness called by the General Counsel, the job foreman for
Apartment Erectors, testified that he recalled hiring Ivory about November 20, 1965,
about ten o'clock in the morning and putting him to bricklaying; that after he had
put Ivory to work he came back and looked at the work he was doing and found it
to be unsatisfactory and subsequently, about noon, laid him off. Wilson testified
further that during the noon hour, after he had laid Ivory off, Ernest Brown, the
job steward, informed Wilson that he (Brown) "had been through the Union before
and his [Ivory's] work wasn't satisfactory, he couldn't pass the qualifications of the
Local." Wilson testified to a later conversation with Business Agent Johnson in
which, he said, Johnson informed him that Ivory had been refused union member-
ship, that no man could work as a bricklayer without a card, and that if Ivory was
allowed to work the men could not work with a man who was a nonmember of the
Union. He stated positively that the only reason he discharged Otis Ivory was for
incompetency as a bricklayer.
Charles Byrd, Jr., a witness called by the General Counsel, testified that on Octo-
ber 15, 1965, he was bricklayer foreman foi Masonry on a job at Fifty-fourth and
Troost, Kansas City, Missouri, and that on that day he hired Ivory about 8 a.m to
lay block. He said that Ivory worked for 11/2 or 2 weeks laying block and subse-
quently was put to work laying bricks. He related that Business Agent Johnson came
to the jobsite, told him that Otis could not work as a bricklayer because he did not
have a bricklayer's card; that Byrd was told by Johnson that he could get in trouble
if he let Ivory continue to work. Thereafter, Byrd said, he instructed Ivory to brick
in a window "and he might start something else Monday, but after that he would
have to go home." Wilson testified further that Johnson informed him that Ivory
had been unable to obtain vouchers who would verify to the Union that he was a
competent bricklayer.
Charles Bollinger, another witness called by the General Counsel, testified that on
or about November 3, 1965, he was foreman for Keystone at a jobsite at Fourteenth
and Murray, North Kansas City, and that on that day he hired Ivory and put him
to work on brick; that on the following day and the third day Ivory wot ked on
blocks, and that on the third day William Moult, the union steward on that job,
approached him, informed him that he had asked Ivory for his card, that Ivory did
not have one, and that Moult then told Bollinger that Ivory would either have to get
vouchers "or I would have to let him off." On cross-examination, Bollinger testified
that the reason he discharged Ivory was because he was not performing the work in
the manner in which he was accustomed to having it done and that, in respect to his
brickwork, "he was hacking them, and overlapping them, lipping the face of the
wall, and the block work, he was not filling the head joints." Bollinger also was of
the opinion that Ivory was not qualified to lay block.
1846 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Respondent called a number of witnesses to rebut the contentions of the
'General Counsel that Ivory was illegally cut off from becoming a member of the
Respondent Union, and whether he is or was qualified to become a member of the
Union is irrelevant and immaterial to this proceeding; and to show affirmatively that
no discrimination was practiced against him.
William Moult, a bricklayer since the year 1936, and employed by Keystone, testi-
fied to the effect that at the company job in Northtown, Fourteenth and Murray, he
was approached by Ivory who told him that he had to get two vouchers, that he
asked Ivory if anyone would vouch for him and Ivory said "I want you to vouch
for me." Moult replied, he said, that he could not vouch for Ivory because he was
not working beside him and told Ivory that the bricklayers working beside him
should vouch for him. Moult said that he had told the foreman on the job, Bollin-
ger, that Ivory did not have a card and did not have two vouchers to support his
application for membership in the Union. Moult thought that Ivory had been work-
ing on the job about 1 day when he requested Moult to vouch for him. Moult, as
described above, was job steward during the time Ivory was at work for Keystone.
