Eichleay Corp.

National Labor Relations Board - Board Decisions

Dec 10, 1954

110 N.L.R.B. 1295 (N.L.R.B. 1954)

EICHLEAY CORPORATION 1295
Bowman of the $3 per week given to proofreading employees in the higher wage
range.
It having been found that Respondent discriminatorily reduced the working hours
of the week on the night shift in the period of weeks ending January 3, 1953, to
February 21, 1953, thereby affecting the earnings of Peter Pavlick, Joseph A.
Hutton, Robert J. Meier, Harold T. Carruth, and Helen Bowman, it will be rec-
ommended that the Respondent make each of them whole for any loss of pay he
may have suffered by reason of the Respondent's discrimination against them in the
reduction of hours of work permitted, by crediting to each of them the difference
in hours between those actually worked and the normal workweek on the shift,
and by making payment to each of them for each of such credited hours at the
rates of pay as otherwise adjusted and ordered herein.63
Because of Respondent's unlawful conduct as heretofore found, and its under-
lying purpose, I am convinced that the unfair labor practices found are persuasively
related to the other unfair labor practices proscribed by the Act and that the danger
of their commission in the future is to be anticipated from the course of Respond-
ent's conduct in the past. The preventive purposes of the Act will be thwarted
unless the recommendations are coextensive with the threat. In order, therefore,
to make effective the interdependent guarantees of Section 7, to prevent a recur-
rence of unfair labor practices, and to minimize strife which burdens and obstructs
commerce, and thus to effectuate the policies of the Act, it will be recommended
that Respondent cease and desist from in any manner interfering with, restraining,
or coercing its employees in the exercise of the rights guaranteed by Section 7 of
the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record in
the case, I make the following:
CONCLUSIONS OF LAW
1. The News Publishing Co., Inc., Paterson, New Jersey, is and at all times
material herein, has been engaged in commerce within the meaning of Section 2
(6) and (7) of the Act.
2. Local 195, International Typographical Union, is a labor organization within
the meaning of Section 2 (5) of the Act.
3. The Respondent has engaged in and is engaging in unfair labor practices
within the meaning of Section 8 (a) (1) and (3) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2 (6) and (7) of the Act.
5. The Respondent did not violate Section 8 (a) (3) of the Act in failing to
give a wage increase to William H. Huebner in July 1952.
[Recommendations omitted from publication.]
es There is no allegation in the complaint relative to the lobster shift, except discrim-
ination in the transfer of the named employees thereto, and which discrimination has been
found as an affirmative fact. It was indicated at the hearing the transferred workers
were working full time on such shift. It is not within the province of the Trial Examiner
to attempt to extend the night shift bonus or to fix any wage rates for such later shift
EICHLEAY CORPORATION and JOHN M. WINDOM
INTERNATIONAL B ROTHERHOOD of BOILERMAKERS, IRON S HIP BUILDERS,
BLACKSMITHS, FORGERS & HELPERS, AFL; DISTRICT LODGE 57 AND
LOCAL 679, INTERNATIONAL BROTHERHOOD OF BOILERMAKERS, IRON
SHIP BUILDERS, BLACKSMITHS, FORGERS & HELPERS, AFL and JOHN
M. WINDOM. Cases Nos. 10-CA-1863 and 10-CB-175. December
10,195,
Decision and Order
On April 21, 1954, Trial Examiner W. Gerard Ryan issued his
Intermediate Report in the above-entitled proceeding, finding that the
110 NLRB No. 213.
1296 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondents had not engaged in the unfair labor practices alleged
in the complaint, and recommending that the complaint be dismissed
in its entirety, as set forth in the copy of the Intermediate Report at-
tached hereto. Thereafter, the General Counsel filed exceptions to the
Intermediate Report and a supporting brief.
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and brief, and the entire record in
the case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner with the following modification.
1. The Trial Examiner found that the Respondent International
Union and the Respondent Employer in 1952 signed an alleged closed
shop national agreement which was currently in effect. He did not,
however, decide the question of the contract's legality because, he
held, the complaint did not specifically allege that the execution or
maintenance of the contract was unlawful, and enforcement, which
was alleged to be an unfair labor practice, was not proved. The Gen-
eral Counsel contends that the Trial Examiner erred in holding that
the maintenance of the contract was not in issue. He argues that the
allegation that the Respondents violated the Act by enforcing the
contract according to its terms necessarily put in issue the question of
the legality of the contract itself. We agree.
