Castleman and Bates, Inc.

National Labor Relations Board - Board Decisions

Nov 28, 1972

200 N.L.R.B. 477 (N.L.R.B. 1972)

CASTLEMAN AND BATES , INC 477
Castleman and Bates , Inc. and Robert J . Shillinsky,
Ernest W . Lagasse, Jr., and Francis I. Redman
Local 17, Sheet Metal Workers International Associa-
tion, AFL-CIO and Robert J . Shillinsky, Ernest
W. Lagasse, Jr., and Francis I. Redman. Cases
1-CA-7879-1,1-CA-7879-2,1-CA-7879-3,1-CB-
1887-1, 1-CB-1887-2, and I-CB-1887-3
November 28, 1972
DECISION AND ORDER
BY MEMBERS FANNING, KENNEDY, AND
PENELLO
On June 2, 1972, Administrative Law Judge 1
Josephine H. Klein issued the attached Decision in
this proceeding. Thereafter, the General Counsel and
Respondent Union filed exceptions and supporting
briefs, and Respondent Employer filed exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, findings,
and conclusions of the Administrative Law Judge2
and to adopt her recommended Order, as herein
modified.3
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge, as
modified below, and hereby orders that Respondent
Local 17, Sheet Metal Workers International Associ-
ation , AFL-CIO, Providence , Rhode Island, its
officers , agents , and representatives , and Respondent
Castleman and Bates , Inc., East Providence, Rhode
Island , its officers , agents, successors , and assigns,
shall take the action set forth in the Administrative
Law Judge 's recommended Order , as so modified:
1. Insert the following as paragraphs A, 2(a) and
(b) and reletter the subsequent paragraphs
"(a) Keep permanent records of its hiring and
referral operations which will be adequate to disclose
fully the basis on which each referral is made.
"(b) Upon request of the Regional Director of the
Board or his agents , make available for inspection, at
all reasonable times, any records relating in any way
to the hiring and referral system."
2. Substitute the attached Appendix B for the
Administrative Law Judge 's Appendix B.
I The title of "Trial Examiner" was changed to "Administrative Law
Judge" effective August 19, 1972
2 Respondent has requested oral argument This request is hereby denied
because the record , the exceptions , and briefs adequately present the issues
and positions of the parties
3 As the record shows that the Union sometimes made referrals from
"memory," periodically discarded records, and was only beginning to set up
a "new system" of an unspecified nature 2 months after "losing" the records
in December 1971, we agree with the General Counsel that the Union
should be required to maintain readily accessible job referral records We
shall therefore modify the Administrative Law Judge 's recommended Order
and the Union's notice accordingly
Member Kennedy agrees that the Company and the Union be held
jointly and severally responsible for loss of wages suffered by the Charging
Parties as a result of Respondents ' discriminatory action In Williams Press,
inc, 195 NLRB No 159, where Member Kennedy would have made the
union primarily liable for making the discrimmatees whole, the employer
resisted the union 's action and told the discnmmatees that they could have
recourse to the Board In the instant proceeding , however, the Company's
resistance to the Union's demand that the Charging Parties be terminated
was short- lived at best and, as the Administrative Law Judge found, in
attempting to show that the Charging Parties were released because they
were not "qualified," the Company actively participated in the Union's
scheme to disguise the fact that it was discnmmatonly operating an
exclusive hiring hall
APPENDIX B
NOTICE TO EMPLOYEES AND MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a trial at which all parties had a chance to give
evidence, the National Labor Relations Board has
found that we violated the National Labor Relations
Act and has ordered us to post this notice-and we
intend to carry out the Order of the Board and abide
by the following:
WE WILL NOT maintain , enforce, or otherwise
give effect to an exclusive hiring or clearance
arrangement or practice with Castleman and
Bates, Inc., or any other employer, where prefer-
ence in referral to or retention of employment is
based on union membership.
WE WILL NOT cause or attempt to cause
Castleman and Bates, Inc., or any other employer
to discriminate against Robert J. Shillinsky,
Ernest W. Lagasse, Jr., or Francis I. Redman, or
any other employee or applicant for employment
in violation of Section 8(a)(3) of the National
Labor Relations Act, as amended.
WE WILL NOT in any other manner restrain or
coerce employees or applicants for employment
in the exercise of the rights guaranteed in Section
7 of the Act.
WE WILL, jointly and severally with Castleman
and Bates , Inc., make whole Robert J. Shillinsky,
Ernest W. Lagasse, Jr., and Francis I. Redman
for loss of pay they suffered on April 26 and 27,
1971, because of our failure to refer them to
employment and for any loss of pay they suffered
200 NLRB No. 72
478 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
as a result of the termination of their employment
by Castleman and Bates, Inc., on May 7, 1971.
WE WILL make the above-named applicants for
employment whole for loss of pay they suffered as
a result of our failure or refusal to refer them to
available employment after May 7, 1971.
WE WILL give written notification to Castleman
and Bates, Inc., and to all employers with whom
we have collective-bargaining agreements that we
have no objection to their employing the above-
named applicants for employment.
WE WILL notify each of the above-named
applicants for employment that we have no
objection to their employment by Castleman and
Bates, Inc., or any other employer with whom we
have a collective-bargaining agreement.
WE WILL keep permanent records of our hiring
and referral operations which will be adequate to
disclose fully the basis on which each referral is
made.
WE WILL, upon request of the Regional
Director of the National Labor Relations Board,
or his agents, make available for inspection, at all
reasonable times, any records relating in any way
to the hiring and referral system.
LOCAL 17, SHEET METAL
WORKERS INTERNATIONAL
ASSOCIATION, AFL-CIO
(Labor Organization)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced
by anyone.
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.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, Bulfinch Building, 15 New Chardon
Street, Boston, Massachusetts 02114, Telephone
617-223-3300.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
JOSEPHINE H. KLEIN, Trial Examiner: Upon six charges
filed on September 21, 1971,i by Robert J. Shillinsky,
Ernest W. Lagasse, Jr., and Francis I. Redman (Charging
Parties), a consolidated complaint was issued on December
22 by the Regional Director for Region I against
^ Unless otherwise indicated, all dates herein are in 1971
2 National Labor Relations Act, as amended (61 Stat 136, 73 Stat 519,
29 U S C Sec 151, et seq )
3 Although the complaint alleges that the Charging Parties were "laid
Castleman and Bates, Inc. (C & B), and Local 17, Sheet
Metal Workers International Association, AFL-CIO (the
Union), alleging that on May 7 the Union, in contraven-
tion of Section 8(b)(1)(A) and (2) of the Act,2 caused C &
B to discharge3 the Charging Parties in violation of Section
8(a)(3) because they were not members of the Union.
Upon due notice, a hearing was held on February 10, 11,
and 14, 1972, in Providence, Rhode Island . On February
11, 1972, at the close of his case, the General Counsel
moved to amend the complaint to add an allegation that
the Union had been discriminatorily operating a hiring hall
since March 22 (i.e., for the period open under Section
10(b) of the Act). The Trial Examiner denied the motion to
amend and proceeded with the hearing. On March 16,
1972, upon appeal by the General Counsel, the Board
reversed the Trial Examiner's ruling and directed the Trial
Examiner "to reopen hearing if Respondent so moves." No
motion to reopen the record was filed. Since the hearing,
briefs have been filed by the General Counsel and both
Respondents.
Upon the entire record, observation of the witnesses, and
consideration of the briefs, the Trial Examiner makes the
following.
FINDINGS OF FACT
1. PRELIMINARY FINDINGS
A Castleman and Bates, Inc., a Rhode Island corpora-
tion with its principal office and place of business in East
Providence, Rhode Island, is engaged in the manufacture,
sale, installation, and distribution of sheetmetal fabricated
products and related products In the course and conduct
of its business, C & B annually ships directly to points
outside Rhode Island goods valued in excess of $50,000. C
& B is, and was at all times material herein, an employer
engaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
B. Respondent Union is, and was at all times material
herein, a labor organization within the meaning of Section
2(5) of the Act.
II. THE UNFAIR LABOR PRACTICES
A. Chronology and Issues
The Charging Parties are not and never have been
members of Respondent Union .4 Despite their nonmem-
bership in the Union , during the past several years all three
men have worked , on union referral or with union
knowledge and approval , on jobs covered by collective-
bargaining agreements with the Union . All three have
made attempts , so far unsuccessful , to join the Union, both
before and after the events here involved . Despite the
existence of a valid 7-day union -secunty clause in the
contract covering all thejobs , none of the Charging Parties
has ever been asked to pay dues or initiation fees in the
Union and the Union has never made any attempt to have
them discharged for nonpayment or nontender . Contractu-
off," it was agreed throughout the hearing that they were actually
terminated or discharged
' The record indicates that in the past Shillmsky had been a member of
two sister locals of Respondent Union
CASTLEMAN AND BATES, INC
ally required pension and insurance fund payments have
been made for them.
On several occasions Shilltnsky and Redman had worked
for Blake Construction Company, a predecessor of
Respondent C & B. Henry R. Dumas, C & B's general
superintendent, had served in the same capacity for Blake.
For about a year before April 23, 1971, the Charging
Parties were employed as sheetmetal workers by a
company named Planair, which is also in a contractual
relationship with the Union. They were laid off, along with
other employees, as of April 23. Shillinsky and Redman
then secured jobs with C & B through applying directly to
Dumas. They went to work for C & B on April 28, after
having obtained "clearance" from Robert M. Peters, then
the Union's business representative in Rhode Island.