James Aldridge, a bricklayer since his membership in Local No. 4 began in the year
1959, testified that he met Ivory on the Keystone job, when Moult was job steward;
and to the best of his knowledge Ivory worked between 21 and 3 days on a block
job; and that he knew Ivory was discharged as being an incompetent worker. He
confirmed the testimony of Ivory and Moult that Business Agent Johnson appeared
,on the jobsite after Ivory had been discharged by the foreman. Aldridge further
testified that on this particular job he was working as a partner with Ivory in the
laying of 12-inch concrete block on the same section of a wall that he was required
to "pick up one end and he picks up the other end," and in answer to the question
as to what Aldridge had observed concerning Ivory's work, he said:
Well, there was two apprentices working next to us and they was doing more
work than we were doing and then in laying brick when you double up on con-
crete brick, it's such a thing as called doing the driving, that's the man that
picks up one end of the block, he is the one that set it and the other man, he is
the one that has to help pick it up. These apprentices kept beating us out, I told
him, I told him, "look, let me do the driving, the apprentices, they're laying
more than we are." He says, "there's dust blowing in my eyes," so I made the
remark a couple of times. Then the foreman came up to me which was Chuck
Bollinger, he says "say, these apprentices are doing more work than you're
doing."
I told Chuck, I said, "well, I wanted to do the driving, but Ivory said dust was
getting in his eyes and he couldn't face the other way. If I was doing the driv-
ing, I could have been doing the driving. But, I said I wanted to do the driving,
so he said, "no dust gets in my eyes." We wasn't laying as much as the appren-
tice boys were laying and I got a complaint from the foreman, and I didn't
want to get fired for not doing enough work, which I know I wasn't doing
enough or as much as I was suppose to be doing.
Aldridge said that later, on that particular section of the wall, they had to tear it or
a section of it of about 20 feet because they were not laid properly. He confirmed
the fact, as stated by the other witnesses, that Ivory was fired from the job because
of incompetence.
Louis Arrighi, a bricklayer of some 30 years' experience, job foreman employed
by Dasta, recalled that on August 2, 1965, Ivory applied to him for a job at the
Zimmer warehouse construction site, that he put him to work as a bricklayer,
observed that he did not lay the brick "level to the line," first was going to let him
work for 2 hours and then "I felt sorry for him, I let him go ahead and finish for
the day and I had a check for him at 4 o'clock." He discharged Ivory as being
incompetent for laying brick work. On cross-examination, Arrighi testified that at
the time he laid Ivory off he did not know that the latter did not have a union card
but had been told by the steward later that he had no union card but held a receipt
,for payment on his initiation fee. The steward on that job was Louis Orr, Jr. Sava-
tore Raccuglie a bricklayer since November 1952, who worked for Dasta on the
Zimmer warehouse construction site at the time Ivory was at work on the job, testi-
fied that he had occasion to observe Ivory's competency to lay brick. He testified:
The man's not qualified, he is not familiar with brick work to my knowledge at
all. Take some of the simple fundamentals. He had no idea what to do, some-
BRICKLAYERS UNION NO. 4 1847
thing as simple as back plastering , on numerous occasions I saw Mr. Arrighi go
over and correct him and show him the correct brick bond . . . I seen sev-
eral of the bricklayers show him or try to explain brick bond to him, how the
ribbon course should run. He was completely lost. . . . Mr. Orr, Louie Orr,
Jr., was working next to him, I know I saw Louis explaining, and I believe I
saw his father, Louie On, Sr., explain to him, which is common procedure.
They more or less helped one another.
This witness testified that Foreman Arrighi permitted Ivory to work that entire day
until 4 o'clock, when he paid him off. On the question asked as to whether it was a
problem for a bricklayer to obtain vouchers, Raccuglie said that no problem was
involved for a competent bricklayer and in a number of instances the vouchers
themselves volunteered to be a voucher; that the voucher is suppose to be sincere
and a competent bricklayer.