The complaint described a contract executed on April 28, 1952, and.
alleged as a violation that the Respondents "have enforced, and are
enforcing" the hiring provision of the contract. The General Coun-
sel introduced the contract in evidence, and stated clearly on the record
that the legality of the hiring provision was in issue. At the hearing
and in briefs to the Trial Examiner, the Respondents argued the legal-
ity of the provision, thereby revealing an understanding that this was
an issue in the case. In view of these circumstances, we find that the
lawfulness of the hiring provision in the 1952 collective-bargaining
contract was in issue and should have been decided by the Trial
Examiner.
The hiring clause provides as follows :
The Contractor recognizes the Union as the sole bargaining
agent for all of its construction employees in the performance of
all work coming within the terms of this agreement and agrees
to work the hours, pay the wages and abide by the rules and regu-
lations established or agreed upon by the Union, and agrees to
employ only Boilermakers and Boilermaker Helpers in the per-
formance of the work included within the scope of this agree-
ment, provided, however, that all of the foregoing shall be subject
to the provisions of any and all existing laws. [Emphasis
supplied.]
EICIILEAY CORPORATION 1297
This is the identical closed shop provision, executed by this same In-
ternational Union and another employer, which the Board squarely
held in Ebasco Services Incorporated 1 violated Sections 8 (a) (1),
(2), and (3) and 8 (b) (1) (A) and (b) (2) of the Act. Here, as in
Ebasco Services, Section 10 (b) of the Act bars us from holding the
execution of the contract violative of the Act because the execution
date of the contract occurred more than 6 months before the filing of
the charges. We hold, however, for the reasons stated in Ebasco,
that the day-to-day existence of the closed shop provision is a con-
tinuing violation of the Act. Consequently, we find that by maintain-
ing in existence the closed shop provision of the 1952 national agree-
ment the Respondent Eichleay Corporation violated Section 8 (a)
(1) of the Act, and the Respondent International Union violated Sec-
tion 8 (b) (1) (A) of the Act.' We shall therefore enjoin them from
maintaining, giving effect to, or renewing the unlawful contract
provision.
2. The Trial Examiner also found that the Respondent Company
did not deny employment to job applicant Windom nor did the Re-
spondent Unions deny him a job referral. The General Counsel con-
tends that the evidence establishes unlawful discrimination against
Windom. Because the Trial Examiner's findings rest on credibility
resolutions , we adopt them. It has been the Board's settled practice
not to disturb the credibility findings of a Trial Examiner, based on
his observation of the demeanor of the witnesses, unless the clear pre-
ponderance of all the relevant evidence demonstrates that the Trial
Examiner's resolution was incorrect.' Although we have considerable
doubt about the correctness of the findings here, we find, on consider-
ation of the record as a whole, that the preponderance of the evidence
`does not warrant overruling the Trial Examiner's credibility reso-
lutions.
Order
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the Respondents, Eichleay Corporation,
Pittsburgh, Pennsylvania, and International Brotherhood of Boiler-
makers, Iron Ship Builders, Blacksmiths, Forgers & Helpers, AFL,
their officers, agents, representatives, successors, and assigns, shall:
1 107 NLRB 617.
2 As in Ebasco Services Incorporated, 107 NLRB 617 , the maintenance of the closed shop
contract violated Sections 8 (a) (1), (2 ), and (3 ), and 8 ( b) (1) (A) and ( b) (2) of the
Act However, because the General Counsel has excepted only to the Trial Examiner's
failure to find a violation of Section 8 (a) (1) and 8 (b) (1) (A) of the Act, we make
no broader finding
3 Standard Dry Wall Products , Inc., 91 NLRB 544, enfd . 188 F. 2d 362 (C A. 3) ;
N L R B. v Universal Camera Corp , 190 F. 2d 429 , 430 (C. A. 2).
338207-55-vol. 110-83
1298 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1. Cease and desist from maintaining, giving effect to, or renewing
the closed-shop provision of the April 28, 1952, national agreement
or any other union-security provision, except as authorized by the
proviso to Section 8 (a) (3) of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Post in conspicuous places, in all locations where notices to
employees and members are customarily posted, copies of the notices
attached hereto and marked "Appendix A" 4 for Eichleay Corpora-
tion and "Appendi$ B" 5 for the International Union. Copies of the
notices, to be furnished by the Regional Director for the Tenth Re-
gion shall, after being duly signed by authorized officers or agents,
be posted by the Respondents immediately upon receipt thereof and
maintained by the Respondents for sixty (60) consecutive days there-
after. Reasonable steps shall be taken by the Respondents to insure
that said notices are not altered, defaced, or covered by any other ma-
terial.