Lagasse also went to work for C & B on April 28, having
been referred to the job by Peters On April 29, Francis
Riley, a member of the Union, was hired by C & B on
referral by Peters. On May 4, Paul Horner and Chester
Aldrich, also union members, were hired by C & B on
referral by Peters.5 On May 7 the Charging Parties were
discharged On May 12, Paul Hassell and Hugh Moore,
union members, were hired, also on referral by Peters.6 On
May 14 C & B discharged employees Joseph Farnas and
Roland Lassonde, who were basically carpenters by trade
and had been hired by C & B in March to perform
unskilled work.
The General Counsel and Charging Parties maintain
that, following an established pattern, the Union permitted
the Charging Parties to work for C & B only when and
only for so long as there were no union members available
and desirous of work. The Charging Parties were allegedly
discharged upon pressure from the Union to provide
employment for union members who had become available
after the Charging Parties were hired According to the
complaint, as amended pursuant to the Board's ruling, the
treatment afforded the Charging Parties was part of
Respondent Union's illegal operation of a hiring hall.
Respondents deny that the Union had any role in
causing the discharges. According to Respondents, the
Charging Parties were terminated solely because they were
not "qualified" or competent to perform the work available
after April 28.
B. Evidence and Findings
Although there was some minor variation in the extent of
the Charging Parties' precise recollection, their collective
testimony in the main is mutually corroborative, to the
following effect.
Around the middle of April, having learned of the
probability of a general layoff at Planair, where he was
then working, Redman visited C & B, where he spoke to
Dumas, under whom he had previously worked on several
occasions Being in need of employees, Dumas expressed
pleasure at the prospect of Redman's becoming available.
Dumas asked Redman what "card men" (i.e., union
members) would also be laid off and then said that
Redman could go to work for C & B as soon as the union
5 Employers' reports to the union insurance funds show that Riley
worked for another company for 3 days during the month ending May 29,
and Horner and Aldrich worked for another company for 4 days during
479
members were otherwise employed. When Redman said
that Shillinsky, who also had worked for Dumas in the
past, would also be available, Dumas said that he too could
have a job with C & B. With the layoff of Planair effective
on April 23, the three Charging Parties went to the union
hall on the morning of Monday, April 26. Peters said there
was no work available for them. Redman and Shillinsky
then went to C & B. According to Shilltnsky, Dumas did
not want to hire the union members who he had learned
were then available . Dumas said that when those union
members had been hired by somebody else, C & B would
hire Redman and Shillinsky. They returned to the union
hall the next day and again were told there was no
available work. At that point Shillinsky asked Peters if all
union members were employed and if it would be all right
to look for a job on his own. Peters said all the card men
were employed and Shilltnsky was free to seek his own job.
At that point Shillinsky and Redman again visited C & B.
Upon being informed that all the union members were
working, Dumas told the two men to report for work the
next day, but to clear with Peters before then. They
telephoned Peters, who said it was all right for Shilltnsky to
go to work, but Redman was to report to the union office
immediately. Redman did so and finally received Peters'
clearance. At the same time, Peters referred Lagasse to C &
B. Unlike Redman and Shillinsky, Lagasse had never
previously worked for Dumas.
Peters testified that the reason he required Redman to
visit the union hall personally on April 27, rather than
giving him approval on the telephone as he did in the case
of Shillinsky, was his annoyance because Redman, without
consulting or informing Peters, had gone out and secured
the job with C & B while he was still employed with
Planair . Peters testified that when Redman went to the
union hall pursuant to instructions, the two men had "quite
a discussion . . . [a]bout the way [Redmanj procured
jobs." Peters' testimony continued:
. . he has one job and he goes to this other one. I
mean, I don't think it's right that people should have
two jobs at the same time-a Job in the hand and a job
in his pocket, when there is other people looking for
employment. . . . Because we have to service all the
people that are in our union , and all the people that are
applying for work. There is a fair way of distributing
work, to my thinking anyway.
At another point, however, Peters explained the require-
ment that Redman report to the union office as follows:
. . it is clearance from the union because we have
contractual agreements with all these employees which
health and welfare pension funds, vacation money is
withheld from their wages . . . and I have to see that
these employers pay to the various funds. And [the]
only way I know is to know where the men are
working.
But Peters then said that he did not require Shilltnsky to
report to the union hall because Peters had "[a]ll the
confidence in the world" that C & B would comply with
the contract.
that month
6 They had worked for Planair 6 days in the month ending May 24
480 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Perhaps the closest Peters came to revealing the true
reason for his having Redman report to the union office
was the statement that he wanted to "chastise" Redman for
having on his own secured ajob that "might be available to
one of our more qualified men." Other portions of Peters'
testimony make clear that "more qualified" is actually a
euphemism or circumlocution for "Union " For example,
when asked why he had never sought to enforce the union-
security provision of the collective-bargaining agreement
with respect to the Charging Parties when they had worked
for about a year for Planair, Peters replied
A Because they weren't members of the union.
Q Well, the contract requires them to be members,
doesn't it?
A The interpretation of the contract to me is, if
they are qualified men, they will be members of my
union
Although Peters, Dumas, and J John Harding, C & B's
president, all maintained, if somewhat vaguely, that C & B
had had a standing request with the Union for workers
since perhaps some time in March, it is undisputed that on
Monday, April 26, Peters told the Charging Parties that
there was no work available Peters' attempted explanation
of this conduct is, like all of his testimony, so riddled with
equivocation and inconsistencies as to be totally unreliable,
if not unintelligible."
Dumas' testimony concerning the hiring of the Charging
Parties is as confused and incredible as is Peters' Dumas
testified that for some time he had been in desperate need
of qualified sheetmetal workers but Peters had been unable
to provide any In the middle of April, when Redman first
told Dumas of the anticipated layoff at Planair, Dumas
said that he needed men and told Redman to report back
when he became available Dumas did not mention to
Peters or to Redman any specific qualifications he
required According to Dumas, when Redman, having
been laid off by Planair, returned to C & B, Dumas told
him to go to see Peters and tell Peters to call Dumas. When
asked why he had sent Redman to see Peters, Dumas
replied "To make sure that [Peters] didn't have other
people that I would have preferred, before I hired these "
Dumas did not explain why he did not call Peters directly
for that information Shillinsky, however, provided an
explanation He testified that on Monday, April 26, Dumas
indicated that he did not want to hire the union men he
had learned were then available and said he would hire
Shillinsky and Redman as soon as all the union men were
otherwise employed Under these circumstances, it is
understandable why Dumas would not call Peters directly,
particularly in view of Peters' concession that Dumas had
previously informed Peters of the Company's desire to hire
Redman It is also significant that, while Dumas testified
that Peters had called him pursuant to Redman's message,
Peters testified that Dumas called the Union and said that
he wanted to hire Redman and Shillinsky and it was then
that Peters said that C & B might as well also hire Lagasse,
with whom Dumas had had no previous contact.
As previously stated, the Charging Parties commenced
work for C & B on Wednesday, April 28. All three testified
that on Wednesday, May 5, Dumas told them that Peters
had called to demand their discharge because there were
then union members out of work. The Charging Parties
also testified that Dumas said that the Company, through
Harding, was consulting counsel in an effort to resist the
Union's pressure and meanwhile the employees should just
"hang on." On the afternoon of Friday, May 7, the three
men were discharged. According to them, Dumas at that
time said that he had no alternative because Peters was
threatening to picket and close down the Company if these
men were not discharged. Dumas was also quoted as
having repeated that the Company, through its lawyers,
would continue to fight the Union's conduct by appeals to
the Union's International in Washington and by litigation,
if necessary. Dumas assured the men that the discharges
were not because of any deficiency in their work and that
he was very sorry to see them leave. Dumas referred them
to two employers and the union business agent in another
area, where they thereafter obtained employment.
Dumas in effect conceded that he had told the men that
their discharges were in response to union pressure. He
maintained, however, that this was essentially a white lie,
motivated by a desire to prevent emotional strain and
retain the good will of the three men, since he might be
dependent on them again sometime. As Dumas put it:
I found out it was much easier, when I wanted to
lay a man off, to give an excuse and blame somebody
else . . . . I might even have told them that I got a call
from Mr. Peters. I don't remember exactly what words
I used. But, I have done this on occasions before.
He then said that he thought it was at the end of the week,
not on Wednesday, that he told the men he had received a
call from Peters. But later he testified that on Wednesday
he told the men that "Peters had some men available, and
wanted to go to work." His testimony in this connection
was, in part, as follows:
I told them that we had a problem. Mr. Peters had
called me and told me that possibly we would be able
to get more men within the coming week . . . I told
them that I had got a call from Peters saying that men
were either available, or were going to become
available.
If, as he maintained, Dumas refrained from offending the
men by saying their work was inadequate, the only way the
availability of other men could reasonably create a
"problem" was if they had prionty for some reason other
than qualification for the work. Thus, even in Dumas'
testimony there is clearly implicit an understanding that
the Charging Parties could be replaced for reasons other
than their qualifications for the job.