Louis W. Orr, Jr., testified that he had been a bricklayer since the year 1956 and
in reference to the Dasta job on the Zimmer warehouse site said that he had
observed Ivory at work on that job. Orr said that Ivory appeared at about 9 o'clock
in the morning, applied to Arrighi for a job, and Arrighi put him to work, explain-
ing to Orr that Ivory was trying to get in the Union and did not have a card; that
Ivory wanted to get in the Union and had been working across the street on the
Crawford job, which was all block work but that he wanted to lay some bricks and
therefor had applied for a job with Arrighi. Orr said that after Ivory was put to
work at laying brick, two men working there tried to help him out; that in his opin-
ion he thought Ivory had never laid a brick before in his life, that Ivory started
work that day at 9 o'clock in the morning and was given his check at 4 o'clock in
the afternoon. Orr testified that he, as job steward, called the union hall about 11
o'clock that morning, asked for Johnson because he wanted to inquire about Ivory
not having a union card; that Business Agent Johnson did come out to the job,
inquired of Orr "what was the matter" and Orr asked Johnson what he should do,
saying the man did not have a card. He said that he did not discuss the matter with
Arrighi before the latter laid Ivory off at 4 o'clock.
Ernest Brown, a member of the Respondent Union and a bricklayer for approxi-
mately 15 years, testified that he first met Ivory on the Crawford job, worked with
him on a block job, and later worked with him on the Apartment Erectors' job
where Harold Wilson was foreman. He said that Ivory worked on the Apartment
Erectors job for approximately 2 hours and was laid off by the foreman because his
work was not satisfactory.
The Respondent also called as one of its witnesses Don Wilkerson, director of
masonry for the Builders Association of Kansas City since May 1962, who testified
to the effect that under the agreement between the Association, to which the
Respondent is a party, the relations between the Association and the Union have
been good. He referred to a jointly administered program between management and
labor, directed toward the easing of a shortage of qualified bricklayers in the area.
He said that he knew of no case of discrimination exercised by Local No. 4 against
any bricklayer in the area, and further:
Yes, the bricklayers is a group of people that we have had, I think we could
say, no problems with. Generally speaking, because, of course, the Association
and the Union has negotiated agreements over so many years the linen and so
forth are pretty well established as to work jurisdiction and consequently we
have just-it is pretty well represented what the work is so we hardly have any
problems with them.
Being questioned as to the qualifications for being a trainee under the program, he
said that the trainee must first be' a high school graduate, second, if not a high
school graduate "they can take the GED test," and third, take an apptitude test
under "The Missouri Unemployment."
A careful review of the testimony of Business Agent Johnson discloses that the
duties devolving upon him, among others, require that he must enforce the Respond-
ent's constitution and bylaws; police the, agreement between members of the Asso-
ciation and the Union; and should a man get a job through his own effort with a
contractor but is deemed incompetent by members of the Union working on that job
the contractor as his employer may retain him on the job, although the union men
probably would not work with him, because the Union maintains high standards
1848 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and takes the responsibility for the quality of workmanship on the job. As a witness
called by the General Counsel, Johnson testified (in part) •
Q. [By Mr. WACKNOV.] As an example, suppose that a contractor hires a
fellow off the street who has never laid a brick in his life and he puts the bricks
on the wall so that the wall is about to fall down. Is it the Union's responsibil-
ity to see that the Company discharges this bricklayer or is it the Company's
responsibility to keep him or let him go, as he sees fit?
A. It is the Union's responsibility to see that the man can qualify in order
to get two vouchers to join the Union, and that contractor would not put up
with that class of work because it would cost him too much money.
Q. What if the contractor likes walls to fall down?
* * *
A. It would be up to the contractor, the contractor is paying the man, the
Union is not paying the man.
Q. Now, in your testimony, Mr. Johnson, you feel a responsibility for the,
quality of the work, is that correct?
A. I feel a responsibility for my members.
Q. And the responsibility is that you want your members to do good
mechanic-like work on the job, is that right?
A. As good as they possibly can do and as good as the contractor will accept
it, yes.
* * * * *
Q. And if the contractor will accept poor workmanship on the job, what
would you do about that?