(b) Notify the Regional Director for the Tenth Region, in writing,
within ten (10) days from the date of this Order, what steps each
Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be, and it hereby is, dis-
missed, insofar as it alleges that the Respondents unlawfully discrim-
inated against John M. Windom.
MEMBER MURDOCK took no part in the consideration of the above
Decision and Order.
4 In the event that this Order is enforced by a decree of a United States Court of Ap-
peals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order
5 See footnote 4, supra.
Appendix A
NOTIOE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL NOT maintain, give effect to, or renew the closed-shop
provision of the April 28, 1952, national agreement or any other
union-security provision with International Brotherhood of
Boilermakers, Iron Ship Builders, Blacksmiths, Forgers & Help-
ers, AFL, except as authorized by the proviso to Section 8 (a) (3)
of the Act.
All our employees are free to become, remain, or to refrain from
becoming or remaining, members of the above-named Union, or any
EICHLEAY CORPORATION 1299
other labor organization, except to the extent that this right may be
affected by an agreement authorized by Section 8 (a) (3) of the Act.
EICHLE AY CORPORATION,
Employer.
Dated---------------- By-------------------------------------
(Representative) (Title)
This notice must remain posted for 60 days after the date of posting,
and must not be altered, defaced, or covered by any other material.
Appendix B
NOTICE TO ALL MEMBERS OF INTERNATIONAL BROTHERHOOD OF BOILER-
MAKERS, IRON SHIP BUILDERS, BLACKSMITHS, FORGERS & HELPERS,
AFL, AND EMPLOYEES OF EICHLEAY CORPORATION
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify you that :
WE WILL NOT maintain, give effect to, or renew the closed-shop
provision of the April 28, 1952, national agreement or any other
union-security provision with Eichleay Corporation, except as
authorized by the proviso to Section 8 (a) (3) of the Act.
INTERNATIONAL BROTHERHOOD OF BOILERMAKERS,
IRON SHIP BUILDERS, BLACKSMITHS, FORGERS
& HELPERS, AFL,
Labor Organization.
Dated-----=------ ---- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days after the date of posting,
and must not be altered, defaced, or covered by any other material.
Intermediate Report
STATEMENT OF THE CASE
Charges having been filed by John M. Windom, a consolidated complaint and
notice of hearing having been issued and served by the General Counsel, and
answers having been filed by the above-named Corporation and Unions, the hearing
involving allegations of unfair labor practices in violation of Section 8 (a) (1) and
(3) and Section 8 (b) (1) (A) and (2) of the Labor Management Relations Act,
1947, herein called the Act, by said Corporation and Unions, herein jointly called
the Respondents, and individually called Respondent Company, Respondent In-
ternational, Respondent District Lodge, and Respondent Local, respectively, was
held before me at Chattanooga, Tennessee.
At the hearing full opportunity to be heard, to examirie and cross-examine wit-
nesses, to introduce evidence pertinent to the issues, to argue orally upon the
record, and to file briefs, proposed findings, and conclusions was afforded all
parties. The General Counsel's motion to conform the pleadings to the proof
in matters not of substance respecting dates and spelling was granted. The Re-
spondents' motions to dismiss the complaint and the General Counsel's motion for
reconsideration of the rulings by the Trial Examiner rejecting various offers of
1300 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
proof, upon which decision was reserved , are disposed of in accordance with this
findings and conclusions herein contained . Briefs have been received from the
General Counsel , the Respondent Company, and the Respondent Unions.
Upon the entire record in the case , and from my observation of the witnesses,
I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT COMPANY
The Respondent Company is a Delaware corporation with its principal office
and place of business at Pittsburgh , Pennsylvania , and a branch office at San
Francisco , California , where it is now and at all times material hereto , has been
continuously engaged in general construction work at various job sites throughout
the United States; and is now and has been at all times material herein engaged
in performing the mechanical installation work in connection with the construction
of a plant for Bowater Southern Paper Company at Calhoun , Tennessee , where the
value of its services has exceeded $500,000. The Respondent Company, in the
course and conduct of its business operations during the past year, which period is
representative of all times material herein , rendered services valued in excess of
$10,000,000 , of which more than 90 percent was received for services rendered
to customers outside the State of Tennessee. During the same period , the Re-
spondent Company purchased materials valued in excess of $1,500,000 , more than
5 percent of which, in value, crossed State boundaries in order to reach the Re-
spondent Company's job sites. The Respondent Company concedes and I find that
it is and at all times material herein has been engaged in commerce within the
meaning of the Act.