As heretofore noted, C & B hired Francis Riley on April
29 and Paul Horner and Chester Aldrich on May 4. Dumas
r On questioning hs the Trial Examiner Peters eventually said thatjob
applicants weie ,wtomauealls required to file applications for union
menihenhip upon hung referred to jobs This testimony, however, was
contradicted hs Lawrence Mct aughlm who had been president of
Respondent Union at the time here imoived and had replaced Peters as
business representative in Rhode Island before the present hearing The fact
is as discussed below, that the Union is not readily open to new members
s The quality of Peters' testimony is exemplified by excerpts reproduced
.is Appendix A to this Decision
CASFLEMAN AND BATES, INC 481
testified that by May 4 he had definitely decided to
discharge the Charging Parties for their lack of qualifica-
tion for the work then available According to Dumas,
Peters telephoned on the morning of May 5 to say that
there would he two very competent men available the next
week Dumas refused to make an immediate commitment
to hire the two men, saying that he first wanted to consult
Harding Peters became somewhat irascible and said he
would call Harding himself, which he proceeded to do. The
testimony concerning these events is confused and incon-
sistent Harding was called as the General Counsel's first
witness and examined pursuant to Rule 43(b) of the
Federal Rules of Civil Procedure He testified that some
time before the Charging Parties were terminated Dumas
spoke to him about a call from Peters saying that two
additional men would be available the next week Harding
testified that, in substance, he left it up to Dumas whether
the men were needed and should be hired According to
Harding, Dumas did not indicate whether he wanted to
hire the men or not. Harding did indicate that he had had
two conversations with Dumas about the matter, around 2
days apart. Harding then revealed that he had also been
called by Peters directly Harding testified that he declined
to make any commitment to Peters to hire the two men
"The end of the conversation was that, as far as I know, we
didn't need two men-or, 1 didn't know what we needed
and I said that you talk to Hank Dumas and see what can
be done " Harding then conceded that there was "a great
possibility" that he "possibly mentioned it to Mr Dumas "
Harding and Dumas both testified, repeatedly and
emphatically. that Dumas was in complete charge of
operations and normally consulted Harding only when he
proposed to increase the payroll. On cross-examination by
Charging Parties' counsel, Dumas was at a loss to explain
why he had felt compelled to consult Harding before
agreeing to hire the two men about to become available if,
as he maintained, he had already decided to fire the
Charging Parties 9
One other fact is noteworthy in this connection
Lassonde and Farrias, the "carpenters" whom Dumas said
he had hired in desperation for completely unskilled work,
were retained when the Charging Parties were let go.
Dumas said this was done only because the "carpenters"
had been hired earlier However, Dumas also testified that
they "knew that they were just temporary jobs, they were
expecting to get canned," whereas the Charging Parties
had no such notice as to their tenure Peters provided the
key to this anomalous situation when he indicated that
Lassonde and Farrias were members of a sister local of the
Union.io
Against the backdrop of the indisputable objective facts
and the confusion and inconsistencies in the testimony of
Respondents' representatives, the Charging Parties' testi-
His testimony was as follows
Q You were going to let go three men, and bring up another two
That wasn't going to increase your staff, was it"
A No but I still refer to lHardmgl on all financial status
Q Was there going to be an increase, when you were going to hire
two men after you were going to let go three"
A No, but I see your point But, I just didn't have the work
available for these other men
The testimony in this respect was as follows
mony paints a clear and totally believable picture. C & B,
in need of sheetmetal workers, was pleased when Redman
and Shrllinsky, frequent employees of C & B's predecessor,
became available. Instead of calling the Union, Dumas
hired his former employees directly, after ascertaining that
all other sheetmetal workers in the area were employed. At
that time, the Union cleared these employees and also
referred Lagasse, who, like Redman and Shillinsky, was
not a member of the Union. The next day the Union
referred Riley, a union member who had just become
available. C & B then had four new employees, the number
which Respondents assert had been previously requested.
But then union members Horner and Aldrich became
unemployed. They were referred to and hired by C & B on
May 4. Whether C & B intended to retain them as
additional employees (or possibly as replacements for the
"carpenters") is not clear. But it is clear that C & B had not
requested them and Peters had sent them entirely on his
own initiative. The next day he said he would send two
more the following week. That was too much; C & B
resisted, manifestly satisfied with the employees it had
selected. But the Company's resistance was shortlived
against the threat of union action. The "problem" caused
by the presence of unemployed union members and no
other vacancies could be solved only by C & B's creating
vacancies by the discharge of nonunion employees. In
effect, the three nonunion Charging Parties were replaced
by four union members who had just become unemployed.
In view of the foregoing analysis, little need be said of
Respondents' contention that the Charging Parties were let
go solely because they were not qualified for the work then
available
Although each of the Charging Parties had done
sheetmetal work for considerable periods of time in the
past, Respondents attempted to show that they were not
fully "qualified journeymen" and were knowledgable only
in limited and relatively easy phases of the work. A
detailed analysis of the evidence in this connection would
unduly extend this Decision because of three salient facts:
(I) All three had worked for about a year for Planair,
which Dumas testified is essentially the same type of
company as C & B; (2) Dumas hired Shrllmsky and
Redman with knowledge of their abilities, since they had
worked under Dumas on several occasions in the past; and
(3) Peters had referred the Charging Parties to jobs in the
past. Peters testified that Dumas "was always fussy about
wanting qualified journeymen" and employers were the
judges of competence.
It is undisputed that Dumas never criticized the men's
work and did not suggest that they were being let go
because of their lack of qualification. Even more signifi-
cantly, Dumas never made any such statement to Peters.
Harding's testimony fails to disclose that he was informed
Q You are quite familiar with all the names of the union
members, are you not"
A I could miss out on some of them
Q Would you say that Mr Farrias and Mr Lassonde are not
union members"
A I wouldn't say that, no, they could be members in some other
union
Q Of the sheet metal workers"
A Yes , from another local
482 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of any deficiency in the Charging Parties' performance
when he discussed the personnel changes with Dumas and
Peters. Harding testified that he did not know whether
there was any work which C & B's current employees were
not qualified to perform.
In testifying, Dumas and Shop Foreman William
Fletcher maintained that Shillinsky demonstrated his
incompetence by taking about 2-1/2 hours to do a job that
should have taken 45 minutes. However, Shillinsky was not
discharged or even reprimanded at that time. Lagasse was
asked if he would like to try a somewhat difficult type of
work. The matter ended when he declined, Dumas did not
reprimand Lagasse or indicate that future employment
depended on his ability and willingness to perform that
type of operation. There was no similar incident with
regard to Redman. The Trial Examiner credits Redman's
and Shillinsky's testimony that Dumas did express approv-
al of their performance, despite Dumas' denial and his
protestation that it is not his policy to praise employees.
Peters' testimony concerning the qualifications of the
employees contains many inconsistencies. For example, he
contended that the Charging Parties' prior experience in
large part was essentially different from the construction
type of work within Local 17's jurisdiction. However, he
also testified that any person who had 5 years' membership
in any Sheet Metal Workers Local was automatically
entitled to transfer to any other local, including Local 17,
and the fact of union membership established a worker's
competence to Peters' satisfaction Indeed, Peters testified
that he had recommended Shillinsky for union member-
ship, relying on his past membership in two other locals as
proof of his being a "qualified journeyman."
Peters testified that when a person applies for work or
membership in the Union he is asked about his experience.
Peters testified that in referring people tojobs he attempts
first to meet an employer's special requirements, if any,
and then refers men in the order of their "qualification."
He also takes into account "personal factors" and, in
Peters' words, "There is no seniority in our union." He also
makes recommendations, based on applicants' qualifica-
tions, as to whether they should be interviewed by the
Union's executive board for union membership. However,
having expressed the opinion that the Charging Parties
were not "qualified," Peters was confronted with the
embarrassing fact that he had referred all of them to fobs
at various times. To avoid the necessary inference that this
indicated that they were qualified, Peters made such
statements as: "I don't pass on their qualifications"; "I
don't know the man's qualifications; I never worked with
him"; and "I don't make that judgment [as to whether
Hassell and Moore were more qualified than Redman]
. . . . The employer [does]." But Dumas testified unequi-
vocally that he hired at least Riley and Horner solely on
Peters' recommendations as to their superior qualifica-
tions. i i
In short, Respondents' belated contention that C & B
11 Dumas' testimony was as follows
Mr Peters told me [Riley I was a qualified mechanic I sent him right
down I didn't even talk to him
Q Did you ask Mr Homer about his qualifications when you
hired him'
A I went on Mr Peters' recommendation He told me, again, that
discharged the Charging Parties because they were not
qualified for the work available is unsupported by any
credible evidence. There is no substantial credible evidence
to rebut the General Counsel's clear evidence, both direct
and circumstantial, that the Charging Parties were dis-
missed at the Union's insistence because they were not
members of the Union and union members were looking
for work.
There is no question that Respondents operated under
an exclusive hiring hall arrangement . Representatives of
both Respondents testified that all sheetmetal workers
were hired through the Union or with union clearance
when the Union was unable to refer any. Such an
established arrangement constitutes an exclusive hiring hall
even in the absence of a formal contractual provision
therefor. Local 7, Intl. Assn. of Bridge, Structural, etc.
(Waghorne-Brown Co.), 144 NLRB 925, 926-928; Bulletin
Company, 181 NLRB 647, 654, enfd. 443 F.2d 863 (C.A. 3);
Local 568, Hotel, Motel & Club Employees Union (Warwick
Hotel, Inc.), 141 NLRB 310.
The Charging Parties testified to having been refused job
referrals or laid off in the past when union members were
available for work. Redman testified to an established
practice by the Union "naturally" to prefer union
members. According to Redman, if union members were
out of work, permit men did not have any chance of
securing employment with a union shop in the area.
Peters testified that in referring applicants for work he
gives primary consideration to their "qualifications." He
confirmed the practice whereby employers are generally
not free to hire on their own unless the Union has been
unable to provide satisfactory employees within 48 hours.12
But he also testified that "if they are qualified men, they
are members of my union" and union clearance of
employment for nonunion men is required to assure that
jobs go to any "more qualified" men who might be
available.
According to McLaughlin the unemployment rate
among union members is very low, with about 90 percent
being regularly employed full time. However, 1971 was a
rather bad year and deviated from the usual pattern of
increased employment in the summer . This would serve to
explain why the Charging Parties were allowed to work for
Planair undisturbed for a year until the layoff in April 1971
but encountered difficulty thereafter. First, Dumas delayed
hiring Redman and Shillinsky until all union men were
otherwise employed and then on May 5 told the Charging
Parties of the "problem" created by Peters' announcement
that some "qualified men" would be newly available the
following week. Dumas' reactions are explicable only as
reflecting an understanding that nonunion workers were
employable only when there were no union members
looking for work.