A. As a' union man, we wouldn 't do anything about it . Your inspector of
the City might do something about it but as a union , we don't criticize what
a contractor does. But a contractor is not going to pay a man $4 721/2 an
hour that can only do $3 an hour worth of work, nobody would do that. I
haven't found anybody who would overpay somebody, they're not going to
overpay you for something you can 't produce , you have got to produce in
order to get that wage scale. The only way we have a standard and set our
standard is on qualifying . If a man can qualify and get two vouchers, he can
become a member of our union , he is not held back from being a member of
our union . [Emphasis supplied.]
* * * * * *
Q. If he is not qualified for your Union , then the Union won't let him stay
on the job, is that right?
A. Not necessarily. If the members walk off a job, the Union can't do any-
thing but to try to get them back on the job one way or another. Would you
do twice as much work to carry a man and you were making $4.721/2 an hour
and you have to double up and do that man's work and him continue to get
$4.721/2' Our members get tired of it and they walk off the job, they would
go to a job where they wouldn't have to work that much and still get $4.721/2
an hour.
The foreman on the job, although required to be a member of the Union, is said
to be a member of management . Business Agent Johnson said that it is not the
Union which caused Ivory to be discharged from the several jobs above mentioned;
his whole testimony is implicit to the fact that Ivory was discharged by manage-
ment on complaint of the Union that Ivory was incompetent and could not qualify
as a union cardholder . Nevertheless , the Union enforces its 8-day rule , as testified
to by Johnson and others, and the agreement between the Association and the
Union covering the same subject apparently is enforced despite the qualified lan-
guage to the effect that those provisions which state that the article containing the
union-security clause "shall not be effective in any State which prohibits union
security provisions " and further "it is the intention of the parties in connection
with the execution of this agreement to comply with all the laws, State and Federal,
relative to the subject matter of this article , and in the event that any clause of
his article should be contrary to any law, State or Federal , said clause shall be
inoperative in such State and the remainder of the agreement shall remain in full
force and effect." It is too plain to require discussion that this clause is in violation
BRICKLAYERS UNION NO. 4 1849
of the proviso of Section 8(a)(3) governing the requirement of membership in a
union as a condition of employment . The disavowance of any intention, as
expressed in the Agreement , is tainted by customary observance of the 8 -day rule.
To me it is pure fiction for the Union to maintain that an employer may keep
an incompetent workman on the job even though that man has not been accepted
by the Union as a cardholding member. Johnson himself stated that if an employer
(contractor ) decided to keep an incompetent man, that was his business , but that
the union men would not work with him.
Plainly, the Respondent has contravened the provisions of Section 8(b)(1) and
(2) of the Act, particularly subsection (2), which makes it an unfair labor practice
for a labor organization or its agents.
to cause or attempt to cause an employer to discriminate against an
employee in violation of subsection ( a)(3) or to discriminate against an
employee with respect to whom membership in such organization has been
denied or terminated on some ground other than his failure to tender the
periodic dues and the initiation fees uniformly required as a condition of
acquiring or retaining membership; .. .
I do not find it necessary to decide certain unimportant questions of credibility
which have arisen herein , such as the testimony of Ivory that he first came to
Kansas City about August whereas certain records show that he was there in May
or June 1965. Nor do I deem it important to find whether or not Ivory was refused
membership because someone allegedly was afraid of him. The testimony on this
point is too vague to consider.
The principles governing the disposition of this case and the application of the
law to the facts is governed by A. Nabakowski Co., 148 NLRB 876, enfd . N.L.R.B.
v Sheet Metal Workers International Association , Local No 65, 359 F.2d 46 (C.A. 6,
No. 16370 , April 26, 1966.) In that case , the Board sustained the findings and
conclusions of the Trial Examiner , who succinctly and clearly stated the application
of the law to the facts in this type of case. The cases cited by him therein I rely
upon here. 148 NLRB 881-882.
In the instant case, it is all too plain that it was the Union who kept Ivory from
employment and that membership in the Union was denied for reasons other than
the failure of Ivory to tender the periodic dues and the initiation fees uniformly
required as a condition of acquiring or retaining membership in Bricklayers Union
No. 4.