II. THE RESPONDENT UNIONS
The Respondent Unions are labor organizations within the meaning of Section
2 (5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRAC[ICES
The complaint alleged and the answers denied that the Respondent Company
and the Respondent International on or about April 28, 1952 , executed a written
collective-bargaining contract, agreeing and providing to employ only members of
Respondent International , 1 that since on or about said date, all the Respondents
have enforced and are enforcing the contract ; that all the Respondents since said
date have required and are requiring, as a condition precedent to employment,
that all applicants for employment obtain approval and clearance from said Re-
spondent Unions; that on or about November 12, 1953, John M . Windom applied
to the Respondent Company for employment and the Respondent Company, pur-
suant to the terms of the collective -bargaining contract, failed and refused to em-
ploy him because he had not obtained approval and clearance for employment from
the Respondent Unions; that the Respondent Unions on or about said date, pur-
suant to the terms of the collective -bargaining contract , caused the Respondent
Company to fail and refuse to employ said Windom ; and since on or about said date,
failed and refused, and do fail and refuse , to grant approval for the Respondent
Company to employ him.
It is not disputed that the Respondent Company and the Respondent Interna-
tional, on April 28, 1952, executed a collective -bargaining contract to be effective
in all places within the boundaries of the United States, its possessions , and the
Dominion of Canada where work is being performed by the Respondent Company.
The contract provided for automatic renewal from year to year unless at least 60
days prior to any anniversary date notice to terminate or amend be given by either
party.2 Up to the time of the hearing , such notice had not been given . The second
paragraph of the contract provided:
The Contractor recognizes the Union as the sole bargaining agent for all of
its construction employees in the performance of all work coming within the
terms of this agreement and agrees to work the hours, pay the wages and abide
I The complaint did not allege the execution of this contract to be an unfair labor prac-
tice Subsequent paragraphs in the complaint alleged only that the enforcement of the
contract violated the Act.
2 Prior to November 1953, the name of the "Union" as appears in the contract was
International Brotherhood of Boilermakers, Iron Ship Builders and Helpers of America ;
',then as a result of the amalgamation with the Blacksmith ' s Union , the correct name of the
party to the contract became International Brotherhood of Boilermakers, Iron Ship Build-
ers, Blacksmiths, Forgers & Helpers, AFL.
EICHLEAY CORPORATION 1301
by the rules and regulations established or agreed upon by the Union, and
agrees to employ only Boilermakers and Boilermaker Helpers in the perform-
ance of the work included within the scope of this agreement, provided, how-
ever, that all of the foregoing shall be subject to the provisions of any and all
existing laws.
The Respondent District Lodge is comprised of three locals, one of which is the
Respondent Local. The purpose of the Respondent District Lodge is to represent
the members of the affiliated locals. A. A. Blevins, secretary-treasurer and business
manager of the Respondent District Lodge, testified that the Respondent District
Lodge receives requests for boilermakers from various companies, including the Re-
spondent Company. The supply of local skilled help is insufficient to meet the de-
mand and workers are recruited from other parts of the country. Blevins testified
that he has supplied both union and nonunion men as the need arose.
In April 1953, the Respondent Company commenced work in the mechanical
installation of a paper mill at Calhoun, Tennessee, but actual building operations did
not begin until approximately the latter part of June 1953. About July 1, 1953,
the Respondent Company brought a nucleus of skilled workers, including boiler-
makers, to work at Calhoun who continued to work thereafter. The Respondent
Company did not seek the permission of the Respondent Unions before putting those
men to work. In September or October 1953, when the Respondent Company was
beginning to work on high-pressure boilers, B. H. Smiley, project manager for the
Respondent Company, had a conversation with Blevins, in which was discussed the
need of the Respondent Company for certain type workers from October 1953 to
approximately March 1, 1954. The Respondent Company sought the assistance of
Blevins in securing such help and Blevins agreed to assist. As men were needed,
the Respondent Company told Blevins that it required so many qualified welders
and boilermakers, stating in detail the type of men it required. Smiley testified that
he had never had any conversation with Blevins that the men supplied had to be
members of the Union or not; that it was never inferred that union membership or
"being right with the union" would be a condition for employment; that Blevins sent
men to the job, some of whom were misfits and were let go; that a letter of introduc-
tion from Blevins was no assurance that a man would get or keep a job; and that
there was one instance where the Respondent Company hired a blacksmith without
knowledge of whether he was union or nonunion when the Respondent Company
needed some tool sharpening and minor blacksmith work. Smiley testified that he
does not believe that Blevins had any knowledge of such hiring. After that work
was done, that employee was assigned to other tool work.