The pattern of employment reflected at that time
continues. Between May 7 and December 1 Peters did not
he was a highly qualified man
Q You just took Mr Peters' word for it?
A Yes, which was good enough for me
12 To the extent that Lawrence McLaughlin , Peters' successor in Rhode
Island, suggested that employers were free to hire anyone they wanted, his
testimony is discredited
CASTLEMAN AND BATES, INC. 483
refer any nonunion men to employment. Since then
Shillinsky and Lagasse 13 have unsuccessfully sought
employment through McLaughlin, Peters' successor. De-
spite McLaughlin's denial, the Trial Examiner credits
Shillinsky's testimony that in January 1972 McLaughlin
told him to telephone in but not to return because the
union hall was for union members only. On all the
evidence, it is found, as alleged in the amended complaint,
that the Union has discriminatorily operated an exclusive
hiring hall since March 22, 1971.14
The effects of the Union's misconduct are greatly
intensified by its rigid restriction on union membership.15
McLaughlin has "never known of anyone who wanted to
work who did not want to join" the Union The Charging
Parties are no exception, having persistently attempted to
obtain membership since 1968. But the Union has been so
determined to control the labor market by restricting its
membership that it has ignored the union-security clause in
its contract, even to the point of permitting the Charging
Parties to work a year for Planair without paying initiation
fees or dues.is
The Charging Parties first consulted counsel around the
end of April, in an attempt to obtain union membership.
On counsel's advice, they sent to the Union checks for their
initiation fees and dues. The tender was refused and the
checks were returned However, apparently as the result of
counsel's intervention, Shillinsky and Lagasse were inter-
viewed by the Union's executive board on May 20.17 They
were then asked if they would drop their "case" against the
Union if they were granted membership 18 However, no
"deal" was made. 19
Subsequent inquiries brought no response concerning the
status of the applications for membership The Charging
Parties filed the present charges on September 21, 4-1/2
months after the discharge and 4 months after the
interviews with the Union's executive board
CONCLUSIONS OF LAW
I Local 17, Sheet Metal Workers International Associ-
ation, AFL-CIO, is a labor organization within the
meaning of Section 2(5) of the Act.
2. Castleman and Bates, Inc., is an employer engaged
in commerce within the meaning of Section 2(2), (6), and
(7) of the Act
3. By causing Respondent Castleman and Bates to
terminate the employment of Robert J. Shillinsky, Ernest
13 Redman moved to Florida in November
14 Although the amended complaint alleges unlawful conduct by the
"Union, through its agent, Robert Peters," events after Peters' replacement
by McLaughlin were fully litigated
15 The record establishes that in practice new membership is limited to
persons serving a union apprenticeship of 4 years commencing by age 22,
extended by time spent in the Armed Services McLaughlin made the
unrealistic suggestion that Lagasse, having retired from the Navy after some
20 years' service with practical sheetmetal work, now embark on a 4-year
apprenticeship
16 McLaughlin testified
Q Would you want them to become members, if they were
employed 6 months or 9 months?
A Sure Of course we would
Q Would you require that they become members'
A If they were qualified Yes
Q Do you know why Shillinsky, Lagasse, and Redman were not
W. Lagasse, Jr, and Francis I. Redman on May 7, 1971,
because they were not members of Respondent Union,
said Respondent violated Section 8(b)(2) and (1)(A) of the
Act
4. By acquiescing in Respondent Union's discriminato-
ry action and, pursuant thereto, terminating the employ-
ment of Robert J. Shillinsky, Ernest W. Lagasse, Jr., and
Francis I. Redman, Respondent Castleman and Bates,
Inc., violated Section 8(a)(3) and (1) of the Act.
5. By maintaining and enforcing an exclusive hiring
arrangement or practice with Respondent Castleman and
Bates, Inc., and other employers pursuant to which union
members receive preference over nonmembers in referral
to and retention of employment, Respondent Union has
caused or attempted to cause employers to discriminate
against employees and applicants for employment in
violation of Section 8(a)(3) of the Act and thereby has
engaged in and is engaging in unfair labor practices within
the meaning of Section 8(b)(1)(A) and (2) of the Act.
6. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondents set forth in section II,
above, occurring in connection with Respondent Compa-
ny's operations described in section I, have a close,
intimate, and substantial relationship to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
THE REMEDY
In order to remedy the unfair labor practices found, the
Trial Examiner will recommend that Respondents be
ordered to cease and desist therefrom and to take certain
affirmative action designed to effectuate the policies of the
Act. Because of the egregious nature of the Union's
conduct, which strikes at the heart of the Act and would
effectively deny workmen their means of livelihood, the
Trial Examiner will recommend issuance of a broad cease-
and-desist order against the Union. The employer, on the
other, was largely a victim of the Union's misconduct.
While it was unlawful for the Company to yield to the
Union's demand, protecting itself at the expense of its
required to become members when they worked for Planair for almost
a year"
A 1 don't know why
11 Redman had been before the executive board in 1968 but was not
granted an interview in 1971 He had incurred the special wrath of Peters by
having allegedly bypassed the Union in obtainingjobs Peters conceded that
he had said he would never recommend Redman for membership The
executive board apparently grants interviews only on the recommendation
of the business representative
11 The evidence is conflicting and confusing as to whether the quid pro
quo suggested by the Union or demanded by the applicants was
examination, union membership , and/or guaranteed employment
19 McLaughlin maintained that the executive board, of which he was a
member as president of the Local, was not prepared to make a "deal" but
was concerned by the possibility of a "shakedown" by the Charging Parties
and/or their counsel, the "shakedown" being an offer to withdraw charges
in exchange for admission into the Union
484 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees, the fact is that the Company to some extent
attempted to resist the Union's pressure. Accordingly, the
Trial Examiner will not recommend a broad order against
the Company.
Although the present case arose in the Rhode Island
area, the evidence discloses that there is considerable
integration and interchange among the four areas within
the Union's geographical jurisdiction. Central records are
kept at the Union's principal office in Boston , Massachu-
setts. Accordingly, it will be recommended that the Union
be required to post notices at all its offices and meeting
places
In his brief, the General Counsel suggests that the Union
could be held solely liable for backpay. However, the fact
remains that it was the Company which fired the men in
disregard of their statutory rights. It should, therefore,
shoulder part of the burden of making them whole for the
wages the Company should have paid them See Williams
Press, Inc, 195 NLRB No 159. Thus, it will be recom-
mended that the Company and the Union be held jointly
and severally responsible for loss of wages suffered by the
Charging Parties between May 8 and such time, if any, as
their employment with C & B would have been terminated
absent the discrimination herein found. The evidence
establishes that the named employees sought employment
through the Union on April 26 and the Union at that time
unlawfully refrained from referring them to Castleman and
Bates, which had work available Where, as here, there is in
effect an exclusive hiring hall arrangement, the union
violates the Act by discriminatorily withholding referral or
clearance and the employer violates the Act by refusing to
hire without such clearance. United Construction Company,
169 NLRB 1. Thus, it will be recommended that the
Respondents also be held jointly and severally liable for
pay lost by the named employees on April 26 and 27, 1971
In addition, the Union will be held liable for any loss of
earnings suffered by the Charging Parties as a result of the
Union's discriminatory failure to refer them to other
employment after May 7 Backpay shall be computed in
the manner prescribed in F. W. Woolworth Company, 90
NLRB 289, with interest thereon in accordance with Isis
Plumbing & Heating Co, 138 NLRB 716.
C & B generally hires sheetmetal workers on a perma-
nent basis. In hiring the Charging Parties, Dumas gave no
indication that they were to be employed only temporarily.
As of the time of the hearing, there were in C & B's employ
two employees who had been hired after the Charging
Parties. Thus, it is reasonable to assume that, absent the
discriminatory discharges, at least two of the Charging
Parties would have continued in C & B's employ.
Accordingly, C & B will be ordered to offer the Charging
Parties reinstatement to the extent that there would have
beenjobs available absent the discrimination.
It is undoubtedly beyond the Board's direct jurisdiction
to require that the Union admit the Charging Parties to
membership. However, since the Union has refused to
grant them membership, it cannot in any manner interfere
with the Charging Parties' employment because of their
nonmembership. Plumbers and Steamfitters Local Union
No 577 (A J. Stockmeister, Inc), 196 NLRB No. 21,
Laborers' International Union of North America, Local
Union No. 573, AFL-CIO (F F. Mengel Construction Co ),
196 NLRB No 62. Accordingly, the Order and notices
recommended herein will not contain the customary saving
provision authorizing enforcement of a union-security
provision valid under Section 8(a)(3) of the Act. Should the
Union in the future eliminate arbitrary or otherwise
unlawful restrictions on membership and embark on
uniform and nondiscriminatory enforcement of its union-
security clause , presumably application can then be made
to the Board for modification of the present Order.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, the Trial Examiner hereby issues the following
recommended. 20
ORDER
A. Respondent Local 17, Sheet Metal Workers Interna-
tional Association, AFL-CIO, its officers, agents, and
representatives, shall:
1. Cease and desist from:
(a) Causing or attempting to cause Castleman and Bates,
Inc., or any other employer, to discriminate against Robert
J. Shillinsky, Ernest W. Lagasse, Jr., Francis I. Redman, or
any other employee in violation of Section 8(a)(3) of the
Act.
(b) Maintaining, enforcing, or otherwise giving effect to
an exclusive hiring arrangement or practice with Castle-
man and Bates, Inc., or any other employer, pursuant to
which union members receive preference in referral to or
retention of employment.