I therefore find the Respondent to be in violation of Section 8(b)(1)(A) and
(2) of the Act.
IV. THE REMEDY
Having found that the Respondent Union violated the Act by causing the dis-
charge of Otis Ivory from several construction jobs, above noted, I find that the
Respondent should make whole the said Ivory for any wages lost between the
date of his discharge and the obtaining of other work by him, as provided in
F. W. Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating Co., 138
NLRB 716. The Respondent Union should further be ordered to cease and desist
from causing or attempting to cause Masonry Builders, Inc., Keystone Masonry
Company, Inc., Apartment Erectors, Inc., Dasta Construction Co., or any other
employer, to discriminate against Otis Ivory or any other employee because he has
failed to pass any test established and applied by the Respondent Union, including
the requirement that any applicant for membership must have two members of the
Respondent Union as vouchers before he can be accepted into membership
Upon the basis of the foregoing findings of fact, and upon the entire record in
this case, I make the following:
CONCLUSIONS OF LAW
1. Masonry Builders, Inc., Keystone Masonry Company, Inc., Apartment Erec-
tors, Inc., and Dasta Construction Co., are employers engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
2. The Respondent, Bricklayers Union No. 4 of Missouri, is a labor organization
within the meaning of Section 2(5) of the Act.
3. By causing or attempting to cause the above-named employers to discriminate
against Otis Ivory for nonmembership in the Respondent Union for reasons other
1850 - DECISIONS OF NATIONAL LABOR RELATIONS BOARD
than his failure to tender the periodic dues and initiation fees uniformly required
as a condition of acquiring and retaining membership in Respondent Union, the
Respondent Union has engaged in and is engaging in unfair labor practices within
the meaning of Section 8(b)(1)(A) and (2 ) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices within the
meaning of Section 2(6) and (7) of the Act.
[Recommended Order omitted from publication.]
South Bay Daily Breeze , a Division of Southern California Asso-
ciated Newspapers , Inc. and Local 69, Los Angeles Newspaper
Guild, American Newspaper Guild , AFL-CIO, CLC
South Bay Daily Breeze , a Dig ision of Southern California Asso-
ciated Newspapers, Inc. and Los Angeles Newspaper Guild,
Local 69, American Newspaper Guild , AFL-CIO, CLC, Peti-
tioner. Cases 31-CA-119 (formerly 21-CA-68692) and 31-RC-18
(formerly 21-RC-9602). October 12,1966
DECISION AND ORDER
On May 13, 1966, Trial Examiner James R. Webster issued his
Decision in the above-entitled proceeding, finding that the Respond-
ent had engaged in and was engaging in certain unfair labor prac-
tices, and recommending that it cease and desist therefrom and take
certain affirmative action, as set forth in the attached Trial Exam-
iner's Decision. He also found that the Respondent had not engaged
in certain other unfair labor practices alleged in the complaint and
recommended that such allegations be dismissed. Thereafter, the
Respondent filed exceptions to the Trial Examiner's Decision and a
supporting brief.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Members Fanning, Brown, and Jenkins].
The National Labor Relations 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 .2 The Board
i Respondent 's undated motion to submit an additional exhibit ( a telegram from the
witness McDonnell to Respondent which was received after issuance of the Trial Examiner's
Decision ) purporting to show bias and unreliability on the part of McDonnell , is denied,
as it presents nothing material that would affect our reliance upon the Trial Examiner's
credibility findings.
2 The authorization cards of certain employees , who were not called as witnesses by the
General Counsel , were introduced into evidence by the testimony of other witnesses. Re-
spondent sought to obtain, by means of a subpoena duces tecum, any statements in the
Board's possession relating to the execution of these cards , but the Trial Examiner granted
the General Counsel's motion to quash the subpena. We affirm this ruling , Aero Corpora-
tion, 149 NLRB 1283, 1288.
160 NLRB No. 145.