Smiley testified that although he is the top supervisor on the job, Superintendent
David R. Kahl has the duty of determining the number of men who will be needed
from time to time as the job progresses. After Kahl has determined the number of
men to be hired or to be laid off, the foremen have authority to hire. Foreman
Russell McKay testified that after Kahl had decided that boilermakers were needed,
McKay would get them if he knew where to obtain them; otherwise he would ask
the job steward to secure them. McKay further testified that if he knew men per-
sonally who could fill the jobs, he would tell them to come in and go to work; that
he tells the job steward if he does not know where to get available men. He testi-
fied further that he has never personally put in an order with Blevins but after this
proceeding had started has talked to Blevins about some men in the trade asking if
Blevins knew where to locate them in the event the Respondent Company put in an
order for such type of employee.
Blevins testified that he did not know of the existence of the collective-bargaining
contract dated April 28, 1952, until a week or two before the hearing, and further-
more that he did not know there was any contract between the Respondent Com-
pany and the Respondent International. Blevins testified that he receives requests
from various companies for boilermakers and welders and furnishes men pursuant to
such requests; that he does not give the applicants referral slips but does give a let-
ter of introduction which contains the man's name, social-security number, and
whether he is a welder, helper, or boilermaker. He further testified that some letters
contain the applicant's registry number and some letters do not, depending on whether
the applicant is or is not a member of the Union. The letter is signed by Blevins if
he is there, otherwise his secretary types Blevins' name thereon. Blevins testified
that the letter is not given to the employer but is delivered by the applicant to the
job steward. Blevins appointed the job stewards. Blevins testified further that he
has no understanding with the Respondent Company or any other employers in the
area about the use of the letters of introduction which are union forms and not pre-
pared by the Company. The letters of introduction are in triplicate which are given
to the job steward who retains copies for his files and sends the other copy to Blevins.
1302 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Blevins testified that the steward does not turn in a copy to the employer. He testified
that it is customary for the job steward to take employees to the foreman or whoever
does the hiring. He testified further that when sending men to the Respondent Com-
pany he has given letters of introduction to some and to others he did not. At one
point in his testimony, he said he could not recall a case where he did not give a letter
of introduction but later testified that he believed on 1 occasion 3 or 4 men called
him from Nashville and he told them he had nothing for them but that they might
be hired; and he believes that they were hired without letters of introduction from
him.
John M. Windom, called as a witness by General Counsel, testified that having
learned that Russell McKay, with whom he had worked on a job about 10 years
previously, was working as foreman for the Respondent Company, he came from his
home in Dalton, Georgia (about 35 miles away), to Calhoun, Tennessee, to the Re-
spondent Company's office to seek employment as a boilermaker. Windom testi-
fied that he telephoned to McKay from the Company's office and asked McKay,
"what chances there were for going to work," and that McKay replied, "Good, in
fact I am putting orders in down at Chattanooga for 5 men. Why don't you go
down to Mr. Blevins' and see him and get a referral and go to work on the job."
Windom testified that McKay said further, "I would like to have you and if Mr. Blev-
ins will give you a referral up here, I am sending for 5 men up here." When asked
by General Counsel to state exactly what McKay had said about a referral, Windom
testified "He said I would have to have a referral and to go down and get one from
Mr. Blevins, to be down there." On cross-examination, Windom testified that he
did not tell McKay what kind of job he wanted; that he did not tell McKay he was
classified as a mechanic for he presumed that McKay knew that because he had
worked for McKay in 1944 and 1945. Following the conversation with McKay,
Windom then went that same day to the union office, about 40 miles away, to see
Blevins. Upon arrival there he was told that Blevins was not in but would be there
the next day. On the following day, November 13, 1953, Windom returned to the
office and conversed with Blevins. Windom testified that when he arrived at the
office there were 4 or 5 men there with whom Blevins talked and to whom Blevins
gave referrals to different jobs. Windom recognized William L. Mann as one of the
men there and when the others had left and only Windom and Mann remained, Blevins
asked Windom what he wanted. Windom testified that he said he wanted a job to
which Blevins replied, "I have got nothing for you." Windom then said, "I have a
job if you will give me a referral" to which Blevins answered, "I don't put out
referrals, it is against the law." Windom testified that Blevins asked if he had been
working and when Windom answered in the affirmative, Blevins asked, "Did you have
a referral?" and Windom replied, "No"; that Blevins said, "I have got nothing fur-
ther." Thereupon Windom left the office and thereafter did not communicate with
the Respondent Company or with the Respondent Unions.