(c) In any other manner restraining or coercing employ-
ees or applicants for employment in the exercise of the
rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action, which it is
found will effectuate the policies of the Act:
(a) Jointly and severally with Respondent Castleman and
Bates, Inc., make John J. Shillinsky, Ernest W. Lagasse, Jr.,
and Francis I. Redman whole for any loss of pay they may
have suffered as a result of their nonemployment on April
26 and 27, 1971, and their termination by Castleman and
Bates, Inc, on May 7, 1971, in accordance with the
recommendation set forth in "The Remedy" section of this
Decision.
(b) Make the above-named employees whole for any loss
of pay they may have suffered as a result of our
discriminatory refusal or failure to refer them to employ-
ment after May 7, 1971, in accordance with "The Remedy"
section of this Decision.
(c) Notify Castleman and Bates , Inc., and all other
employers with whom the Union has collective-bargaining
agreements that it has no objection to the hiring or
employment of the above-named employees.
(d) Notify each of the above-named employees that the
Union has no objection to their employment by Castleman
20 In the event no exceptions are filed as provided by Sec 102 46 of the 102 48 of the Rules and Regulations . be adopted by the Board and become
rules and Regulations of the National Labor Relations Board, the findings , its findings , conclusions , and order, and all objections thereto shall be
conclusions, and recommended Order herein shall, as provided in Sec deemed waived for all purposes
CASTLEMAN AND BATES, INC. 485
and Bates or any other employer with whom the Union has
a collective-bargaining agreement
(e) Post at its business offices and meeting halls copies of
the attached notice marked "Appendix B "11 Copies of
said notice, on forms provided by the Regional Director
for Region I. after being duly signed by Respondent
Union's representative, shall 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 Respondent Union to
insure that said notice,, are not altered, defaced, or covered
by any other material
(f) Post at the same places and under the same
conditions set forth in paragraph (e), above, as soon as
they are forwarded by the Regional Director for Region I.
copies of Respondent Company's notice herein marked
"Appendix C "
(g) Mail to the Regional Director for Region I signed
copies of "Appendix B" for posting by Castleman and
Bates, Inc . in accordance with paragraph B2(f) of this
Order, and by all employers with whom Respondent
Union has collective-bargaining agreements, the latter
being willing
(h) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records timecards,
personnel records and reports, insurance and pension fund
records and reports, and all other records necessary to
analyze the amount of backpay due under the terms of this
recommended Order
(i) Nonty the Regional Director for Region 1, in writing,
within 20 days from the date of the receipt of this Decision,
what steps the Respondent Union has taken to comply
herewith 22
B Respondent Castleman and Bates, Inc . its officers,
agents, successors, and assigns, shall
I Cease and desist from
(a) Discriminating against Robert J Shilhnsky, Ernest
W Lagasse, Jr , Francis I Redman, or any other employee
or applicant for employment in regaid to their hire or
tenure of employment or any term or condition thereof
because of nonmembership in Local 17 Sheet Metal
Workers Inteinational Association, AFL C10, or any
other labor organization
(h) In any like or related manner interfering with,
restraining, of coercing its employees in the exercise of
their rights guaranteed in Section 7 of the Act
2 Take the following affirmative action, which it is
found will effectuate the policies of the Act
(a) Offer to the above-named employees immediate and
full reinstatement to their former jobs or, if these jobs no
longer exist, to substantially equivalent jobs if and when
such jobs become available, without prejudice to their
seniority and other rights and privileges, in the manner set
forth in the section of this Decision entitled "The
Remedy "
(b) Notify the above-named individuals, if presently
serving in the Armed Forces of the United States, of their
right to full reinstatement (as set forth in paragraph B2(a),
above), upon application after discharge from the Armed
Forces, in accordance with the Selective Service Act and
the Universal Military Training and Service Act.
(c) Jointly and severally with Respondent Local 17,
Sheet Metal Workers International Association , AFL-CIO,
make each of the above- named employees whole for
any loss of pay suffered as a result of the failure to employ
them on April 26 and 27, 1971, and the termination of their
employment on May 7, 1971, in the manner set forth in
"The Remedy" section of this Decision.
(d) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records , timecards,
personnel records and reports, and all other records
necessary to analyze the amount of backpay due under the
terms of this recommended Order.
(e) Post at all its offices and on its premises and at its
jobsite within the territorial jurisdiction of Local 17 copies
of the attached notice marked "Appendix C." 23 Copies of
said notice, on forms provided by the Regional Director
for Region 1, after being duly signed by Respondent
Company's representative, shall be posted by Respondent
Company immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to its
employees are customarily posted. Reasonable steps shall
be taken by Respondent Company to assure that said
notices are not altered, defaced, or covered by other
material
(f) Post at the same places and under the same
conditions as set forth in paragraph B2(e), above, as soon
as they are forwarded by the Regional Director for Region
1, copies of Respondent Local 17's notice herein marked
"Appendix B "
(g) Mail to the Regional Director for Region 1 signed
copies of "Appendix C" for posting by Local 17 in
accordance with paragraph A2(f) of this recommended
Order
(h) Notify the Regional Director for Region 1 , in writing,
within 20 days from the date of the receipt of this Decision,
what steps the Respondent Company has taken to comply
herewith 24
21 In the event that the Board's Order is enforced by a Judgment of a
L rated States L ours of Appeals the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board'
22 In the event that this recommended Order is adopted by the Board
after exceptions have been filed this provision shall be modified to read
"Notify the Regional Director for Region I in writing, within 20 days from
the date of this Order what steps the Respondent Union has taken to
comply herewith
23 See fn 21
Y1 See fn 22
APPENDIX A
EXCERPTS FROM TESTIMONY OF ROBERT
M PETERS*
Direct E vami,t rtion ht, Mr Coleman
Q Do you recall hack in April or May of 1971 , did you
*Minor typographical or spelling errors have been corrected
486 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
have any conversation with anyone at Castleman and
Bates concerning supplying of help to that Company`'
A Yes, Mr Dumas called me and asked me for some
qualified journeymen
Q. Did you have any qualified journeymen at the time
he called"
A I did not, there were none.
Q Did you agree to call Mr Dumas or Mr. Harding
when you did have qualified journeymen, and did you later
call them?
A I did.
Q Who did you call?
A. I think I called Mr Harding, yes, I think it was Mr.
Harding
Q Do you remember approximately when that was?
A Yes, it was in April, the latter part of April, yes
Q What was the content of that conversation with Mr.
Harding?
A. Yes, I told Mr Harding I had some qualified men
available and I think he said to me that he didn't know
whether he needed them or not; his people needed them or
not, and referred me to Mr. Dumas
Q. And did you do anything after that?
A Yes, I called Mr. Dumas.
Q Did you have a conversation with Mr. Dumas?
A Yes He told me to send him two qualified men over,
that I told him I had available.
Q. Do you recall making more than one such phone
call to Mr. Dumas?
A. Yes, I called him at another time, that I had two
more men available, two competent-two competent
journeymen.
Q. When was that conversation, in relation to the first
one, approximately9
A Well, it was a few days after that, or maybe a day or
two after that, I don't know exactly.
*
these employees which health and welfare pension funds,
vacation money is withheld from their wages, pension and
health and welfare funds are paid on the hours they work,
and I have to see that these employers pay to the various
funds And I only way I know is to know where the men
are working.
Q I see And is that the purpose of a person calling the
union or checking with the union after he finds a job9
A. This is right
*
Q On what basis do you send people out on jobs?
A On the basis of what the contract calls for, qualified
journeymen and apprentices
Q. And are union members considered to be qualified
journeymen"
A Is a union member considered"
Q. Yes
A He certainly is, yes.
Q And what is the procedure for attaining that status?
A. Becoming a journeyman?
Q. Well, let us say getting into the Union, restncting it
to that.
A. He has to serve a 4-year apprenticeship and then on-
the-job training, at school, related training and then he
becomes a member. He is tested periodically during that 4
years, and then becomes a member We also take people in
that were not members of our apprenticeship system, but
they come in to me, or whoever happens to be the business
agent, and we ask them what their experiences have been,
and if we think that they have had the proper amount of
experience, we tell them to fill out an application. Then it
goes before the Executive Board; the Executive Board tells
these people to come in on a meeting night, and they
interview them, ask their qualifications, and if they-if the
Executive Board feels that they have the necessary
qualifications to become a journeyman, then they are sent
to an examining board, and they take a test. All applicants
to be members take this test.
Q. Do you recall Messrs Shillinsky, Lagasse and
Redman coming to you at the union hall on Monday, April
26, 1971, looking for work?
A. Yes, I don't recall whether that was the date or not.
I recall the three of them coming in, yes.
Q. Just before they went to work for Castleman and
Bates?
A Yes.
Q. And do you recall any conversation which took
place at that time with those three men9
A. They asked me if there was any work, and I said
there was none available , I'm quite sure.
Q. Do you recall any other conversation at that time?
A. I think one of them asked me if I minded if he went
and got his own job, and I said "no, I do not" as long as he
let me know where he is working.
Q. And, there has been a lot of testimony about getting
clearance from the union Would you tell us what that
means , as you understand.
A. Clearance from the union, it is clearance from the
union because we have contractual agreements with all
*
Q. It is true, as had been stated here in other testimony
that permit men, that is, people who are not members of
the union, never go to work until all of the union members
go to work?
A. No, in my previous testimony, I told you that we
have card men loafing now and there are premrt men, so-
called permit men, working now in the Rhode Island area,
in two different shops, as a matter of fact.
Q. Are the non-union members sent out based on
qualification or based on their membership, or lack of
membership?
A. Definitely on their qualifications. That's how they
hold the jobs.
Cross-Examination by Mr. Rodio
Q. You indicated, in reply to Mr. Coleman' s question,
that you referred these three gentlemen involved here, Mr
Lagasse, Mr. Redman and Mr Shillinsky, to one or more
jobs?
CASTLEMAN AND BATES , INC 487
A. Yes.
Q. At the time that you referred them, do you know
whether all your union members were already employed at
the time?
A. I wouldn't know, no, offhand No, I wouldn't know
that, no. I couldn't tell you whether they are all employed
today or not
A Yes
Q And did he ask you if all the card men were
working
A I don't recall him asking me that, no
Q Well, could you tell us, then, what the conversation
was when he came in"
A I said there was no work for him that day, I'm quite
sure
Q. Do you always make it a practice to ask all job
applicants of their qualifications`'
A. Yes, I think I do , yes. I try to
Q. Well, do you?
A. I try to, yes.
Q Did you ask Mr Lagasse whether he had certain
qualifications9
A. I asked him what his qualifications were , not certain
qualifications.
Q. All right Did you ever refer Mr Lagasse to any job?
A. Yes, I did.
Q. Did you, when you spoke to Mr. Lagasse , feel that
he was qualified as a journeyman?
A. Did I feel that way?
Q. Well, you passed on the qualifications before you
referred them
A. No, I didn ' t pass on the qualifications at all. I don't
pass on their qualifications.
*
Q. Did you consider Mr. Lagasse qualified when you
referred him to jobs?
A. He was the best I had.
Q. Would you refer a man that was not qualified?
A. Well, you're splitting hares now-
TRIAL EXAMINER: Would you answer the question
please?
A. The trade is a trade of skill Some are better than
others, let's put it that way, and I would refer people that
apply to me for a job, if I thought they could be adequate.
Q. Did you think Mr. Lagasse was adequate for the
job?
A. Yes, at the time.
* * *
Q. You did receive a phone call from either Mr
Redman or Mr Shillinsky after they had obtained
employment at Castleman and Bates , did you not?
A. Yes, I did. I testified to that
Q. Right. With regard to that phone call, the day of
that phone call, do you recall when Mr. Redman and/or
Mr. Shillmsky were in the union hall?
A. I recall Mr Redman coming in
Q. And what did you tell Mr. Redman at that time?
A. I testified that I was upset with him because he got a
job when he had a job.
Q. . . . I am referring to the period before the phone
call, when you learned that he had the job. Didn't he come
in there to inquire about a job in the morning?
Q Then you received the phone call that afternoon,
right?
A It could have been that afternoon, or the next day,
I'm not sure when it was
Q. All right, in any case, do you recall whether it was
Mr Redman or Mr Shillinsky who phoned you?
A. Mr Shillinsky.
Q And did Mr Shillmsky ask you if all the card men
were working or not?
A. No, I don't think he did, no.
Q. You don't think he did? Did you receive-
A. And I don't think I 'd answer him if he did ask me,
because I don't think it's any of his business.
Q. And what did he tell you when he called you?
A. That he had a job at Castleman and Bates.
Q. And what did you say to him then?
A I said "fine, go to work."
Q Now, did he indicate to you that he was with
somebody else?
A. Yes, when he made the call , yes, he said he was with
Mr. Redman.
Q. And what did you say to him?
A. I said I wanted to see Mr. Redman , to come to the
hall.
Q. What was the purpose of having Mr. Redman come
into the hall?
A I wanted to talk to him on the mere fact that he had
gotten this job-I had gotten information that he had
gotten a job on Friday and he had been to see me on a
Monday, and this was Tuesday.
Q Mr. Redman is not a union man-he is not a
member of your union.
A Mr. Redman is not a union man , that 's right.
Q. Now, what reason would you have for calling a non-
union man into your office under those conditions, when
he had already found a job?
A. I wanted to make sure that he was getting what the
contract called for.
Q. Did you have confidence in Mr . Harding and Mr.
Dumas at Castleman and Bates , paying the rates that were
called for in your contract?
A. All the confidence in the world.
Q. Then would you tell us why it was that it was dust
488 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Mr. Redman that you were concerned about, not getting
that rate
A. I don't have much confidence in Mr. Redman.
Q. And in April or May, Mr. Dumas had called you
that he needed some qualified men, and you didn't have
any available?
A. That's right.
Q. Now, was this before these three gentlemen, Mr.
Lagasse, Mr. Redman and Mr. Shilhnsky , came to you on
April 26 and 27?
A. Yes. Well, I don 't know whether it was-phrase that
again.
Q. Was the call that you received from Mr. Dumas, for
qualified men, before or after Mr . Lagasse , Mr. Redman
and Mr. Shillinsky came to you , on April 26th or 27th?
A. Gee, I don't recall that.
Q. Now, if they had been to you before , ygu felt that all
three of these men were qualified journeymen, did you not?
A. I would have sent them to the job, if that's what
you're saying.
TRIAL EXAMINER : . . . Did you refer Paul Homer-well,
let us start with Francis Riley, Paul Horner , Chester
Aldrich, Paul Hassell and Hugh Moore?
THE WITNESS : I did, yes.
TRIAL EXAMINER : Did you do that in response to any call
from the company or did you , on the other hand , call the
company and say "I 've got some good men available," do
you recall?
THE WITNESS: I think on two of my calls I told them I
had good men, the last two that were sent over , that I had
two qualified men available.
TRIAL EXAMINER : Looking at the list , would you say
which are those that you offered voluntarily?
THE WITNESS : I think it was Hassell and Moore.
TRIAL EXAMINER : Now, the other three that you said you
referred-was a request made of you?
THE WITNESS: Yes.
TRIAL EXAMINER : By whom and when?
THE WITNESS : I can't tell you exatly when, but it was
made by Mr. Dumas.
*
TRIAL EXAMINER : Do you know if it was before or after
these three men told you that they hadjobs?
THE WITNESS: It was before then.
* * *
Q. (By Mr. Rodio) Do you know , Mr. Peters , whether,
at that time, Mr. Riley, Mr. Horner and Mr. Aldrich were
registered with you, as being available for work?
A. Yes, they were . They came in and reported to me,
yes.
Q. Just take it easy now-they were registered, with
regard to the date that these three gentlemen that are
involved in this proceeding started work , did Mr . Riley,
Mr. Horner and Mr . Aldrich come to you and ask to be
placed with some employer , was it after they had already
started-after these three men had already started with
Castleman and Bates?
A. I don't think so, no. I don't think so.
* * * * *
Q. All right, now, if they had come to you before these
three gentlemen started work , you would have referred
them to Castleman and Bates as part of the qualified men
that Mr . Dumas requested?
A. Yes, I would have.
Q. All right. So, that they came in after these three men
went to work for Castleman and Bates and then you
notified Castleman and Bates they were available , and they
went to work there , is that correct?
A. That could be right , that could be that way.
TRIAL EXAMINER : ... General Counsel 's Exhibit 3,
which is stipulated as accurate and true , shows that Mr.
Riley was hired at Castleman and Bates on April 29th,
which was the day after the three men here involved were
hired.
THE WITNESS : All right . Then , my dates were wrong.
TRIAL EXAMINER: All right, now, did you refer Mr. Riley
to Castleman and Bates?
THE WITNESS: I'm quite sure I did, yes.
TRIAL EXAMINER : Do you remember under what
circumstances you did?
THE WITNESS: I think there was a request in for men
from Mr . Dumas.
TRIAL EXAMINER: Do you recall when the request came?
THE WITNESS : No, I don 't recall when the request came.
TRIAL EXAMINER : All right. Now, the next two were
hired on May 4th, and their names are Homer and
Aldrich. . . . Did you refer them to Castleman and Bates?
THE WITNESS : Yes, I did.
TRIAL EXAMINER : Did you do that on your initiative, by
calling the company and saying you had a couple of good
men free , or did you get a request from the company?
THE WITNESS : I think I called them.
TRIAL EXAMINER: Do you recall when?
THE WITNESS : No, I don't recall when, really , but I know
they were loafing, let's put it that way.
TRIAL EXAMINER : Do you recall why you called
Castleman and Bates rather than some other company?
THE WITNESS : Well, I probably called all the companies.
TRIAL EXAMINER: You don 't specifically recall?
THE WITNESS: I know that I called other companies, I
( \SILEMAN AND BATES , INC 489
don't know whethei these ire the men that I ..a. calling
about, or not
TRIAL EXAMINER This was done on ^,oui initlati%e
not in response to a call"
THE WITNESS Right
and
TRIAL EXAMINFR The next two are dated Mai 12th. as
having started to work Their names are Hassell and
Moore Did you refer them to Castleman and Bates?
THE WITNESS I did
TRIAL EXAMINER Did you do it in response to a request,
or on your own"
THE WITNESS MN mitiatise
Q. (By Mr Rodio ) How mans employees had Mr.
Dumas requested of you to fill thejobs they had available?
A. He's requested different amounts at different times.
This specific time"
Q. This specific time
A. I think it was four that he asked for, I'm not sure.
Q. Four, and you couldn ' t give us the exact date that
this request was made9
A. No, I could not I get requests every day, many
times a day.
Q. . . . When, as the Trial Examiner indicated, these
three men, Mr. Riley, Mr Horner and Mr Aldrich, were
referred to Castleman and Bates for employment there, did
you have any conversation with Mr Dumas about the
further need for any more men?
A. I always inquire if they need more men
Q. And what did he tell you?
A. I don't know that he said he wanted two more
qualified men, or not I think that he did.
Q. He didn't indicate that he had about all the men he
needed at that time, by any chance, did he"
A. Do you mean by indicate that he said it?
Q. Did he say it?
A. No.
Q. Did he say that Mr. Lagasse was not qualified to do
the work that he was doing"
A. He didn't mention any names to me, no.
Q. Did he say that Mr. Redman was not qualified to do
the work he was doing?
A. He didn't mention any names to me, any names.
Q. Did he say that Mr. Shllhnsky was not qualified to
do the work that he was doing?
A No.
Q. And what was it you told Mr. Redman when he
came back to the union hall? That is, after that phone call?