William L. Mann called as a witness by General Counsel testified that he was pres-
ent during the conversation between Windom and Blevins. He corroborated the testi-
mony of Windom, particularly that Windom had told Blevins that Windom had a
job if Blevins would give him a work order, to which Blevins replied it is against
the law to give out a work order, and that after they had talked a while longer,
Windom then left. Mann testified that he applied to Blevins for work as a welder
and Blevins said he had nothing for him but suggested that he return on Monday and
Blevins would see if he could help him; that he did return on Monday and then
Blevins' secretary told him another man who had been expected could not get there and
that Mann could go in his place. Mann testified that the secretary gave him a letter
of introduction which he presented at the employment office of the Respondent
Company and the clerk there then called the job steward and he began work that
day with the Respondent Company as a welder.
Russell McKay, called as a witness by the Respondent Company, squarely contra-
dicted Windom's testimony that he had asked McKay for a job, and McKay had
referred him to Blevins. McKay testified that at no time during the telephone con-
versation did Windom ask for a job or mention that he was interested in obtaining
employment. McKay testified that the conversation consisted of Windom inquiring
how he was, where he lived, and when McKay told him he was living in a trailer,
Windom asked where the trailer was parked and said he was going to visit McKay.
McKay testified that most of the conversation was trying to convey directions to
Windom by which he might find the trailer; and that Windom observed that he might
have difficulty getting there after dark.
David R. Kahl, called as a witness by the Respondent Company, testified that he is
superintendent of boiler erection, and was sitting from lih to 2 feet from McKay
when the telephone rang during lunch time; that he answered the call and Office
EICHLEAY CORPORATION 1303
Manager Foley asked for McKay, whereupon Kahl handed the telephone to McKay.
Kahl testified that he was present during the entire conversation and heard what
McKay said; that McKay gave detailed directions on how to arrive at the location
of McKay's trailer; and that he did not hear McKay discuss hiring anyone. On
cross-examination by General Counsel, Kahl testified that he heard McKay say, "I will
see you tonight then." Kahl further admitted on cross-examination that he did not
remember specific conversation or details of other telephone conversations (not re-
lated to the case herein) on that day. He further admitted that he heard no
mention of Windom's name in full on the telephone and did not hear McKay men-
tion his name other than by a nickname or "John"; that at the time the charge was
received, shortly after December 28, 1953, Foley asked him if he knew of such
a man and at first Kahl could not think of the name but that "All of a sudden it
struck me, the name Windom, and the noon hour conversation, and Foley said, `I
do not remember the name for sure but it certainly seems like it to me' "; and that
Kahl then checked back and placed the name as being during the noon hour
conversation.
J. J. Foley, called as witness by the Respondent Company, testified that he is
the office manager for the Respondent Company; that Windom asked him if McKay
was on the job and said he would like to talk to McKay. Foley called the shanty
where McKay was and handed the telephone to Windom, who talked on the tele-
phone from 3 to 5 minutes. While Foley was present during the entire time that
Windom talked, he testified that he was working at his desk and not listening in
particular to what Windom was saying. Foley did testify that Windom asked for
the location of McKay's trailer and that he did not hear Windom say anything
about getting a job.
Millard Miller, Jr., and Frank Ackard, called as witnesses by the Respondent
Company, testified they are timekeepers. Their testimony is of no value since
Ackard testified he heard none of the conversation with respect to Windom and
Miller testified that he heard only part of it.
A. A. Blevins, called as a witness by the Respondent Unions, testified that he
has known Windom for several years; that on or about November 13, 1953, Windom
came to his office and said he wanted a referral, but did not mention any particular
job, or where the job was. Blevins testified that he told Windom he did not have
any referrals, that it was against the law to furnish them. Blevins testified further
that at the time he told Windom it was against the law to issue referrals, he did not
have any requests for boilermakers which had not been filled before Windom came
to his office; that he asked Windom if he had been working to which Windom
answered in the affirmative; and that he then asked Windom if he had a referral
and Windom again answered in the affirmative and that he told Windom, "Well,
you don't need one, they are unlawful." Blevins testified that while he had no
requests pending for boilermakers from any employer when Windom came to the
office, he did have some requests for welders. With respect to the employment of
William L. Mann, Blevins testified that he told Mann he did not have anything
for him; but as they continued to talk, it developed that Mann was a welder and
then Blevins told Mann there were some men on their way and if anyone failed to
come that Mann could take his place; that Mann returned on Monday and was
given a letter of introduction to the Respondent Company as a welder because one
of the men who had been expected to report had not arrived.
Conclusions
It is clear from the record that the evidence as to whether Windom applied to
the Respondent Company for a job and was referred to Blevins for approval is
squarely in conflict. Windom has testified that he did and McKay has testified that
he did not ask for a job or intimate that he was interested in obtaining employment.
It is also clear from the testimony of Smiley, the Respondent Company's project
manager, and I so find, that Foreman McKay had the authority to hire help after
Superintendent Kahl had decided how many men Were needed from time to time
as the job progressed. It is impossible to reconcile the conflicting testimony of
Windom and McKay. Windom has no corroboration as to what he said in the
telephone conversation with McKay. Foley, who was present while Windom was
talking to McKay, testified he did not hear Windom ask for a job, although it does
appear from Foley's testimony that he did not pay particular attention to what was
being said since he continued work at his desk while Windom was talking. Kahl
who was present while McKay was talking corroborates McKay, to the extent that
McKay gave directions on how to reach the location of his trailer. Kahl further
1304 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
testified that he was from 11/2 to 2 feet away from McKay and did not hear McKay
say anything during the telephone conversation about a job. The record further
shows that after concluding the telephone conversation , Windom traveled 40 miles
that same afternoon to see Blevins to secure the referral which Windom testified
McKay had said was necessary for him to have . Upon seeing Blevins the next day,
the record shows further that Windom did not mention to Blevins that he had been
promised a job with the Respondent Company subject to the obtaining of a referral
from Blevins. In contrast to the conflicting testimony concerning the Windom-
McKay conversation , there is no substantial difference between the testimony of
Windom and Blevins as to what was said by Windom and Blevins. In substance,
Windom told Blevins he wanted a job. Blevins , who at that time had no unfilled
requests pending for boilermakers , told Windom he had nothing for him. Windom
thereupon informed Blevins that he had a job if Blevins would give him a referral.
But Windom did not say where he had the job or by whom he had been promised
the job. Blevins replied that he did not issue referrals as such were illegal. This
record fails to contain the slightest evidence that Blevins knew or had reason to
know that Windom had been promised a job by the Respondent Company subject
to a referral from Blevins , if such were the case.
On the basis of all the evidence , including the credited testimony of Smiley,
Kahl, McKay , Foley, and Blevins, and upon the entire record, I find that Windom
did not on or about November 12, 1953, apply to Foreman McKay for employ-
ment, or, at any other time , apply to the Respondent Company for eniployment;
and that the Respondent Company did not fail and refuse to employ him because
he had not obtained approval and clearance for employment from the Respondent
Unions. I further find that the Respondent Unions did not on or about said date
cause the Respondent Company to fail and refuse to employ said Windom; and
further find that since on or about said date the Respondent Unions have not tailed
and refused to grant approval for the Respondent Company to employ him.
With respect to the remaining issues that the Respondents since on or about
April 28, 1952 ( the date of the collective-bargaining contract between the Re-
spondent Company and the Respondent International ), have enforced and are en-
forcing the contract ; and that at all times since said date have required and are
requiring that all applicants for employment obtain approval and clearance from
the Respondent Unions, I find there is no evidence in this record in support of
such allegations .3 The undisputed evidence shows that with respect to hiiing prac-
tices , the Respondent Company notified the Respondent District Lodge when it
needed men and requested the Respondent District Lodge to supply employees,
that the Respondent District Lodge supplied both members of the union and non-
members; that the letter of introduction to the job steward was no assurance that
the applicant would get a job or would be retained on the job. A referral system
is not per se improper , absent evidence that the union unlawfully discriminated in
supplying the company with personnel.
Accordingly , upon the basis of all the testimony and the entire record, I shall
recommend that the complaint in its entirety be dismissed.