A. Specifically, I don't know. As I told you, we had a
discussion, quite a discussion.
Q. About what?
A. About the way he procured jobs.
Q. Would you explain it to us, what you mean by that?
A Yes, he has one job and he goes to this other one I
mean, I don't think it's right that people should have two
jobs at the same time-a job in the hand and a job in his
pocket, when there is other people looking for employ-
ment
Q. Would you explain to us why the union should be
concerned about how many jobs an individual has?
A. Because we have to service all the people that are in
our union, and all the people that are applying for work.
There is a fair way of distributing work, to my thinking
anyway.
TRIAL EXAMINER' How do you police your union
security clause"
THE WITNESS: What do you mean by that?
TRIAL EXAMINER: How do you make sure that you don't
have some freeloaders working at a plant who aren't
paying dues?
THE WITNESS: Oh, I visit the different plants. I visit the
different jobs. I am the policeman in the area , if that's what
you mean.
TRIAL EXAMINER: You said that you check to see that
employers are paying welfare , aren 't you equally interested
to see that the employees are paying their union dues?
THE WITNESS: That's automatic-I didn't follow you.
There is a record kept of the union dues by our financial
secretary. If they are too much in arrears, they are
automatically suspended; it's automatic.
TRIAL EXAMINER : Well, of course, but you have an eight-
day clause, don't you?
THE WITNESS: Oh yes That's the law of the land, I think.
Seven days, isn't it-the eighth day file an application.
Q [By Mr. Rodio] Would you look at Article V of your
collective-bargaining agreement . . . . Do you require that
an employer have the employee join the union in
accordance with that provision, after they have been
employed?
A. I don't enforce it, as such.
Q. Well how?
A. The man has to qualify and the way we do this-we
don't send anyone out that hasn't made out an application
for a job-excuse me, application for the union. We do it
when they come in.
Q. Are you saying then, that you don't-well, how do
you find out if they are qualified?
A. I explained that to you. I don't find out. It's done by
the Board.
TRIAL EXAMINER: I would just like you to clarify this last
thing for me. You said you don't send them out until they
apply for union membership, is that what you said?
THE WITNESS: When they come in, Your Honor, and
they tell me what their qualifications are, and how they go
490 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
about getting-I have them fill out an application then and
there for membership in the union.
TRIAL EXAMINER: When they first come to the union to
apply-
THE WITNESS: For a job. And if I send them to a
fob, providing I send them out to a job, there's a job
available, I have to fill out an application. That is filed in
my office, it is screened by the Executive Board. If the
Executive Board feels that they should interview him, they
notify him to come in If they feel-after they have
interviewed him, they feel that they should be members of
our union because of their qualifications, they are sent to
an examining board
*
Q (By Mr Rodio) Now, if you have a qualified man go
to work for an employer and he is not a member of the
union, don't you require the employer to have him join the
union by the eighth day of employment?
A I don't require the employer to do that, no; I think
it's the responsibility of the men.
Q Well, pursuant to that provision of the contract that
we just went over, doesn't that require that the man join
the union on and after the eighth day9
A If he is qualified, yes
Q Do you make recommendations to the Execu-
tive Board based on your knowledge in the area, as to
whether they should be admitted into membership?
A Not admitted , interviewed.
Q Oh. interviewed
A Yes I recommend them to be interviewed and
1well. ves, I do recommend them on the basis of their
qualifications and on the fact that they have been
employed and the employer found them satisfactory. He
does the paying, so, if he finds them satisfactory , they are
all right
Cross-Examination by Mr Stanzler
Q I am a little unclear as to why you wanted to
see Redman on the 27th, why you wanted him to come in.
A Because I figured it's my duty to verbally chastise
him in the action he took in getting thejob
Q. He was not a member of your organization, was he?
A He wasn't and he isn't
Q Then why did you feel it was your duty to chastise
hnn°
A Because he is working for the employers that are in
a contiactual agreement with me, because that job there
might he available to one of our more qualified men.
Q And is that the reason why you wanted to chastise
him, because there might be a job available to a more
qualified man9
A. Definitely
Q Or to a member of yours9
A It could be both
Q. . . . isn't it a fact that you so testified that you
wanted to see him because you learned, somehow, that he
had been to Castleman and Bates and obtained a job
previously and when he came in Monday to see you and
you told him there was no work, you knew that he had a
job?
A. That's right.
Q. How did you find that out?
A. I didn't know that he had a job, I knew that he had
asked for a job.
Q. How did you find that out?
A. It was told to me.
Q. By whom?
A. I think by Mr. Shillinsky, told me.
Q. Was it Mr. Dumas that told you?
A. I think it was Mr. Shillinsky.
Q. Are you sure it wasn't Mr. Dumas?
A. I said I think it was Mr. Shillinsky.
Q. When did Mr. Shillinsky tell you that?
A. On a Monday, or Tuesday, when he called.
Q. He told you on Tuesday when he called and said
.,can I go to work here" and then he told you that Redman
has had this job since last Friday?
A. No. It was in-I think it was Mr. Dumas that told
me that they had been over there looking for a job.
Q. Are you sure?
A. I think so, yes.
s s s s
Q. When did he tell you that?
A. When he had called and asked for some men.
Q. And when did he call you and ask for some men?
A. Previous to that. That Friday , I think he called.
Q. Did Mr . Dumas call you on Friday, the Friday prior
to the 28th, asking you for some men?
A. I think he did, yes.
Q. And you told him you had no men?
A. That's right , at the time.
Q. ... He told you that Mr. Redman was in to see
him?
A. Yes.
Q. And he said to you that he would like to have Mr.
Redman go to work , is that right?
A. I don' t know whether he said that or not, possibly
did. Possibly did, yes.
Q. And yet Mr . Redman was still required to see you to
get it cleared , is that right?
A. That's right.
s s s *
Q. Now, you know that Mr. Redman, Mr. Shillinsky
and Mr . Lagasse had worked at Planair for about a year
prior to their being laid off at Planair?
A. More than that , probably.
Q. And you never required them to pay dues as union
members, did you?
A. No.
CASTLEMAN AND BATES , INC. 491
Q You never asked the company to discharge them,
did you'
A No
Q You never saw fit to enforce the provisions of the
contract°
A I don't follow you I think I do enforce them.
TRIAi EXAMINER Did you ever communicate with
Planair about the union status or union dues payment of
these three men°
THE WI1Ni ss I did not
Q (By Mr. Stanzler) Why not9
*
timing of it, but-I don't know whether there was a request
in at that time, or not.
Q. But you just testified, didn't you-
A. Yes, I did, yes, I did testify to that.
Q. Now why did you say, then, on April the 26th that,
to these men, that there was no work available-there were
nojobs.
A. Because there was no request in that morning for
them, for jobs.
Q. He requested them on the Fnday prior to that?
A. He could have requested them a month before that,
too, I'm not sure when he did request them.
Q. As a matter of fact he told you, too, that, according
to what you testified to, [he] said that Mr. Redman had
been down to see [him ]-
A. On the Friday afternoon.
A. Because they weren't members of the union.
Q. But you said you were enforcing the contract?
A. I do enforce the contract
Q Well, the contract requires them to be members,
doesn't it? Members of the union, in order for them to
continue employment?
A. The interpretation of the contract to me is, if they
are qualified men, they will be members of my union.
A. I don't think that's part of the contract that I have to
enforce
Q Oh, I see, you only select certain provisions of the
contract that you want to enforce9
A. No. No, I enforce the contract
Q Well, do you enforce the contract with respect to
union membership?
A. With respect to union membership, yes.
Q. And did you enforce the contract requiring the
employer to have employees who are members of the
union9
A. There is another stipulation, too, and I think it's the
law of the land, I'm not a lawyer, but, it says that he has
the right to employ anyone he wants, within a period of 48
hours, if I don't supply him with men
Q Would you answer my question9
A. Your question is, do I enforce that Article 5, Section
59
Q With respect to maintenance of membership in the
union security`'
A No, I did not enforce that.
* * * * *
Q Well, is it fair to say that [Dumas ] called you at
some time prior to the Wednesday, April 28th?
A Yes
Q Seeking qualified men9
A Qualified men, yes.
Q How many did he ask for?
A I think it was four at the time, I think I said that.
Q Now, if that were the case, why, on April the 26th,
did you say to Shillinsky and Lagasse and Redman that
there was no work available9
A. I really don't know, in that sense , I don't know the
* * *
A. And yet you said to Mr. Redman that there was no
work available on Monday?
A. I possibly said that, yes.
Q. Why?
A. Well, I didn't like, for one thing, Mr. Redman going
there and applying for a job, when he had a job, on that
particular Fnday.
EXCERPTS FROM TESTIMONY OF
LAWRENCE McLAUGHLIN
Direct Examination by Mr. Coleman
Q. Are you familiar with the union security clause, of
the contract that you have with the employer?
A. Yes, I am.
Q. Requiring membership after 8 days?
A. Yes, sir. I am.
Q. Do you enforce that clause , as such?
A. No.
Q. Do you take any action concerning getting people
into membership in the union?
A. No. Not really.
Q. Well, would you tell us what you do to get people
into the union? Do you require them to apply for
membership , before they are referred out of the hiring hall?
A. No. No. All we take for them to be referred out of
the hiring hall is their name, address , and Social Secunty
number, and we put it on the route sheet.
Q. On the what?
A. On the route sheet . It's a card-it's an index card,
that's all. Then they go to work. But the-then-I've never
known of anyone who wanted to work who didn't want to
join. We've never had to enforce the security clause. So,
when a man is working a while, and we see that-you
know-he's capable , and he likes the business , and what
have you, then we have him make out an application for
membership.
But the eight days-the reason we don 't enforce it, is that
it's not a good way to do business , really. And the average
guy who comes to you is unemployed . The reason he's
there is he doesn 't have a job . And he might have been
working in a shipyard, nonunion shop, and there's quite a
492 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
bit of difference between construction sheet metal, and
that type of sheet metal
And our initiation fee represents a substantial invest-
ment. So, the man might have been unemployed, you
know, two, three, four months. We don't believe it's good
practice to put him to work, and then eight days later, wave
a book in his face and ask him for money. Chances are he
doesn't have that kind of money at the time. So, we
generally let it go for a while, and see that-because we
have no turnover in our membership. And that's what
we're mainly interested in, that a man that comes in stays.
So, it's more on a voluntary basis, then.
Q. Did you hear Mr. Peters testify that he had people
fill out an application when they first came in to be
referred out of the hall?
A. Yes, I did.
Q. Do you know anything about that practice?
A No, I don't. No. I've never heard of-to my
knowledge, I've never had a man fill out an application
prior to going to work. He has a card that you staple, that
you put on to his application. But, it's a route sheet, it's not
an application, as such. And then he makes out his
application and you attach the card to it, and then his
records stay together.
Q. While you were president of the union, were you
familiar with any practice to have people actually apply to
join the union, before being referred out of the hiring hall?
A No. As a matter of fact, our constitution-we
can't-a man has to be employed in our jurisdiction,
before we can process him for membership. So, an
application without a job is no good. He has to be
employed in our jurisdiction, and in that case, he wouldn't
be. Our constitution forbids this practice.
Q. Might it be done just as a means of registering him
in the hiring hall, of getting information on him?
A. An agent might use that as his own-as a personal
record, you know-to keep, you know, the man's name,
address, and Social Security number. But, whether he'd
have him sign the application, I don't-I doubt very much.
Q. But, you have a clause in your contract that requires
membership after eight days of employment?
A Yes. We have a security clause.
Q. And why was that clause put in there?
A. The clause-well, I think the Labor Management
Relations Act, possibly. That's when it was put in there.
Q. What about the Labor Management-
A. I think it's a federal law, that eight days, if I'm not
mistaken. Originally-I mean, I'm just speculating that
that's the reason. I don't really know. I think it's eight days
for building trades, and thirty days for industrial unions.
Q. Do you take part in negotiations of these contracts?
A. Yes, I do.
Q. Do you discuss these different clauses with the
employers?
A. Yes.
Q. Do you understand what that clause requires?
A. Yes.
Q. What does it require?
A. It requires that every man, after working eight days,
it's compulsory that he Joins the union.
Q. Now, you police these contracts in this area?
A. Yes.
Q. Do you require that employees join the union after
eight days?
A. No. We don't.
Q. Is there any reason for having that clause in the
contract , then , if you don' t enforce it.
A. Well, it's probably been there for a good number of
years. The reason it's there is if we-if we wanted to, we
could, I suppose . Whether we actually-whether we
actually do, we don't. No.
Examination by Trial Examiner
TRIAL EXAMINER: Does the International constitution
make any provision for qualifications for membership?
THE WITNESS: Yes.
TRIAL EXAMINER: Does it require apprenticeship?
THE WITNESS: No, it doesn't require apprenticeship.
TRIAL EXAMINER: Roughly, what are the International
constitution provisions for membership?
THE WITNESS: The International-well, here again the
locals maintain a lot of autonomy. The International
simply says qualified journeyman. You know, and they do
let you set up standards in relationship to your apprentice-
ship program. The apprenticeship program is local. But,
the actual reference they make, in the constitution is-you
know-everybody knows what a sheet metal worker is. It's
left to that.
TRIAL EXAMINER: But, does the International constitu-
tion, in effect, say that this-membership in this union is
open only to qualified journeymen?
THE WITNESS : In effect , this is it. Yes.
TRIAL EXAMINER: Generally, if a man is a member of one
local, would he be accepted-not necessarily into member-
ship-but, would he automatically be accepted and
considered as a qualified journeyman, because he had been
admitted to a local.
THE WITNESS: Yes. There's a good chance that he would.
Yes.
TRIAL EXAMINER: Then I want to know, if an employer
should call you tomorrow, and say, "I want six men."
You'd sort of pick them out of your mind, rather than
going to this list, these route slips?
THE WITNESS: Yes.
TRIAL EXAMINER: You wouldn't refer to the route slips?
THE WITNESS: Because the unemployed men, it's just a
mental process. You know who's unemployed. There's not
that many, you know. It's not that-
TRIAL EXAMINER: So you just decide, "Well, I've got so-
and-so. I'm going to send him out."?
THE WITNESS: Not necessarily that way. No. It'd go by
what type of work the employer had. It'd go as to how long
the man was loafing, as opposed to other men. And the
type of work he had. Some employers do a lot of specialty
work and they require certain skills than others. Others,
you know, sometimes an employer will call and say, "I just
CASTLEMAN AND BATES, INC
want a pair of hands. Send me whatever you've got " You
know. Other times he'll call and say, "I want a layout man,
a cutter, a fabricator."
TRIAL EXAMINER: Suppose you don't have one of those
that you-offhand you can't think of somebody that's been
in to see you in the past couple of months, who's a good
layout man. So, then, what do you do?
THE WITNESS: So, then you can't provide the men, if you
don't have them.
TRIAL EXAMINER. Then, do you send him somebody
else? Or, do you say, "Sorry, we don't have anybody"? Is
that what you do?
THE WITNESS: Well, generally he knows You see, in a
small area like this, there's only 19 shops. And a lot of
them are five or six man shops. And it isn't-I don't think
there's any shop here that employs over-possibly-30
sheet metal workers. And the employers know the
qualifications of the men, you know. And they know who
can do what that's working for them This about takes care
of it. And if I couldn't supply a layout man, I'd say, "Well,
I'll keep my eyes open. If one comes in I think can do the
job, I'll refer him to you, or send him to you "
And he might say, "Well, you know, so-and-so is
working for another company." You know, occasionally
they engage in a little bit of raiding. They make him an
offer for more money, than the company he's working for.
And that man will go and work for him, see. So, he in turn
will try and solicit himself, also.
Redirect Examination by Mr Coleman
Q. Did you say that ninety percent of your people work
steady, and therefore would not be coming in and out
looking for work?
A. Yes I'd say the turnover into the hall is very
minimal. I'd say that'd be a good average-would be as
high as ninety.
Q. Where do people who are not members of your
union go when they want to seek employment in the sheet
metal trades? The union hall?
A. Not necessarily. No. They go to the sheet metal
shop
Q. Do some of them come to the union halh
A. Yes. Some of them do.
Q And can they register for employment at the union
halh
A.
Q.
Yes, they can
Can they register
union hall?
A. Yes.
for employment by calling the
Q. . . . Is there any purpose to the eight-day clause,
other than to force people into a union? Do you know?
A. No. There's none that I know of.
s
493
Recross-Examination by Mr. Stanzler
Q. . Let's assume that you have a union contract
with a shop, which has two employees that are union
members. Thereafter the employer wants to increase his
force, more people to go to work. He's got a big job. It's
going to last for a period of time.
And, he goes out and hires four new members, four new
people, on his own. And they're nonunion members. They
could work six to nine months. O.K.?
You have no interest in those people becoming members
of your union?
A. Oh, no. I didn't say that. Sure we do.
Q. You wouldn't enforce the contract, would you?
A. I wouldn't enforce the eight-day provision.
Q. But, you would enforce the contract? Would you
want them to become members, if they were employed six
months or nine months?
A. Sure. Of course we would.
Q. Would you require that they become members?
A. If they were qualified. Yes.
Q. If they were qualified. But if they were working for
this particular employer for six or nine months, you
wouldn't require them to become a member. Is that
correct?
A. No. Not necessarily. It depends.
Q. Only-it depends, if you determine that they're
qualified?
A. Oh, no.
Q. Or your Executive Board determines-
A. Oh, no. Not at all.
Q. -that they're qualified?
A. The employer, in many cases, determines who's
qualified. Because he might hire these four men. A week
later, he might say, "They're four stiffs. Get me some more
men."
Q. Then, do you know what happens to a man that's
employed, if he's employed by an employer, and wants to
keep on working9 You would not require him to become a
member, would you?
A. Oh, yes.
Q. You would?
A. Yes.
Q. Do you know why Shillinsky, Lagasse, and Redman
were not required to become members when they worked
for Planair for almost a year?
A. I don't know why.
APPENDIX C
NOTICE TO EMPLOYEES AND MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discriminate against Robert J. Shillin-
sky, Ernest W. Lagasse , Jr., Francis I. Redman, or any
other employee or applicant for employment in regard
494 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to hire or tenure of employment or any term or
condition of employment because of nonmembership
in Local 17, Sheet Metal Workers International
Association, AFL-CIO, or any other labor organiza-
tion.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees or any appli-
cants for employment in the exercise of the rights
guaranteed in Section 7 of the Act.
WE WILL offer the above-named employees full
reinstatement to their former positions or, if those jobs
no longer exist, to equivalent jobs, when available.
WE WILL, jointly and severally with the above-
named Union, make the above-named employees
whole for any loss of pay they suffered as a result of
our failure to hire them on April 26 and 27, 1971, and
our terminating their employment on May 7, 1971.
Dated By
(Representative) (Title)
We will notify immediately the above-named individuals, if
presently serving in the Armed Forces of the United States,
of the right to full reinstatement, upon application after
discharge from the Armed Forces, in accordance with the
Selective Service Act and the Universal Military Training
and Service Act.
This is an official notice and must not be defaced by
anyone.
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.
Any questions concerning this notice or compliance with
its provisions may be directed to the Board's Office,
Bulfinch Building , 15 New Chardon Street, Boston,
Massachusetts 02114, Telephone 617-223-3300.
CASTLEMAN AND BATES,
INC.
(Employer)