In arriving at the above findings and conclusions , I have again rejected the
General Counsel 's offers of proof which would tend to prove long-standing ani-
mosity on the part of Blevins towards Windom and thereby to supply the motive
for Blevins ' refusal to give an introduction slip, workorder , referral, or whatever
it may be called , to Windom . If Blevins had withheld his approval or otherwise
caused the Respondent Company to refuse to employ Windom , as alleged in the
complaint , it might perhaps be appropriate to examine Blevins' motives for such
conduct. But where such an act did not occur, as I have found , there is no rea-
son to accept such evidence . Such evidence also could be relevant as going to the
existence of bias or prejudice if there were any question of credibility to be re-
solved concerning Blevins' testimony . But no question of credibility exists be-
tween Blevins and Windom as both agree substantially as to their conversation.
I make no finding that the execution of the collective -bargaining contract, dated
April 28, 1952, violated the Act , since the complaint did not allege its execution
to be an unfair labor practice . The General Counsel for the first time raises in his
brief the issue as to whether or not the contract was an unfair labor practice. The
3 The fact that Mann was hired as a welder ( while Windom was a mechanic ) upon being
given an introduction slip is no evidence of unfair labor practice At the time when Mann
inquired for work he was told by Blevins that he had nothing for him ; but that other
employees were on their way to work and if any one failed to come on 'Monday the follow-
ing Monday , Mann might take that one 's place Mann inquired the next Monday and be-
cause one man failed to arrive , Mann was introduced in his stead
MODERN LINEN & LAUNDRY SERVICE, INC. 1305
rules and regulations of the union referred to in the contract were not litigated
and were not offered in evidence during the hearing. In the Ebasco case,4 the
complaint alleged the execution, maintaining, and enforcement of the identical
clause contained in the second paragraph of the contract herein to be violative of
the Act. There the entire matter was litigated; the Board passed upon the rules
and regulations therein referred to and considered the acts of the parties enforcing
such agreement. Here in the case at bar it has been found that the acts or omis-
sions of the parties, as alleged in the complaint to be unfair labor practices, did
not occur; the rules and regulations of the union referred to were not in the record
and the complaint did not allege the execution of the contract to be an unfair labor
practice. While it has been held that an illegal collective-bargaining agreement
violates the Act during each day it is in existence on the theory of a continuing
tort,5 nevertheless the failure here to allege the execution of the contract as an
unfair labor practice or to litigate the matter, preclude any finding of unfair labor
practice in that regard.
Upon the basis of the foregoing findings of fact, and on the entire record in
this proceding, I make the following:
CONCLUSIONS OF LAW
1. The Respondent Company, Eichleay Corporation, is engaged in commerce
within the meaning of Section 2 (6) and (7) of the Act.
2. The Respondent Corporation, Eichleay Corporation, has not engaged in any
unfair labor practices within the meaning of Section 8 (a) (1) and (3) of the Act.
3. The Respondent Unions, International Brotherhood of Boilermakers, Iron
Ship Builders, Blacksmiths, Forgers & Helpers, AFL; District Lodge 57 and Local
679, International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths,
Forgers & Helpers, AFL, are labor organizations within the meaning of Section 2 (5)
of the Act.
4. The Respondent Unions, International Brotherhood of Boilermakers, Iron
Ship Builders, Blacksmiths, Forgers & Helpers, AFL; District Lodge 57 and Local
679, International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths,
Forgers & Helpers, AFL, have not engaged in unfair labor practices within the
meaning of Section 8 (b) (1) (A) and (b) (2) of the Act.
[Recommendations omitted from publication. I
4 107 NLRB 617.
5 N. L. F. B. V. F. H. McGraw & Co., 206 F. 2d 635 (C. A. 6).
MODERN LINEN & LAUNDRY SERVICE, INC. and EUGEN PEDERSEN.
Case No. 1-CA-1648. December 10, 1954
Decision and Order
On July 8, 1954 , Trial Examiner Arthur E. Reyman, issued his
Intermediate Report in the above -entitled proceeding , finding that
Respondent had engaged in and was engaging in certain unfair labor
practices , and recommending that it cease and desist therefrom and
take certain affirmative action. Thereafter the Respondent filed
exceptions and a supporting brief.
The Board has reviewed the rulings of the Trial Examiner at the
hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has also considered the Inter-
mediate Report, the exceptions and brief , and the entire record in
the case.
110 NLRB No. 201.